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‘European Union legislation dealing with the safety of those at work is, generally speaking, founded on the principle of strict liability… The underlying economic theory is that the cost of workplace accidents is part of the cost of production of a good or service, …Moreover, strict liability has a further advantage over fault-based liability in that it acts as an incentive to reduce the incidence of hazardous activities;’

These are the words of the eminent Lord Drummond Young, one of Scotland most brilliant legal minds, set out in his decision in the case of Rosemary Cairns v Northern Lighthouse Board and Calypso Marine Ltd, a decision of the Scottish Supreme Court in February 2013.

Fast forward only eight months and some former Bullingdon club members, their fellow party members and co-conspirators in the form of ‘Liberal’ Democrats had managed to effect changes to the European led system that saw workplace safety legislation do a Dr Who type rewind of around 100 years. This came in the form of s69 of the Enterprise and Regulatory Reform Act 2013. Small in size, but big in impact and with potentially grave consequences this removes the strict civil liability for employers breaches of regulations.

Before 1st October 2013 an employer faced two consequences if they had breached the UK’s health and safety regulations.

1.    They could be prosecuted for the breach and fined (investigations carried out by the Health and Safety Executive)
2.    A person who suffered injury as a result of the criminal breach of regulation would be entitled to receive compensation for their injury.

The Health and Safety regulations, before 1st October 2013 were used in the vast majority of workplace accident cases to successfully pursue recovery by victims of injury for their injury, lost earnings and other loses arising as a result of the employers failure to follow Health and Safety law. Not only did this system allow the victim to obtain justice for the harm caused to them it also placed pressure on employers and their insurance companies to keep the workplace safe for all.

The effect of section 69 is to remove the entitlement to receive compensation for injury which arises from a criminal breach of the regulations.

How does this affect me?

If you’ve not been a victim of injury yourself it may be difficult to see how this will affect you directly. Perhaps on the 2nd October 2013 the workplace seemed exactly the same as two days earlier, however, with the only sanction for an employer being criminal prosecution standards in safety are expected to fall. The reality is that the Health and Safety Executive do not have the funds or resources to investigate the vast majority of breaches of safety legislation. The more such breaches go unchecked the lower safety improvements fall on the list of priorities. So expect your workplace to be more hazardous through time.

If victims of injury are unable to prosecute a civil claim using the regulations then for those who would ordinarily be able to recover the likes of lost wages, care costs and treatment from a negligent employer the burden here will be transferred to our already over stretched and underfunded NHS and welfare system.

The changes are also likely to mean a two tier system is created where private sector workers have no rights and protection in law but public sector workers rights are preserved. This is because the latter will still be able to prosecute because European legislation creates a ‘direct effect’ on ‘emanations of the state’ (eg; local authority, government departments).

It is also argued that the legislation could open the UK and Scottish Government to claims from individuals for ‘Francovich damages’. This is a well-established legal principle. Effectively it provides for a right of recovery against a member state of the European Union if that state has failed to fully implement a European Directive. Our view is that the provision in section 69 of the Enterprise Act brings the UK Government into breach of its obligations and opens the doors to individual claims against them.

Steps are already being taken in the form of a Bill within the Scottish Parliament, the Damages Claims (EU Directive on Safety and Health at Work) (Scotland) Bill  http://www.scottish.parliament.uk/S4_MembersBills/20141222_Consultation_document_v.4.pdf to reverse the damage caused by the tories’ anti-worker piece of legislation.

We call on the next UK government to follow the lead of the Scottish Parliament in addressing this matter and to make sure Scottish workers have the same level of protection at work as our fellow European citizens. We also call on every Scottish Parliamentarian to stop this Tory attack on workers and support the Bill for the benefit of workplace safety and our Scottish economy.

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