Health and safety regulations - changes to civil liability

The Health and Safety Executive's consultation process on proposals for amendments to the Management of Health and Safety at Work Regulations 1999 and the Health and Safety (Consultation with Employees) Regulations 1996 ends on 18 May.

The changes would extend employee protection against claims made by third parties in situations where the employees may have contravened the Management of Health and Safety at Work Regulations. The scope for claims being brought against employers by third parties for contraventions of these Regulations would also be removed.

For further information and a commentary on the limited impact of the changes in practice please view the article in full below:

Full Article

The Health and Safety Commission (HSC) is currently consulting on proposed changes to Regulation 22 (civil liability provisions) of the Management of Health and Safety at Work Regulations 1999 (MHSWR), click here for the draft regulations - responses should be sent to the HSE by 18 May. The proposed amendment will: (a) remove an employer's civil liability for breach of MHSWR duties which can currently exist to persons who are not its employees (or agency workers) and; (b) any possibility of third parties bringing a civil claim for damages against employees for breaches of their duties under the MHSWR (but not affecting other causes of action, e.g. breach of contract or negligence). The original liability provisions go beyond what is required for the UK to comply with the relevant EU directives on health and safety.

There will be very little real impact from the changes for employers. Employers should see the changes as positive in that in future under the amended regulations a claim could only be brought by an employee (or persons employed by an employment business carrying out work in its undertaking (reg 15(2) and 15(3)), in respect of the employers breach of duty under MHSWR. Most public liability and other claims will continue to be based on traditional fault-based principles.

When the removal of the civil liability exclusion was introduced there had been some concern that employees would be put off "whistleblowing" if they were personally liable under the MHSWR, although this was a somewhat theoretical point that has not actually materialised in practice. The proposed new amendment will nevertheless address those concerns.

In practice this change is also likely to have extremely limited impact since most claims are, in any event, brought only against employers who are vicariously liable for their employees - in fact the scope of vicarious liability has increased under recent case law. On the basis that the employer is insured or has deep pockets, there is rarely any purpose in pursing an individual personally for a personal injury claim.

Employees owe a legal duty of care in tort to third parties anyway (the leading case is Lister v Romford Ice and Cold Storage Co Ltd (1957). This will be unaffected by the changes.

In summary, the proposed changes do create an imbalance or inconsistency in the respective legal liabilities of employers and employees, but not so much as to affect businesses in practice or materially increase the need for insurance cover. It will remain possible for third parties (including the employer co-workers) to sue an employee for harm arising out of negligence, and this is a sufficient safeguard for the rare cases of reckless behaviour where such claims might seriously be contemplated.

The consultation also proposes an amendment to the Health and Safety (Consultation with Employees) Regulations 1996 to include civil liability to bring these Regulations into line with MHSWR. The proposed amendment would confer a right of civil action against an employer for breach of its duty under reg 5 (duty of employer to provide information) so far as it causes "damage". This is problematic as it will be difficult to establish a causal link between an injury and absence of consultation: not least because the effect on employee participation in consultation of a failure to make information available at the time can only be a matter of speculation when looked at with hindsight.

There are also inresolved issues with the 1996 Regulations themselves. There should be clear guidance as to what "make available" means (reg 5) for employers who have information available on an intranet system or where information is pinned to notice boards. Particularly in the situation where employees are absent or do not have daily access to a computer.

In practice, the burden of proving that the failure to provide information actually caused the damage complained of will prevent an open of floodgates to claim for new claims. Civil claims will normally have been instigated where damage resulted from a breach of duty of care under general tort requirements in any event. As seen in the 2003 amendment of the MHSWR, the removal of the civil liability exclusion is not likely to result in any significant increase in the number of claims brought against the employer.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 10/05/2005.