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Why employers should still be mindful despite removal of strict liability

At a glance

  • Employers must continue to meet health and safety obligations or face falling foul of the law
  • Recent changes reinforce need for firms to keep up to date records
  • Zurich’s expertise can help customers work their way through health and safety legislation and offer risk management guidance to help minimise risks

The Enterprise and Regulatory Reform Act 2013 may have come into force last October, but the insurance market is still very much feeling its way through the potential long-term implications.

The big headline for brokers and their clients is that injured employees can no longer bring a civil law claim for damages based purely on an allegation of breach of statutory duty.

So just what has changed? Section 69 of the Act now dictates that a breach of statutory duty by an employer is no longer sufficient for them to become automatically liable for the injury and associated damages of an employee.

Tips for brokers to make the changes to strict liability work for you and your clients

  • Use the changes as a way to discuss health and safety compliance
  • Clients should not reduce their approach to H&S in the workplace. Effective risk management remains the key to controlling both prosecution and civil law risks
  • Make sure clients realise they can still face a claim – it will just come in a different form
  • Reiterate to clients that detailed training logs, maintenance records and accident reports will improve their ability to defend claims and strengthen their risk profile
  • Use Zurich’s resources to explain the changes and keep on top of further legislative amendments

Instead, the injured employee must show that their employer has been negligent in discharging their common law duty of care.

The intention of the change is to make sure businesses that have taken all reasonable measures to meet their health and safety obligations are not unduly punished when something goes wrong that they could not reasonably have foreseen.

Best practice

This might seem like good news, but brokers should remind clients that the new law does not diminish an employer’s need to implement best practice in regard to health and safety legislation.

In the first instance, there are a number of exclusions to the change including pregnant woman and new mothers.

In the second, the need to prove negligence will encourage claimant solicitors to more thoroughly investigate the events surrounding an accident and the safety and maintenance programme that an employer had in place prior to the incident, which could increase legal costs.

Current legal thinking is that claimant lawyers will cite the breach of statutory duty as evidence of negligence. Therefore firms need to have records available to protect themselves and they need to be detailed, accurate and up to date.

Expert advice

For brokers, the challenge is to keep on top of how these changes affect their clients on a practical level and make sure they continue to offer the most detailed and appropriate advice.

Although the introduction of Section 69 alters an employer’s civil liabilities, it has no impact on criminal law and so they are still at risk of enforcement where they fail in their statutory duties.

Helping brokers and their clients work through this intricate web of legislation is where Zurich’s expertise really comes into its own. Zurich also has the resource to offer the kind of risk management guidance and information to help minimise risks where they exist and ensure companies can defend themselves effectively from spurious or unwarranted claims.

Image © Getty

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