Public Concern at Work
Suite 301
16 Baldwins Gardens
London EC1N 7RJ
Tel. 020 7404 6609
Speak up or Pay up
Developments
Following publication of this paper, the Government recognised that the new legislation was
defective and amended it. The 2006 amending regulations are here and the explanatory
memorandum is here. The Health and Safety Commission’s 2005 consultation paper on the issue
is here. We are grateful to the HSC/E and their staff and to those in Government for facing up to
their mistake and putting it right.
SPEAK UP OR PAY UP
The new liability on employees for workplace accidents
Summary
1 THE BACKGROUND TO AND POLICY IMPLICATIONS OF THE NEW LAW
1.1 Background
1.2 Policy Implications
1.2.1 How far this provision changes existing law
1.2.2 Vicarious liability
1.2.3 Insurance
1.2.4 Impact on litigation
1.2.5 Workplace relations
1.2.6 Blame culture
1.2.7 Public Interest Disclosure Act
1.2.8 NHS
1.2.9 Considerations as to EU law
2 CONSULTATION, CONSIDERATION AND COMMUNICATION
2.1 The Consultation Paper
2.2 Responses to the consultation
2.3 HSE’s consideration of the responses
2.4 HSC’s consideration
2.5 Information given to Parliament
2.6 Information given to the public
3 QC’S OPINION
4 HSC PRESS RELEASE C060:01 – 21 DECEMBER 2001
Footnotes
Summary
This Report explains the background to and implications of new legislation passed last October
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which dealt with liability for accidents and disasters at work. One of its effects is that employees
now face paying unlimited damages if they don’t speak up about health or safety risks at work.
In a bizarre twist, the new law states that while the victims of disasters still have to prove
corporations are at fault to obtain compensation, employees are now liable even if they are not
negligent. This means that for the Potters Bar train crash where Jarvis and Network Rail refused to
accept responsibility for years before settling the claims for £12 million, the employee who
inspected the track weeks before the crash would have been made the statutory fall guy and forced
to take centre stage in any legal battle.
As this Report shows the law has many far-reaching effects and will affect employers as well as
employees. We believe that it could cause insurance premiums and legal costs to rocket for
businesses even though the law targets ordinary workers. This is because the Health and Safety
Commission and Government ducked the key issue whether employers or employees should insure
this new liability, leaving the matter to the courts. The QC’s Opinion included at the end of this
Report shows that it is likely, but far from certain, that the courts will pass this new liability on to
employers.
We also believe policy makers should have considered if bad employers will use the law to pass the
buck to employees after every accident, if it will lead to an explosion in reporting by nervous
employees and if it could turn lawyers into freelance factory inspectors. We are particularly
concerned that the consultation process did not explain this issue, that Parliament was not told that
the law would make employees liable and that no advice or guidance has been given by the
Government or HSC to those it affects.
The original version of this report was sent to the Chair of the Health & Safety Commission and to
Ministers at the Department of Work and Pensions on 25 June. By reply we were told the matter is
being considered urgently. However in the last three months our requests that Ministers and the
Health & Safety Commission say whether they intended the new law to have these far reaching
effects have gone unanswered. As Public Concern at Work is a legal advice centre we explained
that we were obliged to advise employers, employees and the public about the new law and would
do so from October.
On the publication of this report on 7 October 2004 we are calling on the Government to give clear
advice on how this radical new law impacts on employees and employers and to state who is meant
to insure against these risks.
For our part, we think the law is such a mess that the Government should repeal it and go back to
the drawing board.
We will welcome your comments.
Guy Dehn
Director
1 THE BACKGROUND TO AND POLICY IMPLICATIONS OF THE NEW LAW
1.1 Background
First, we summarise what were the stated policy considerations behind the new law and how it was
passed. A detailed review of the consultation process, consideration and information given to
Parliament and the public follows in the next section.
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The UK decided that it should change the health and safety regime so that employers would be
civilly liable to their employees for breach of their statutory duties under the Management of Health
and Safety at Work Regulations (MHSWR) and the Fire Precautions Regulations (FPR). These
regulations had each implemented the EC Framework Directive on Health and Safety and the EC
had been suggesting that the failure of the regulations to make employers civilly liable for breaching
their duties under them meant the UK had not properly implemented the Directive.
The HSC/HSE consulted on this proposed change to the regulations, emphasising that the issue
was not whether this change should be made, but how. The practical impact of such a proposal was
and is that it is significantly easier to start and win a legal claim against an employer for breach of
these strict duties than it is under the law of negligence. While the business community was
unhappy with this ‘how not whether’ approach, it was adamant that - if there should be any strict
liability on employers as to these regulatory duties - it should only be owed to their employees, and
not to the wider public.
Recognising the strength of this case, the proposed new draft provision sought to make clear that
the employers’ civil liability for breach of these statutory duties extended only to claims by their
employees. However, due to the somewhat complex scheme in the primary legislation on breach of
statutory duty and the rules on construction, the effect of the new draft provision was also to (a)
make employees liable for breach of their duties and (b) allow claims to be brought against them by
fellow-employees, consumers, passengers, patients and the public. It seems most likely that the
draftsman did not intend this as the accompanying explanatory notes explicitly stated the new law
would not have such an effect. It also seems highly likely this was not in the mind of the HSE/HSC
as the issues of liability of employees were not considered in the Regulatory Impact Assessment.
It should be noted, however, that an oblique and passing reference was made in the Consultation
Document to the new law leaving employees open to claims. This prompted eight respondents to
comment on this possibility. The union side opposed any such possibility and the business
community said it had far-reaching implications and might require employees to carry their own
insurance. One law firm pointed to the paradoxical effect that the draft legislative provision would
make employers liable only to their employees, but would leave employees liable to everyone.
