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Employer’s Liability Update

Solicitor Jenny Chan and Paralegal Alba Pinto discuss the current regulations regarding health and safety in the workplace.

Nearly 12 months on from the start of the Covid-19 pandemic, everyone is more than familiar with the term Personal Protective Equipment, otherwise known as ‘PPE’. Although some of us are able to work from home, there are, of course, those of us who cannot avoid physically attending the workplace, even during a national lockdown.

The Health and Safety at Work Act (HSWA) 1974 and Regulations are still very much applicable in the workplace, and failing to comply with the Act and Regulations could mean that the employer is subject to criminal sanctions. However, with the introduction of Section 69 of the Enterprise and Regulatory Reform Act (ERRA) 2013, in respect of claims for compensation for negligence, there is no longer a presumption that by simply breaching the HSWA and/or Regulations, an employer has a civil liability.

Health and Safety at Work Act (HSWA) 1974 and Regulations

Employers must, however, still comply with their duties under the Health and Safety at Work Act 1974 (HSWA), and various Health and Safety Regulations.

As part of complying with the Health and Safety requirements, employers must still carry out risk assessments, as well as ensure that employees have the required knowledge and tools to keep themselves and others safe in the workplace. 

There is still a responsibility on the employer to ensure that they maintain a safe working environment for all employees as far as ‘reasonably practicable’ (Section 2(2)(d) of HSWA).

Workplace health and safety is governed by the Health and Safety Executive (HSE), and although only the more serious accidents are required to be reported to the HSE, it is a legal requirement that all employers must have an accident book and all accidents in the work place must be recorded in that book.

‘Reasonably practicable’ is not defined within the HSWA, but the HSE has defined it as ‘weighing a risk against the trouble, time, and money needed to control it.’

Of course, each risk must be individually assessed as part of a risk assessment, but the HSWA ensures that employers do not simply choose to ignore the risk, but to weigh the risk against a practical solution to reduce or control it.

How does the introduction of Section 69 Enterprise and Regulatory Reform Act (ERRA) 2013 change the landscape of employer’s liability for accidents at work?

Section 69 of the Enterprise and Regulatory Reform Act (ERRA) was introduced in 2013 to amend Section 47 of HSWA. Section 47 essentially imposed a direct civil liability on employers who breached the HSWA and/or Regulations.

However, the enactment of Section 69 of the ERRA removes the direct civil liability previously applied by Section of HSWA. It is no longer enough to simply allege that by reason of an employer’s simple failure to comply with a section of the Act or a Regulation, they are negligent and liable for the accident at work.

Are the HSWA 1974 and Regulations therefore inapplicable for accidents at work claims?

Although Section 69 ERRA has essentially removed the presumed civil liability for breach, it does not seek to remove the duty of employers to comply with the HSWA and/or Regulations completely. The Act and Regulations continue to be relevant to what an employer should have done so far as is ‘reasonably practicable’. 

The onus however is now very much on an employee to demonstrate that the employer failed to reasonably discharge their duty of care to them, and in doing so, exposed them to an avoidable risk.

Consequently, the effect of Section ERRA is that even when an employer fails to perform an efficient risk assessment or to provide the adequate protection measures to its employees, it does not necessarily mean they are liable for negligence. The employee will need to evidence that the negligence by the employer ultimately caused their injury at work.  

For Example: an employee tripping on a step would not be entitled to claim compensation if the potential risk was adequately highlighted with black and yellow tape over the lip of the step with a visible warning notice. The existence of a step does not automatically impose liability on an employer. However, if an employer failed to properly indicate the existence of the step, it could lead a successful claim if an employee subsequently suffered an accident due to lack of warnings.

In summary, despite the introduction of Section 69 ERRA, employers should continue to adhere to the existing HSWA and Regulations since they are clearly not redundant. On the other hand, because there is no longer a presumption of negligence simply by an employer breaching the HSWA or Regulations, the burden of proof will rest on an employee to prove that the employer was negligent in the all the circumstances of the case.

If you have any questions regarding the above information, or need dispute resolution related advice, please contact the Head of Dispute Resolution, Marvin Simons, on marvin.simons@seddons.co.uk, or 020 7725 8057. Alternatively, you can contact Jenny Chan at jenny.chan@seddons.co.uk or 020 7725 8029.

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