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What's Leading to the Reduction in Employer's Liability Claims? - James Barker, Kirwans

13/10/16. Recent statistics show that the number of Employers’ Liability (EL) claims have reduced in recent years, with Verdict Financials UK Personal Injury Litigation 2016 report identifying sharp declines in EL claims recorded in 2015-16.

The reasons for the reduction have not entirely been established, but there are a number of factors which may well have contributed to the change.

The implementation of the Jackson reforms in 2013 resulted in significant change for Personal Injury law. Costs associated with progressing a claim on behalf of a client, obtaining expert medical evidence, medical records and engineers’ reports, as well as the ever-increasing court fees, have all led to solicitors being reluctant to take on cases which can be considered to have borderline prospects of success.

However, it is not this legislation alone that has seriously affected the Personal Injury industry.

In October 2013, Section 69 of the Enterprise and Regulatory Reform Act 2013 came into force and the impact of such legislation has not gone unnoticed.

Prior to this Act, an injured employee could bring a claim against their employer for breach of health and safety regulations. However, the removal of employers’ civil liability for breach of health and safety regulations made it much more difficult for employees to bring a claim against an employer as the ‘strict liability’ concept was removed.

Just a few months ago, I progressed a claim for damages on behalf of an employee who was injured as a result of a defective piece of equipment at a major supermarket factory in North Wales. This supermarket denied liability throughout, but had the accident taken place before October 2013, then liability would no doubt have been admitted.

In this instance, I issued court proceedings. An offer of damages was made and the case was settled on favourable terms for my client. Even though he had been injured through no fault of his own - it was entirely his employer’s fault - the supermarket felt that it could deny liability under this new Act. Had I chosen another route, and decided not to commence court proceedings, then it could have been a very different story.

A further contributing factor could be the improvement of health and safety within the work place.

In trying to ensure that the workplace is as safe as possible for employees, the Health and Safety Executive are willing to levy fines and make owners accountable (even to imprison them under Section 33 of the Health and Safety at Work Act) if their premises are unsafe.

The penalties have, understandably, led to huge concerns amongst employers that they could be fined or struck off. As a result, most conscientious employers are doing their utmost to ensure that their premises and health and safety practices are compliant to avoid unwanted criticism should an accident take place.

Of course, the Personal Injury sector could be subject to even more changes once the UK leaves the EU. The Brexit effect could mean that employees might lose further rights if the English legal system decides not to adopt the EU Directives which allow certain categories of workers to bring a claim for damages if injured within their workplace.

Other concerns include the proposed raise to the small claims limit. Such a move would certainly reduce the amount of claims brought, because the economics and viability of bringing a claim for damages would mean that, more often that not, there would be little point in doing so.

Turbulent times, then, for the sector – and in particular for Employers’ Liability claims. But the legal industry is getting used to finding smarter ways of working, and I have no doubt that we will manage whatever challenges we continue to meet in this new, ever-changing world of Personal Injury.

James Barker

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