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How has the Enterprise and Regulatory Reform Act 2013 has Affected Employer Liability Claims?

Section 69 of the Enterprise and Regulatory Reform Act 2013 (ERRA) has resulted in significant changes to Employers Liability personal injury claims. The effect of Section 69 is that strict liability has been removed, meaning that civil liability on the part of employers for breach of health and safety regulations has been abolished.

It is important to note however that although civil liability has been removed, the duties imposed on employers by Health and Safety regulations still apply. Therefore, breach of the regulations remains a criminal offence.

The "old" regime

For several generations, there have been two alternate paths that a Claimant could take for a successful claim.

Firstly, the Claimant needed to establish whether or not the employer was negligent. At common law, a duty is owed by an employer to their employees to provide a safe system of work. If the employer breaches this duty resulting in the employee suffering damage, then compensation is payable. Subsequently, duty and breach leading to foreseeable damage or injury, constitutes negligence.

Secondly and alternatively, whether the employer was in breach of statutory duties owed. It is possible for a Claimant to fail to establish that the employer was negligent at common law, maybe because the employer had taken all reasonable steps to prevent harm or the harm caused was not reasonable foreseeable. However, breach of statutory duty could succeed in establishing liability. This is covered by Section 47 of the Health and Safety at Work Act 1974, imposing civil liability for breach of statutory duty. However, this has now been removed by Section 69 ERRA.

If either of the above were established, the Claimant would have a successful claim.

The aim of the above was to shift the onus of proving that everything had been done to protect an employee onto the employer to see that the workplace was safe. For example, Regulation 5 of the Provision and Use of Work Equipment Regulations 1998 requires an employer to ensure that work equipment is maintained in an efficient state, in working order and good repair. Subsequently, an employer would be liable if work equipment failed even if it had been adequately maintained and failure was not foreseeable.

The "new" regime

Under Section 69 ERRA, which came in to effect on the 1st October 2013, removal of strict liability means that those who are seeking to bring a claim, must pursue the same under the common-law duty of negligence.

Therefore, the Claimant must prove: -

  • The employer failed to provide a safe place and system of work;

  • It was reasonably foreseeable that injury would result from the breach; and

  • That such injury occurred.

This does not however remove the criminal liability that can be found for breach of the regulations.

The position with regard to civil liability for breach of statutory duty has been reversed. Now, only breaches of the common-law will establish a civil claim for negligence in employer liability claims. It has been said that this change will address the potential unfairness that arises when an employer can be found liable to pay compensation to an employee, despite having taken reasonable steps to protect them.

Claimants now have to prove that the employer was not following the conduct of a reasonable prudent employer, taking positive thought for the safety of workers in the light of what he knows or ought to know.

Consequences of Section 69 ERRA

Subsequently, Claimants and Defendants alike will be seeking clarification as to the threshold of behavior, stating what constitutes negligence on parts of the employer. In the case of Gilchrist v Asda Stores Ltd, the Claimant submitted that the duties contained in statutory instruments, may define the cope of how duties may be perceived at common law i.e. that an employer who had breached regulation and made an offence, could not argue that they acted reasonably. The existence of the regulation would therefore be evidence of the foreseeability of harm. It is believed that this will be the basis for many Claimant arguments.

The above consequence will lead to an increase in litigation as Claimant Solicitors and Defendants alike will seek to establish where the threshold for negligence stands.

A likely consequence of the burden shifting to the employee is the use and reliance upon expert witnesses. This is a result of the complex working of machinery within industry which falls within the employer's realm of knowledge, but not the employee. An expert should have the ability elude accepted practices within a particular industry.

Although the impact of Section 69 aims and remains to be seen as bringing a consistent approach to civil litigation and represents a move towards common sense in the workplace. Employers are likely to welcome the change. They will have the opportunity, and moreover, freedom, to fulfil their obligations under health and safety law without the worry of unforeseen claims.

There will be no change to the duties imposed on the employer. Breach of these however will give rise to sanctions in the form of prosecution, fines and criminal sanctions.

However, the change may not be welcomed by employees. They are faced with the prospect of discharging a high legal and evidential burden.

Subsequently, whilst this legislation may not reduce the number of claims brought, it is likely to reduce the number of successful claim, particularly where the injury was unforeseeable.