Employee's rights to pursue a compensation claim restricted

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At the end of April, the Enterprise and Regulatory Reform Bill received royal assent, becoming a formal Act of Parliament. One clause of this Act (clause 70, previously entitled clause 61 in the original draft Bill), essentially removes an employee’s right to pursue a compensation claim against an employer who has breached the Health and Safety Regulations (enacted under the Health and Safety at Work Act 1974).

Under previous law an employee injured in an accident at work could pursue a compensation claim against their employer under either or both of the following routes:

  • In common law negligence, if it can be shown that the employer did not take reasonable care for the employee’s safety.
  • Under a breach of a Health and Safety Regulation (unless civil liability is expressly excluded under that Regulation).

Whilst claimants will still be able to claim under the first cause of action clause 70 of the new Act removes the second cause of action.

This may seem a slight change to some however the effects are likely to be significant. Most claims have historically been pursued under the Health and Safety Regulations, where a breach of such a regulation would automatically impose civil liability upon the employer (under strict liability). For example, under previous regulations, if an employee was provided with faulty personal protective equipment which led to him or her suffering harm, then there would be a breach of the regulations and therefore a civil claim. However once Clause 70 comes into force, in the same scenario the employee will have to prove that the employer did not take reasonable steps to ensure that the harm did not occur, essentially having to show that the employer knew or ought to have known that the equipment was faulty.

This Act has been hailed by some as promoting the economy by freeing businesses up from health and safety red tape, but others have concerns that it erodes valuable provisions that protect workers and ensure safety standards. Clause 70 has certainly been at the centre of some controversy surrounding the Act.

According to the Association of Personal Injury Lawyers (APIL) these changes are likely to effect over 70,000 potential civil claims for compensation arising out of accidents at work.