Section 69 strips away vital health & safety ‘red tape’

Ibrahim: most employers don’t see health and safety as a burden

Posted by Samantha Ibrahim of Litigation Futures sponsor Spencers Solicitors

It is almost impossible to please everyone. For this reason, when new legislation is implemented, one can invariably expect both negative and positive responses. Whether they are happily welcomed or merely tolerated, amendments to the law are generally built around intelligent and positive intentions. There are some laws, however, that are just simply wrong.

A very clear example of a bad law would be the recent addition of section 69 to the Enterprise and Regulatory Reform Bill. For the past century, the law stated that if an employee is injured at work and the employer is found to be in breach of a health and safety statutory duty, the employer will be held to be liable for the injury and compensation can be claimed.

I believe this to be completely fair. However, this concept of strict liability has now been rejected, and workers will have to prove that the accident arose out of negligence. The practical effect of this change will be to:

  • Increase the burden of proof on a claimant to succeed in their claim but decreases the burden of proof on a defendant to defend the claim as ‘what is reasonable’ is an objective, rather than subjective, test, leaving wide scope for discretion of the trial judge – ultimately there are no set guidelines on what is reasonable;
  • Potentially reduce the steps taken by employers to ensure complete safety in the workplace, which in turn is more likely than not to increase the risk of injury to employees due to cutting corners/costs that complete compliance required; and
  • Adversely affect health and safety standards in some work places. There is a greater risk that standards will decrease due to the less stringent test/burden imposed on employers by common law as opposed to statute.

The removal of this long-standing policy is born out of David Cameron’s determination to cut ‘red tape’ and throw out all unnecessary regulations that pose ‘a burden to businesses’. When it comes to health and safety, I don’t see anything wrong with a bit of red tape if it is designed to protect the health and wellbeing of employees (and quite frankly, referring to workers’ health as a ‘burden’ is just plain rude).

Workers and trade unions have justifiably challenged the implication that their health and safety is unnecessary. The official motto of the We Love Red Tape Facebook group is: “The problem with work is not red tape, it’s bloody bandages.”

With 611,337 workers killed, injured, or developing a work-related illness in a single year, it seems these campaigners may have a point.

It is worth pointing out that only 87,655 of these people received any form of compensation, according to Hazards magazine. This number that completely invalidates the argument that there is a so-called ‘compensation culture’, which is also driving this policy.

This negative portrayal of workers is not only unfair, but also unnecessary. The truth is that most employers believe in human rights, they take out insurance for their employers, and don’t see their health and safety as a burden.

As Baronness Ford expressed at the House of Lords last year: “I never got up in the morning wondering how to get around the health and safety regime, wishing that employment law was weak, looking to dilute people’s human rights.” And this is true for the majority of employers.

The key to a successful business is employees and employers working together, in a happy environment. Section 69 will only be detrimental to this relationship, creating tension in the workplace.
I understand it is difficult to please everyone, but who exactly is this bill aimed to please?

Samantha Ibrahim is a Chartered Legal Executive at Spencers Solicitors with over 14 years’ experience in personal injury law. She deals with a wide variety of case types including accidents at work, occupiers’ liability claims and industrial diseases

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