The Current System
At present, employees who suffer injury at work can raise a civil liability claim if their injury arises as a result of the breach of a statutory duty, unless the regulations concerned expressly provide otherwise (which they currently do not). These regulations are commonly referred to as "the six pack regulations" and they came into effect in 1992 to allow the UK to comply with the contents of various European Directives.
Employers may therefore find themselves liable to pay compensation even in situations where they could have done no more to protect their employee. For example, under the current strict liability system, an employer can be liable in respect of an injury occurring due to an unforeseen failure of work equipment, notwithstanding the fact that equipment was adequately maintained and inspected regularly.
Removal of Strict Liability
Section 69 of the 2013 will serve to increase the burden on claimants as they will be forced to rely on common law only, and in order to be successful, they must prove negligence on the part of the employer. At common law, the overall test for negligence is that of 'the reasonable and prudent employer taking positive thought for the safety of his workers in light of what he knows or ought to know.'
Whilst it is thought that the removal of strict liability will redress the current imbalance in favour of the claimant employee, the impact of this legislation remains to be seen. It seems more likely than not that, going forward, claimants will still refer the court to "the six pack regulations" as a marker for the steps that a 'reasonable employer' ought to be taking in the context of their common law obligations. The regulations will still play a part in such proceedings, albeit they will no longer occupy the starring role they once held by giving rise to a direct cause of action. From an employer's perspective however, continued compliance with the six pack regulations would be well advised as the case law evolves.
Public Sector Bodies
The Enterprise and Regulatory Reform Act 2013 does not sit well with the European Directives from which the six pack regulations derived. Section 69 of the 2013 Act provides that the breach of health and safety regulations are not actionable, however EU Directives will remain actionable against "emanations of the state" including local authorities, government departments, police authorities and public health bodies.
In principle, this entitles a public sector employee to sue his employer for breach of the appropriate European Directive (even though he is prevented from suing that employer for breach of the domestic regulations brought in by virtue of those Directives).
There is concern from some quarters that the Government's attempt to reduce litigation may in fact backfire, and this situation could potentially generate increased disputes regarding the interpretation and operation of European law in the personal injury sphere.
Lastly, the implementation of The Enterprise and Regulatory Reform Act 2013 Act will therefore give rise to a significant disparity: public sector employees will be able to sue their employer under the strict liability provisions contained in a number of European Directives, whereas employees in the private sector will only be entitled to pursue arguably more onerous common law negligence claims against their employers.
This anomaly was highlighted to the Government during the consultation stages of the Bill however it does not appear to have been addressed to date.
The reality is that both public and private sector employers will require to adhere to the six pack regulations (for now anyway) as it would appear that the ghost of strict liability will live on despite the best intentions of 2013 Act.