Date: Fri, 19 Oct 2007 15:18

From: Robert Stevens

Subject: Johnston v NEI

Keith,

Are you suggesting that the employees do not have standing in their own name to bring a claim? I am arguing that they do. I have no doubt that there are many other methods of enforcement, both legal and non-legal, open to them. So what? If the Health and Safety Executive refused to act, for whatever reason, the employees can sue in their own names regardless of proof of injury.

I am also not, I should stress, arguing that the only rights that employees have against employers are those found in their contract, as Michael seems to think I am. What I am arguing is that it is necessary to disaggregate the various rights an employee has. I have a right against my employer, and everyone else, not to be negligently injured. There may well be advantages to me in relying upon this right if I am injured whilst at work, rather than upon my contractual rights, or my rights under various pieces of employment legislation. The incidental rules applicable may well differ (e.g. jurisdiction, applicable law, remoteness rules etc etc). The error is in failing to distinguish the various different primary rights in play, a failure created by trying to lump all claims into a general 'tort' of negligence.

Robert

Quoting "KM Stanton, Law":

Robert,

In those circumstances, the employee rings the Health & Safety Executive.

People don't go to solicitors to get nominal damages and an injunction when they can get a prohibition order free of charge via HSE.

Robert Stevens
Professor of Commercial Law
University College London

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