Enterprise and Regulatory Reform Bill

Baroness Donaghy Excerpts

Monday 14th January 2013 Grand Committee

If this clause is allowed to stand, it will have profound and unacceptable consequences for thousands of employees injured at work but there are broader ramifications for our health and safety system. It will be a signal to bad employers that they have a better chance of getting away with poor health and safety provision, reinforcing the recent restrictions on the Health and Safety Executive’s budget and the curtailment of proactive inspections. I support my noble friend Lady Turner’s amendment.

[Baroness Donaghy]

My Lords, I declare an interest as the author of a report in 2009 to the then Secretary of State for Work and Pensions on the underlying causes of construction fatal accidents.

My first question is to ask the Minister why this clause was inserted into the Bill at Report on 16 October last year without proper scrutiny. The clause will not take away an employer’s obligation to take health and safety seriously. It will simply make it virtually impossible for a worker who is injured or whose family breadwinner is deceased to go through the complex and uncertain process of claiming compensation. It is a charter for rogue employers to avoid their obligations. Make no mistake about it: if a cowboy is not afraid of sanctions he will carry on behaving like a cowboy. The government Amendment 28ZE was an attempt to head us off at the pass and does not deal with the fundamental change which is being proposed.

As the All-Party Parliamentary Group on Occupational Safety and Health has said:

“Since 1898 the law on claiming compensation for work-place injury, where the employer has breached their statutory duty, has been very clear. This change will not only put the clock back over 100 years, it will create considerable legal uncertainty”.

Strict liability was introduced over a century ago for good reason—to recognise that there was a different balance of power between employee and employers. It would be entirely unfair and most likely impossible to expect an injured employee to be able to show that their employer had not taken reasonable care leading to injury from defective or hazardous equipment. Such duties have helped to prevent future workplace deaths and injury. This is particularly the case on a building site, where the majority of people are sub-contractors and/or self-employed. If the principal contractor were not strictly liable, there would be even greater carnage in the construction industry.

The amendment will not reduce compliance costs for the prudent employer but bizarrely may well have the unintended impact of benefiting the unscrupulous employer. Breaches of workplace regulations are currently almost invariably currently enforced through civil claims procedures, as has been said. Due to limited resources, the Health and Safety Executive is able to prosecute only 0.1%, if that, of breaches and health and safety law. This clause should be removed from the Bill on the basis that the Government should review and consult on the issues of strict liability in an open and transparent manner, inviting submissions from all affected parties.

I am also concerned that the good work carried out by Professor Ragnar Löfstedt has been prayed in aid for this shoddy piece of work. We all know the phrase, “if you give an inch they will take a mile”. In this case Löfstedt recommended that regulatory provisions that impose strict liability should be reviewed by June 2013. He took the view that regulation should be qualified with “reasonably practicable” where strict liability is not absolutely necessary, or amended to prevent civil liability from attaching to a breach of those provisions. He did not recommend a blanket removal of strict liability from health and safety law. The review that he recommended does not seem to have been conducted beyond a simple impact assessment by officials. There was no consultation on the proposals before they were introduced in Clause 61.

As the noble Baroness, Lady Whitaker, has said, health and safety regulation has always contained a balance between different types of obligation, including a majority qualified by “reasonably practicable”, as well as some that are strict. This balance has existed since the Factories Act 1937 and been considered to represent a fair balance. Although “reasonable practicability” has been the main driver for health and safety regulation it has always contained a balance between different approaches to liability.

With some regulations, if a worker is injured and can prove that the employer has breached their statutory duty, the worker is entitled to claim compensation. This is the basis on which health and safety legislation has been introduced by Parliament, with the twin aim of setting out the criminal law and giving people who have been injured as a result of breach of that law a right to compensation. Without this legal provision the injured person would be obliged to rely only on the law of negligence to claim compensation. It is unclear territory. More importantly, cost moves from the employer to the worker.

As I have said, the amendment will not change the fact that the employer will have broken the criminal law. They will still be liable to prosecution in court. All that changes is that the victim will now be denied the right to compensation. The All-Party Parliamentary Group on Occupational Safety and Health is very concerned that this will have a negative effect on preventing injuries in the workplace, as compensation claims have always helped to drive forward improvements to help to ensure that such incidents are not repeated.

Let me turn to the transient nature of the construction industry, where the majority of workers are self-employed—either genuine or bogus self-employed. In London and the south-east it is about 90%. This adds risk to the industry because the self-employed can never be genuine apprentices nor could they take on the role of safety representatives. Some claim that under-reporting of accidents is because the self-employed tend not to report them as they do not receive benefits. The cost of any permanent injury to a self-employed person is probably met by the state and some claimed that they were less likely to report unsafe practices because they wanted a job next Monday. In other words, they were less secure in their employment.

I met a number of families of workers who had been killed on construction sites. Their dignity was impressive and their proposals were centred on future prevention rather than vengeance or compensation. Let me quote two of them: “I brought up my son to be law-abiding. You go to work for the things that you want. They were killed by someone more interested in money. People think that they are safe at work. Sometimes I would have to get him up at 4.30 am”. Another person said, “Everyone was responsible for every bit of the site except the bit my husband was on. I am sure responsibility would have moved if it had been a different part of the site; 350 men have died since my husband died. In any other profession there would have been an outcry.”

I firmly believe that this legislation keeps people alive on building sites. I equally believe that it is not strong enough and yet the Government are attempting to weaken it. One young woman, Jennifer Deeney, lost her husband Kieron after only five months of marriage. The employer accepted liability and so it was only a question of compensation. It took five years for the case to be heard at the Old Bailey. I was privileged to attend the hearing, at the end of a long process, where some justice was done. There were delays at the coroner's office and obstruction from solicitors acting for the employer. The judge in the case said,

“Somebody needs to address these long delays … In essence it is not a complex case”.

I wish we could find a better procedure.

If it took five years to settle this case, which was not complex and where the employer had accepted liability, imagine the impact of having to go through an initial process of proving negligence. This will be a green light to some employers to further evade their responsibilities. At the time of my report, around 50 construction workers died on-site each year, not counting the injured and not counting the 20 tradesmen, electricians and plumbers, and so on, who die every week from asbestos-related disease. A further 12 construction workers die every week from silica-related lung cancer and will continue to do so over the next 40 years unless we increase our health and safety vigilance and not downgrade it.

There was no sense of shock at the regular toll of fatalities in the industry. This clause shows that the Government are not shocked either. I should like to ask the Minister what assessment the Government have made about the impact of amending Section 47 of the Health and Safety at Work etc Act on the ability of an employee to enforce a civil claim for workplace injury. I should also like to ask: will the Government commit to look again at the impact of the Bill on health and safety at work practices to ensure that we are delivering maximum protection for employees?

To conclude, this is not a debate about the compensation culture. It could be a matter of life and death. If strict liability is taken away, it will not be just a few workers affected in terms of compensation; it will affect whole industries, which will take it as a signal to relax vigilance.

Jennifer Deeney did not just collect her compensation for losing Kieron and move on; she has campaigned ever since for improved safety on sites. She was also selected as one of the torchbearers in the lead up to the Olympic Games. I hope that the debate that she is now witnessing will show that her efforts have not been in vain.