Check out Part 1 here of this series if you’ve not read it already!
Less protection now? Maybe not…
As you can imagine, a number of insurance companies and their lawyers sought to capitalise on this change in order to avoid paying out for workplace injuries by arguing the law is not as strict now.
What many of them fail to bear in mind though is that when the Government was introducing the 2013 law it specifically stated the EU laws would still be relevant to the law of negligence i.e. the old and still present British legal test.
Judges are supposed to interpret the law based on what they believe the Government intended at the time and here it is clear the Government’s intention was that the laws Britain introduced in the past to comply with the stricter EU laws would be considered by judges in determining whether there was negligence.
It therefore leaves us with a mixed position; an example might help.
Example A – Pre-2013
An employee has to lift heavy objects all day every day. There was no risk assessment. If a risk assessment had have been done it would have been recognised the employee was at risk of injury and certain changes were needed to prevent them being injured. One day the employee suffers a back injury. The employee can point to Regulation 4 of the Manual Handling and Operations Regulations 1992, which states a risk assessment must be done, and the case is very likely to succeed.
Example B – Post 2013
All the facts are the same but this time the employee cannot simply point to Regulation 4 on its own. Now the employee has to argue the employer was negligent in that it failed to provide a safe system of work in that the employer failed to meet the standards set out in Regulation 4. This should, in theory, reach the same result. I say “in theory” because these changes have not been in long and so the full effect is still unknown.
However, in other cases, such as if work equipment fails causing injury, it will be harder to succeed than before, though there are other, older laws that can provide protection here such as the Employer’s Liability (Defective Equipment) Act 1969.
Note also that new and expectant mothers still have the pre-2013 protection under the Health and Safety at Work etc. Act 1974 (Civil Liability) (Exceptions) Regulations 2013.
Although the position is still not fully clear, there has been a 2015 Scottish case (Gilchrist v Asda Stores Ltd) in which the Court accepted, in principle, that the EU laws were still to be considered when determining whether there was negligence, which matches the Government’s comments at the time.
Will things get worse after Brexit?
In some ways yes but perhaps not dramatically. The UK will no longer have to pay attention to new EU health and safety laws introduced, and may not even know about them.
The EU has always taken a strict approach to workplace health and safety so without it taking the lead so to speak Britain may fall behind. One could argue less red tape might make Britain a more attractive place to do business but the whole point of health and safety law is to prevent worker injuries so as to boost productivity via less sick days and to lessen the burden upon the NHS and DWP in that the employers’ insurance companies are supposed to “foot the bill” for injuries. If Britain does come to be seen as more “backward” compared to EU rivals such as Germany, this could become a negative.
As regards the law as it currently stands, the unexpected 2013 law most likely did as much harm as it could. The only way to do further harm would be to repeal health and safety laws such as the Manual Handling Operations Regulations 1992 i.e. strip it from UK law altogether. The prospect of a developed nation removing a health and safety law altogether in the 21st century seems unimaginable, but the 2013 change was unexpected, and rapid.
We continue to live in fast-changing times, particularly in workplace health and safety law.
Having practised in this area for a number of years and seen many employees left unable to work for years, and the NHS having to fund their treatment, all because a simple, cheap and easy step was ignored by the employer (not always to save money, often due to laziness) my view is that a preventative approach, which strict health and safety laws provide, is by far the cheapest and financially advantageous way for the country to operate.
The effect of Brexit remains to be seen and it will be interesting to see whether British workplace laws diverge from European ones in the years to come.