HSC Consults of draft regulations which deal with employees' civil liabilities

HSC press release C004:05 - 24 February 2005

The Health and Safety Commission (HSC) has today published a consultative letter containing proposals for regulations concerning the civil liabilities of employees. The proposed changes are being to made to address concerns raised, in particular by Public Concern at Work (PCaW) and the TUC.

As it stands, the law permits claims to be brought against employers and employees who are in breach of the duties imposed on them by the Management of Health and Safety at Works Regulations 1999 (“the 1999 Regulations”). But it provides that claims cannot be brought against employers insofar as the duty applies for the protection of person not in their employment, i.e. third parties.

One of the main effects of the proposed Regulations is to extend to employees that protection against claims by third parties, in circumstances where employees may owe a duty to third parties under regulation 14.

The draft regulations are short and straightforward and are known as the Management of Health and Safety at Work and Health and Safety (Consultation with Employees) Regulations 200[ ].

They amend provisions of the Management of Health and Safety at Work Regulations 1999 (“the 1999 Regulations”) and Health and Safety (Consultation with Employees) Regulations 1996 (“the 1996 Regulations”) which concern civil liability for breach of the duties imposed by those Regulations.

The Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003 (S.I. 2003/2457) amended regulation 22 of the 1999 Regulations so as to activate the statutory presumption of civil liability contained in section 47(2) of the Health and Safety at Work etc. Act 1974, subject to a specific limitation. This had the effect, noted above, of providing that civil claims to be brought against employers and employees who are in breach of duties imposed on them by those Regulations, but the amendment provided that claims could not be brought against employers insofar as the duty applies for the protection of person not in their employment, i.e. third parties.

The opportunity is also being taken to amend the 1996 Regulations regulation 9 of which contains a qualified exclusion of civil liability, to the effect that breach of a duty imposed by those Regulations may now confer a right of action in civil proceedings so far as it causes damage (see regulation 5 of the proposed Regulations). In addition, employers are also protected against claims by third parties insofar as they may owe a duty to them (see regulation 4 of the proposed Regulations). However in contrast with the 1999 Regulations, the 1996 Regulations do not impose duties on employees and so the question of protecting employees against claims from third parties does not arise for the 1996 Regulations.

Further details of the changes can be found in the consultation letter and the draft Regulations. The full text of the consultation letter can be viewed or downloaded from the HSE website at http://www.hse.gov.uk/consult/2005.htm.

Notes to editors

1. The Health and Safety (Consultation with Employees) Regulations 1996 (HSCER) requires employers to consult their employees on matter that effect their health and safety where the employees are not covered by representatives appointed by recognised trade unions.
2. The consultation period will be 12 weeks from the day of publication of the consultation document.

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