The UK prides itself as still having one of the best safety records as compared with countries in the EU.
The introduction of Section 69 of the Enterprise and Regulatory Reform Act 2013 (ERRA), which removed the attachment of civil liability for breaches of various statutory health and safety regulations, was lambasted by some who feared the removal of safety protections would inevitably lead to a deterioration in safety standards in the workplace. Statistical evidence has not borne this out. Health and Safety Executive (HSE) statistics show that up to 2024, the number of fatal injuries recorded has remained steady since ERRA, and significantly below what it was decades before.
Equally, the rate of non-fatal injuries recorded under the RIDDOR regime has shown a downward trend and the current rate is below even 2018/2019 pre-pandemic levels. Aside from a rise in the level of self-reported work-related illness (where the British Safety Council reported last November that UK workplaces rank among the worst in Europe for job strain), the UK data would appear to present a generally healthy picture for employers and insurers. Fewer incidents mean fewer claims for injury, as borne out by Department of Work and Pensions (DWP) and Ministry of Justice Portal data.
This has not prevented a recent attempt to overturn ERRA, which would have paved the way for the return of strict liability. A private members bill (PMB) by SNP MP Chris Stephens to reverse Section 69 was derailed last year due to the dissolution of Parliament and his subsequent departure from the Commons. APIL, which represents the interests of personal injury lawyers, have renewed the call for repeal of Section 69, restating their position that employers have the “upper hand” given “they control the workplace, the equipment, the systems and hold all the information”.
APIL contends that data from DWP and HSE found that between 2018 and 2024 there was a 16% increase in the number of workers with injuries that required more than a seven day absence, or who became ill because of their work. Over the same period, employers’ liability compensation claims plummeted by 50%, prompting APIL’s assertion that workers with valid claims are being discouraged from progressing them.
It remains to be seen whether a sitting MP will take Chris Stephens’ proposal forward, but it seems unlikely in the current climate. Indeed, the announcement by the Government in March that the current regulation landscape has become too stifling, complex and burdensome, can be interpreted as a reluctance to add to the regulatory burden of employers.
That is not to say that it is unlikely that employers and insurers will not face other measures. The Worker Protection (Amendment of Equality Act 2010) 2023 which came in to force on 26 October 2024 has already introduced a new duty on employers to take reasonable steps to prevent the sexual harassment of their employees (this is to be extended to “all reasonable steps” at some point in the future).
Further, the Employment Rights Bill which is currently progressing through Parliament will reintroduce employer’s liability for the third-party harassment of their employees, requiring an employer to take all reasonable steps to prevent third parties from harassing employees in the course of their employment.
Such offending behaviour could come from any third party in the supply chain with whom employees interact, be that workers of other organisations or customers whom they serve. It is worth considering that retail trade union USDAW recently reported, in its annual survey, that 77% of those surveyed experienced verbal abuse and 53% were threatened by customers. Given the higher risks of such behaviour in certain sectors, and the wide-ranging nature of the duty, it is easy to see how there could be a rise in employer’s exposure.
At the same time another PMB– the Health & Safety at Work etc Act 1974 (Amendment) Bill, has been proposed by Plaid Cymru MP Liz Saville-Roberts, and will have a second reading in Parliament on 20 June.
Whilst the full detail of the Bill is unpublished, it is described as “A Bill to amend the Health and Safety at Work etc. Act 1974 to place a requirement on employers to take proactive measures to prevent violence and harassment in the workplace; to make provision for protections for women and girls in the workplace; and to require the Health and Safety Executive to publish a Health and Safety Framework on violence and harassment in the workplace, including violence against women and girls in the workplace”.
If introduced the Bill would require employers to conduct regular risk assessments and establish clear reporting mechanisms for incidents of violence and harassment, alongside policies and training to combat violence and harassment. Again, this could increase employer exposure.
A further PMB is due for a second reading on the same date namely, the Bullying and Respect at Work Bill - a Bill to provide for a statutory definition of bullying at work; to make provision relating to bullying at work, including to enable claims relating to workplace bullying to be considered by an employment tribunal; to provide for a Respect at Work Code to set minimum standards for positive and respectful work environments; to give powers to the Equalities and Human Rights Commission to investigate workplaces and organisations where there is evidence of a culture of, or multiple incidents of, bullying and to take enforcement action; and for connected purposes”.
The sheer volume of PMBs before Parliament means that, on balance, these Bills are unlikely to make it into law. That said, there is clearly a groundswell of support to improve protections for employees in the workplace so that it may only be a matter of time before employer exposure increases.
Whilst a return to strict liability for failing to protect the safety, health and wellbeing of employees seems unlikely, the increased focus on mental health, harassment and bullying seems destined to place increased demands on employers (and therefore their insurers).
