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by Ian Bollans, author of Health and Safety Management and Health and Safety Training Solutions
What is happening?
The Government is currently proposing to amend section 47 of the Health and Safety at Work etc Act 1974. This is a little known section of legislation that can have a direct financial burden on businesses and is one which has driven up insurance premiums for employers in recent years.
Section 47of the Act states that ‘a breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise'. This essentially means that if someone is injured as a result of an absolute breach of a statutory duty then the injured person can take civil action for injuries that have resulted.
What is the current situation?
Duties under health and safety legislation are based around two principles The first duty is one of ‘reasonably practicable' where the employer has the defence that he did everything that was reasonably practicable to prevent an offence. There needs to be a balance between the time, effort and expense on the one hand, and the degree of risk on the other. So trivial risks should not require much effort etc to be placed into controlling them. Greater risks, however, will need correspondingly higher effort placed to control them. The general duties laid out in the Health and Safety at Work etc Act are all qualified by this term. If someone is injured, and the employer can prove that he carried out everything that was reasonably practicable, then there is no basis under the Act for a civil claim to be launched by the injured person. They can of course seek to claim damages under the civil law of ‘negligence'.
The other form of duty commonly found within health and safety legislation is one of ‘strict liability' where the duty to comply is absolute and there is no defence of ‘reasonably practicable' available. Any breaches of these absolute duties, under current legislation means that there is a statutory right to claim damages, even if the employer did all that was ‘reasonably practicable to avoid such an injury occurring.
Why is this a problem?
Many employers have found this provision unfair which has helped to fuel the current compensation culture that the Government has openly criticised. The Government has therefore committed itself to changing the legislation to remedy the situation.
So what will be the benefits for business?
There will be numerous benefits for businesses. The first will be the removal of the sense of unfairness that can come with having to pay compensation, despite not being at fault. There will also be a reduction in time spent preparing for and trying to defend some claims, particularly in collating paperwork. Lastly there could be an effect on insurance premiums (especially for larger employers who may have a number of claims each year).
So what will the future hold?
Even though this liability is to be removed, employers should not be complacent. Civil claims for injuries in the workplace will still remain big business with the number of ‘no win - no fee' arrangements continuing. Although the possibility of bringing a claim for breach of statutory duty is to be removed, employees are still able to bring a claim under negligence even though this may be more difficult to prove than a strict breach of statutory duty.
In addition civil claims solicitors have a wealth of experience in finding ‘chinks in the armour'. Much of this centres on the employer not having sufficient evidence to defend such claims. This is where having robust health and safety management systems, and more importantly having evidence of those systems is crucial. Another important factor that such solicitors rely on is the lack of evidence of training that the employee has been given. It is easy for the employee to state ‘nobody showed me how to do it!', and difficult for the employer to prove to the contrary.
Is there anything that can be done to reduce the likelihood of claims being made?
Attached to this briefing are some examples of ‘Control Sheets' that are available within Jordans Health and Safety Management looseleaf and online service. These are fully customisable and are an excellent way of proving that adequate systems to prevent workplace injuries are in place.
If you wish to ensure that your training of employees is planned and robust, then Jordans Health and Safety Training Solutions can provide the ideal solution. The electronic version also has the ability to record training that has been given to all employees.
Control sheet mechanical handling and lifting equipment 7: safety checklist: fork-lift trucks
Control sheet electric 4: visual examination of portable electrical appliances
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