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| 2 | CONSULTATION, CONSIDERATION AND COMMUNICATION |
The legislative changes made in October 2003 mean that employees are now civilly liable for injury, illness or death caused to any person as a result of their failure to report a health or safety concern. The liability imposed by this new provision is unprecedented in English law and, additionally, arises not only where the employee had concerns but also where he or she should have had. As this Paper shows it will likely have far reaching implications for insurance, labour relations, litigation and the blame culture and so this section looks at the history and thinking behind the provision and how it was communicated to Parliament and the public.
This new civil liability of employees was made as part of changes to the UK's Health and Safety Legislation in October 2003. While these had been consulted on by the Health & Safety Executive, recommended by the Health & Safety Commission and adopted by the Government, no consideration appears to have been given to this particular issue or its implications.
| 2.1 | The Consultation Paper |
In December 2001 the Health and Safety Executive issued CD177, a consultative document inviting comments on proposed amendments to the health and safety regime in the UK. The background is set out succinctly in the accompanying press release which was also placed on the HSE website. We reproduce it at the end of this paper.
Nothing in the press release suggested that it was intended to make employees liable under the proposed changes. Its focus is on the change to make employers civilly liable for any injury, illness or death caused to their employees as a result of a breach of their duties under of the Management of Health and Safety or Fire Precautions Regulations.
This was also the clear message from the Consultation Paper itself. When explaining the background to the issue, namely that the European Commission had been concerned that the exclusion of employers' civil liability to employees breached EC law, the Paper stated in paragraph 9 that
"In the event, the HSC recommended - and Ministers agreed - that the UK should undertake to lift the civil liability exclusion from MHSWR for breach of statutory duty towards employees."1
The single reference to the liability of employees in the 20-page Consultation Paper is a passing and opaque one that appears in paragraph 15
"The civil liability changes will:
(i) enable an employee injured or made ill though work to bring a claim against their employer for breach of MHSWR or the FPRegs;
(ii) leave the employee open to a claim in certain circumstances; ie, where they have breached duties imposed on them by Regulation 14 of MHSWR ("Employees duties") and injury or illness has resulted;
(iii) be governed by existing rules which limit the time in which a damages claim can be brought. Section 11 of the Limitation Act 1980 imposes a three year time limit for the bringing of actions for damages for breach of a duty made under a statute…."
It should be noted that nothing in this reference suggests that the proposed changes will impose a wholly new civil liability on employees to report health or safety concerns. No information is given as to the duties that are imposed under regulation 14 MHSWR and or to the circumstances in which HSE maintains employees may be open to a claim. The duties in regulation 14 are that the employee should (a) use any equipment in accordance with any training and instructions received, and (b) should report any health or safety concern to the employer or safety representative. While the HSE may well be correct that breach of the duty to comply with training and instructions can make an employee civilly liable, we are aware of no case law that employees are civilly liable to fellow employees or the public for not reporting health or safety concerns. Whatever indication the sentence at (ii) may have meant to give about a new civil liability on employees, the use of the word 'leave' meant that all but a handful of consultees seemed to have assumed that the proposals would impose no new liability on employees.
Whatever message the HSE had intended to give in this oblique reference, it was explicitly contradicted in the draft Explanatory Note to the Regulations that appeared in Annex A and the Regulatory Impact Assessment in Annex B.
Annex B in the Document contained the draft legal provision and an explanation of its effect. The provision was drafted as follows:
Restriction of civil liability for breach of statutory duty
22. Breach of a duty imposed on an employer by these Regulations shall not confer a right of action in any civil proceedings insofar as that duty applies for the protection of persons not in employment.
The Explanatory Notes stated (with our emphasis) that this provision would replace the existing law2:
"(which provided that breach of a duty imposed by the Regulations could not confer a right of action in any civil proceedings) to the effect that employees may bring civil claims against their employers where they are in breach of duties imposed by the 1999 Regulations; but for all other purposes the exclusion of civil liability for breach of duties imposed by the 1999 Regulations remains."
The Regulatory Impact Assessment in Annex B also made clear that the issue was only about the employer's liability to employees for breach of its duties, and so made no reference to any liability being imposed on employees who failed to report health or safety concerns. The key issue it sets out was, where employers were in breach of the regulations, whether only employees should be able to sue them or whether this liability should also extend to consumers, passengers and the public. At paragraph 4 (emphasis added) the Assessment states
"HSC has considered all options for change but considers that, at this time, priority must be to adhere to the changes sought by the European Commission rather than go beyond them. The HSE is therefore consulting only on extending the right of action to an employer's own employees".
