1

This Consultative Letter sets out the Health and Safety Commission's

(HSC's) proposals for regulations to amend the Management of Health and

Safety at Work Regulations 1999 (MHSWR) and the Health and Safety

(Consultation with Employees) Regulations 1996 (HSCER).

2

The Letter seeks your views both on the proposed response necessary

to address concern that has been expressed to the HSC and Ministers and on

the proposed regulations which can be found at Annex 1.

3

MHSWR were amended by the Management of Health and Safety at

Work and Fire Precautions (Workplace) (Amendment) Regulations 2003 (the

2003 Amendment Regulations) to enable employees to claim damages from

their employer in a civil action, where they suffer injury or illness as a result of

the employer being in breach of MHSWR or the Fire Precautions (Workplace)

Regulations 1997 (FPWR). The 2003 Regulations also amended MHSWR to

enable civil claims against employees for a breach of the employees' duties

under regulation 14 of MHSWR that results in injury or illness.

4

These amendments were offered by the UK to the European

Commission (EC) to address their concerns over the implementation of the

EC Framework Directive on health and safety (89/391/EEC).

5

Consultation on the 2003 Amendment Regulations ended on 28 March

2002 and the HSC considered the results on 15 October 2002. It addressed

conflicting views over the proposal that employees as well as employers

should be open to compensation claims for breach of their statutory duties (be

it from their fellow employees, employer, or third parties). Views differed

among consultees as to whether employees should be liable for damages for

injury or ill health arising from breach of regulation 14 of MHSWR.

6

Some of the original consultees supported the proposal, contending that

it would capture those cases where accidents resulted from employees failing

to follow control measures which would not necessarily be pursued by the

enforcing authorities. However, other consultees were concerned about its