With no initial consideration given by HSE/HSC to the effect of such a proposal, nobody appears to
have realised that it would also create a new civil liability on employees for not raising concerns
about health or safety. We suspect that this omission may have been because the duty to report
health and safety concerns is in the second paragraph of regulation 14, while the first paragraph
addresses the employees’ duty to comply with training and instructions. The relevance of this is that
while employees may already be liable in negligence (and their employers vicariously liable) for not
complying with training or instructions, no such liability exists in common law for not reporting health
or safety concerns. Therefore nobody appears to have realised that the new provision was - we
believe unwittingly - creating a new and far-reaching civil liability on employees and one which, if
vicarious liability applies, appears to thwart the Government’s stated intentions.
When HSE considered the responses, they became aware of some of the implications but chose
not to address them directly and decided not to redraft the proposed new legal provision. No
consideration appears to have been given to (a) the fact that employees would be liable to any or all
for their breaches; (b) if so, whether this liability would be picked up by the employer or should be
insured against; and (c) that one of these duties was that employees should report any health or
safety concern.
When it considered the issue, the HSC appears to have been somewhat concerned at what some
of the recommendations were but did not change them.
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When the regulations and supporting material were laid before Parliament, no explanation or
suggestion was given that (a) employees would be liable for breach of their duties at all; (b) that
their liability - unlike that of the employer - was owed to the public generally; and (c) that it created a
new civil duty to report health and safety concerns.
When, at the same time, the HSE made information available to the public, this did state (largely
inaccurately and unhelpfully) that employees could now be sued by their employers.
At this time it is not clear that the impact and implications of this new law are yet known or
understood.
1.2 Policy implications
Below we set out what we see as they key policy considerations that are raised by this new law.
Some of these warrant further research, some of them need further consideration and all of them,
we believe, would benefit from consultation with the interested parties.
1.2.1 How far this provision changes existing law
There is no general common law duty on employees to report health or safety concerns. Therefore,
this provision creates a new civil cause of action. To understand its scope one needs to look at the
terms of the substantive duty, as set out in regulation 14(2) of the Management of Health and
Safety at Work Regulations 1999. This provides that “Every employee shall inform his employer or any other employee of that employer with specific
responsibility for the health and safety of his fellow employees(a) of any work situation which a person with the first-mentioned employee’s training and instruction
would reasonably consider represented a serious and immediate danger to health and safety; and
(b) of any matter which a person with the first-mentioned employee’s training and instruction would
reasonably consider represented a shortcoming in the employer’s protection arrangements for
health and safety.”
It should be noted that
1. this duty is one of strict liability (there is no negligence element);
2. it arises not only when the employee is aware of a danger or a shortcoming in the
employer’s health and safety arrangements, but when he should be aware of one; and
3. it applies not only to dangers to and shortcomings affecting the health and safety of fellow
workers but, in the context of the UK legislative scheme, applies also where the danger or
shortcoming impacts on consumers, passengers, patients or the public.
Because of the way the new legal provision creating a civil remedy for beach of statutory duty has
been enacted, employees are now liable in civil law to anyone injured, made ill or killed as a result
of his failure to make such a report.
Until this new civil liability was introduced, it should be noted that breach of this duty was a
regulatory offence (requiring a criminal standard of proof). We have found no reference to the HSE
prosecuting an employee for breach of this duty.
1.2.2 Vicarious liability
As Mr Tim Kerr QC explains in his Opinion it is likely, but not certain, that the employer will be held
vicariously liable for breach of this duty. The reason it may not apply is that the very purpose of the
duty to report is to enable the employer to assess and address any danger or shortcoming in the
health and safety arrangements. Therefore to hold the employer vicariously liable for the
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employee’s failure to warn it of such a situation undermines the purpose of the duty. This is not to
say that vicarious liability will not apply, only that it is at best uncertain and we would imagine that
this issue - unless addressed by Parliament - will need to be resolved by the House of Lords (or
Supreme Court as the case may be).
If the employer is vicariously liable for the employee’s breach, then the employer is open to be sued
by consumers, passengers, patients and the public as well as by employees. We imagine that, in
part because the CBI said it was ‘paramount’ that employers’ liability was not unrestricted in this
way, HSE/HSC and the Government rejected such a scenario where the employer is in breach of its
own duties under these regulations. Therefore if the employer is vicariously liable, this creates
something of an anomaly.
1.2.3 Insurance
If the employer is not vicariously liable then the employee will have to pay any compensation
himself or insure against the risk. We think it needs to be established whether or not this sort of risk
(failure to report a concern someone had or should have had) is in fact insurable.
If it is insurable, there are some practical considerations. For example, we wonder whether it would
need to be renewed each time an employee changed duties or jobs, as the risks could increase or
decrease. Additionally, we would expect that insurers would make it a requirement of the policy that
the employee reports any possible concern and, perhaps, keeps a record thereof.
Even if these are manageable, we see there will be some pressure or expectation on employers or
the HSE to ensure that employees have insurance in place. One option would be for an employee’s
failure to have or renew insurance to be a disciplinary offence. Another would be for the HSE to
make it a regulatory offence if an employee did not have such insurance. Either way, there seem to
be potential problems in this approach that need further consideration. It might deter labour mobility
and it might deter recruitment. We would be surprised if unions or labour groups would welcome
such a move.
An alternative approach could be to require the employer to insure all its employees against this
risk. This would make some employers feel the duties on employees in the health and safety field
are bogus. We think it worth enquiring what the likely costs of this would be as if they are high this
could have an adverse effect on the viability of firms operating in particular areas or sectors. We
would be surprised in any event if employers would welcome such a move.
