DWF have a careful analysis of the potential effect of the ERRA at http://www.dwf.co.uk/news/legal-updates/employers-liability-and-the-enterprise-and-regulatory-reform-act-2013
THE DIRECTIVES AND EMANATIONS OF THE STATE
One particular matter of interest (and where I am not sure I agree with them) is the point in relation to a direct cause of action under the Directives against a defendant that is an emanation of the state.
The article states:
“Our view is that whilst as with the regulations themselves, the directives continue to exist, and can as they always have done establish a cause of action against public defendants, in practice it will now be more difficult for them to do so. It was clearly the government’s intention when steering the new Act through Parliament that the regulations, and implicitly the directives standing behind them, would no longer establish a direct cause of action”
The difficulty I have with this analysis is that the “government’s intention” can have no effect at all on a direct cause of action under the Directives. The right under the Directives arises from European and not national law. If a party has a direct right of action under a directive no action by the government can diminish that right.
There is a discussion on the direct effect of the Regulations in the latest edition of Munkman on Employers Liability at 9.47 onwards.
The article goes on to recognise that, since the courts have make reference to the Regulations in any event, the distinction may not be of practical relevance.
However it would be prudent for any claimant litigator, considering a claim against an emanation of the state to consider, and plead, the Directives if necessary.