There are numerous changes taking place in the employment law arena this year, from flexible working, to early ACAS conciliation. However, one of the changes that will perhaps affect the nature of employment claims in the most significant way has already been introduced. Section 69 of the Enterprise and Regulatory Reform Act 2013 came into force in October 2013 and completely alters the way employment law personal injury claims can be made against an employer.
Previously, where an employee had suffered an accident or injury at work that employee could rely on health and safety legislation to establish liability in order to be able to claim. This was ‘strict liability,’ i.e. where legal responsibility is established without the need to prove culpability. With the arrival of section 69, an employee wishing to make a claim against an employer for a breach of these regulations will now have to prove that there was fault or negligence on the part of the employer in order to be able to establish liability.
In practice, what the Government has done is taken the previous rules and turned them on their head. Before Section 69 came into force, strict liability applied to all the main health and safety regulations, unless those regulations specifically stated that a claim could not be made. Now, the opposite is true and as all those regulations that previously did specifically allow for a claim have now been amended, effectively, there is no scope at all to make a claim on the previous basis.
However, this does not mean that it is not possible for employees who have been injured at work to claim against employer but those who do now face the difficult task of proving fault or negligence. Of course, this is not impossible to do and it is likely that the regulations that have now been put rather out of reach will be used as a standard of proof with respect to deciding whether or not an employer has any liability. This means that there is, in theory, no less emphasis for employers on meeting the requirements of these regulations than there was before.
Whilst we don’t yet know what the full effect of the legislation will be, one thing that is clear is that employees looking to make a claim may now have a much more difficult time succeeding than previously and it’s highly likely that the number of overall claims will be reduced. It will most likely also reduce the number of out of court settlements as the element of certainty over liability has been removed, and this could push up costs for both parties. As the introduction of Section 69 is part of the raft of measures established by the Government to try and reduce the red tape burden on businesses in Britain, it has been designed not to stop genuine claims but rather to make those who don’t necessarily have a strong basis for starting a claim think twice before doing so. Whether or not it will achieve this, or whether it will prevent justice from being served, remains to be seen.