Compensation rights: Yet another attack on injured workers
Tomorrow the House of Lords is to vote on one of the most important attacks on workers rights to compensation for many years. Last year the government sneaked in a new clause to a Bill called the Enterprise and Regulatory Reform Bill. It did it with no consultation and on the last day before the Bill left the House of Commons. The new clause seeks to amend the Health and Safety at Work Act 1974 by removing the existing right to compensation where an employer breaks health and safety law. Instead the worker will also have to show negligence, moving the burden of proof to the injured worker.
The Government claims that it is implementing a recommendation contained in the review of health and safety regulation by Professor Ragnar Lofstedt. Yet, only last month, 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.”
Professor Lofstedt had simply recommended that regulatory provisions that impose strict, (not civil), liability should be reviewed by June 2013. He took the view that regulations should be qualified with “reasonably practicable” where strict liability is not absolutely necessary or amended to prevent civil liability from attaching to a breach of those provisions. He did not recommend a blanket removal of strict liability from health and safety law. The review that he recommended does not seem to have been conducted beyond a simple impact assessment by officials and there was no consultation on the proposals before they were introduced in the amendment.
Without being able to reply on the law that if a employer breaks the law they should be liable for any injury or illness that results from the breach, the injured person would be obliged to rely only on the law of negligence to claim compensation. In some cases this is difficult to prove. The result of this is that far fewer workers will be able to gain compensation, even after their employer has broken the law. This moves the cost of any accidents from the employer to the worker.
The amendment will not change the fact that the employer will have broken the criminal law. They will still be liable to prosecution in the court. All that changes is that the victim will now be denied the right to compensation.
Since 1898 the law on claiming compensation for workplace injury, where the employer has breached their statutory duty, has been very clear. This change will not only put the clock back over a hundred years, it will create considerable legal uncertainty.
Clearly we are very concerned about the effect that this amendment will have on the ability of employees to claim compensation after an injury. But the Bill will also have a negative effect on preventing injuries in the workplace as compensation claims have always helped to drive forward improvements to help ensure that such incidents are not repeated.
So if you know any friendly (or even unfriendly) Peers then get an email off to them today…