Whatever the approach, one result is that there will be a large amount of double insurance, so that
where an accident occurred the employee’s and the employer’s insurers would both be in the frame.
This will further the view of some claimants and/or advisers that there is a bottomless pit.
Additionally, when both insurers are involved, they will try and apportion responsibility or fight out
the claim. The incidence of double insurance will particularly be the case until the issue of vicarious
liability is resolved.
1.2.4 Impact on litigation
The business community’s view was that the proposals to make employers civilly liable to
employees for breach of their statutory duties (which was a strengthening of an existing cause of
action) would have a significant impact on the volume of claims. This view was not accepted by the
HSE/HSC.
Because - as this Paper shows - no consideration was given to the impact of making employees
liable for breaching the duty to report, no assessment has yet been made of its effect on the volume
of claims. As it is a new cause of action, based on strict liability and owed to all, we are fairly
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confident that once it is known about (as inevitably it will be before long), it will have a substantial
impact on the volume and conduct of claims.
Whenever an employee, consumer, patient, passenger or member of the public is injured, made ill
or killed in an accident, their lawyers will now have every reason to assert that an employee knew or
should have realised the risk and failed to report it. They will be able to focus this claim on the
employer on the reasonable - and probably correct - view that the employer is vicariously liable for
the breach. This will lead to pre-litigation enquiries and fishing expeditions, so entrenching the view
of some in the business community that they are a convenient ‘whipping boy’ in a compensation
culture. Even if the employee is personally liable, the employer will still have to face such enquiries
as the claimant’s lawyers seek to establish which employee(s) to sue.
1.2.5 Workplace relations
There are a number of aspects we think warrant considering. First, as long as employees fear being
sued, there will be an enormous increase in the number of reports about anything that presents a
slight risk to the health or safety of anyone. This will be because they will want to - or, as we expect
be required to by their insurance - to err on the safe side. Many employers will find this increase
very annoying and in practical terms will find it a burden, if not difficult, to sift the serious concerns
from the trivial. It will shift the culture from one where employees increasingly report concerns
because they genuinely think they should be addressed to one where the primary motive for the
report is to cover their backsides and entrench a tick-box mentality. We doubt it will improve labour
relations.
Secondly, at the extreme end of labour relations, a troublesome employee - who does not work well
with colleagues or is in difficulty with management and fears his job may be on the line - may view
the duty in a positive light. He may see the incessant reporting of all possible concerns about health
or safety implications for colleagues, passengers, patients and the public - as required by this civil
duty and justified by his liability under it - is an attractive option and one which will give him both
leverage and protection should he lose his job.
Because the implications of the duty are so great, employees may well want it recorded that they
have reported a health or safety concern - indeed this may be an insurance requirement. In many
workplaces this will not be welcome. If the employer is or is likely to be vicariously liable, then it too
will need to consider how it should record and monitor reports. In a middle to large size
organisation, it may well want all reports to be made to one person - rather than to line managers to try and ensure that it has comprehensive records. This will create a cumbersome system and
may actually delay the swift addressing of the danger or safety failing at the local level. Whether or
not this proves to be the case, such developments are likely to distract the organisation from its
core business.
1.2.6 Blame culture
Linked to these concerns about labour relations, we think one needs to consider the implications of
such a new law on the blame culture. When there is an accident, disreputable employers will be
able to blame their employees for not reporting the concern. Reputable employers may well be
required by their insurers to identify whether any liability exists against an employee, so that the
insured liability will be passed or shared.
In any serious accident, there is likely to be much blame allocation among employees as they try to
refute any suggestion that the accident was due to their failure to report and suggest that perhaps
some colleague should have seen and reported the danger or shortcoming.
Those injured or bereaved in accidents will likely want such compensation as they are legally
entitled to and so will take advantage of this new strict liability. However many are likely at the same
7
time to be critical of a regime which imposes the liability on individual employees. We suspect that
commentators in the media will also see this as a law that has gone too far.
1.2.7 Public Interest Disclosure Act
We fear this new cause of action will undermine the approach of the Public Interest Disclosure Act
(PIDA). This does not make it a duty on anyone to report anything. It simply provides that, if
someone reports a risk or malpractice in the public interest, the law will protect them against any
consequential reprisal.
While PIDA encourages the internal reporting of any genuine concern, it also protects employees
who make disclosures direct to the HSE or more widely. This approach was felt necessary to reflect
the line of accountability and the principles of self-regulation and regulatory oversight.
The effect of this new cause of action also risks increasing the (what is now scant) abuse of PIDA
as, if employees are frequently reporting health and safety concerns under this duty, they will when they face disciplinary sanctions for some other reason - be able to claim it is a reprisal for
their report.
1.2.8 NHS
We suspect that there are far-reaching implications for the NHS. As this new cause of action can be
invoked by patients and the public, it is likely to affect the volume and conduct of medical
negligence litigation. As explained above, if the plaintiff can show that an employee in the Trust
knew or should have known or the danger of shortcoming in the arrangements and did not report it,
then he or she will no longer have to prove negligence but can bring a strict liability action.
In our view this is likely to place an enormous and unwelcome financial burden on the NHS and to
have a detrimental effect on the NHS workforce. There has been a substantial improvement in the
culture of the NHS on reporting patient safety risks since 1998 and we fear this may be put at risk if
employees across the service feel obliged to report every possible shortcoming in the health
arrangements they may come across in their daily work so as to avoid any personal liability.
1.2.9 Considerations as to EU law
The purpose of these amending regulations was to enable an injured employee to sue his employer
under the regulations for breach of statutory duty and not just for negligence. The UK Government
had agreed with the European Commission that such an amendment was necessary and justified
under EU law.
