Tuesday, 2 July 2013

Section 69 of the Enterprise and Regulatory Reform Act is bad law

The Enterprise and Regulatory Reform Bill received Royal Assent on 25 April 2013, making it the Enterprise and Regulatory Reform Act 2013. The Act's purposes are many and various, spanning copyright, payments to company directors and employment law, to name but a few. Buried in its small print, however, is a provision that is causing a great deal concern among personal injury and human rights lawyers.

Section 61 of the Act was inserted at report stage - in other words, at the eleventh hour. It has become section 69, and purports to do away with a long-standing principle of British law, enshrined in section 47 of the Health and Safety at Work Act 1974. This contains a presumption that regulations made under the Act (in effect all health and safety regulations) carry civil liability for breach, unless expressly excluded.

The end of strict liability

Section 69 will reverse this presumption.

Earlier this year, on 6 March, the House of Lords debated the inclusion and effect of section 69, as it now is, in the statute. The lords ultimately voted to remove the clause by a very tight majority of 225-223. Despite this, on 16 April members of parliament chose to reject the lords' amendment to the bill by a majority of 286-259.

This makes for a seismic change. It marks the end of strict liability for employers when accidents at work occur, overturning over a century of settled law. Way back in 1898, the landmark decision in Groves v Lord Wimborne established the principle that legislation protecting safety in the workplace gives rise to an action for breach of statutory duty. The Enterprise and Regulatory Reform Act endeavours to throw this sensible and eminently fair principle out of the window.

To add to the confusion, it is proposed to exempt pregnant women from the effect of section 69: the Health and Safety Executive is consulting on this idea at present. Any such exclusion would surely be discriminatory, and just goes to show how poorly conceived this legislation is.

Bad law

It is interesting to note the drivers for section 69. Yet again, we find that spin about the mythological 'compensation culture' is at its heart. In 2010, when David Cameron became prime minister, he declared his intention to rid businesses of red tape. A picture was painted of employers being unable to get on with making a profit because of onerous health and safety legislation and a supposedly crippling number of bogus claims for accidents at work.

The statistics tell us otherwise, and the spin continues with the deliberate skewing of a report by Professor Ragnar Löfstedt, itself commissioned by the government. Professor Löfstedt recommended that regulatory provisions imposing strict liability should be reviewed and either 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. In section 69, the government goes much further than Professor Löfstedt recommended – and has the cheek to proclaim that it is implementing his proposals.

Section 69 is a very bad piece of law. It loads the dice against individuals who are unfortunate enough to be injured at work, meaning that they will have to prove negligence. In today's world of complex machinery, this will be costly and difficult; indeed, the costs of proving a claim may not, under new court rules, be proportionate to the nature of the injury. Claims may not even get off first base: the effect is to strip workers of their rights and the comfort that if something goes wrong at work, at least they will be compensated.

Vested interests

There is another knock-on effect of section 69. The government doubtless thinks that it will be good for business, but the opposite is true. It can only have a negative effect on employer-employee relations. Moreover, as Baroness Ford put it on 14 November last year:

"I have never enjoyed myself as much as when I set up my own businesses. But I never got up in the morning wondering how to get around the health and safety regime, wishing that employment law was weak, looking to dilute people's human rights, or thinking that all my Christmases would come if only the competition authorities were reorganised. I do not believe for one minute I was unusual in that. Do the Government really think that this Bill will make one iota of difference to the small business economy?"

Lastly, it is worth remembering that since 1972 employers have been compelled to insure against liability for injuries caused at work. Section 69 has crept onto the statute books, effectively eroding employees' workplace rights and entitlement to claim for injuries which are not their fault, at a time when a number of MPs have shareholdings in insurance companies.

Anyone for vested interests motivating our politicians? Surely not?