Employees now have much less access to justice, says Julie Harris
Millions of workers have been left vulnerable as a result of changes to the law, which come into force this week. Effective tomorrow, Section 69 in the Enterprise & Regulatory Reform Act will effectively remove a worker’s right to claim compensation following an accident or injury caused by an employer’s breach of health and safety regulations.
The Act covers a number of areas of law including employment tribunals, directors’ pay, whistleblowing, regulation and competition, consumer data and copyright, but it is Section 69 that amends the Health & Safety at Work Act 1974 that will have the most significant impact on the lives of workers and their families – particularly for anyone injured or killed at work.
Employees who have an accident at work will now have to prove negligence on the part of their employer. They will also in many cases have to call on more expert witnesses to prove their case and will have a longer, more expensive legal battle for justice.
This marks a huge reduction in the protection of workers which disallows, for civil claims, the use of all health and safety regulations and legislation and which will likely result in many cases proving too difficult for workers to pursue.
Over the past year alone, we have dealt with hundreds of personal injury cases where the claimant was unable to work again due to an accident at work. If these cases were brought after tomorrow’s change, a significant number would be far more difficult to pursue and many would fail.
How many people, at the time of an accident, have the skills or knowledge to gather the appropriate “evidence” to prove employer negligence? And where does this leave someone who can’t work as the result of an accident that was no fault of their own; or indeed the family of someone killed in the workplace?
An unfair twist to the legislation
We could find ourselves in a situation where workers decide not to pursue legitimate cases because risks and costs involved in proving a claim may be disproportionate to the compensation appropriate for the injury. In many cases under the existing law, the burden of proof falls upon the employer to establish they did what was “reasonably practicable” to avoid the accident. Now that burden shifts to the employee, involving the injured person in a more complex legal battle and therefore greater financial risk.
Employees now have much less access to justice, with the responsibility on them to prove their employer did not take reasonable steps to avoid an accident.
An unfair twist to this legislation is that the new law arguably does not apply to public sector workers. This is because in principle, those employed by “the state” can sue their employer for breach of the relevant European law, whereas private sector workers do not enjoy such protection. Across the UK, 81 per cent of people are employed within the private sector, so the changes could possibly be devastating for more than 24 million workers.
Allan McDougall has submitted a complaint about the new legislation to the European Commission, as under EU regulations, any changes in law should lead to an improvement in the level of protection afforded to workers. Section 69 will result in a reduction of that protection.
While some of the changes being made under the Enterprise & Regulatory Reform Act will possibly make the UK a better place for employers, the changes that will come into effect due to Clause 69 have gone too far, and will make real compensation cases much harder for employees to bring.
In 2011 the government had commissioned a review of Health & Safety Regulations. However this change has gone much further than what was recommended and has taken health and safety law back to Victorian times meaning employers could take less responsibility for injuries and fatalities on their watch.
Protecting the UK workforce is critical, but it doesn’t seem that the implications of Section 69 have been properly explored, resulting in an outcome where a large number of UK workers will be left vulnerable.
• Julie Harris is a partner at Edinburgh-based Allan McDougall Solicitors