We have asked the HSE whether the EC’s concerns had also extended to the lack of civil liability for
the employees’ duties that are set out in the regulations and based on the Directive. They said they
were unable to comment as this was confidential information and they rejected our request wrongly in our view - for a review under the Open Government Code.
Had the EC required this civil duty to extend to employees, we feel confident that the HSE
Consultation Paper would have then set out some of the implications in their Consultation
Document. Looking at the papers, it seems most probable that this issue was not required by the
EC.
We become certain in this view when one looks at the detail of the Directive. Article 5 sets out the
‘General provisions’ and states at paragraph 3
“The workers’ obligations in the field of safety and health at work shall not affect the principle of the
responsibility of the employer.”
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We are not experts on European law but we would have thought government lawyers might be
asked to consider whether - if vicarious liability does not apply - such a breach would give rise to
liability on the Government itself for failure to comply with the Directive. If so, this could have
undesirable implications for public funds.
2 CONSULTATION, CONSIDERATION AND COMMUNICATION
The legislative changes made in October 2003 mean that employees are now civilly liable for injury,
illness or death caused to any person as a result of their failure to report a health or safety concern.
The liability imposed by this new provision is unprecedented in English law and, additionally, arises
not only where the employee had concerns but also where he or she should have had. As this
Paper shows it will likely have far reaching implications for insurance, labour relations, litigation and
the blame culture and so this section looks at the history and thinking behind the provision and how
it was communicated to Parliament and the public.
This new civil liability of employees was made as part of changes to the UK’s Health and Safety
Legislation in October 2003. While these had been consulted on by the Health & Safety Executive,
recommended by the Health & Safety Commission and adopted by the Government, no
consideration appears to have been given to this particular issue or its implications.
2.1 The Consultation Paper
In December 2001 the Health and Safety Executive issued CD177, a consultative document inviting
comments on proposed amendments to the health and safety regime in the UK. The background is
set out succinctly in the accompanying press release which was also placed on the HSE website.
We reproduce it at the end of this paper.
Nothing in the press release suggested that it was intended to make employees liable under the
proposed changes. Its focus is on the change to make employers civilly liable for any injury, illness
or death caused to their employees as a result of a breach of their duties under of the Management
of Health and Safety or Fire Precautions Regulations.
This was also the clear message from the Consultation Paper itself. When explaining the
background to the issue, namely that the European Commission had been concerned that the
exclusion of employers’ civil liability to employees breached EC law, the Paper stated in paragraph
9 that
“In the event, the HSC recommended - and Ministers agreed - that the UK should undertake to lift
the civil liability exclusion from MHSWR for breach of statutory duty towards employees.” 1
The single reference to the liability of employees in the 20-page Consultation Paper is a passing
and opaque one that appears in paragraph 15
“The civil liability changes will:
(i) enable an employee injured or made ill though work to bring a claim against their employer for
breach of MHSWR or the FPRegs;
(ii) leave the employee open to a claim in certain circumstances; ie, where they have breached
duties imposed on them by Regulation 14 of MHSWR (“Employees duties”) and injury or illness has
resulted;
(iii) be governed by existing rules which limit the time in which a damages claim can be brought.
Section 11 of the Limitation Act 1980 imposes a three year time limit for the bringing of actions for
damages for breach of a duty made under a statute….”
It should be noted that nothing in this reference suggests that the proposed changes will impose a
wholly new civil liability on employees to report health or safety concerns. No information is given as
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to the duties that are imposed under regulation 14 MHSWR and or to the circumstances in which
HSE maintains employees may be open to a claim. The duties in regulation 14 are that the
employee should (a) use any equipment in accordance with any training and instructions received,
and (b) should report any health or safety concern to the employer or safety representative. While
the HSE may well be correct that breach of the duty to comply with training and instructions can
make an employee civilly liable, we are aware of no case law that employees are civilly liable to
fellow employees or the public for not reporting health or safety concerns. Whatever indication the
sentence at (ii) may have meant to give about a new civil liability on employees, the use of the word
‘leave’ meant that all but a handful of consultees seemed to have assumed that the proposals would
impose no new liability on employees.
Whatever message the HSE had intended to give in this oblique reference, it was explicitly
contradicted in the draft Explanatory Note to the Regulations that appeared in Annex A and the
Regulatory Impact Assessment in Annex B.
Annex B in the Document contained the draft legal provision and an explanation of its effect. The
provision was drafted as follows:
Restriction of civil liability for breach of statutory duty
22. Breach of a duty imposed on an employer by these Regulations shall not confer a right of action
in any civil proceedings insofar as that duty applies for the protection of persons not in employment.
The Explanatory Notes stated (with our emphasis) that this provision would replace the existing
law 2:
“(which provided that breach of a duty imposed by the Regulations could not confer a right of action
in any civil proceedings) to the effect that employees may bring civil claims against their employers
where they are in breach of duties imposed by the 1999 Regulations; but for all other purposes the
exclusion of civil liability for breach of duties imposed by the 1999 Regulations remains.”
The Regulatory Impact Assessment in Annex B also made clear that the issue was only about the
employer’s liability to employees for breach of its duties, and so made no reference to any liability
being imposed on employees who failed to report health or safety concerns. The key issue it sets
out was, where employers were in breach of the regulations, whether only employees should be
able to sue them or whether this liability should also extend to consumers, passengers and the
public. At paragraph 4 (emphasis added) the Assessment states
“HSC has considered all options for change but considers that, at this time, priority must be to
adhere to the changes sought by the European Commission rather than go beyond them. The HSE
is therefore consulting only on extending the right of action to an employer’s own employees”.
