Enterprise and Regulatory Reform Bill amended

The Enterprise and Regulatory Reform Bill (ERRB) has been amended by the government at the very last minute – at Report Stage – in the House of Commons to remove a basic right of injured workers.

If this clause remains, employers will no longer be liable in the civil courts for the criminal offence of a breach of the HSWA regulations. In every case, rather than be able to rely on the breach of the regulations, the worker will have to prove the employer was negligent.

Section 47 of the HSWA 1974 contains a presumption that regulations made under the Act (i.e. all health and safety regulations) carry civil liability for breach unless expressly excluded. That is why the Management Regulations, until they imposed civil liability, had to contain an express exclusion of civil liability.

The government’s amendment proposes to reverse that presumption meaning that no H&S regulation (whether made under the HSWA or otherwise) would impose civil liability unless express provision was made for them to do so.

As the regulations do not have express provision, and there is no proposal to amend them, there will be no civil enforcement.

In summary, it will be easier for employers to break the law in terms of protecting their employee’s safety, without a come back to them.