Removal of strict liability in health and safety

The Enterprise and Regulatory Reform Act 2013 amended section 47 of the Health and Safety at Work Act 1974 (HSWA) so that employers no longer have a strict liability for the health and safety of their workers, for the first time since 1898. Workers cannot now rely on an employer’s breach of health and safety law to win a personal injury claim. Instead, they must provide proof of negligence.

Strict liability refers to those few workplace regulations where, if the employer breaches those regulations, they will be liable in a civil claim even if they can argue they have taken “reasonably practical” steps to try and prevent the incident.

As a briefing by the public services union UNISON points out: “The government justifies this amendment on the basis of a recommendation by Professor Ragnar Löfstedt in his November 2011 report Reclaiming health and safety for all. He recommended that “regulatory provisions that impose strict liability should be reviewed by June 2013 and either qualified with “reasonable practicable” where strict liability is not absolutely necessary or amended to prevent civil liability from attaching to those provisions.”

However, Löftstedt is concerned that the government has gone much further than he recommended. In his January 2013 report, Reclaiming health and safety for all: a review of progress one year on, he said: “The proposed amendment to the HSWA reverses the current position on civil liability. This means that, unless exceptions apply, claims for compensation in relation to breaches of health and safety legislation will need to prove that the employer has been negligent. The approach being taken is more far-reaching than I anticipated in my recommendation and, if this amendment becomes law, I hope that the government will carefully monitor the impact to ensure that there are no unforeseen consequences.”

UNISON says that the change means that, rather than being able to rely on a breach of the regulations as giving rise to civil liability, so that employers then had to show what steps they had taken to protect the employee to defend the claim, the burden is now on the employee to prove their case of negligence, and show that negligence caused the injury.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79107/lofstedt-report-one-year-on.pdf