The Questionnaire in Appendix C which invited consultees’ comments on the proposals made no
reference to any proposal that employees would be liable under the proposals either generally or as
a result of their failure to report health or safety concerns.
2.2 Responses to the consultation
3,000 copies of CD177 were issued and the document was also accessed over 4,000 times from
the HSE’s website. A paper on the responses was prepared for a meeting of the Health and Safety
Commission on 15 October 2002. This stated that there had been 128 responses and that
“78 offered little or no comment; the remainder - 52- were split nearly 2:1 between active support for
the civil liability proposals and varying degrees of concern.”
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The HSE kindly supplied us copies of most of the responses, from which we found that 8 had
picked up on the possibility that the proposals might create a liability on employees under regulation
14. From these eight responses it seems that they, prompted by the HSE’s failure to raise the issue,
had overlooked the duty of employees to report any concern about health or safety in regulation
14(2) and had considered any such employee liability in the context of the duties to comply with
training and instructions. This is apparent as no respondent referred to the fact that the proposals
meant employees would become civilly liable for failing to report health or safety concerns.
The TUC and UNISON each identified the risk that employees might be civilly liable under the
proposed amendment and opposed any such possibility. Railtrack too criticised the complexity of
the draft and recommended wording that eliminated any possibility (which it had assumed was
unintended) that employee might be liable.
The law firm CMS Cameron McKenna was also uncertain about the policy intention and cautioned
(correctly as things transpired) that, as drafted, the provision meant employers liability for breach of
their duty was only to an employee of theirs, while an employee in breach of his duty would be liable
to consumers, passengers, patients and the public as well. It said
“Paradoxically the effect of this amendment could also leave employees open to claims being
brought against them where a breach of a duty imposed under regulation 14 MHSWR leads to
injury or illness, although the amendments do not, on the face of it, make this possibility
clear……the proposed new wording does not seem to exclude (claims from people other than
employees).”
The complexity of the legal drafting so concerned the CBI that its response concluded that
“The tortuous wording and logic…gives little confidence (and the provisions) should be written in
English that is clear and unambiguous and thus easily understood by those on whom is placed the
ultimate responsibility for their observance”.
Its response emphasised that it was “paramount” that any civil liability for breach of duty was
extended only to employees and not to the public generally.
The CBI also commented (as did the Construction Confederation) that
“the observation in para 15(ii) that employees will be open to civil claims in certain circumstances
begs the question as to whether all employees may be required to take out insurance, analogous to
the requirement for employers to take out employer’s liability insurance”.
The Engineering Employers’ Federation agreed, observing that
“The consultation document raises the prospect of civil litigation being taken against employees for
their failures under MHSWR. We believe this to be a very real prospect and it raises the question
whether employees or where appropriate their Trades Unions should carry personal indemnity
insurance….It is vital that clear guidance is produced to help both business and workers understand
the impact of these changes”.
2.3 HSE’s consideration of the responses
The HSE’s internal paper on the responses - prepared for the meeting of the Health and Safety
Commission on 15 October 2002 - was the first time the HSE clearly stated that the amendments
would make employees liable for breach of their duties under the regulations. It did not suggest that
this was a change from the policy set out in the consultation document; it did not summarise the
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legal, policy or practical effects of such a provision; and it made no mention that this would mean
that employees will for the first time be civilly liable for failing to report health or safety concerns.
Annex A to the paper set out HSE’s analysis of the responses. As to employee liability, it explained:
“Potential for employees to face compensation claims
19. A consequence of the proposals as they stand is that employees as well as employers would be
open to compensation claims for breach of statutory duty (be it from their fellow employees,
employer or elsewhere) given that both have duties under MHSWR. Views differed among
consultees as to whether employees should be open to claims.
20. Several safety consultancies welcomed the prospect, on the basis that it would capture those
cases where accidents resulted from employees failing to abide by control measures, and which
would not be pursued by the enforcing authorities. However, other consultees were concerned
about its possible practical effects. For example, could an employee claiming against an employer
face a counter-claim? Would it mean (a point raised by the CBI, Construction Confederation and the
Engineering Employers Federation) that employees or where appropriate their trade unions should
carry Personal Indemnity Insurance, akin to the requirement for employers to take out employer’s
liability insurance? Or would vicarious liability apply, whereby the employer was generally liable
where the acts of their employees, in the course of their employment, resulted in injury to a third
party?
[21. No paragraph 21 appears in the Annex]
22. The TUC and UNISON proposed removing any such confusion by amending the draft
regulations so that employees were not open to such claims.
HSE commentary
23. We would be hard pressed to exclude employees from this aspect of the proposals, given that
the proposals arose in the context of the Framework Directive and that the Directive places duties
on both employers and workers. That said, as consultees have pointed out, the scope for claims
against employees (who are already open to common law claims for negligence) is limited in
practice by vicarious liability.”
We do not consider this to be a helpful or accurate summary of or commentary on the effect of the
proposals. Not only does it fail to mention that it creates a new civil liability on employees for not
raising a health or safety concern, but it fails to consider whether vicarious liability would apply and
omits to address the paradox raised by the law firm Cameron McKenna that the employee, unlike
the employer, would be liable for injuries caused to consumers, passengers or the public.
The Explanatory Note to the draft regulations set out in Annex B remained unchanged and again
asserted that employees would not be liable for breach of duty under the new law. Annex C, the
revised Regulatory Impact Assessment, still talked only of claims brought by employees against
employers and concluded in the light of the consultation that
“HSE expects that the increase in total claims as a result of these proposals - if any - to be small”.
