15 January 2015
Consultation published seeking to abolish s69 of the Enterprise and Regulatory Reform Act 2013. The Enterprise & Regulatory Reform Act (“ERRA”) came into force on 1 October 2013. Section 69 radically altered the landscape for employees seeking damages for personal injury as it removed strict liability for a breach of health & safety regulations. On 5 January 2015, Richard Baker MSP lodged his proposal for the Damages Claims (EU Directive on Safety and Health at Work) (Scotland) Bill.
A copy of the document can be found here:
http://www.scottish.parliament.uk/S4_MembersBills/20141222_Consultation_document_v.4.pdf
The proposal is for a Bill that will “ensure that all Scottish workers will have effective legal protection against a breach of their rights under European law”. Mr Baker comments that the ERRA “puts workers’ rights back more than 100 years, puts the UK in direct conflict with European Law and … opens the Scottish Government to damages claims that could cost millions of pounds every year”. In short Mr Baker proposes that (in Scotland) the effect of s69 ought to be reversed.
The main challenge is on the basis that s69 is said to be incompatible with EU law whereby public sector workers are in a better position than private sector workers. This is because those workers can sue their employers under strict liability for breach of the appropriate European Directive, whereas private sector workers must pursue any claim on a common law basis. He argues that s69 has rendered UK health & safety regulations “almost worthless” and says that they “offer no deterrence against employers ignoring workplace safety”.
Baker also refers to the fact that the Scottish (and indeed the UK) Government is exposed to claims being brought against them by injured workers who have been unable to recover damages as a result of the Government’s failure to implement European health and safety directives to allow injured workers to recover damages. He seeks to “protect the finances of the Scottish Government” by the proposals contained in the Bill.
The Bill contains two objectives:
- That all Scottish workers, no matter by whom they are employed, enjoy the benefit of the same level of protection to which they are entitled under European Law; and
- That every Scottish worker can rely directly upon European Directives in relation to worker safety to pursue a compensation claim if they are injured in circumstances where those directives are breached.
Responses to the proposal are invited and require to be submitted by no later than 31 March 2015. One of the main challenges to the Bill is likely to be that it is outwith the competence of the Scottish Parliament, something which Baker disputes. Whether or not Mr Baker can secure support to proceed to the next stage remains to be seen. If the proposals contained in the paper do make their way into the statute book, it will create a significant divergence in personal injury law north and south of the border something which insurers and employers alike will have to pay close attention to.
If you require further information, please do not hesitate to contact:
Catherine Currie, Partner & Solicitor Advocate, E: ccr@bto.co.uk / T: 0141 221 8012