A QC has warned the Scottish Government could face multi-million pound lawsuits over the removal of automatic compensation for injured workers.
The Scottish Government could face a bill greater than the £11 million that was paid out to cover the cost of damages to former inmates over the practice of “slopping out” in prisons, Aidan O’Neill QC told The Scotsman.
Mr O’Neill’s warning came as Labour MSP Richard Baker announced a plan for a Holyrood bill to counteract controversial Westminster legislation that strips people injured in the workplace due to safety breaches of an automatic right to compensation.
UK Business Secretary Vince Cable introduced the change, through the Enterprise and Regulatory Reform Act, as part of a move to cut red tape for employers.
Employees injured in the workplace under the old law were automatically entitled to compensation if rules on safety were breached, with the burden of proof on the employer.
Now, Mr O’Neill said, workers have to state what the company had done wrong as well as proving that machinery involved in the accident was faulty and had not been properly maintained.
He said: “Before, just a breach of regulations would have meant compensation was paid. It makes quite a difference, as now the injured worker is the one who has to go through all the hoops.”
The QC, who specialises in European law, said the Scottish Government could face a flood of lawsuits from injured workers in Scotland denied compensation if it fails to overturn the law.
Mr O’Neill said the Scottish Parliament has the “legislative competence” to overrule the law on the grounds that Holyrood has powers over compensation case law and an obligation to uphold European Union law.
Holyrood would be as culpable as Westminster unless it acted to protect the right to compensation, Mr O’Neill suggested.
The QC, who is based at Matrix chambers in London, warned that the European Court of Human Rights (ECHR) would rule that Holyrood had effectively prevented injured workers from receiving compensation if it failed to use its powers to overturn Section 69 of the Enterprise Act.
He said: “Damages can be claimed against the state for a failure to implement EU law. The Scottish Government has to make sure there is an effective remedy for individuals and an obligation to ensure EU law is applied.”
The QC also warned that payouts would be much higher than the £2,100 average awards in slopping out cases that allowed ex-inmates to sue for compensation under ECHR rules.
Mr O’Neill said: “Slopping out was about hurt feelings and the sums paid were a standard amount.
“If people are not able to claim for workplace injuries, the sums paid out would not just be £2,000. There would be fairly substantial payments made.
“Accidents are happening every day and there will be a head of steam and major pressure unless something is done immediately.
“The numbers who sustain an accident at work is much higher than the 8,000 or so of the people in prison.”
Labour MSP Mr Baker is to lodge a member’s Bill at Holyrood within the next few weeks, which he said would “restore” the automatic rights to compensation for Scots who have suffered injuries in the workplace.