2.4 HSC’s consideration
The minutes of the HSC meeting of 15 October 2002 show that there was a dawning recognition
that the proposal that employees were to be civilly liable could have potentially far-reaching
implications. The minutes record that
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3.2 The proposals had arisen from the government commitment to the European Commission. HSE
consultation had resulted in strong views both for and against the amendments.
3.3 The amendments would allow employees to claim damages from their employer in civil actions,
where they suffered injury or illness as a result of the employer breaching MHSWR or FPR. The
draft regulations would also allow civil claims against employees for breach of the employee’s
duties under reg. 14 off MHSWR which resulted in injury or illness.
3.4 In discussion the Commissioners commented on issues including: the need to monitor the
effects of the changes; the balance between how employees/employers could be affected; the role
of lawyers and ambulance chasing; how the changes will be communicated; the TUC’s proposed
amendments concerning (the exclusion of) employee liability; and that in a short period the
Commission was again being pressed to make decisions to meet EC requirements.
The minutes do not indicate whether the Commission also considered
a) the fact that one of the duties it was proposed employees would be civilly liable for was failing to
report any health or safety concern that he or she was or should have been aware of in connection
with his activities at work;
b) the practical effects on workplace relations of making employees civilly liable in this way;
c) the legal and regulatory impact of this proposal, particularly as such a cause of action does not
already exist in common law;
d) the policy anomaly that employees in breach of this duty would be liable to any and all injured,
while the employer’s own liability for its breach under the same regulations was restricted to
employees and expressly did not extend to consumers, passengers or the public;
e) if the employer was or should be vicariously liable for the employee’s failure to report a health or
safety concern, this would make the restriction on employer’s liability for its own breach
meaningless; or
f) if the employee was alone liable and vicarious liability did not arise, whether or not employees
should take out employee liability insurance.
The minutes conclude that
“the Commission agreed to continue with the package of recommendations at para 3. It did not
expect the volume of new cases resulting from the change to be high, but the impact would need to
be monitored”.
These recommendations at paragraph 3 of the HSE paper were that the HSC

agrees to the HSE recommendations concerning the regulatory proposals in paras 6-10
(which at para 8 included that [a] employees should be open to certain claims including
where there have been breaches of duties imposed under regulation 14 of MHSWR and
injury or illness has resulted, and [b] to retain the civil liability exclusion for non-employees)

agrees the submission of the draft regulations and Regulatory Impact Assessment to
ministers for approval - see Annexes B and C.
It is likely that these recommendations will have caused confusion to Ministers and officials as
Annexes B and C said the opposite to the recommendation in paragraph 8 as to whether
employees would be open to claims under the proposal. They also did not expressly address the
facts that (a) the liability of the employer would be restricted to its own employees but the liability of
an employee would extend to consumers passengers and the public, and (b) if the employer was
vicariously liable this contradicted the expressly stated policy.
2.5 Information given to Parliament
The words of the new provision remained unchanged and were:
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Restriction of civil liability for breach of statutory duty
22. Breach of a duty imposed on an employer by these Regulations shall not confer a right of action
in any civil proceedings insofar as that duty applies for the protection of persons not in employment.
The Explanatory Note to the 2003 Regulations stated that the effect of the amendment was that
employees can sue employers for breach of the MHSWR. Paragraph 2 largely reproduced the
wording of the draft Explanatory Note that appeared in the Consultation Document and stated it
replaced the existing regime.
“(which provided that breach of a duty imposed by the Regulations could not confer a right of action
in any civil proceedings), to the effect that employees may bring civil claims against their employers
where they are in breach of duties imposed by the 1999 Regulations (but as respects claims by
non-employees the exclusion of civil liability for breach of duties imposed by the 1999 Regulations
remains).”
The one amendment was the words in parentheses which had replaced the following phrase in the
earlier draft “but for all other purposes the exclusion of civil liability for breach of duties imposed by
the 1999 Regulations remains”. While the new words removed the false statement, they mislead by
omission as they give no indication that (a) employees can now be sued for breach of their duties
and (b) no inkling that this made employees civilly liable for the first time under English law for injury
or death caused by their failure to report shortcomings in health and safety arrangements. Had an
MP or reader wished to know more, he or she would likely turn to the Regulatory Impact
Assessment that had been placed (as stated on the face of the regulations) in the libraries of the
Houses of Parliament.
The Regulatory Impact Assessment opens by stating that the issue behind the new regulations is
that
“the UK undertook to remove the exclusion - both from the MHSWR and from the Fire Precautions
Regulations 1997 - for breach of statutory duty toward employees and to consult to that end.”
Paragraphs 6 (which set out the objectives), 7 (on the options the HSC considered and consulted
on), 8 (on issues of equity and fairness), 10-11 (on benefits), 12 (on sectors affected), 13-20 (on
practical effects), 21-26 (on the impact on the amount of litigation), or 36 (on uncertainties) deal only
with the provision that an employer will be able to be sued by its employees.
In contrast to the information put to the HSC and its consideration of the issues, no mention is made
in the information put before Parliament that the changes mean that employees can be sued, nor is
any indication given that employees will be civilly liable for death or injury caused by a health and
safety shortcoming which they failed to report.
