Löfstedt, and the Enterprise and Regulatory Reform Bill: An End to Strict Liability?

A blog on the likely effect of the Enterprise and Regulatory Reform Bill on Employers’ Liability claims will follow shortly, once I’ve found the time and caffeine necessary to finish it. Essentially, it considers the opinion of Advocate General Mengozzi and the case of Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland, and asks whether the Bill’s amendment of s 47 of the Health and Safety At Work Act 1974 (thereby removing civil liability for breach of a statutory instrument containing health & safety regulations) will demonstrably lower existing worker health & safety protections. Reduction in existing worker protections  sits at odds with the aims of Articles 151 and 153 TFEU, namely maintaining and improving worker health and safety.

It will also consider whether the Bill falls foul of  the non-regression clause contained within the preamble to the Framework Directive. Steve Peers’ ‘Non-regression Clauses: The Fig Leaf Has Fallen,’ which considers inter alia the Opinion in Case C-144/04 Mangold [2005] ECR I-9981 on, is particularly useful on this point. Either scenario may prompt proceedings by the European Commission. If the Bill is enacted, it may mean claimants’ solicitors decide to focus their attention on EL claims involving local authorities, arguing that, as emanations of the state, the Directives are capable of direct effect (as suggested by Lord Reed in English v North Lanarkshire Council 1999 SCLR 310). In turn, this could create an imbalance in the remedies available to private and public workers.

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