The Enterprise and Regulatory Reform Act 2013 Divide

Article

07 April, 2015

The Enterprise and Regulatory Reform Act 2013 came into effect on 1st October 2013. It was hailed as a ground breaking piece of legislation which would dramatically alter the claims landscape.

Prior to 1st October 2013, employees who suffered an accident at work could bring a claim for damages against their employer under Section 47 of the Health and Safety at Work Act (unless otherwise stated) for a breach of duty imposed by the health and safety regulations. Under section 69 of the Enterprise and Regulatory Reform Act 2013, the presumption that a breach of health and safety legislation would give rise to civil liability was reversed. Where accidents have occurred on or after 1st October 2013, civil liability will only apply where it is specifically provided for in the health and safety regulations. Claimants will no longer be able to directly rely upon a breach of a regulation duty, including those duties which impose strict liability.

Claimants will now be required to prove a case in common law negligence. The test applied will be that of the "the reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knows or ought to know." (Stokes v Guest (1968) 1WLR 1886). The test will be applied on the balance of probabilities, and the burden will be on the Claimant throughout.

The new rules will spell the end of claims which previously relied on breach of a statutory provision without any degree of fault/negligence. For instance, the case of Stark v Post Office [2000] ICR 1013 would certainly be decided differently post 1st April 2013. In this claim the employer was found liable where a bicycle which had been provided to the claimant in the course of his employment was found to be defective, notwithstanding that even a rigorous inspection would not have revealed the defect.

There is however an exception which will apply to "emanations of the state" i.e. local authorities and other government departments and agencies. The Enterprise and Regulatory Reform Act 2013 is not compatible with the applicable European Directives from which the UK Health and Safety legislation originated. There is a provision which will allow public sector employees to bring a civil claim for breach of an EU Directive directly against their employers. Non public sector workers will be denied this right of action, therefore effectively creating a two tier system of justice.

Forbes comment

The intention of the Act was to redress the balance between employers and employees. It therefore seems inevitable that there will be fewer claims against employers. However, employers will still need to be able to demonstrate compliance with relevant health and safety legislation. It should be noted that the criminal sanctions remain unchanged.

Claimants will approach litigation differently and there is likely to be an increased emphasis on disclosure, greater reliance on HSE guidance and perhaps increased use of expert evidence.

It remains to be seen whether a public sector worker will seek to rely on European Directives and if so, how this will be dealt with by the Courts.

For further information please contact Sarah Wilkinson by email sarah.wilkinson@forbessolicitors.co.uk or call 01254 222440.

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