Accidents at Work in the wake of The Enterprise and Regulatory Reform Act 2013

12 Feb 2014

Few Acts of Parliament in recent years have polarised the views of commentators more than the Enterprise Act 2013 which came into force in October last year. Supporters heralded the provision as crucial to cutting red tape and making domestic businesses competitive, while critics suggested it was a return to the age of Victorian style work house health and safety. As we approach the first anniversary of the Bill receiving Royal Assent in April this year it is still far from clear the effect that the Act (and particularly the infamous Section 69) has actually had in practice.

In essence Section 69 of the Act abolished civil (including personal injury) liability for breaches of the Health and Safety at Work etc Act 1974. Virtually all modern-day health and safety Regulations (including the Management of Health & Safety at Work Regulations, the Manual Handling Operations Regulations, Display Screen Equipment Regulations, the Workplace (Health, Safety and Welfare) Regulations, the Provision and Use of Work Equipment Regulations and Personal Protective Equipment Regulations) have emanated from the 1974 Act and are therefore included in this restriction of civil liability.

Whilst on the face of matters businesses may see this as a green light to relax their controls and standards they still need to be very wary. The Enterprise Act does not abolish criminal liability under the Health and Safety at Work etc Act 1974 (or associated Regulations) and as such any potential breaches are still likely to incur the wrath of the Health and Safety Executive or Local Authority. In addition this leaves injured employees still with a potential route to argue breach of such Regulations as being evidence of negligence under common law (which is not abolished). Under common law employers still have a duty to take reasonable care for their employees and it is likely to become increasingly common that injured employees will argue that a reasonable employer would not have essentially breached criminal law in breaching the Regulations.

In addition some legislative provisions predating the Health and Safety at Work etc Act 1974 continue to carry civil liability such as the Employer Liability and Defective Equipment Act 1969. It could also be argued in respect of some of the Regulations that, due to the evolution of Health and Safety standards, the common law standard of reasonable health and safety mirrors much of the provision of the Regulations previously enforceable in civil law. In particular it has been suggested that this is likely to apply in respect of manual handling where the Regulations are based upon a common ergonomic model, of which employers are generally well aware.

There is also a potential question mark which remains as to whether the Enterprise Act itself is actually compatible with the EU Health and Safety Directives. It will be open to injured employees to argue that domestic law needs to be interpreted in accordance with any specific provisions under the EU Directives which may assist a Claimant’s claim by way of Indirect Effect. Equally if the employer is an emanation of the state then an injured employee may be able to argue that the EU Directives themselves directly apply through Direct Effect. Finally there may also be a possibility in some cases of a Francovich type argument being raised, such that an injured employee could look to sue the state for depriving them of a civil remedy in breach of any EU Directives.

It seems likely that the Enterprise Act may well therefore in fact give rise to a considerable amount of satellite litigation on a number of these issues and only time will tell as to how much of an effect in reality the Act has upon such cases.