Our national neuroses require a subtle cure
LAST week, David Cameron condemned what he calls a “national neurosis” driving health and safety regulation. He was quoted in the Daily Mail saying: “The rulebooks keep getting thicker. The restrictions keep getting sillier.” Presumably, he is paving the way for the summer release of Lord Young’s inquiry into “the rise of compensation culture (and) the current low standing of health and safety legislation”, a review Cameron set up last month.
This health and safety narrative makes great copy, but the reality is far less simple. In legal terms, health and safety rules have not actually changed very much since 1974. The only formal additions are the inclusion of the European Directive Framework, the Corporate Manslaughter Act 2007 and a revision in sentencing. In practice, however, the scope and detail of the law has significantly expanded.
The main effect of the legal changes, says Bond Pearce’s Jon Cooper, is that the law has “moved from a prescriptive regime where the legislation says you will not do certain things to putting the onus on employers to assess the risks associated with their business”. This shift is behind the notorious risk assessment: leaders of organisations are now required to consider all the possible risks their enterprise poses to workers, contractors, visitors and members of the public and, if they employ over five people, to write down a contingency plan for dealing with them.
Solicitors say that, in law, this requirement is not actually as onerous as it seems – there is no legal reason why school trips should require ten-page forms. Instead, the law has been misinterpreted by untrained, over-zealous officials. And, most importantly, the enforcement of killjoy health and safety rules that don’t exist (eg, disallowing children from playing conkers) stems from a fear of being sued, not from actual rules. In other words, health and safety law cannot be lumped together with compensation culture or tort law as a general social malaise.
The problem is that even though there has been little new direct health and safety legislation, there has been a plethora of new guidance on the topic. This information is in theory nothing more than a useful guide to interpreting the law – it tells companies how to comply when dealing with certain kinds of machinery, lifting operations, pregnant employees, and so on. In practice, however, as soon as the government produces instruction, it gains legal force: lawyers pore over the documents for both civil compensation cases and criminal health and safety prosecutions and if an organisation hasn’t followed the instructions to the letter, there had better be a good reason. Moreover, the scope of the legislation has increased organically without new laws: whereas driving for work never used to involve health and safety checks, for example, companies are now meant to verify their employees have licenses before letting them use a car for work.
This expansion is in addition to changes in compensation law that make it less costly to sue. Beachcroft’s Andrew Parker, who assisted Sir Rupert Jackson’s 2009 review of compensation culture, says that while there might not have been a problem five years ago, recent legislative changes have created one. The most significant of these is the ability to make the losing party pay the cost of after-the-event insurance – that is, policies that pay your costs if you lose – which add to the problem of claimants having little to lose.
The data suggests Parker is correct. Personal injury firms like Thompsons Law argue that the number of compensation claims has actually gone down in the last decade, showing that there isn’t a problem. But this ignores that, more recently, the number of claims has actually risen, jumping 17.5 per cent since 2007/2008. Similarly, the number of settlements has risen 12 per cent during the same period. And even if a case never results in any payments, the fear of being sued changes employers’ behaviour.
So, as with any cure for a neurosis, Lord Young’s brief is much more complex than it first appears, with the necessary changes requiring a subtle and targeted approach. With only a few weeks to produce his recommendations, the danger is that he ends up making things worse.