Last year the government slipped in an amendment on the third reading of the enterprise and regulatory reform bill removing civil liability for breaches of all health and safety legislation. Labour peer Muriel Turner of Camden, supported by colleagues on her side of the house, has tabled an amendment to remove it.

The government’s proposals, to be discussed again tomorrow, will prevent employees from bringing civil actions against employers. This takes the law on employer liability for accidents at work back to Victorian times, to before the landmark ‘Groves v Lord Wimborne’ decision in 1898 which decided that claims to be brought for breaches of statutory duties.

It is a good thing that health and safety has improved since then, and workplace accidents are now at an all-time low. However, there were still 173 workers fatally injured at work last year and the TUC estimates that 20,000 people a year die prematurely as a result of injuries, illnesses, or accidents caused by or in their place of work. Undoing this legislation will only put this progress into reverse.

The government claims to be addressing the unfairness of ‘strict liability’ duties on employers. However, the 2011 Lofstedt report, which it relies on, recommended providing employers with a defence where they have taken all reasonable steps to avoid breaching regulations. It did not recommend removing civil liability for all breaches. This is not just using a hammer to crack a nut; the nut is being well and truly incinerated.

Despite the government railing against strict liability duties, there are very few and they are in place for good reason, for example where an employee is injured by defective or unsuitable machinery. It is very difficult to investigate let alone prove fault on behalf of the employer who holds all of the information and may repair any defect thereby destroying the evidence required. The current law reflects the long-held policy that the risk should fall at the feet of the employer rather than those of employees. As John Monks remarked in the Lords, ‘Removing strict liability does not remove unfairness; it merely shifts it on to the most vulnerable’.

All of our statutory health and safety regulations will have relevance only in criminal law. The improvements in health and safety have not arisen because of the threat of criminal sanctions but because employers know that when they injure their workers they will liable in civil courts to compensate them for their injuries. The Health and Safety Executive is only able to prosecute 0.1 per cent of breaches in health and safety law and it has sustained considerable cuts in the last three years. As Rita Donaghy warned in the house, this would be ‘a charter for rogue employers to avoid their obligations. Make no mistake about it: if a cowboy is not afraid of sanctions he will carry on behaving like a cowboy.’

Where will the cost of cowboys lie? Medical costs, often paid for by employers’ insurance, will fall to the NHS. And in situations where injuries mean than victims need care or can no longer work it will fall to the state. In 2011-12 the government recovered more than £75m of social security benefits paid to victims of accidents at work through the Compensation Recovery Unit.

This devastating attack on workers has been stealthily launched with little debate and no press coverage. The link between the unions and the Labour party is as crucial as ever in supporting protections for workers. The enterprise bill is still at committee stage but returning health and safety to that of Victorian times appears to be the deliberate intention of this government. We can but hope that our Labour peers can turn the tide.

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Catherine Atkinson is a barrister at 9 Gough Square with a specialism in employer’s liability and secretary of the Society of Labour Lawyers. She tweets @CAtkinson80

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Photo: Luigi de Guzman