Risk Assessment Remains Relevant in the Workplace

By Ferguson, Lorna | The Scotsman, February 4, 2019 | Go to article overview

Risk Assessment Remains Relevant in the Workplace


Ferguson, Lorna, The Scotsman


HE Brexit story so far has brought to the surface words not often used Tbefore, such as "backstop" and even the word "Brexit" itself. It has also involved fresh consideration of several long-standing legal, social and economic issues, including workers' rights.

It is true that the EU dimension has influenced UK workplace law. In particular, a string of EU Directives in the 1990s required all Member States to beef up their domestic laws on workplace health and safety. The UK complied by legislating for workplace risk assessments and increased standards which employers had to meet, the so-called "six pack" regulations. In many situations, strict liability was to apply against employers in civil compensation claims brought by their employees. Under strict liability, the mere fact of an accident happening and causing injury is enough for compensation to be payable. Fault, therefore, becomes irrelevant. On the face of it, the system for workplace compensation claims changed on 1 October 2013 when section 69 of the Enterprise and Regulatory Reform Act came into force UK-wide. It meant that breach of statutory health and safety law may not, of itself, be used to make a successful civil compensation claim. Instead, the common law, based on reasonable care, applies. A bonfire of the regulations then, long before Brexit.

Perhaps surprisingly, there has been little reported case law on what the change means in practice. What does reasonable care now mean in the workplace context, against a backdrop where statutory health and safety law may still have criminal consequences? The UK Supreme Court had one eye on this when dealing with a pre-October 2013 accident in the 2016 Scottish case of Kennedy v Cordia. The court unanimously took "risk assessment" issues into account when considering reasonable care. They explained that "the requirement to carry out such an assessment, whether statutory or not, forms the context in which the employer has to take precautions in the exercise of reasonable care for the safety of its employees". The European influence then, in introducing the risk assessment framework, seems to have had an impact on the domestic common law of reasonable care.

One of the few cases to have commented directly on the effects of s. …

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