Back to the 19th century
The Conservative-Liberal Democrat government’s open attack on the legal rights of workers has taken many forms, from watering down the law on unfair dismissal, to offering shares in exchange for rights, to introducing tribunal fees to act as a deterrent to workers bringing claims. Yet their latest move is so far-reaching, it turns back the clock on employment rights to the 19th century. When Ed Miliband chose to quote Benjamin Disraeli in his 2012 conference speech, even the most ardent Labour supporter could not have expected David Cameron to so starkly demonstrate his own government’s total rejection of the ‘One Nation’ inheritance by deciding to overturn the rights originally given to people as a consequence of an act of parliament passed by Disraeli himself.
The government is seeking to take away workers’ rights to bring civil claims for breaches of health and safety legislation. Such a clause was quietly inserted a clause into the Enterprise and Regulatory Reform Bill which passed through the Commons on 16 October 2012 without any consultation. It will be debated in the House of Lords on 14 November 2012. The significance of this cannot be overstated, and the example of the legal case that cemented the original principle into law shows this.
Section 5(4) of the Factory and Workshop Act 1878 imposed a duty on employers (or ‘masters’ in Victorian parlance) to provide fencing for dangerous machinery. In the late 1890s, a boy had to have part of his arm amputated after he was caught by the unguarded cog wheels of a steam winch. His employer came before the court, and the case is reported as Groves v Lord Wimborne  2 QB 402. The judge said that the employee had the benefit of ‘an absolute duty imposed by statute upon his master for his protection’. What it means, quite simply, is that if a worker is injured as a result of an employer breaching an absolute duty imposed by the law, then the employer has no substantive defence and the worker is likely to win their legal case and obtain compensation. This not only represents justice for the individual who is injured, but it also provides a wider benefit to society in that employers are kept on their toes in being health and safety conscious.
The government claims that criminal liability will still remain enshrined in health and safety law and that employees can still make civil claims in negligence. That is correct, but allowing employees to bring claims in negligence only, rather than breach of statutory duty, gives employers a far wider defence to such claims in which the degree of risk to the employee is only one factor to be considered; high cost is another. In the case of Groves, for example, while the unguarded cog wheels may have posed a high risk, the employer could have argued that the likelihood of an injury was slim and the fencing was too costly. Under the law as it currently stands, this argument is not possible: the duty to guard is an absolute one.
This is no mere legal technicality. Thousands of claims brought by employees that are currently successful will no longer be successful. Absolute duties, ‘strict liability’ and even those regulations subject to a defence of ‘reasonable practicability’ (which is still a higher standard than common law negligence) will all be, in effect, neutered. The incentives for employers to take health and safety seriously are being taken away. Labour’s shadow business minister Andy Slaughter was entirely right when he said that this was part of a ‘sustained campaign’ in the civil justice system to shift it ‘away from individuals and small businesses, in favour of large corporations’. Remarkably, the cabinet minister who is be responsible for this piece of legislation is a Liberal Democrat, Vince Cable. He should be totally ashamed of himself.
Benjamin Disraeli, coalition government, Ed Miliband, employee rights, employment, House of Lords, jobs, one nation Labour, Vince Cable