Tuesday 1 October 2013 saw the biggest change to employers’ liability in the United Kingdom for over twenty years when s.69 of the Enterprise and Regulatory Reform Act (ʺERRAʺ) 2013 came into force.

In the 2011 “Reclaiming health and safety for all” report published by Professor Löfstedt, the Government was urged to consider the matter of strict liability, a legal principle under which an employer could be found liable to pay damages in respect of an accident notwithstanding the fact that he/she had taken all reasonable steps to protect the employee.

The Government obliged and Section 69 ERRA has now removed the doctrine of strict liability for employers from all health and safety regulations which are silent as to civil liability. These include some of the regulations with which UK health and safety practitioners will be most familiar such as the Provision and Use of Work Equipment Regulations (ʺPUWERʺ) 1998 and the Workplace (Health, Safety and Welfare) Regulations 1992.

The change shifts the burden of proof to claimants who must now, for all incidents that occur on or after 1 October 2013, prove their case in common law negligence in order to be successful.

Position pre and post-1 October 2013

Prior to its amendment by s.69 ERRA, s.47(2) of the Health and Safety at Work etc Act (ʺHSWAʺ) 1974 provided that any breaches of health and safety legislation conferred on the claimant a civil right of action unless the legislation stated otherwise.

This statutory presumption meant that claimants did not need to show that their employer was negligent but could bring a claim based entirely on breach of statutory duty.

For example regulation 6 of PUWER stipulates that all employers must maintain work equipment in “an efficient state, efficient working order and good repair”. Under the old regime this meant that a defendant was liable for an injury caused by a defective bicycle, regardless of the fact that even a rigorous inspection regime would not have revealed any defects (Stark v Post Office [2000] PIQR 105).

However now, the claimant in Stark would most likely be unsuccessful due to the fact that this presumption has been reversed and the employer would be able to evidence a robust inspection regime. As such, unless health and safety regulations specifically mention civil liability, claimants must prove that their employer has failed the test of common law negligence, i.e. that of the “reasonable and prudent employer, taking positive thought for the safety of his workers in light of what he knows or ought to know” (Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1WLR 1776, at 1783).

In addition, those regulations which incorporate a defence of ‘reasonable practicability’ (e.g. ss. 3 & 6 HSWA) have seen a shift of the burden of proof from the employer/defendant to the employee/claimant who now has the job of demonstrating that his/her employer failed to take reasonably practicable steps as opposed to the other way round pre-ERRA.

Potential impact

The genesis of these changes is the ever-increasing focus by the Government on reducing the prevalence of the perceived “compensation culture” in the United Kingdom as well as limiting the amount of bureaucracy, or “red tape”, which many say are hindering businesses. It seems fairly clear that the biggest change we are likely to see is a reduction in the amount of successful claims which perhaps would have been successful under the old regime.

Having said that, many commentators have proposed that the reforms are a step too far, suggesting that standards of workplace safety in the UK will inevitably fall as a result of employers becoming complacent against the backdrop of an employer friendly regulatory framework.

It has also been mooted that findings of contributory negligence will be more common, symptomatic of a regime which no longer entertains an emphasis on the primary fault of the employer.

Going forward

It will be a while before the true impact of the changes implemented by ERRA is apparent. A transitional period is inevitable given that any accidents which occurred prior to 1 October 2013 will be covered by the old regime. Equally, ERRA will not affect (for a long time yet) ‘long-tail’ cases such as Hand Arm Vibration Syndrome (HAVS), deafness or asbestosis, or those with lengthy latency periods such as lung cancer or mesothelioma.

The suggestion that health and safety standards are likely to fall may be a little over emphasized, due mainly to the fact that employers’ insurers will most probably raise premiums should standards fall too sharply. Similarly old habits die hard, and although an overall drop in the number of claims seems inevitable, any reduction is unlikely to be substantial; what we can expect is an increase in the number of claims which are fought, with employers feeling more able to defend their position on liability in the absence of strict liability.

Either way the courts now have a job on their hands, and at least a handful of landmark cases are necessary in order to clarify the extent of employers’ common law obligations following twenty years of judicial acquiescence thanks to the statutory presumption of breach of duty. Time to revert to the old case law?