2.6 Information given to the public
On 29 September 2003 - with the amended regulations still before Parliament - the HSE issued a
public statement entitled ‘Improvements to work and fire safety’. This stated
“Workplace safety and fire regulations are to be changed to allow employees and employers to
claim damages for breaches of the regulations. Employees will be able to claim damages from their
employer in a civil action, where they suffer injury or illness as a result of the employer breaching
the Management of Health and Safety at Work Regulations 1999 (“the 1999 Regulations”) or the
Fire Precautions (Workplace) Regulations 1997 (“the 1997 Regulations”). Employers will also be
able to bring actions against employees for breach of their duties under the 1999 Regulations. In
addition amendments are being made to the 1997 Regulations to clarify enforcement
responsibilities…
14
The ODPM, DWP and HSC, having considered the comments received in response to the
consultation including on HSE’s regulatory impact assessment, concluded that new claims arising
from the proposed legislative changes are likely to be small. Nevertheless the Government and
HSC believe that the Regulations will send a powerful signal to industry about the seriousness of
the Government’s intentions to raise further the profile of occupational health and safety”.
While it is notable that this public statement - in contrast to the information provided to Parliament does mention that the new regulations allow employees to be sued for breach of their duties, it is
not accurate. Firstly it is wrong to intimate that only employers can sue employees for breach of
their duties as the new law provides that anyone including injured consumers, passengers, passersby and fellow workers can sue an employee. Secondly, employers who are not individuals (and the
majority are not) are unable to suffer death or injury and, therefore, cannot sue for this breach.
Finally, and more importantly, no indication is given that employees are now for the first time civilly
liable for injury or illness caused by their failure to report a health or safety concern.
This is unfortunate when

this is the only public statement so far on the new law,

the CBI and the Engineering Employers’ Federation, among others, had stressed that it was
vital that clear guidance is produced to help both business and workers understand the
impact of these changes, and

the HSC had been minuted as recommending that “Officials need to give thought to the
communication / presentation of the change”.
Dated: 26 May 2004
EMPLOYEE CIVIL LIABILITY FOR FAILURE TO INFORM EMPLOYER OF DANGERS TO
HEALTH AND SAFETY
Summary Option
1. I am instructed to advise Public Concern at Work as to the scope of the duty on employees to
inform their employer of health and safety concerns, under regulation 14(2) of the Management of
Health and Safety at Work Regulations 1999 (SI 1999/3242) (“the 1999 Regulations”), as amended
by the Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment)
Regulations 2003 (SI 2003/2457) (“the 2003 Regulations”). In particular I am asked whether an
employee who breaches the duty is liable to a person who suffers injury as a result, and if so
whether his or her employer would be vicariously liable for the employee’s breach of statutory duty.
2. Regulation 14(2) of the Management of Health and Safety at Work Regulations 1999 (SI
1999/3242) (“the 1999 Regulations”) provides:
“Every employee shall inform his employer or any other employee of that employer with specific
responsibility for the health and safety of his fellow employees(a) of any work situation which a person with the first-mentioned employee’s training and instruction
would reasonably consider represented a serious and immediate danger to health and safety; and
(b) of any matter which a person with the first-mentioned employee’s training and instruction would
reasonably consider represented a shortcoming in the employer’s protection arrangements for
health and safety.”
15
3. Regulation 28 of the 1999 Regulations provides that the 1999 Regulations shall (subject to an
immaterial exception) take effect “as if they were health and safety regulations within the meaning
of Part I of the Health and Safety at Work etc Act 1974”.
4. Part I of the Health and Safety at Work etc Act 1974” (“the 1974 Act”) provides as to “Civil
Liability” at section 47(2):
“Breach of a duty imposed by health and safety regulations . . . shall, so far as it causes damage,
be actionable except in so far as the regulations provide otherwise.”
Thus it is necessary to look at the provisions of specific health and safety regulations, such as the
1999 Regulations, to ascertain whether they exclude a right of action for breach of the statutory
duty, and if so to what extent.
5. Regulation 22 of the 1999 Regulations has recently been amended by regulation 6 of the
Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment)
Regulations 2003 (SI 2003/2457) (“the 2003 Regulations”). This now provides as follows:
“Breach of a duty imposed on an employer by these Regulations shall not confer a right of action in
any civil proceedings insofar as that duty applies for the protection of persons not in his
employment.”
6. Thus, employers are now civilly liable for breaching their duties under the 1999 Regulations, as
amended, but only to their employees, not to others who may be injured by the breach, such as
passengers or consumers of the employer’s products.
7. The new regulation 22 of the 1999 Regulations, substituted by the 2003 Regulations, makes no
reference to employees at all. It follows that the 1999 Regulations do not now make provision
excluding civil liability for breach of statutory duty where an employee breaches the duty to inform
under regulation 14(2). Therefore, by section 47(2) of the 1974 Act, such a breach is actionable by
any person who suffers injury as a result, whether a fellow employee, or a person outside the
employer’s employment such as a passenger, or a consumer of the employer’s products. This
creates an apparent anomaly in that the new regulation 22, which limits the class of persons who
may sue an employer for breach of statutory duty to those employed by it, places no limit on the
class of persons who may sue an employee who breaches the duty to inform under regulation
14(2).
8. The next question is whether a person injured through an employee’s breach of the duty to inform
under regulation 14(2) of the 1999 Regulations could sue the employee’s employer for damages,
relying on the principle of vicarious liability. There is no definite answer to this question in the
authorities. The House of Lords has twice declined to decide whether an employer is vicariously
liable for an actionable breach of statutory duty where the duty is placed exclusively on the
employee: see Harrison v. National Coal Board [1951] AC 639, and National Coal Board v. England
[1954] AC 403.
9. In both cases mineworkers were injured as a result of breach of statutory duty by a shot-firer. The
relevant legislation placed the duty on the shot-firer personally, not on his employer. In the former
case it was unnecessary to decide the point because the doctrine of common employment was
available to the employer as a defence. In the latter case that doctrine no longer protected the
employer, but it was unnecessary to decide the point because the employee was held to have acted
negligently at common law, and the employer was held vicariously liable for that common law
negligence.
