And did those feet...

Poor old health and safety, it gets a bit of a bum rap. It should be lauded as one of the great achievements of the 20th century, protecting millions of workers from death and injury at work because of careless or unscrupulous employers. We should cherish it for not only making work a safer place to be but for ensuring that when things do go wrong guilty bosses have to pay up.

Instead it is blamed for everything from creating oppressive red tape that stifles economic growth to preventing kids from playing conkers and pubs from putting up hanging baskets.  Next time you see a tabloid headline slamming our onerous ‘elf and safety’ regime it is worth remembering that last year 173 people died because of workplace accidents and 22,433 were seriously injured.

No matter, these days it’s all quite safe and the rules that once protected children from being mangled and crushed by machinery are now just a nuisance.  Apparently employers are now overburdened by costly and unnecessary health and safety inspections and, it seems, encumbered by a compensation culture that has driven them to an understandable over-compliance with the regulations

So the government has decided to act and free business from these shackles by making it harder for people injured at work to get compensation.  This is quite easily done by quickly and quietly slipping in a clause to the Enterprise and Regulatory Reform Bill during its final stages in the Commons.  And hey presto, the automatic right to compensation for an injury caused by a breach of health and safety regulations, enshrined in the law since 1898, is gone!

It may not be quite gone as the bill still has to make its way through the Lords, but the government has made its intentions clear.  Announcing the changes, business secretary Vince Cable said: ‘In these tough times, businesses need to focus all their energies on creating jobs and growth, not being tied up in unnecessary red tape’.  Such as keeping their employees safe, obviously.

The end of ‘strict liability’ drives a coach and horses through the health and safety legislation by undermining the very principle of the 1974 Health and Safety at Work Act:  that there should be minimum requirements to guarantee better health and safety protection for workers.

Strict liability, whereby companies are liable for injuries regardless of negligence if certain health and safety rules are breached, is imposed in a very narrow set of circumstances.  That I am unable to explain what they are isn’t really the point, because fundamentally it is about unfairness.

Removing strict liability means an injured worker can’t just base their claim on a breach of health and safety regulations as they can now.  Instead they would have to rely on common law negligence.  This means, for example, proving not only a machine was unsafe but that the employer knew or should have known about it and that it was the employers’ fault. 

Even if the worker could prove all this, it isn’t going to be cheap and could cost more than the value of their claim.  It is also bound to make cases more drawn out, creating a veritable lawyers’ playground but doing nothing for employment relations or productivity.

Maybe it does seem unfair for an employer to be liable for an accident even if using ‘reasonable care’ couldn’t have prevented it, but not half as unfair as it is on an injured employee who can’t get compensation even though they are entirely blameless and using equipment provided by their employer.  The risk is created by, and so should be borne by, the employer and not the employee.

Personally I find it impossible to get my head around the idea that responsible businesses up and down the land are wasting time and money on over-compliance with health and safety regulations because they are afraid of being sued.  I am quite sure most of them take the safety of their workers extremely seriously and all the government is doing is handing a ‘get-out’ clause to those who are somewhat less than scrupulous.

Including, it might seem, itself.  The Court of Appeal recently ruled that the Ministry of Defence has a duty to provide safe and adequate equipment to serving troops and failing to do so can result in it being found liable if soldiers are injured or killed.  I am shocked this was even up for debate.  Fortunately for the government, wounded servicemen will be affected by the health and safety changes just like any other employee.

It all looks a bit cockeyed.  Rather than making it more difficult for injured workers to get compensation to pay for lost earnings, medical care and rehabilitation, it makes more sense to allow employers to sue third parties, such as manufacturers or suppliers, where neither the employer or employee is at fault. 

Or instead of trying to address nebulous perceptions and impressions and tinkering about on the sly with long-standing, valued, tried and tested primary legislation, the government could get some actual hard evidence about the problem and then go about trying to educate businesses and the public about health and safety. 

It could even, as the independent Löfstedt report on health and safety recommended, start a proper debate about risk in society and how it should be regulated.  But sadly it appears ministers have bought hook line and sinker into the ‘health and safety gone mad’ lies peddled by the insurance industry and the tabloid press.  In doing so they are in danger of dragging us backwards 'to the days of Blake’s dark satanic mills’.


Posted in: Employment law

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