The Questionnaire in Appendix C which invited consultees' comments on the proposals made no reference to any proposal that employees would be liable under the proposals either generally or as a result of their failure to report health or safety concerns.
| 2.2 | Responses to the consultation |
3,000 copies of CD177 were issued and the document was also accessed over 4,000 times from the HSE's website. A paper on the responses was prepared for a meeting of the Health and Safety Commission on 15 October 2002. This stated that there had been 128 responses and that
"78 offered little or no comment; the remainder - 52- were split nearly 2:1 between active support for the civil liability proposals and varying degrees of concern."
The HSE kindly supplied us copies of most of the responses, from which we found that 8 had picked up on the possibility that the proposals might create a liability on employees under regulation 14. From these eight responses it seems that they, prompted by the HSE's failure to raise the issue, had overlooked the duty of employees to report any concern about health or safety in regulation 14(2) and had considered any such employee liability in the context of the duties to comply with training and instructions. This is apparent as no respondent referred to the fact that the proposals meant employees would become civilly liable for failing to report health or safety concerns.
The TUC and UNISON each identified the risk that employees might be civilly liable under the proposed amendment and opposed any such possibility. Railtrack too criticised the complexity of the draft and recommended wording that eliminated any possibility (which it had assumed was unintended) that employee might be liable.
The law firm CMS Cameron McKenna was also uncertain about the policy intention and cautioned (correctly as things transpired) that, as drafted, the provision meant employers liability for breach of their duty was only to an employee of theirs, while an employee in breach of his duty would be liable to consumers, passengers, patients and the public as well. It said
"Paradoxically the effect of this amendment could also leave employees open to claims being brought against them where a breach of a duty imposed under regulation 14 MHSWR leads to injury or illness, although the amendments do not, on the face of it, make this possibility clear……the proposed new wording does not seem to exclude (claims from people other than employees)."
The complexity of the legal drafting so concerned the CBI that its response concluded that
"The tortuous wording and logic…gives little confidence (and the provisions) should be written in English that is clear and unambiguous and thus easily understood by those on whom is placed the ultimate responsibility for their observance".
Its response emphasised that it was "paramount" that any civil liability for breach of duty was extended only to employees and not to the public generally.
The CBI also commented (as did the Construction Confederation) that
"the observation in para 15(ii) that employees will be open to civil claims in certain circumstances begs the question as to whether all employees may be required to take out insurance, analogous to the requirement for employers to take out employer's liability insurance".
The Engineering Employers' Federation agreed, observing that
"The consultation document raises the prospect of civil litigation being taken against employees for their failures under MHSWR. We believe this to be a very real prospect and it raises the question whether employees or where appropriate their Trades Unions should carry personal indemnity insurance….It is vital that clear guidance is produced to help both business and workers understand the impact of these changes".
| 2.3 | HSE's consideration of the responses |
The HSE's internal paper on the responses - prepared for the meeting of the Health and Safety Commission on 15 October 2002 - was the first time the HSE clearly stated that the amendments would make employees liable for breach of their duties under the regulations. It did not suggest that this was a change from the policy set out in the consultation document; it did not summarise the legal, policy or practical effects of such a provision; and it made no mention that this would mean that employees will for the first time be civilly liable for failing to report health or safety concerns.
Annex A to the paper set out HSE's analysis of the responses. As to employee liability, it explained:
"Potential for employees to face compensation claims
19. A consequence of the proposals as they stand is that employees as well as employers would be open to compensation claims for breach of statutory duty (be it from their fellow employees, employer or elsewhere) given that both have duties under MHSWR. Views differed among consultees as to whether employees should be open to claims.20. Several safety consultancies welcomed the prospect, on the basis that it would capture those cases where accidents resulted from employees failing to abide by control measures, and which would not be pursued by the enforcing authorities. However, other consultees were concerned about its possible practical effects. For example, could an employee claiming against an employer face a counter-claim? Would it mean (a point raised by the CBI, Construction Confederation and the Engineering Employers Federation) that employees or where appropriate their trade unions should carry Personal Indemnity Insurance, akin to the requirement for employers to take out employer's liability insurance? Or would vicarious liability apply, whereby the employer was generally liable where the acts of their employees, in the course of their employment, resulted in injury to a third party?
[21. No paragraph 21 appears in the Annex]
22. The TUC and UNISON proposed removing any such confusion by amending the draft regulations so that employees were not open to such claims.
HSE commentary
23. We would be hard pressed to exclude employees from this aspect of the proposals, given that the proposals arose in the context of the Framework Directive and that the Directive places duties on both employers and workers. That said, as consultees have pointed out, the scope for claims against employees (who are already open to common law claims for negligence) is limited in practice by vicarious liability."
We do not consider this to be a helpful or accurate summary of or commentary on the effect of the proposals. Not only does it fail to mention that it creates a new civil liability on employees for not raising a health or safety concern, but it fails to consider whether vicarious liability would apply and omits to address the paradox raised by the law firm Cameron McKenna that the employee, unlike the employer, would be liable for injuries caused to consumers, passengers or the public.
