Last week, an attempt to oppose changes to health and safety law that will make it harder for employees to bring claims against their employers, failed in the House of Lords.
At the Association of Personal Injury Lawyers’ annual conference this month, APIL past-president David Bott described the changes in the Enterprise and Regulatory Reform Act as ‘the latest unconscionable thing’ that the government has done; and said the move harked back to Victorian times.
The reform will mean that, for some health and safety rules, employees will no longer be able to rely on the fact that the rule itself was breached in order to bring a claim for injury; instead, they will have to prove that the employer was actually negligent. What’s wrong with that, you may think. Employers will only be held to account where they are shown to have behaved negligently, and that is fair.
But you have to look at how these claims work in practice – and why the current rule was introduced in the first place. The big difficulty with employment claims is that the employer holds all the information; claimant lawyers find it difficult enough to prise the relevant documents and evidence from employers and their insurers, even now. What’s more, the witness evidence of other employees might be a crucial factor in proving negligence, but how can you expect employees to give evidence against the firm they work for? The current rule was intended to redress this imbalance.
What is the agenda for this change? It is another plank in the government’s bid to combat the ‘compensation culture’ – a concept that has been acknowledged as nothing more than a perception by various government advisers, judges and others. Figures from the Health and Safety Executive show that numbers of work-based claims are actually falling, as business gradually improves its health and safety record.
But unfortunately ‘‘elf and safety’ does not enjoy a good reputation with the public; it is seen as the killjoy law, preventing people from doing anything fun - banning yo-yos in schools - although in many cases ‘the rules’ have simply been misinterpreted or indeed made up.
In truth, health and safety law has done a huge amount to create a safer environment for British workers but there is a risk that the reforms will see H&S slip down the agenda for businesses looking to save money in the current economic environment. The removal of strict liability coincides with a new protocol and portal for EL claims worth up to £25,000, and new fixed fees, all coming into force in July. Lawyers will now need to produce more evidence to support EL claims, for a tight fee. Claimant lawyers already predict that many claims will fall out of the EL protocol, which is only suitable where liability is admitted. The removal of strict liability will exacerbate this even further. The EL protocol could end up a considerable waste of time and money.
The real winners here will be employers’ liability insurers, who can look forward to paying out on fewer EL claims. But the extent to which they will pass those savings on to British business through lower premiums remains to be seen.
Rachel Rothwell is editor of Litigation Funding magazine, providing in-depth coverage on costs and the financing of litigation.
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