Amendment to HSWA
Briefing to Affiliates - November 2012
As part of his review into health and safety regulation, Professor Löfstedt considered the role of health and safety law in the civil justice system. His report claimed that the belief of employers in a ‘compensation culture’ has an impact in driving over-compliance with health and safety regulations.
One of the concerns raised was where health and safety regulations impose a strict liability on employers, making them legally responsible for the damage and loss caused by their acts and omissions if they are found to be in breach of the regulations. Civil claims for personal injury can be brought by two routes, common law duty of care, in which negligence has to be proved, and/or breach of statutory duty in which failure to meet the particular legal standard alleged to have been breached has to be proved. The Lofstedt report outlined one case and gave details of another two in the annexes which it said were unfair to employers. In fact two of these were not actually strict liability cases.
In its response to the Löfstedt Report the Government said that there was unfairness resulting from situations where strict liability duties exist and committed to look at ways to change the law to “redress the balance”.
They have now introduced a clause to amend section 47 HSWA as an amendment to the Enterprise and Regulatory Reform Bill at the Report Stage. In fact this amendment goes beyond the issue of strict liability and would apply more widely to civil cases involving breaches of workplace regulations.This was introduced on 16 October 2012 with no consultation and at the end of the Commons debate on the Bill as a whole. The Third Reading of the Bill took place on 17 October and it now being considered by the House of Lords. The TUC strongly opposes the amendment.
“In a report on how the Government was implementing the findings of his review which was published in February 2013, Professor Lofstedt highlighted the fact that the Government had gone much further than he proposed. His report said “My understanding is that the proposed amendment to the Health and Safety at Work Act reverses the current position on civil liability. This means that, unless exceptions apply, claims for compensation in relation to breaches of health and safety legislation will need to prove that the employer has been negligent. The approach being taken is more far-reaching than I anticipated in my recommendation.”
Health and safety regulation has always contained a balance between different types of obligation, including a majority which are qualified by reasonable practicability but including some that are strict. This balance has existed since the Factories Act 1937 and had been considered to represent a fair balance.
The short section of the Lofstedt review dealing with strict liability contains no arguments but it was assumed by Lofstedt that it is unfair to impose liability on an employer who was not able to prevent the accident even by the exercise of reasonable care. There is no consideration of the unfairness to the employee if he or she cannot recover compensation in circumstances where the employee is entirely blameless and is doing no more than using, properly, a piece of equipment provided for him by the employer. Removing strict liability does nothing to remove unfairness, it merely moves it somewhere else.
The Lofstedt review suggests that it is not clear that the outcomes of the three cases it lists are what the Government intended. However, in enacting the regulations, Parliament used wording which has been in use in health and safety regulation since at least 1937. It is therefore unclear why it is suggested that the outcome was not intended.
The Lofstedt review also asks whether it is reasonable for employers to have to pay compensation when an employer is injured where there is a strict liability (that is where there is no defence of “reasonably practical”). The TUC believes that where an employee goes to work and uses work equipment provided to them by their employer, if they are injured because it is faulty – even if the employer was unaware of that - it seems unreasonable to expect that loss to fall on the injured employee rather than the employer. After all it is the employer who supplied the equipment and controls how it should be used. Regardless of fault it is, therefore, the employer and not the employee who creates the risk. But even if only a limited number of cases are affected every year, that does not remove the injustice of the proposal.
Strict liability is imposed in a very narrow set of specific circumstances as almost all regulation made since 1974 has not had strict liability included. However, although “reasonable practicability” has been the main driver for health and safety regulation, regulation has always contained a balance between different approaches to liability.
In fact there are very few cases where compensation cases are taken on the basis of strict liability which is why the Lofstedt report had difficulty in identifying any. It also explains why the Government has introduced an amendment that goes beyond strict liability and would, as it stands, apply to civil cases involving breaches of statutory duty under workplace regulations.
Most claims are currently brought in respect of both breach of statutory duty and negligence. If the possibility of bringing a claim for breach of statutory duty is removed and only a claim for negligence is available most claims would continue to be brought in respect of negligence. However such cases will then be more difficult, complex to pursue so that they may l no longer be able to be taken and this will result in workers, or their dependants losing out on compensation causing further injustice.
It is difficult to say what regulations the amendment will apply to, as the amendment allows the Secretary of State to determine that. The proposed amendment will also cover Wales and Scotland, despite Scotland having its own compensation system. However, there are some areas where legislative competence is not devolved (such as fire precautions, and special provisions for the way the powers can be used in Wales and Scotland are included in the amendment to take account of this.
The Lofstedt review is at http://www.dwp.gov.uk/docs/lofstedt-report.pdf Strict Liability is dealt with on pages 91 and 92.
There is an impact assessment on the overall principle at
http://www.bis.gov.uk/assets/biscore/corporate/docs/s/12-1219-strict-liability-health-safety-at-work-impact This claims that the changes will have no financial impact at all.
Briefing document (1,100 words) issued 29 Oct 2012
This page http://www.tuc.org.uk/workplace/tuc-21579-f0.cfm
printed 19 May 2013 at 23:45 hrs by 220.127.116.11