Blog: ERRA Update - Scotland poised to reverse the impact of s69?

On 5 January 2015, Richard Baker MSP lodged a consultation document on a proposed Damages Claims (EU Directive on Safety and Health at Work) (Scotland) Bill. The Bill is a direct response to the Enterprise and Regulatory Reform Act 2013's removal of civil liability for breach of health and safety regulations.

Baker suggests ERRA conflicts with European law and in so doing places the Scottish government at risk of Francovich damages claims for non-compliance (in the Francovich case, the claimant had sustained life-threatening injuries following a collision in 2006), a risk that Baker estimates could cost millions of pounds per year, although no reported cases are yet known to the author.

The proposal also suggests ERRA places private sector employees at a disadvantage compared with public sector workers who, by virtue of the principle of direct effect, can establish liability against their state-owned employers based on a breach of European Health and Safety Directives.

To that end, the proposed Bill aims to ensure all Scottish workers enjoy the benefit of the same level of protection under European Law. The proposed Bill will ensure every Scottish worker can rely directly upon European Directives in relation to worker safety to pursue a compensation claim.

The Scottish Parliament does not have the competence to legislate in all areas of health and safety. Accordingly, there may well be questions about the power of the Scottish Parliament to do what Baker proposes. If Baker ultimately brings a Bill, he would be required to certify that it is within the legislative competence of the Scottish Parliament. Thereafter the question of competence may be one for the courts to determine, the last high profile example being the challenge mounted by insurers to the Damages (Asbestos-related Conditions) (Scotland) Act 2009.

The proposed Bill would effectively reverse the impact of ERRA in Scotland and restore - or in some cases enhance - claimants' route to compensation prior to 1 October 2013. A Bill which at first glance saves taxpayers' millions while at the same time restoring what is portrayed as a retrograde step in workplace safety is likely to have public and political support. However, in the event that legislation is enacted, the practical implications are numerous and the potential for unintended consequences is high.

In broad terms, the European Directives impose higher standards than the implementing UK regulations, but in many cases their scope is far more narrowly defined. So for example, the European Work Equipment Directive imposes an absolute and unqualified duty, but it arises only in an employer/employee relationship.

Contrast that with the concept of control of either the worker or the equipment, which has long been a crucial element of the transposed UK obligation. The proposed change will inevitably result in litigation and an entirely new body of case law determining the scope of EL liability in Scotland.

The consultation will run until 31 March 2015 after which point a final proposal will be lodged in Parliament along with a summary of the consultation responses. Baker needs to secure the support of at least 18 other MSPs from two or more political parties before he can introduce a Member's Bill, which may ultimately become legislation.

Any legislation may then be open to challenge on constitutional grounds so it is fair to say that it will be many months before we know if Scotland is set to continue down an increasingly divergent path from its UK counterparts.

David Hennessy is an associate in the Insurance and Risk team at Brodies LLP