Lords protect workers' rights

The government’s attack on workers’ rights comes from a proposed amendment to the Health and Safety at Work Act 1974 set out in the Enterprise and Regulatory Reform Bill currently passing through parliament. Section 47 (2) of the Health and Safety at Work Act 1974 as it stands entitles individuals to take legal action where their employers have breached health and safety regulations. The controversial section 62 inserted without consultation into the Enterprise and Regulatory Reform Bill on 16 October 2012 proposes to remove that right.

While workers would still be able to bring a claim in negligence, the proposed changes would potentially disadvantage tens of thousands of employees each year who will find access to justice more difficult and expensive.

The further concern is that those who are unable to achieve compensation from their employer will become reliant on state benefits for their maintenance and care. Tax payers and workers are therefore likely to lose out with the companies providing the compulsory employer’s liability insurance being the real winners.

In introducing the amendment, the government has focused on the strict liability imposed by certain regulations as being unfair because an employer could be found liable to pay damages to an employee, despite having taken all reasonable steps to protect them. However, as Lord McKenzie of Luton pointed out: “That does not give fair recognition to the fact that strict liability applies in very limited circumstances and where injured employees would otherwise face a near impossible evidential burden.” Of course, it is the employers who control the workplace and equipment, and are more familiar with the workings of the business. Employees or their families are at a manifest disadvantage in gathering evidence against the employer. This is particularly so where the injured person cannot give evidence about what happened, because they were rendered unconscious or killed as a result of the accident.

Critics of section 62 further fear that the changes will simply prolong claims and make them more complex. Those championing the worker’s cause will inevitably try to argue that the current regulations still remain relevant in showing what a careful employer should reasonably be expected to do. A further issue will be whether these reforms will leave the law incompatible with the UK’s obligations under European Union law. Both issues will unavoidably lead to complicated legal argument. As Lord Browne of Ladyton observed “It will require the considerable expense and uncertainty of litigation for both employer and employee – these are expensive matters for both of them – at a time when legal aid is being reduced.”

The government’s justification for interfering with our current health and safety system is based on the independent report of Professor Löfstedt ‘Reclaiming Health and Safety for All’, who recommends a review of the strict liability provisions. However, no review has been undertaken before seeking to introduce the proposed change, which would set the clock back 150 years in terms of health and safety.

On 6 March the House of Lords approved an amendment to section 62 of the Enterprise and Regulatory Reform Bill that would preserve a worker’s right of action under the regulations. The bill however is still only at report stage. The amendment has yet to survive a third reading in the House of Lords and approval by the House of Commons – which is by no means certain. However in opposing the government’s proposals the Lords have sent a message to the government that they should not attempt to interfere with established procedures which have served people well and are respected.

As Lord McKenzie of Luton put it: “We should be proud of the health and safety system that we have in the UK but, however good it is, we know that there are still deaths and accidents at work and that many still die each year by diseases caused by prior working conditions. Compensation for them, or for their families, is not some bonus or reward.”