The Enterprise and Regulatory Reform Act 2013, or to give it its (ever so slightly) more catchy name, ‘The Enterprise Act’, has recently been introduced.  This Act has significantly changed employers’ liability for Health and Safety breaches (i.e. under what terms can an injured party bring a case against you for a Health and Safety breach).

So what are these changes and what do they mean for employers?

In the past, employees injured at work relied on the likes of regulations such as The Workplace (Health Safety and Welfare) Regulations 1992; The Manual Handling Operations Regulations 1992, and; The Provision and Use of Work equipment Regulations 1998.  These regulations were an invaluable tool for employees in recovering personal injury damages against their employer.  Many, if not most, of these regulations conferred civil liability for their breach, (i.e. employees could issue legal proceedings against their employer on grounds of civil liability).

The case of Stark v The Post Office perfectly illustrates this point:  Here the Court of Appeal found that the failure of a piece of work equipment conferred strict liability upon an employer, even in circumstances where they did not, or could not, know that the work equipment was likely to fail.

The big change is that Enterprise Act has abolished civil liability for breaches of Health and Safety legislation.  That is to say workers can no longer issue legal proceedings against their employer on grounds of civil liability where Health and Safety regulation has been broken.

Section 47 of The Health and Safety at Work Act 1974 stated that regulations made under that Act (in effect all post 1974 Health and Safety regulations) carried civil liability for the breach, unless expressly excluded.  Clause 69 (3) of the Enterprise Act now reverses that, stating:

“Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) Health and Safety regulations shall not be actionable except to the extent that regulations under this section so provide.”

For many, if not most, employers the various Health and Safety legislation introduced throughout the 1990’s in order to comply with European law will have been, to say the least, tiresome.

At first glance therefore, it would seem that The Enterprise and Regulatory Reform Act 2013 has brought welcome relief for employers.  Surely the abolition of civil liability in relation to Health and Safety breaches is great news for employers?  Does The Enterprise Act mean employers are totally off the hook when it comes to their Health and Safety obligations?  In a word, it’s a (probably unsurprising) NO!

The various Health and Safety regulations remain in force.  As such, compliance with the legislation is still required by the criminal law and any breach of said regulations could still give rise to a criminal prosecution.

As a further word of warning, the Courts have also commented that: –

“Employers are bound to know their statutory duty”

This means that if there is a breach of statutory duty and it is found that the duty holder has fallen below the standards of behaviour established by law, they could be considered to have been negligent.  If a claimant is able to prove negligence, then a successful civil action could still be mounted.

Whilst at first glance the introduction of The Enterprise and Regulatory Reform Act 2013 appears to tip the balance in employers’ favour, closer inspection reveals that, in practical terms, the legal situation remains largely unchanged.  Employers would therefore do well to continue to be aware of, and comply with, their duties under Health and Safety legislation.

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Guest Post by Andy Peters, Legal Manager at Bott & Co Solicitors http://www.bottonline.co.uk

About David Cant

A chartered (fellow) safety and risk management practitioner with 20+ years of experience. David provides a healthy dose of how-to articles, advice and guidance to make compliance easier for construction professionals, Architects and the built environment. Get social with David on Twitter and Linkedin.