Who Should Pay For Injured Employees?

On 9th October 2012 the Government published a list of amendments to the Enterprise and Regulatory Reform Bill that has been working its way through Parliament. Amongst the proposals was an amendment to section 47 of the Health and Safety at Work Act 1974 to “remove the right of individuals to bring a claim for breach of a statutory duty contained in health and safety regulations. This means in future, in such cases, it will only be possible for an individual to bring a civil action on the basis that the employer has been negligent”.

At present, the regulatory regime provides that where an employee is found to be in breach of Health and Safety Regulations, it will automatically follow that an employer will be liable for any injuries sustained by an employee as a result of that breach. For instance, Regulation 5 of the Provision and Use of Work Equipment Regulations 1998 states that “Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair”. At the present time, if an employee is injured due to faulty work equipment they will automatically succeed with a claim against their employer, as the employer will have failed to ensure that the work equipment provided by them was in good repair and efficient working order.

If the Enterprise and Regulatory Reform Bill is passed in its current form, an employee would not only have to show that the work equipment was faulty, but they would also have to demonstrate that the problem with the work equipment was the result of the negligence of their employer. If an employer is able to demonstrate that they carried out appropriate inspections to ensure that the work equipment was safe, and that the work equipment developed a fault in any event, an employer may be able to escape liability.

An employee can often sustain severe injuries due to faulty work equipment, and it may be the case that they require treatment medical treatment and/or care for the rest of their life. An employee who is injured during the course of work, due to faulty equipment supplied by their employer, will no longer have a right to damages unless they can also show that the defect was caused by the employer’s negligence. This principle also extends to employees who are injured due to a defective workplace, or those who are injured due to an inadequate system of work.

The Enterprise and Regulatory Reform Bill does not indicate who will be responsible for paying for the medical treatment or care needs of an employee who is injured in a scenario similar to the above. At the present time the cost of any such medical treatment or care would fall on the employer’s insurance providers. If the Enterprise and Regulatory Reform Bill is passed then the cost of such medical treatment or care will have to be met by the injured employee and the National Health Service.

The Enterprise and Regulatory Reform Bill will, in many cases, shift the burden of responsibility for an accident at work from the employer to the employee. The burden has been shifted from the employer, who in the majority of circumstances is in the best position to take on such a responsibility, to the employee who may be low paid and be in a poor position to pay for any medical treatment or care that they require.

The House of Lords completed their third reading of the Enterprise and Regulatory Reform Bill on 20^th March 2013. The Bill has now been returned to the House of Commons for their final reading.

The Bill was debated on the floor of the House of Commons on 16^th April 2013. During that debate Chuka Umunna, the Shadow Business Secretary, commented:

“I shall move on to deal with health and safety. Clause 61, to which Lords amendments 38 and 39 apply, is designed to remove civil liability for breaches of duty imposed by health and safety regulations. In so doing, it overturns an accepted and established health and safety regime that has been on the statute book for a very long time—for over a century.

The MP Andy McDonald added:

“…as a result of the failure of cases that would otherwise have succeeded, people who have not received compensation will look to the statutory authorities for their rehabilitation—for their care, speech therapy and physiotherapy—and that that will effectively constitute the nationalisation of rehabilitation”.

The Bill will be given further consideration on the floor of the House of Commons on 22^nd April 2013.