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No more six pack: The effect of the Enterprise and Regulatory Reform Act 2013 on workplace accident claims and civil liability of employers.

Section 69 of the Enterprise and Regulatory Reform Act 2013 was a drastic change to health and safety law in the United Kingdom, by removing civil liability for breaches of health and safety regulations where not provided for: significantly, impacting the key 'six-pack' heath and safety regulations often relied upon.

In this article Iain Brown, 4th Year LLB and GULS Media & Publicity Convenor 2015/16, considers the effect the 2013 Act will have on the viability of workplace accident claims and the civil liability of employers.


The implementation of section 69 of the Enterprise and Regulatory Reform Act 2013 (ERRA) represented a seismic shift in the landscape of health and safety law in the United Kingdom. The outcome of the amendments made by this section will affect not only employees and employers but also those acting for pursuers and defenders in workplace accident claims. Where for decades employees could rely upon civil liability for breaches of health and safety regulations when bringing claims unless this was specifically prohibited within the legislation, section 69 reversed this by precluding civil liability where it is not explicitly provided for.


The key health and safety regulations in the UK are known as the ‘six pack’ regulations and have been in force since 1992. They are: the Management of Health & Safety at Work Regulations 1992, the Manual Handling Operations Regulations 1992, the Display Screen Regulations 1992, the Workplace (Health, Safety & Welfare) Regulations 1992, the Provision and Use of Work Equipment Regulations 1992 and the Personal Protective Equipment (PPE) Regulations 1992. These Regulations, and a number of others, were adopted in order to clarify and expand upon the health and safety provisions set out in the Health & Safety at Work Etc. Act 1974 through delegated legislative powers enshrined in section 15 of said Act. In section 47(2) of the same Act, strict liability for breaches of these regulations was set out.

The provision reads:

Breach of a duty imposed by health and safety regulations… shall so far as it causes damage, be actionable except insofar as the regulations provide otherwise.

This was the position until 2013. Section 69 of the ERRA implemented some of the proposals set out in the Löfstedt Report[1]. This report took the view that strict liability for breaches of health and safety regulations was forcing employers to be overly cautious in implementing health and safety in the workplace and thus increasing costs to businesses while hindering growth. Strict liability had also contributed to a growing perception of ‘compensation culture’ in Britain. Löfstedt was concerned that strict liability imposed legal responsibility on employers for loss and damage which, while caused by their acts or omissions, gave no consideration given to whether they were culpable[2]. This can be seen in cases such as Stark v Post Office[3], often considered the most extreme example. The claimant in this case, a postman, injured himself when the brake on his employer-supplied postbike broke and caused him to fall. His claim against the Post Office was founded on the Provision and Use of Work Equipment Regulations 1992, Regulation 6(1), which requires employers to ensure that work equipment is maintained in an efficient state, efficient working order and good repair. The Court of Appeal held that this subjected employers to an absolute obligation which the Post Office had thus breached. This was a particularly onerous approach to health and safety to take, and was of the sort criticised by Löfstedt in his report. One of the recommendations made was to amend Regulations to stop civil liability from attaching to breaches of such provisions. Section 69 of the ERRA does this. It amended the aforementioned section 47(2) of the Health and Safety at Work Etc Act 1974 so that it now reads:

Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health and safety regulations shall not be actionable except to the extent that regulations under this section so provide.


The outcome of section 69 is that breaches of statutory duty relating to health and safety at work will not create civil liability unless that is specifically provided for in the provision. As it stands, the ‘six pack’ regulations are silent on the issue of civil liability and it will therefore not attach if they are breached unless they are later amended. For workplace accidents which have taken place after the 1st October 2013 (for the Act has no retrospective effect), Pursuers will instead have to satisfy the requirements of the common law test of negligence to succeed in a claim against their employer. That is, they will have to prove that the employer was not following “the conduct of the reasonable and prudent employer, taking positive thought for the safety of workers in the light of what he knows or ought to know”[4]. However, the existence of the duties set out by the ‘six pack’ regulations will not be forgotten. Not only does criminal liability still exist where employers breach health and safety duties set out, but it is probable that the existing Regulations and the duties contained in them will be used by the Court, or at least referred to, as a way of determining the threshold for conduct of a reasonable employer. The Court has shown itself as unwilling to create a different standard of duty at common law where one is already imposed at statute[5]. It is highly likely that breaches of the Regulations will be cited at least in the Pursuer’s pleadings as evidence of negligent behaviour by employers. It is therefore still advisable for employers to comply with the ‘six pack’ regulations.


