Injury compensation: A triumph of ideology over justice
Yesterday the Enterprise and Regulatory Reform Bill received Royal Assent. This bill (now an Act) contains a number of off-the-wall proposals but one of the worst is the change to the ability of workers to claim compensation if they are injured.
At the moment you can claim compensation if you are injured because the employer has broken the law. Basically if you are injured because an employer has not guarded a machine that the law says should be guarded, you are entitled to compensation. Well not any more. Now you have to show negligence. It is a bit like if a burglar enters your home to burgle you, and when they are nicking your TV they knock over a valuable vase and the insurer demands that you prove that the burglar was negligent in knocking over the vase.
In one simple swoop they have reversed a hundred and fifty years of law, and the only reason? Because they want to remove the rights of workers to claim compensation. This is nothing about fairness or justice. It is about bare, raw political ideology from the anti-worker pro-business Tory hawks.
Now if you read the press or listen to politicians (of all parties), there is near unanimity that compensation claims are out of control and need to be reined in. This is rubbish. In fact compensation claims by workers have been falling for over 15 years and are usually considered to be lower than in most other industrialised countries. A TUC report a few years ago showed that only about 1 in 8 workers who is likely to be liable for compensation actually claimed.
Also compensation claims help drive improvements to safety. If employers and insurers are forced to pay out after an injury or illness they are more likely to try to prevent it happening again. In fact given the collapse of health and safety inspections under this government, compensation claims and unions are virtually the only drivers of health and safety in this country.
The Government claims that they have changed the law because it was recommended by the Lofstedt report into health and safety regulation. This is a bare-faced lie and Professor Lofstedt has made it clear that this is not what he recommended. In fact he recommended that the government look at the fairness of a small number of cases where employers were liable for compensation where there was no fault because the regulations imposed a strict liability. While the TUC did not believe that this created a problem and it was only fair that workers should receive compensation if they are injured because of someone else’s actions, this was a very different proposal from the one that the Government introduced.
Without any consultation they introduced this wide-ranging proposal on the last day of the Bill’s discussion in the House of Commons and without any warning or consultation. When the Lords reversed it the Government simply put it back in, and finally, this week the Lords backed down in a vote which took place in a half empty chamber at 11:15 at night.
It is worth reading the transcriptions of the debates. The government did not even bother trying to answer the points raised by the opposition. They simply trotted out the usual drivel about “compensation culture” “burdens” and continued to insist that this was what Lofstedt had recommended. I think the most disgraceful comment came from the Minister who insisted that the proposal “is about establishing the principle that an employer who has done nothing wrong should have the opportunity to defend themselves on the basis of having taken all reasonable precautions”. This is completely untrue. It is about protecting law-breakers. In the past, no-one could be successfully sued under the civil liability provisions unless they had broken the law and it is that which is being taken away. These criminals are now being portrayed as “employers who have done nothing wrong”.
It is clear to anyone who reads the debate that the opposition (especially the points made by the former health and safety minister Lord McKenzie) had all the arguments and the government did not even really bother to put up the appearance of a fight. They knew they had the numbers and would win anyway, and as expected the Tory Peers traipsed through the lobby alongside the Lib Dems, who gave another insightful display of the progressive influence they are having on the policies of the Tories by backing them to the hilt.
The bill may now be law but that is not the end of things. Unions will continue to support workers and to take compensation claims and are likely to challenge this ridiculous and reactionary law by taking a complaint to Europe on the grounds that workers are being denied any recourse to compensation when they are injured because an employer has committed a criminal act. This battle may have been lost but the fight goes on.