Recently released figures show that fines handed out in 2016/2017 for breaches of Health and Safety regulations, totalled £54million. When compared with a figure of £37million for the previous year, this shows a significant increase. The increase appears to have been contributed to by harsher guidelines from the Sentencing Council and a removal of a £5,000 cap in the Magistrates Court.
Whilst the fines are increasing for health and safety breaches, employees have been struggling with changes brought in towards the end of 2013 (Section 69 of the Enterprise and Regulatory Reform Act 2013), making it more difficult to bring a personal injury claim relating to a health and safety breach.
Those changes mean that employees who have been injured can no longer rely on their employers’ breach of health and safety regulations alone to establish their right to compensation. So even though an employer has been prosecuted for a breach of the regulations, the injured employee cannot rely on that prosecution in itself to establish a claim for compensation for the injury caused.
An employee could rely on breach of regulation as evidence that their employer has been negligent, but establishing negligence involves an employee being able to prove that their employer should have foreseen that an accident might occur and have taken steps to prevent this; which can be difficult in cases where an accident occurs because of a problem that the employer did not and could not have known about.
Take the example of an employee who is asked to work from a mobile elevate working platform to carry out repairs on a building. A bolt fails, causing the employee to fall to the floor, suffering serious head injuries and leaving him unable to return to work. Can the employee claim compensation?
The employer will have insurance to cover employees involved in such an accident as this was made compulsory under the Employers Liability (Compulsory Insurance) Act 1969, so payment of the compensation should not be a problem.
Before the implementation of the Enterprise Act 2013, employees could rely on breach of the Provision and Use of Work Equipment Regulations 1998 (PUWER), as these state that employers must provide suitable equipment which is safe for use.
Obviously, where a bolt on a piece of equipment fails, the equipment is not suitable and safe to use so the employer would be liable to compensate the employee in a compensation claim. However, as employees can no longer rely on PUWER to bring a compensation claim, they have to prove that the employer was negligent. In the above example, this could be difficult as the employer might allege that they had no knowledge of the defective bolt and accordingly could not have foreseen that the bolt would fail.
What Can an Injured Employee Do?
It is essential that they instruct Personal Injury Solicitors who are experts in dealing with accident at work claims. At Co-op Legal Services we have significant experience of assisting employees in workplace accident claims. In the above case for example, a Personal Injury Solicitor would investigate the maintenance history of the working platform – was it regularly maintained and repairs undertaken as required? Had any other bolts failed? Was there a preventative maintenance regime?
Such investigations often help to establish that the machinery hadn’t been properly maintained and that if it had the accident would have been prevented. In these cases, the employee would be able to claim compensation for the injuries.
What Must an Injured Employee Do?
The changes made in 2013 do not stop employees from making an injury claim but, whereas previously a breach of the health and safety regulations would be sufficient to establish a claim, they must now prove that the accident was foreseeable and that steps to avoid their injury could or should have been taken by their employer.
How Can an Employee Establish an Injury Claim?
It all comes down to evidence. A specialist Personal Injury Solicitor such as we have at Co-op Legal Services can help to gather the necessary evidence to succeed in a work accident claim. This is likely to involve identifying relevant documents (risk assessments, training records, maintenance records etc.) to obtain from the employer and instructing workplace accident experts to prepare reports detailing whether the employer has taken all steps they should have taken to avoid the employee’s injury.
In addition to gathering the necessary evidence to succeed in the claim, a specialist Personal Injury Solicitor can ensure your medical condition is assessed by an appropriate medical expert and, where appropriate, will arrange any treatment or rehabilitation needed.*
*Where there is sufficient evidence to support the claim, or if admissions are made by the other side.