Update | Health and safety: effects of section 61, Enterprise and Regulatory Reform Bill and the Deregulation Bill

The health and safety reform roller coaster continued in the first-half of 2013. Following the government's insertion of a last minute amendment to the Enterprise and Regulatory Reform Bill (ERRB) to add section 61 at report stage, the lords were asked to remove this clause from the bill. Very serious concerns were raised by stakeholders about the implications of the amendment on an employee's ability to enforce a breach of the health and safety regulations which had resulted in injury.

On 6 March 2013 an extensive debate took place in the upper house about the far reaching effects that section 61 would have in regressing health and safety law. The lords ultimately voted to remove the clause by a very tight majority of 225-223. However, despite the lords decision to remove the clause, on 16 April 2013 members of parliament chose to reject the lord's amendment to the bill by a majority of 286-259 with the effect that the bill (and section 61) will be given royal assent within the next 12 months.

One has to question parliament's rationale for preventing employees from enforcing a breach of the health and safety regulations against their employer and the erosion that will be caused to the effectiveness of the regulations. Statutory and regulatory duties are imposed on employers to keep employees and members of the public safe. The regulations provide guidance in respect of standards to be met by businesses and employers who are in control of levels of safety in a working environment. An employer's knowledge that an employee can rely upon a breach of regulations to seek redress if they are injured currently provides an impetus for employers to comply with health and safety regulations.

Historic dismantling

If an employer has done all that could reasonably be expected of them to keep their employees safe, they have no need to fear health and safety regulations. The majority of health and safety regulations benefit from a defence of 'reasonable practicability'. Concerns have been raised by employers regarding regulations which are strict liability. In the past strict liability regulations have occasionally lead to an 'unjust' outcome. The government's rationale for removing civil liability was to prevent ?these unjust outcomes. However rather than removing civil liability entirely this issue could very easily have been rectified by inserting a reasonable practicability defence to all duties placed on an employer. ?Such an approach would have circumvented any potential nonsensical outcomes and still maintained the protection afforded ?to employees.

The historical political thought process to impose health and safety regulations on employers stems back to the 19th century. Employers have the resource and capacity to protect workers and the rationale for the development of thorough regulation was that the state wanted to obligate employers to protect their workers. Individual workers will not have the knowledge of what is effective protection, or in some they simply cannot be expected to protect themselves properly. The fact that section 61 of the ERRB will become law will regressed workplace safety by over a century, which demonstrates the government's lack of cogent thinking.

With the passing of section 61 of ERRB there will be the loss of the compliance effect currently afforded by regulations. Ultimately it is likely that there will be a resulting fall in safety standards since employers have reduced reason to comply with the regulations.

Shifting the burden

The overwhelming impression from a claimant's perspective is that the protection of employees is a secondary consideration for the government or in many cases not a consideration at all. This was demonstrated in the Queen's Speech delivered on 8 May 2013, which highlighted that there would ?be further erosion of protection provided ?to individuals.

In the Queen's Speech the government voiced its intention to introduce a 'Deregulation Bill' to reduce the burden of "excessive regulation" on businesses. It was highlighted in the speech that the purpose of a new bill will be to progress the government's agenda, with the rationale for the introduction of such reforms being to "reduce or remove burdens on businesses and civil society, facilitate growth and reduce or remove burdens on public bodies, the taxpayer or individuals".

If this rationale is considered further, it is clear that proper consideration has not been given to the potential effect of reduced regulation. In reality, if the burden of health and safety regulations is removed from an employer (and their insurer), the burden does not just disappear it is passed on. The purpose of employers having to purchase compulsory employer's liability insurance is to protect both their business and their employees in the event that any unfortunate events occur. Injured workers often require aid and assistance in the form of medication, care, treatment, vocational retraining etc. If the employer and their insurer are no longer held accountable for breach of statutory duties, this will result in an employee's ability to prove their claim more difficult. The employee can only rely upon the common law of negligence, which is more difficult than just identifying the regulations that have been breached. If it is more difficult to prove the claim, more claims will either not be commenced or will fail. Insurance companies will no longer have to indemnify an employer in a claim against them and the burden of providing for the needs of an injured employee will fall on the NHS, job centres and ultimately the taxpayer. Ultimately the burden is being moved from the insurance industry, who receives premiums to provide indemnity cover to public services who are funded by the taxpayer. No thought appears to have been given to the additional burden these changes will have on public services.