That does not mean that all claims will have the same outcome as they would have prior to the enforcement of the ERRA. There are a number of cases where an employer was held liable for a workplace accident as a result of strict liability for breaching a ‘six pack’ regulation, and yet was not considered by the Court to have acted negligently or made a negligent omission. Take for example Willick v Corus UK Ltd[6]. The claimant in this case succeeded, and yet there was no negligence found. It is reasonable to assume therefore that the outcome of this case would have been entirely different had the accident occurred after 1st October 2013. Indeed, in Blair v Chief Constable of Sussex[7], Longmore LJ emphasised that while the claim succeeded due to the rigidity of one of the ‘six pack’ regulations, there was no negligence at common law and thus had the claim been brought on that ground alone it would not have been successful[8].


The arguments which Pursuers will seek to rely on can already be seen in the cases which are beginning to appear where the harm complained of did happen after the cut-off date. In Gilchrist v Asda Stores Ltd[9], Counsel for the Pursuers submitted that the duties contained in statutory instruments would inform and may define the scope of how such duties are perceived at common law; that an employer who had breached a regulation and made an offence could not argue that they were acting reasonably; and that the existence of a regulation is evidence that a harm is foreseeable. No submissions to the contrary were made by Counsel for the Defenders and as such the Court accepted this argument. However, the Pursuer was not successful in their claim as the Court still held that there had been no breach of duty. This case is likely one of the first of many where Pursuers and Defenders alike will seek to clarify the threshold of what behaviour constitutes negligence on the part of employers. Indeed, perhaps the most sure-fire outcomes of section 69 of the ERRA is a sharp increase in litigation in the field of workplace accidents.


The entry into force of section 69 represents a shift in the burden of proof in workplace accident claims. Where formerly the burden rested on the defender to show that compliance with the regulations was not reasonably practicable (where reasonable practicability was incorporated as a defence)[10], the onus is now on the employee to show that an employer acted negligently and that this negligence caused their loss. One likely consequence of the shifting burden of proof is a rise in reliance on expert witnesses, particularly in accident claims involving complex workplace machinery which an understanding of the operation of falls within the employer’s knowledge but not the employee. Expert evidence would therefore be needed were the employee to prove how this machine failed and how this was caused by the employer’s negligence[11]


The impact of section 69 is complicated by the fact that the ‘six pack’ regulations represent the implementation of European Union directives into national law. Though the Regulations will not give rise to a civil action, European Union directives are actionable against ‘emanations of the state’ provided that they confer rights that individuals can sue on[12]. It may be that public sector workers have the ability to sue their employers (the state) under the Directive where they cannot under the domestic implementation of that Directive and where private sector workers cannot. However, not all Directives confer rights on to individuals. Private sector workers may attempt to argue a Francovich[13] action against the state itself alleging that the enforcement of section 69 renders the implementation of the Directive in national law ineffective. This will only be effective where the Directive in question confers identifiable rights onto individuals and the failure to properly implement the Directive was the cause of loss. It is questionable how many cases would succeed on this basis. The argument is that by removing civil liability for breaches of the regulations, the government has removed an effective remedy. However, importantly, criminal liability for breaches of the regulations remains and the intention of the directives was not to provide compensation but strengthen health and safety. This should be seen as efficient implementation. Indeed, case law seems to support the thought that the lack of a direct civil action does not obstruct sufficient implementation of a directive[14]. It should be expected that in the forthcoming period where more and more cases from after the cut-off date make their way to the courts, the question of whether direct effect or a Francovich action can be used in workplace accident claims following the ERRA will be answered.


