Injuries in the workplace: An end to strict liability for employers

Injuries in the workplace: An end to strict liability for employers


Author: Ron Reid

The House of Lords has introduced legislation to remove the 'strict liability' provisions which mean that companies are automatically liable, regardless of fault, for certain injuries in the workplace.

Individuals will now be required to prove negligence on the company's behalf before being able to pursue a claim.

Removing strict liability for civil damages under some existing health and safety regulations was one of numerous recommendations made by Professor Ragnar Löfsted of King's College London in his 2011 independent review of health and safety laws.

The change was brought into effect on 1 October 2013 and will only apply to injuries incurred after that date. Importantly, pregnant workers are exempted from the amendment and reserve the right to bring a claim for breach of statutory duty in accordance with the Pregnant Workers Directive.

The old regime: strict liability
Under the old regime employees could bring proceedings against their employer for a breach of health and safety regulations unless these regulations said otherwise. This reflected a perception that employees injured at work should be compensated by their employers, who are under a legal obligation to be insured against such possibility, rather than be left with no remedy at all.

Previously, most health and safety regulations imposed strict liability. This means that they could be breached even if the employer has done nothing wrong. 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 efficient working order and in good repair'. Therefore, an employer would be liable if work equipment failed even if it has been adequately maintained and the failure was not foreseeable.

The new regime: reversing the rules
Section 47 of the Health and Safety at Work Act 1984, by virtue of section 6 of the Enterprise and Regulatory Reform Act 2013, will remove the standard of strict liability from certain health and safety regulations. Going forward, no civil claim may be brought for breach of statutory duty unless a regulation expressly provides for it; this effectively reverses the current position.

In almost all cases it will be for the injured employee to rely on common law negligence and prove that his injuries were caused by the employer's negligence. Negligence is generally a higher hurdle for employees than a breach of statutory duty - particularly those imposing strict liability - as the standard required of employers is higher; greater emphasis is placed on the 'reasonable practicability' defence which balances the expense of potential preventative measures against the scale of the risk.

The removal of strict liability for health and safety breaches is one of many changes designed to combat the perceived 'compensation culture' and reflects a growing trend against punishing employers for injuries that they took all reasonable steps to prevent. Under the present regime businesses have paid out significant sums in compensation with around 78,000 civil liability claims brought each year for injuries sustained at work.

Looking forward: the impact on employers and employees
Although the impact of the reforms remains to be seen they aim to bring a consistent approach to civil litigation across all health and safety legislation. Removing the strict liability on employers represents a move towards common sense in the workplace.

Overburdened employers are likely to welcome this cutting of red tape and the freedom to fulfil their obligations under health and safety law without worrying of potential, unforeseen claims against them. This in turn will increase employers' confidence to not only protect their employees but also to develop and expand their business.

Employees on the other hand might not welcome the changes so readily. They are now faced with the prospect of discharging a heavier legal and evidential burden to establish liability. In fact the Trades Union Congress argues that the changes do nothing to remove unfairness but merely shift it to another place.