» Back to listing Removal of employers' strict civil liability for injuries in the workplace

6th September 2013

Employees injured at work will only be able to pursue health and safety claims based on common law negligence, so employers will no longer be liable for events completely beyond their control.

By virtue of section 69 of the Enterprise and Regulatory Reform Act 2013 (the 2013 Act), Section 47 of the Health and safety at Work etc Act 1974 (the 1974 Act) is amended. The amendment demonstrates that the Government has, in the teeth of significant opposition from claimants' representatives and the House of Lords, finally introduced legislation to remove "strict liability" for breaches of certain health and safety regulations. In fact, it has gone further than that, effectively removing the civil liability on the part of employers for breach of health and safety regulations contained within the 1974 Act.

This significant change is expected to come into force on 1 October 2013 and will only apply to breaches that occur after the commencement date.

Going forward, no civil claim can be brought for breach of a health and safety statutory duty unless the regulation expressly provides for it - thereby reversing the current position. It will, in almost all cases, require the claimant to prove that the employer was negligent and his injury and losses were caused by the employer's negligence.

Under the present system, claimants are entitled to bring civil claims for damages against employers who are in breach of certain health and safety regulations unless those regulations expressly provide otherwise which, currently, they do not.

Some duties imposed by legislation can be breached even if the employer has done nothing wrong. For example, Regulation 5 of the Provision and Use of Work Equipment Regulations 1998 requires an employer to ensure "that work equipment is maintained in an efficient state, in efficient working order and in good repair". Therefore, if a piece of work equipment fails in some way, the employer is in breach - even if that failure could not be foreseen and even if the employer can prove that it regularly carried out appropriate maintenance on the equipment. Liability is said to be "strict" in those circumstances.

The current legislation reflects a policy decision that employees going about their normal work duties should be entitled to compensation in such circumstances, even in the absence of fault on the part of the employer. The reason for this entitlement being based on the premise it is better that employees receive compensation from defendants who are legally required to have insurance to meet such claims than not to. That has now gone. The removal of strict liability for events that the employer could do nothing about - the so-called "strict liability" cases - will certainly be welcomed by defendants and their insurers.

It has always been difficult to explain to an employer that, despite their diligent work in relation to health and safety, they are still liable to the claimant because, for example, a piece of work equipment malfunctioned unexpectedly. The removal of civil liability for breach of any of the health and safety regulations - whether imposing strict liability or not - demonstrates the Government’s determination to tackle the frequently cited 'compensation culture' and the burden of regulation on businesses that are overspending on