The Scottish Parliament has often been keen to distinguish itself from the legislative acts of Westminster. When it comes to civil liability for workplace accident claims it is possible that it could, as it has done concerning pleural plaques, legislate in order to safeguard employees as opposed to employers, and reverse the effects of section 69 north of the border. An attempt has been made through Private Members’ Bill in the Scottish Parliament which would have this effect[15] though it may be that this matter is outwith the competence of Holyrood. Part I of the Health and Safety at Work etc. Act 1974 – where the all-important section 47(2) lies – is specifically reserved in the Scotland Act[16]. It is alleged that because the amendments made by section 69 present a breach of EU law by removing a civil remedy, it follows that an Act of the Scottish Parliament reversing this would not be ultra vires. However, as explored, it is not certain, and in fact rather unlikely, that section 69 is in breach of European Union law. The Scottish Parliament is therefore not competent to legislate on this and the course of workplace accident claims will remain consistent Britain-wide.


The effects of the Enterprise and Regulatory Reform Act 2013, section 69 are not yet fully visible. Workplace accident claims in which the accident took place after the cut-off date of 1st October 2013 are only just beginning to reach Court. However, in principle the abolishment of civil liability for breaches of the ‘six pack’ regulations represents a shift in favour of employers away from the heavily-weighted system towards employees which was previously in place. Employees will now have to prove negligence and causation on the part of their employers in all workplace accident claims where civil liability is not explicitly provided for in the legislation, thus increasing not only the legal burden but also the evidential burden on Pursuers[17]. As a result, increased litigation rates in this area can be expected as claimant solicitors and agents for defenders alike attempt to establish where the threshold for negligence stands and how the courts will treat these claims. Expert witnesses will become more common as employees seek to prove that the employer was negligent, particularly in cases involving complex technical machinery. While it is uncertain exactly how much this will reduce successful claims against employers, it will certainly see an end to the sort of unfair claim demonstrated in Stark v Post Office where there was no culpability on the part of the employer. And while the Regulations no longer give rise to civil liability, they will not disappear. Alongside the remaining criminal liability for breaches, the ‘six pack’ regulations will almost certainly be commonly relied on in accident claims as an attempt to prove employers’ negligence. Furthermore, challenges to the new regime may present themselves at a European level or from the legislative will of the Scottish Parliament.


[1] Professor Ragnar E. Löfstedt, ‘Reclaiming health and safety for all: An independent review of health and safety legislation’, November 2011.

[2] Gilles Graham, ‘The Löfstedt Report and Implications of the Enterprise and Regulatory Reform Act’, Simpson & Marwick Claims Conference, 20/06/2014.

[3] [2000] I.C.R. 1015

[4] Stokes v Guest Keen & Nettlefold (Bolt & Nuts) Ltd [1968] 1 WLR 1776

[5] Lochgelly Iron & Co Ltd. v M’Mullan (1934) AC1

[6] [2013] EWCA Civ 519

[7] [2012] ICR D33

[8] Andrew Roy, ‘Without a safety net: litigating employers’ liability claims after the Enterprise Act’, Journal of Personal Injury Law, 2015:1:15-29.

[9] [2015] CSOH 77

[10] O’Neil v DSG Retail Ltd [2003] ICR 222

[11] Andrew Roy, ‘Without a safety net: litigating employers’ liability claims after the Enterprise Act’, Journal of Personal Injury Law.

[12] King v Sussex Ambulance NHS Trust [2002] EWCA Civ 953

[13] Francovich v Italy [1992] IRLR 84

[14] R. (on the application of United Road Transport Union) v Secretary of State for Transport [2012] EWHC 1909

[15] Douglas Brodie, ‘Damages Claims (EU Directive on Safety and Health at Work (Scotland) Bill)’, Employment Law Bulletin, 2015.

[16] Scotland Act 1998, Schedule 5, H2.

[17] Catherine Grubb, ‘Civil war’, New Law Journal, 163 NLJ 7580:2013.

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