The Government appears to have won the battle to overhaul the law that makes employers liable to pay compensation to injured employees if they have breached statutory health and safety duties.
The House of Lords, which originally threw out the Government’s proposal, voted on Monday (22 April) to repeal the law, after the amendment was reintroduced in the House of Commons last week.
The amendment to the wide-ranging Enterprise and Regulatory Reform Bill is one of a number of Government reforms aimed at addressing the perception of a compensation culture and employers’ fear of being sued that this is said to generate.
Introducing a motion in favour of the Commons’ amendment, Viscount Younger of Leckie said this fear “drives employers to overimplement the law, incurring unnecessary costs, and that undermines their confidence to grow and develop their businesses”.
He reiterated the Government’s position that “it is not reasonable or fair that employers should be held liable to pay compensation when they have done nothing wrong and taken all reasonable steps to protect their employees”, and stressed that the reform “does not undermine core health and safety standards”.
Lord Hardie introduced a counter-motion, in support of retaining the existing law, on three key grounds. Firstly, he suggested that the Commons had failed to address the Lords’ original concerns regarding the consequences of this change in the law.
Secondly, he said the effect of the law’s repeal would be to deprive some people of any remedy of injury caused to them, or their deceased relatives, with the financial burden transferred from insurance companies and on to “widowers, children, the permanently disabled and the state”.
Finally, he argued that it is not correct to categorise a breach of a statutory duty as “doing nothing wrong” and that the majority of health and safety regulations present the employer with the opportunity to defend himself, and thereby avoid, liability to pay damages, by showing that he took all reasonably practicable steps to comply with regulations.
He added that the perception of a compensation culture is misguided and that the correct solution “is to dispel such a perception by information and education about the reality of the situation, not to give effect to it by removing people’s rights”.
In response to Lord Faulks’ assertion that employers should not be overburdened with unnecessary and elaborate bureaucracy, which he described as “the enemy of enterprise”, Lord McKenzie of Luton pointed out that undercompliance also exists.
Said the former safety minister: “This undercompliance has been made worse by restrictions on funding, by limiting the regulator’s role in proactive workplace inspections, and by the portrayal of health and safety as red tape and its undermining by myths that bear no relation to reality.”
Speaking after the debate, Tom Jones, head of policy and public affairs at Thompsons solicitors, said: “This amendment, which was originally defeated in the House of Lords, will reverse the decline in deaths and major injuries in the UK, with all its social and economic ramifications. This is a green light to employers to sidestep regulations specifically created to protect the health and safety of workers.”
Terry Woolmer, head of health and safety policy at EEF, said the manufacturers’ body believes the Government should continue to consider reforming health and safety regulations, which impose strict liability, where it is possible to qualify it with the term ‘reasonably practicable’.
“Businesses are equally concerned about strict liabilities under criminal law, not just civil law,” he added. “While we recognise the difficulties associated with absolute requirements imposed by European Directives, there is an opportunity to update and simplify existing health and safety legislation, which is currently being reviewed anyway.”
The two Houses are currently engaged in a procedure of parliamentary ping-pong, as they discuss several other amendments to the Enterprise and Regulatory Reform Bill. On completion of these discussions, the Bill is then expected to move to Royal Assent.
The government is clearly continuing in its crusade to deconstruct all the hard work of improving safety in the workplace. This latest decision to not punish employers for letting bad practice and non compliances with legislation happen is ludicrous. Employees are being put at increasing risk with rash decisions that are being made by the Government. It is not about employers saving costs, it is about everyone going home at the end of the day in the same condition that they arrived at work.
fear “drives employers to overimplement the law,
Surely this is the reason for a better understanding of what is required and not the reversal, of throwing it out because it is missunderstood?
So we will now have less persuasion to promote industry to adopt best practice.
The reduction in HSE intervention aligned with this reversal of law sends out the wrong message, incidents of O/H desease and injury are unlikely to be reversed by this approach?
Which ultimately costs us all?
The Government should hang it’s head in shame. Big Society, what a load of claptrap. The Strict Liability was introduced to gain redress from negligent employers, does this government believe the change will help? it will only allow many more to thumb their noses at poorly treated employees.
I hate the Government’s constant vitriol towards H&S. However I really don’t understand why removing the strict liability is the wrong thing to do? Surely if an employer is negligent and has not taken all reasonably practicable steps to control risks they will still be liable? Am I missing something?