Update | Health and safety: Enterprise and Regulatory Reform Act and the Reporting of Injuries, Diseases and Dangerous Occurences Regulations

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 2013, and The Enterprise and Regulatory Reform Act (ERRA) 2013 (Health and Safety) (Consequential Amendments) Order 2013 will come into force on 1 October 2013. Both pieces of legislation are being implemented by the government in response to Professor Löfstedt's recommendations in his report 'Reclaiming health and safety for all: An independent review of health and safety legislation', published in November 2011.

RIDDOR 2013 will revoke and replace (with amendments) RIDDOR 1995 and the Reporting of Injuries, Diseases and Dangerous Occurrences (Amendment) Regulations 2012. The amendments will modify reporting to the relevant enforcing authority of fatal and certain non-fatal work-related accidents and certain specified dangerous occurrences.

Shifting burden

The changes introduced by RIDDOR 2013 will remove the duty to report cases where the Health and Safety Executive (HSE) considers that information is 'better collected through other means', e.g. certain fires and explosions. The new legislation will also mean that amongst other changes, certain strain injuries and fractures, electric shock, chemical and metal injuries to the eye, burns covering less than 10 per cent of the body will no longer be reported via the RIDDOR system.

The need to report all fatal injuries to workers and members of the public as a result of a work activity remains, as does the duty to report 'major injuries' to workers. However, rather than now being termed as 'major injuries', there is now a prescribed list of 'specified injuries' which need to be reported. There is also an erosion of the need to report dangerous occurrences (i.e. near misses). Previously there were 27 types of near miss incident that needed to be reported; now there are only 21.

The HSE have stated that the changes will require fewer incidents to be reported overall and it is estimated that this will result in a net benefit to business of £5.9m over a ten-year period. This amounts '¨to £590,000 per annum across all businesses '¨in the UK. It is not clear how these savings will be made. Little heed has been given to the fact that some injuries that will no longer be reportable '¨are potentially life changing and this will result '¨in the 'cost' burden shifting from the employer to the employee.

If employers are no longer under a duty to report certain injuries then it is questionable whether they to take preventive measures to stop certain preventable accidents from occurring. It appears to be abundantly clear that the government is only looking at the interest of businesses and ignoring the individual employee. Their rationale is to ensure that the reporting of accidents is simple. There is of course no objection to simplification of the process; the problem is the dwindling duties imposed on employers with regard to reporting incidents which may have a negative long term consequences for employees.

Section 69 of the Enterprise and Regulatory Reform Act 2013 makes amendments to section 47 of the Health and Safety at Work etc. Act (HSWA) 1974, effectively removing civil liability for breach of statutory health and safety regulations. The new legislation will mean that from 1 October, under the ERRA where there is breach of workplace regulations, civil liability will no longer attach to the breach of the regulation. Although the government has explained that their rationale for introducing the changes was as a result of Professor Löfstedt's recommendations, his actual recommendations were to "streamline the body of regulations through consolidation and re-balancing the civil justice system by clarifying the status of pre-action protocols and reviewing strict liability provisions".

It is important to note that there was no recommendation to remove civil liability from health and safety regulations. It is therefore perplexing that the government says that they are bringing in substantial changes to health and safety regulations on the back of the Löfstedt report. It also should be highlighted that there was no public consultation at all regarding the introduction of clause 69, something that is becoming an increasing feature in the manner of governance demonstrated by this government.

The government has indicated that the reason for introduction of clause 69 is that the changes will to lead to less litigation. If the government is correct, the reduction in litigation will only be due to the erosion of protection for injured employees. There is no accompanying legislation to try to reduce the number of accidents and injuries!

Alternatively, their assumption is flawed and the changes will increase the amount of litigation, because it will be increasingly adversarial in its nature and as a result this will lead to increased costs. This is due to the fact that, effectively from 1 October 2013, an employee who can demonstrate that their employer has failed to meet the standards set out in the relevant regulation which resulted in injury, can no longer bring a successful civil claim by simply citing that breach of statutory duty. The ability to rely upon a breach previously would make ligation far more straight-forward and swift. Now, an injured employee will have to bring a claim in negligence and prove that their employer failed in their duty of care because section 47 of HSWA will no longer convey a presumption that the regulations carry civil liability for breach.

Little weight

It is difficult to see how this change will lead to less cost and less litigation. After all, in both the pre and post-amendment situation there is an injured employee who requires redress.

If civil liability for breach of the regulations remained in place, then the litigation would be straightforward because the breach speaks for itself (unless the employer is able to defend their position by demonstrating that they took all reasonably practicable steps, or the fault for the breach lies elsewhere).

With the loss of civil liability, litigation will become protracted with the increased need to disclose documents and undertake prolonged liability investigations. Sadly that may not take place properly with the limited costs available under the extended portal. Ironically, although the regulations remain in place, and there may be a clear breach of the regulations, the regulations will hold little or no weight in assisting an injured employee in proving their case.

The introduction of both ERRA and RIDDOR 2013 continues to mark the ongoing tide of erosion to employee's rights and protections. Essentially, the government has once again introduced legislation that will erode the protection afforded to employees to further their primary aim of aiding 'business'. However, they are trampling on the protections afforded to the more vulnerable 'individual' who will find it increasingly difficult, even where they are not at fault, to bring a successful claim against their employers.

It seems little or no thought has been given to the effect that an injured employee will have on public services and the economy at large through unrecoverable time off work which will result in the payment of less tax and an increased reliance on public services, for example the NHS.

This is set against employer's liability insurers continuing to reap the benefit of premiums but no longer having to indemnify employers for a claim because liability is not as easily proved despite clear breaches of regulations. It seems to me that the only winner is the insurance industry. SJ