The Queen's Speech also highlighted that the Deregulation Bill will also aim to remove regulation of self-employed people, "whose activities do not pose a risk of harm to others". Commentators have already highlighted that lessons must be learnt from the past. Deregulation of work undertaken by self-employed people can and will have far reaching consequences. A historical example can be seen where asbestos workers who were 'self-employed' now cannot pursue their 'employers' (i.e. companies to whom they were contracted) where they have subsequently developed an asbestos-related industrial disease.

Surely we do not want to repeat the mistakes of the past? Thought should be given to protecting all persons at work, whether their status be employed or self-employed. To not do so will lead to an inevitable shift in the burden which will be met by public services and the taxpayer.

In March 2011 the government issued instructions to the health and safety executive (HSE) to stop all proactive inspections in a wide range of industries including transport, education, electricity, and health and social care. The reason given was that these areas were "low risk". No account was given to the fact that many of these industries posed the greatest risk of slips, trips, musculoskeletal disorders, depression, stress and bullying.

HSE data shows that number of notices served by the HSE and local authorities fell in 2011/12 after increases in the previous three years. There were:

? 15,955 notices issued by HSE and local authorities in 2011/12, a decrease of 13 per cent from the previous year.

? 9,910 enforcement notices issued by ?HSE, a fall of 10 per cent from the previous year.

? 6,045 notices issued by local authorities down by 17 per cent from the ?previous year.

?What is concerning about these figures is that with reduced inspection there is a reduction in the HSE and local authorities identifying risks and ensuring that they are rectified in many cases before any employees are injures.

Following the government's instruction to reduce the number of inspections, they ran and concluded a public consultation between 21 December 2012 and 1 March 2013 on the 'National Local Authority Enforcement Code - Health and Safety at Work, England, Scotland and Wales' (www.hse.gov.uk/consult/condocs/cd247.htm). The consultation set out proposals for a national local authority enforcement code (the code). The government indicated that the code would be developed in response to the Professor Löfstedt report 'Reclaiming health & safety for all: an independent review of health and safety legislation'.

Professor Löfstedt recommended in his report that HSE be given a stronger role in directing local authority's health & safety inspection and enforcement activities. However, upon reviewing the government proposals in the consultation document, it appears that the general strategy proposed by the government is to further reduce proactive inspections by local authority inspectors and to deregulate some business activities. This is in complete contrast to the recommendations of Professor Löfstedt.

The government consultation document on the enforcement code sought the views of employers and their representatives but did not make provision to target the views of workers or their representatives. Since the main purpose of regulations are to protect workers, it is difficult to understand the government's reason for placing specific emphasis on obtaining the views of employers, who are ultimately responsible for the control of risk, but then not seeking the views of those who are likely to be at risk should the proposals to reduce inspection and deregulate further come ?into force.

What the eye doesn't see

For health and safety regulations to be effective, in addition to providing guidance to employers and businesses, they should have a deterrent effect. Regulations are more likely to be complied with if employers and businesses are aware that there is a risk of unannounced inspection, and that there will be sanctions for failures. However, if employers and businesses are safe in the knowledge that there are no active inspections then it is likely that adequate standards will not be maintained which will lead to increased levels of risk and injury.

Although proactive inspections should target businesses who present the most risk, all employers should be in a position that they know that there is the possibility of an unannounced inspection.

This is an effective tool in ensuring compliance with health and safety regulations. Both proactive and ?reactive inspections are necessary to ?ensure compliance.

It seems that the government has and will continue to erode the protection afforded to workers. With reduced reporting of injuries, diseases and dangerous occurrences (RIDDOR) reporting requirements, reduced inspection and enforcement, an employees reduced ability to bring a claim, only time will tell how far reaching the effects will ?be on public services, the tax payer and injured individuals.