Monday, November 27, 2017
The leading historian of Great Britain’s experience with workers’ compensation laws (and its predecessor laws) is the scholar P.W.J. Bartrip, who authored multiple books on the subject. The texts best known to me are Bartrip & Burman, The Wounded Soldiers of Industry: Industrial Compensation Policy, 1833-1897 (Oxford University Press 1983); and Bartrip, Workmen’s Compensation in Twentieth Century Britain (Gower Publishing Co. 1987).
E.P. Hennock, of the University of Liverpool, however, also wrote on the subject. I have recently prepared a summary of his account of the lead-up to, and the enactment of, British workers' compensation. It is derived from his book, The Origin of the Welfare State in England and Germany, 1850-1914 (Cambridge University Press 2007). I have posted my Cliff’s Notes-style summary at www.davetorrey.info.
Here is a top-six list of items that are truly remarkable about the British system, which is generally said to have existed from 1897 to 1948:
1. The creation of workers’ compensation in England did not feature a compromise under which injured workers automatically gave up the right to sue in tort. No so-called “Grand Bargain” attended the creation of no-fault liability. Employer liability theoretically endured, though a worker who accepted workers’ compensation elected out of any tort remedy against the employer.
2. Disability and death benefits only were paid – there was no medical compensation prescribed by the law. (Employers, however, could make such payments voluntarily and often controlled medical treatment.)
3. No agency was created devoted exclusively to ensure enforcement of the law.
4. No insurance mandate existed. Employers could insure through a mutual, a commercial enterprise, or self-insure.
5. An employer could "contract-out" of the system by setting up a special fund and obliging workers, as a condition of employment, to accept benefits from the fund and waive any right to workers' compensation or damages in tort. However, such plans were rare, as the law required such funds to provide the same level of benefits as the workers' compensation law.
6. Litigation was robust from the outset, and disputed cases were heard in general county courts, not before an arbitral panel or other special tribunal.
For a present-day account of the system, in the wake of its demise in 1948, I recommend Richard Lewis, Employers’ Liability and Workers’ Compensation: England and Wales, in Ken Oliphant and Gerhard Wagner, Employers’ Liability and Workers’ Compensation (De Gruyter/European Centre of Tort & Insurance Law 2012). Professor Lewis’ chapter of the Oliphant & Wagner book can be read online. See http://orca.cf.ac.uk/26855/.