The Enterprise and Regulatory Reform Act 2013: good news for the public sector?
Balancing the burden of health and safety legislation, whilst maintaining progress in health and safety outcomes is an ongoing challenge for the all businesses and the public sector is no exception. Section 69 of The Enterprise and Regulatory Reform Act 2013 (“the ERRA”) sought to address this balance. Now in force for over a year, Sue Howes and Paul Donnelly take a look at the ERRA’s aims and impact on the public sector.
The ERRA aimed to level the playing field and bring the liability of employers back into a fault based system. Previously, employers could be held liable to pay compensation to employees injured at work, even where there was nothing they could have done to prevent the injury and where all reasonable steps had been taken (i.e. a strict liability), or if they could not prove they had done everything reasonable to avoid breaching certain health and safety regulations.
What did ERRA do?
The most fundamental section of the ERRA concerned the removal of civil liability of employers - section 69 of the Act reversed the presumption in section 47 of the Health and Safety at Work Act 1974, so that breach of a duty imposed by health and safety legislation will no longer give rise to civil liability.
For accidents that have occurred after 1 October 2013 employees will now have to prove negligence on the part of the employer, except in very limited circumstances. The one exception at present relates to pregnant workers and new mothers. In addition the Employer’s Liability (Defective Equipment) Act 1969 has found a new lease of life, although to succeed under this Act a claimant must prove negligence against a third party in order to succeed against the employer, who would usually then have a claim for contribution/indemnity from that third party.
At common law the standard of care to be affixed to an employer is that of “a reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knows or ought to know”. (Stokes v GKN (Bolts and Nuts) Ltd  1 WLR 1776).
In short the claimant will have to show:
A duty of care is owed (which it almost always will be in an employment situation).
The defendant has breached that duty by reference to the standards of the time.
The conduct of the defendant has caused the claimant harm and/or loss.
We are now over a year on and cases involving accidents post 1 October 2013 are beginning to trickle through. In the coming months we will see how the court interprets the changes.
Evidence of breach of health and safety regulations remains a key evidential issue but such breaches alone are now insufficient to immediately trigger civil liability, subject to causation.
During a Parliamentary debate on the Bill Lord Faulks, stated:
A breach of regulation will be regarded as strong prima facie evidence of negligence. Judges will need some persuasion that the departure from a specific and well-targeted regulation does not give rise to a claim in negligence.”
As such it is unlikely that APIL’s description of s.69 of the ERRA as ‘a charter for rogue bosses’ will become a reality. The cases of an employer being found to have breached a ‘reasonable practicability’ regulation but not to have been negligent will be few and far between. However, the ERRA may create such situations not only because of the slightly (but crucial) difference in legal analysis between the two types of duty, but also because the burden of proof will now remain on the claimant. Previously where the concept of ‘reasonable practicability’ was relevant the burden reversed onto an employer to show that it had done everything reasonably practicable to avoid breaching a regulation.
The greater change will be the so called strict liability regulations – where previously an employer would be liable even though they could show that they did everything which could reasonably be asked of them. It is these cases where once liability would rest on the employer in which we will see the greatest impact.
Only time will tell if we see a material change on the ground. The cases for accidents after 1 October 2013 are just now starting to trickle through.
Criminal liability is maintained and so health and safety in the workplace is just as important as it always was.
There has been an attempt to level the playing field although public sector organisations will still face the argument that they are directly caught by the Directives.
In Scotland, MSP Richard Baker has launched a consultation as a first step to a Member’s Bill in the Scottish Parliament to remove the effect of the section in Scotland.
If you require advice concerning health and safety issues or the potential impact of the ERRA, please get in touch with our team of specialists at DWF. For further information please contact:
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.