The Explanatory Note to the draft regulations set out in Annex B remained unchanged and again asserted that employees would not be liable for breach of duty under the new law. Annex C, the revised Regulatory Impact Assessment, still talked only of claims brought by employees against employers and concluded in the light of the consultation that
"HSE expects that the increase in total claims as a result of these proposals - if any - to be small".
| 2.4 | HSC's consideration |
The minutes of the HSC meeting of 15 October 2002 show that there was a dawning recognition that the proposal that employees were to be civilly liable could have potentially far-reaching implications. The minutes record that
3.2 The proposals had arisen from the government commitment to the European Commission. HSE consultation had resulted in strong views both for and against the amendments.
3.3 The amendments would allow employees to claim damages from their employer in civil actions, where they suffered injury or illness as a result of the employer breaching MHSWR or FPR. The draft regulations would also allow civil claims against employees for breach of the employee's duties under reg. 14 off MHSWR which resulted in injury or illness.
3.4 In discussion the Commissioners commented on issues including: the need to monitor the effects of the changes; the balance between how employees/employers could be affected; the role of lawyers and ambulance chasing; how the changes will be communicated; the TUC's proposed amendments concerning (the exclusion of) employee liability; and that in a short period the Commission was again being pressed to make decisions to meet EC requirements.
The minutes do not indicate whether the Commission also considered
| a) | the fact that one of the duties it was proposed employees would be civilly liable for was failing to report any health or safety concern that he or she was or should have been aware of in connection with his activities at work; |
| b) | the practical effects on workplace relations of making employees civilly liable in this way; |
| c) | the legal and regulatory impact of this proposal, particularly as such a cause of action does not already exist in common law; |
| d) | the policy anomaly that employees in breach of this duty would be liable to any and all injured, while the employer's own liability for its breach under the same regulations was restricted to employees and expressly did not extend to consumers, passengers or the public; |
| e) | if the employer was or should be vicariously liable for the employee's failure to report a health or safety concern, this would make the restriction on employer's liability for its own breach meaningless; or |
| f) | if the employee was alone liable and vicarious liability did not arise, whether or not employees should take out employee liability insurance. |
The minutes conclude that
"the Commission agreed to continue with the package of recommendations at para 3. It did not expect the volume of new cases resulting from the change to be high, but the impact would need to be monitored".
These recommendations at paragraph 3 of the HSE paper were that the HSC
It is likely that these recommendations will have caused confusion to Ministers and officials as Annexes B and C said the opposite to the recommendation in paragraph 8 as to whether employees would be open to claims under the proposal. They also did not expressly address the facts that (a) the liability of the employer would be restricted to its own employees but the liability of an employee would extend to consumers passengers and the public, and (b) if the employer was vicariously liable this contradicted the expressly stated policy.
| 2.5 | Information given to Parliament |
The words of the new provision remained unchanged and were:
Restriction of civil liability for breach of statutory duty
22. Breach of a duty imposed on an employer by these Regulations shall not confer a right of action in any civil proceedings insofar as that duty applies for the protection of persons not in employment.
The Explanatory Note to the 2003 Regulations stated that the effect of the amendment was that employees can sue employers for breach of the MHSWR. Paragraph 2 largely reproduced the wording of the draft Explanatory Note that appeared in the Consultation Document and stated it replaced the existing regime.
"(which provided that breach of a duty imposed by the Regulations could not confer a right of action in any civil proceedings), to the effect that employees may bring civil claims against their employers where they are in breach of duties imposed by the 1999 Regulations (but as respects claims by non-employees the exclusion of civil liability for breach of duties imposed by the 1999 Regulations remains)."
The one amendment was the words in parentheses which had replaced the following phrase in the earlier draft "but for all other purposes the exclusion of civil liability for breach of duties imposed by the 1999 Regulations remains". While the new words removed the false statement, they mislead by omission as they give no indication that (a) employees can now be sued for breach of their duties and (b) no inkling that this made employees civilly liable for the first time under English law for injury or death caused by their failure to report shortcomings in health and safety arrangements. Had an MP or reader wished to know more, he or she would likely turn to the Regulatory Impact Assessment that had been placed (as stated on the face of the regulations) in the libraries of the Houses of Parliament.
The Regulatory Impact Assessment opens by stating that the issue behind the new regulations is that
"the UK undertook to remove the exclusion - both from the MHSWR and from the Fire Precautions Regulations 1997 - for breach of statutory duty toward employees and to consult to that end."
Paragraphs 6 (which set out the objectives), 7 (on the options the HSC considered and consulted on), 8 (on issues of equity and fairness), 10-11 (on benefits), 12 (on sectors affected), 13-20 (on practical effects), 21-26 (on the impact on the amount of litigation), or 36 (on uncertainties) deal only with the provision that an employer will be able to be sued by its employees.
