Impact of the Enterprise and Regulatory Reform Act

The Enterprise and Regulatory Reform Bill received Royal Assent recently. The Act contains reforms relating to a wide variety of areas, including changes to employment law, health and safety rules and copyright regulation.

The Bill, which was introduced to the House of Commons on 23rd May 2012, has attracted a considerable amount of controversy during its passage through the House of Commons and House of Lords.

Bad news for injury at work victims

One particular area of contention was the Government’s October 2012 decision to make a last-minute addition to the Bill. This addition related to civil claims for breach of health and safety duties and, according to the Association of Personal Injury Lawyers (APIL), it will have the effect of putting workplace health and safety back into the Victorian age.

Currently, if a worker is injured as a result of an employer’s breach of health and safety regulations then that worker has an automatic right to claim compensation. Commenting in October last year, Karl Tonks, the then president of APIL, stressed that the law has been clear on this point since a landmark case was brought in 1898.

However, the Government’s amendment removes this right, meaning that an injured worker will instead have to make sure he can prove that the employer was guilty of negligence before being able to bring a personal injury claim for the employers' breach of a statutory duty.

The amendment also gives employers the right, even where a strict duty applies, to defend themselves on the basis of having taken all reasonable steps to protect their employees.

Criticism of the proposal

The amendment was greeted with dismay by trade unions and personal injury lawyers.

APIL warns that the Government plan will put the burden of proving an employer has caused needless injury or death back onto the victim. This tilts the playing field in favour of the employer, who not only controls the workplace, but controls the work equipment used, and knows all the systems of the business inside out.

“It will not cut ‘red-tape’ for business: cases which do go ahead will take longer, they will be more complicated, and inevitably costs will be higher,” said Karl Tonks, recently.

“Prosecutions for workplace accidents are already few and far between, and if it becomes harder to claim compensation as well, negligent employers will be even less accountable for their actions. Rogue bosses are likely to take advantage by cutting corners with health and safety requirements,” he added.

Poor timing

Mr Tonks was also critical of the Government’s timing in adding the new clause, commenting that it was “particularly disturbing” that the Government chose to introduce the amendment at the last minute, when the Bill was halfway through its passage, without review and without consultation.

“In its obsession with cutting what it sees as health and safety ‘red tape’, the Government is playing fast and loose with people’s safety,” he commented. “The workforce of this country deserves better.”

Hopes dashed

Hopes were briefly raised when the clause was defeated in the House of Lords. Lord Brown of Eaton-under-Haywood, a former Supreme Court Justice, spoke against the proposal, highlighting the difficulties workers could experience in trying to prove that their employer had acted negligently. He claimed that during his time as a barrister, he had seen a number of claims fail “because the claimants were not able to assemble all the evidence necessary to prove actual negligence.”

However, even though the proposal was defeated in the House of Lords, it was approved by the House of Commons on 24th April and therefore now forms part of the Act.

It is not yet clear when the new rules will come into force. The majority of provisions in the Act are not due to come into effect until October 2013 or April 2014, and the Government has announced it intends to publish a detailed implementation timetable shortly.

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