The House of Lords has voted against the Government’s plans to remove civil liability from breaches of duty imposed by health and safety regulations – but only by a very slim majority.
The Government clause to amend the HSWA 1974 – contained within the wide-ranging Enterprise and Regulatory Reform Bill – has been hugely controversial, with many of those opposing the change arguing it would take the law on workplace health and safety back to Victorian times and impose an unfair evidential burden on injured employees to prove negligence on the part of their employer.
The Government insists, however, that strict liability is unfair on employers, who can be found liable to pay damages to an employee, despite having taken all reasonable steps to protect them.
Although Prof Ragnar Löfstedt, in his 2011 review of health and safety, recommended a review of strict liability rules, with a view to potentially restricting the number of situations in which the principle would apply, he recently expressed concern that the approach the Government was taking was “more far-reaching than I anticipated in my recommendation”.
During the House of Lords debate on 6 March, former health and safety minister Lord McKenzie of Luton introduced an amendment aimed at defeating the Government’s clause.
Accusing the Government of pandering to myths and perceptions about an apparent compensation culture, he said: “Noble Lords will be aware that claims for compensation relating to employer liability have to be registered with the Compensation Recovery Unit. This shows that the number of successful claims has declined year on year over the past three years.
“The Government seeks to ‘pray in aid’ the perception of a compensation culture, and anecdotal evidence that the threat of being sued is putting employers off recruiting.”
He added the beneficiaries of the change would be providers of employers’ liability insurance and argued that good employers who take health and safety responsibilities seriously could see their position undercut “by those who will take advantage of what they see as an erosion of our health and safety culture”.
Citing the Association of Personal Injury Lawyers, Lord Wigley said the Government’s clause would be “highly advantageous to negligent employers, who, of course, control the workplace and equipment, and are far more familiar with the workings of the business”.
Supporting the Government’s clause, Viscount Younger of Leckie suggested that employees are in a much better position today to obtain information about their employer’s actions than they were when the right to sue for breach of statutory duty was first established in the 19th century.
He suggested that, regardless of whether there is a compensation culture or not, the perception that one exists is causing businesses to over-implement and go beyond what the law requires.
“Over-implementation does not lead, therefore, to better protection of employees,” he told the House. “It means that employers are spending significant time and effort on activities that are not necessary, or far in excess of legal requirements, resulting in significant, additional, unnecessary costs.”
He stressed: “This measure is not about reducing the number of claims, or reducing standards of protection. It is about establishing the principle that employers who have done nothing wrong should have the opportunity to defend themselves on the basis of having taken all reasonable precautions.
“We believe this is an important and necessary reassurance for employers, which will help them manage health and safety risks in a sensible and proportionate way, while giving them confidence to develop their businesses into new areas and take on new employees.”
The amendment to preserve the current rules on civil liability received 225 votes in favour versus 223 against.
Viscount Younger of Leckie suggested that employees are in a much better position today to obtain information about their employer’s actions than they were when the right to sue for breach of statutory duty was first established in the 19th century.
Is he suggesting that information obtained, that implicates the employer is somehow unjust, and should be inadmissable as evidence, because, in years gone by, Joe Blog`s would not have had this advantage?