Management of Health and Safety at Work Regulations 1999 - Proposed new amendments

An HSC Consultation Paper contains proposals for the amendment of the Health and Safety at Work Regulations 1999, to remove the “civil liability exclusion for breach of statutory duty towards employees.

The main objective of the proposed amendments is to fulfil the UK’s implementation of the health and safety “Framework Directive (89/391/EEC). The consultation document makes it clear that there is no question as to whether or not the amendments should be made, but rather how they should be made. Other amendments are also proposed to correct minor defects in regulations 2, 3 and 19.

Implications and effect of civil liability proposals

• Removal of the civil liability exclusion at regulation 22 of the Management of Health and Safety at Work Regulations will allow an employee to claim damages from their employer, in a civil action (“MHSWR), for breach of statutory duty under the MHSWR, provided the employee has as a consequence suffered injury. It is unlikely that these amendments will have much significant effect on claims against employers, as the most important issue for Claimants to prove is that of causation. In most claims against employers for breach of health and safety regulations it can be alleged that inadequate/unsuitable risk assessment is a contributory factor towards establishing a breach of the regulations. However, in the context of a civil claim under MHSWR, it would have to be proven, on a balance of probabilities that an inadequate/unsuitable risk assessment was of causative relevance to the injury/illness. The burden of proof lies , as usual, with the claimant.
• Paradoxically, the effect of this amendment could also leave employees open to claims being brought against them where a breach of a duty imposed under regulation 14 MHSWR (employees’ duties) leads to injury or illness, although the amendments do not, on the face of it, make this possibility clear. The proposed new wording of paragraph 22 is as follows:

22. Restriction of Civil Liability for breach of Statutory Duty

1. Breach of a duty imposed on an employer by these Regulations shall not confer a right of action in any civil proceedings insofar as that duty applies for the protection of persons not in his employment.

It is clear therefore that claims by non-employees (e.g. contractor’s staff) cannot be brought against the employer, but the proposed new wording does not seem to exclude other potential claims for beaches of duty imposed by MHSWR e.g. employers against employees, employee against other employee/non-employee.

• The changes are to be governed by the existing rules of limitation as stipulated in section 11 Limitation Act 1980. The effect of this is that generally employers could be exposed to claims for injuries or deaths which occurred in the three years prior to the effective date of the amended regulations and even longer where the claimant suffers latent injury which he only became aware of for the first time within three years before the effective date.
• The consultation document suggests therefore that the amended regulation will take retrospective effect. This cannot be an appropriate basis on which to implement these amendments, not least because the effect is merely to exonerate the government from claims for not properly implementing the Directive at the outset.

For further information please contact Kajal Sharma by e-mail at [email protected] or by telephone on +44(0)207 367 2751.