News article published on: 13th August 2019
Despite widespread condemnation, the Enterprise and Regulatory Reform Act came into force in October 2013, and in part 5 of the Act’s inappropriately titled “Reduction of legislative burdens” section was included a provision changing the law on civil liability (section 69 of the Act).
This meant the Act removed civil liability for a breach of health and safety regulations, which with hindsight seems extraordinary unwise. At the time, many legal commentators wrote about their fears that this would be interpreted as reducing the “legislative burden” on employers, and the devastating effect this could have on employees and employers alike. Many of those who act for people affected by negligence, including the Association of Personal Injury Lawyers, campaigned against the removal of civil liability, arguing that any employer complacency could reverse the trend in workplace fatalities and would inevitably lead to a call for tougher penalties when employees are killed in the workplace.
It is with tentative approval therefore that a consultation paper has been published at the beginning of July 2017 in which the Sentencing Council is now looking at tightening the guidelines for manslaughter by gross negligence, and employers who inadequately consider the safety of employees could face longer prison sentences under full sentencing guidelines for manslaughter offences. Factors to consider will now include negligent conduct motivated by financial gain or cost-saving.
Whilst it is hoped this might reverse the damage done in recent years, it is feared that any sentencing changes will not go far enough. Health and safety is a state of mind, and adherence to its rules and the core principle of undertaking suitable and sufficient risk assessments are absolutely crucial to keeping employees and others safe.
Reinstating civil liability for regulatory breaches, and reversing the underfunding of the HSE would be two very good starting points, and would likely have a more beneficial effect than simply increasing the penalties for corporate manslaughter.
Ben Posford is a partner and head of catastrophic injury at Osbornes, and acts exclusively for injured and killed claimants and their families, including those killed in the workplace. He is also instructed in relation to the Croydon Tram Crash.
Ben Posford’s previous articles on these issues for The Times and the Solicitors Journal written in September 2013 are still available to view online.