In contrast to the information put to the HSC and its consideration of the issues, no mention is made in the information put before Parliament that the changes mean that employees can be sued, nor is any indication given that employees will be civilly liable for death or injury caused by a health and safety shortcoming which they failed to report.
| 2.6 | Information given to the public |
On 29 September 2003 - with the amended regulations still before Parliament - the HSE issued a public statement entitled 'Improvements to work and fire safety'. This stated
"Workplace safety and fire regulations are to be changed to allow employees and employers to claim damages for breaches of the regulations. Employees will be able to claim damages from their employer in a civil action, where they suffer injury or illness as a result of the employer breaching the Management of Health and Safety at Work Regulations 1999 ("the 1999 Regulations") or the Fire Precautions (Workplace) Regulations 1997 ("the 1997 Regulations"). Employers will also be able to bring actions against employees for breach of their duties under the 1999 Regulations. In addition amendments are being made to the 1997 Regulations to clarify enforcement responsibilities…
The ODPM, DWP and HSC, having considered the comments received in response to the consultation including on HSE's regulatory impact assessment, concluded that new claims arising from the proposed legislative changes are likely to be small. Nevertheless the Government and HSC believe that the Regulations will send a powerful signal to industry about the seriousness of the Government's intentions to raise further the profile of occupational health and safety".
While it is notable that this public statement - in contrast to the information provided to Parliament - does mention that the new regulations allow employees to be sued for breach of their duties, it is not accurate. Firstly it is wrong to intimate that only employers can sue employees for breach of their duties as the new law provides that anyone including injured consumers, passengers, passers-by and fellow workers can sue an employee. Secondly, employers who are not individuals (and the majority are not) are unable to suffer death or injury and, therefore, cannot sue for this breach. Finally, and more importantly, no indication is given that employees are now for the first time civilly liable for injury or illness caused by their failure to report a health or safety concern.
This is unfortunate when
Dated: 26 May 2004
EMPLOYEE CIVIL LIABILITY FOR FAILURE TO INFORM
EMPLOYER OF DANGERS TO HEALTH AND SAFETY
SUMMARY OPINION
"Every employee shall inform his employer or any other employee of that employer with specific responsibility for the health and safety of his fellow employees-
(a) of any work situation which a person with the first-mentioned employee's training and instruction would reasonably consider represented a serious and immediate danger to health and safety; and
(b) of any matter which a person with the first-mentioned employee's training and instruction would reasonably consider represented a shortcoming in the employer's protection arrangements for health and safety."
"Breach of a duty imposed by health and safety regulations . . . shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise."
Thus it is necessary to look at the provisions of specific health and safety regulations, such as the 1999 Regulations, to ascertain whether they exclude a right of action for breach of the statutory duty, and if so to what extent.
"Breach of a duty imposed on an employer by these Regulations shall not confer a right of action in any civil proceedings insofar as that duty applies for the protection of persons not in his employment."
"It is submitted that the weight of opinion now in favour of the 'servant's tort' approach should lead to liability being imposed on the employer in respect of a breach of a statutory duty imposed on the employee committed within the course of his employment."
| TIM KERR QC 11 King's Bench Walk Chambers 26 May 2004 |
HSC Press Release C060:01 - 21 December 2001
HSC announces consultation on proposals to amend the Management of
Health and Safety at Work Regulations 1999 and the Fire Precautions (Workplace)
Regulations 1997.
The Health and Safety Commission (HSC) has published a Consultative Document
on its proposals to amend the Management of Health and Safety at Work Regulations
1999 (MHSWR) and the Fire Precautions (Workplace) Regulations 1997 (FPRegs).
The document is available on the web at http://www.hse.gov.uk/condocs/cd177.htm
and proposals include:
The HSE also proposes to make several other amendments consequential to the civil liability proposals, to the FPRegs, and to correct minor drafting defects in MHSWR.
The civil liability proposals follow from correspondence between the European Commission and the UK Government over the UK's implementation of the health and safety "Framework Directive" (89/391/EEC). In this light the Government has notified the European Commission that it intends to amend the civil liability provisions in MHSWR and the FPRegs, and to consult on proposals to this end. Consultees are therefore invited to comment on how - not whether - the civil liability changes should be made.
The chief impact of the proposals will lie in the increased scope for employees to bring civil liability claims if they are injured or made ill by their work. However, it is difficult to assess whether there will be an increased number of claims in practice. Any change will be limited by the potential overlaps between claims for MHSWR breaches and those arising from negligence and/or breach of other regulations. The Consultation Document includes a Regulatory Impact Assessment which gives further details.
The consultation exercise will close on 14 March 2002.
Note To Editors
Footnotes