The Enterprise Bill's clause 70 is set to overhaul current heath and safety legislation which will essentially remove an employee’s right to pursue a compensation claim based on an employer's breaches of the Health and Safety Regulations. This clearly narrows the basis on which compensation can be claimed for accidents at work. However, it will still be possible to pursue a claim under common law.
James Braund, a specialist personal injury solicitor at Trethowans Solicitors explains.
Last month, on 25 April 2013, the Enterprise and Regulatory Reform Bill received royal assent.
Hailed by some as promoting the economy by freeing businesses up from health and safety red tape, but by others as eroding valuable provisions protecting workers and ensuring safety standards, clause 70 (previously clause 61 in the original draft Bill) has been at the centre of controversy surrounding the Bill.
Clause 70 essentially removes an employee’s right to pursue a compensation claim based on an employer's breaches of the Health and Safety Regulations (enacted under the Health and Safety at Work Act 1974).
Under the current law, an employee who is injured in an accident at work can pursue a compensation claim against their employer under two main routes. Firstly, in common law negligence, if it can be shown that the employer did not take reasonable care for the employee’s safety and secondly, 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 removes the second cause of action. Although this may seem a minor change to some, the effects are likely to be significant. Most claims are currently pursued, at least primarily, under the Health and Safety Regulations, where a breach of such a regulation would automatically impose civil liability upon the employer.
For example, under the Regulations, if an employer 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 the Bill comes into force in such a situation 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.
According to the Association of Personal Injury Lawyers (APIL) these changes are likely to affect over 70,000 potential civil claims for compensation arising out of accidents at work.
James Braund comments; “Whilst the reforms narrow the basis on which compensation can be claimed for accidents at work, such claims can still be pursued under common law". He adds that as a result of such measures “it is even more important than ever that employees seek specialist legal advice at an early stage in order to establish whether they may have a claim. The key to bringing such claims is now likely to be more focused around obtaining early evidence and ultimately addressing the issue of reasonableness".