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10. In the latter case, Lord Porter at 415 said that it was unnecessary to resolve the issue whether
the employer would also be vicariously liable for the employee’s breach of statutory duty and that
the House should decline to do so as the issue was “of some complexity”. Lord Reid at 425
expressed a similar view, saying that if the issue arose for decision he would not dismiss out of
hand the employer’s argument that it should escape vicarious liability.
11. The learned authors of Clerk & Lindsell on Torts, 18th ed., at 5-47, after referring to the two
inconclusive House of Lords decisions, say this:
“It is submitted that the weight of opinion now in favour of the ‘servant’s tort’ approach should lead
to liability being imposed on the employer in respect of a breach of a statutory duty imposed on the
employee committed within the course of his employment.”
12. If as is probable that view is correct as a general proposition, and if it applies in these
circumstances, the employer could be sued as vicariously liable for the employee’s failure to
perform the regulation 14(2) duty to inform, since presumably that would be regarded as a failure in
the course of the employee’s employment, and not outside it. However it is not clear that the
general proposition, if correct, could be applied to a duty such as this which could be regarded as
par excellence personal to the employee, and where the duty is to disclose information to the very
party sought to be fixed with vicarious liability, who therefore by definition has no opportunity to
remove the risk or danger to health and safety where the duty is breached.
13. The arguments are finely balanced. I think the better view by a narrow margin is that the
employer is vicariously liable, but there remains a strong possibility that the court would take the
contrary view. If the employer is vicariously liable for the employee’s failure to inform, that leads to
the rather odd result that the employer could be sued by any person who suffered injury, including
for example passengers and consumers, even though the employer could only be sued by an
employee, and not by any wider class of persons, for failure to perform duties placed on the
employer by the 1999 Regulations.
TIM KERR QC
11 King’s Bench Walk Chambers
26 May 2004
HSC Press Release C060:01 - 21 December 2001
HSC announces consultation on proposals to amend the Management of Health and Safety at Work
Regulations 1999 and the Fire Precautions (Workplace) Regulations 1997.
The Health and Safety Commission (HSC) has published a Consultative Document on its proposals
to amend the Management of Health and Safety at Work Regulations 1999 (MHSWR) and the Fire
Precautions (Workplace) Regulations 1997 (FPRegs). The document is available on the web at
http://www.hse.gov.uk/condocs/cd177.htm and proposals include:

amending the so-called “civil liability exclusion” in MHSWR, to allow employees to claim
damages from their employer where they have suffered injury or illness as a result of their
employer breaching MHSWR;

making similar amendments to the FPRegs, to allow employees to claim damages from
their employer where they suffer injury or illness as a result of their employer breaching the
FPRegs;

amending the enforcement arrangements for the FPRegs, by making the Health & Safety
Executive (HSE) responsible for enforcing the FPRegs for ships under construction and
17
repair (this was the Government’s intention when the FPRegs were first introduced, but the
proposed amendment makes it explicit).
The HSE also proposes to make several other amendments consequential to the civil liability
proposals, to the FPRegs, and to correct minor drafting defects in MHSWR.
The civil liability proposals follow from correspondence between the European Commission and the
UK Government over the UK’s implementation of the health and safety “Framework Directive”
(89/391/EEC). In this light the Government has notified the European Commission that it intends to
amend the civil liability provisions in MHSWR and the FPRegs, and to consult on proposals to this
end. Consultees are therefore invited to comment on how - not whether - the civil liability changes
should be made.
The chief impact of the proposals will lie in the increased scope for employees to bring civil liability
claims if they are injured or made ill by their work. However, it is difficult to assess whether there will
be an increased number of claims in practice. Any change will be limited by the potential overlaps
between claims for MHSWR breaches and those arising from negligence and/or breach of other
regulations. The Consultation Document includes a Regulatory Impact Assessment which gives
further details.
The consultation exercise will close on 14 March 2002.
Note To Editors
1. The Management of Health and Safety at Work Regulations 1999 (MHSWR) provide a
framework for managing health and safety, supplementing the more general duties in the
Health and Safety at Work etc. Act 1974 (HSWA). They require employers to undertake the
management tasks associated with risk control - risk assessment; planning, organising,
controlling, monitoring and reviewing control measures; co-operation and co-ordination with
other employers; involving employees; ensuring employees’ health and safety training; and
getting competent help.
2. The Fire Precautions (Workplace) Regulations 1997 (FPRegs) and MHSWR are - along
with sections 2-8 of the Health and Safety at Work etc Act - the main means by which the
UK implements the EC Framework Directive on health and safety (89/391/EEC), setting out
broad general duties on employers and employees in working activities.
3. The proposed amendment to the “civil liability exclusion” in MHSWR will provide for
consistency with other UK health and safety regulations. Civil proceedings can already be
brought if breach of most health and safety regulations results in harm to employees. The
proposal also provides for consistency within MHSWR themselves - MHSWR’s “civil liability
exclusion” does not apply to Regs 16(1) and 19 - which implement the Directives on,
respectively, Pregnant Workers (92/85/EC) and Protection of young persons at Work
(94/33/EC) - and which, for reasons specific to those Directives, already allow civil
proceedings.
4. Removing the “civil liability exclusion” from the FPRegs will similarly provide for a
consistency of approach, given that the FPR and MHSWR are jointly responsible for
implementing the Framework Directive.
Footnotes
1. No suggestion is made at any time that making employees civilly liable for a breach of their
duties had been required by the European Commission to comply with the Framework
Directive. Nothing in the Directive suggests that such a liability should be imposed.
2. Regulation 22 of MHSWR 1999
18