In 2011 the government launched a consultation to review the health and safety legislation which produced section 69 of the Enterprise and Regulatory Reform Act 2013. This section came into force on 1st October 2013 and it will affect any claim where the breach occurs on or after that date.
Prior to 1st October 2013, section 47(2) Health and Safety at Work etc Act 1974 conferred a civil right of action unless the Regulations expressly provided otherwise. However, section 69 amends section 47 and reverses the position. It provides that there should be no civil right of action for breach of duty imposed by certain health and safety legislation unless such a right is specifically provided for. In effect, section 69 abolishes civil liability unless a Claimant makes allegations provided for by health and safety Regulations.
The Claimant’s burden of proof is increased by section 69, as a Claimant will now have to rely upon common law duties such as the duty to provide a safe place of work and safe system of work. A Claimant must prove that the employer has breached its duty of care towards them. The common law test for negligence is that of ‘the reasonable and prudent employer’ and a Claimant will be required to prove that their employer did not ensure the safety of its employees in light of what he knows or ought to know. However, the government has amended The Management of Health and Safety at Work Regulations 1999 to provide a specific exemption to the section 69 changes. The Regulations will allow new mothers and pregnant workers to bring a civil claim for breach of those Regulations which impose specific duties on employers in relation to such employees.
There are also potential exceptions to the changes imposed by section 69 notably that individuals employed by ‘emanations of the state’, such as local authorities and government departments, may be able to rely upon specific EU Directives to bring claims directly against their employers for breach of EU Directives. Whilst section 69 prevents a Claimant from relying on domestic regulations, it may not prevent them from relying upon the Directive from which domestic regulations stem. Unfortunately, this exception will not be available to private sector employees and in reality allows public sector employees to sue their employer under the strict liability provisions provided by EU Directives.
The government implemented these changes to remove the perceived ‘unfairness’ of imposing strict liability on employers, making them legally responsible to pay compensation despite having done all that was reasonable to protect their employees. The changes seek to make it more difficult for Claimants to prove their claim and easier for employers to defend claims. However, the impact of section 69 and the 2013 Act on both employers and employees is yet to be seen and it is likely that Claimants will continue to refer to strict liability provisions within pre 1st October 2013 health and safety regulations, and employers should continue to adher to those provisions.