Legal liability

Many countries that once held employers themselves legally responsible for compensating victims of work accidents and for paying for their medical care have now adopted state schemes of compulsory insurance. From the point of view of the worker the problems with the former system include the delays and costs of going to court and the possibility that the employer may be uninsured, unable to pay, or bankrupt by the time the case is heard. Moreover, a lump sum awarded by a court cannot be invested so as to provide a secure inflation-protected income for life. And when the employer is privately insured, the insurance company is in a position to offer the worker a small lump sum soon after the accident, knowing that the worker may well accept it rather than incur the delay, costs, and uncertainty of a court case to obtain the full value of the claim. From the national point of view such a system is wasteful because of the legal costs and the high administrative costs incurred by the insurer and passed along to the insured by way of higher premiums. The argument in favour of this approach is that insurers quote premiums for individual employers according to their experience of risk, which provides financial incentives for industrial safety. But insofar as such incentives are effective, premiums for a national program of accident insurance can also be risk-rated.

In some countries, when a statutory insurance scheme of occupational injury has been introduced, the right of the employee to sue the employer for negligence is removed. In other countries the employee is free to supplement industrial injury benefits by making a claim for negligence.

The legal liability approach is still used in many developing countries for the general provision of medical care. Thus large employers or employers of labour in mines or specific agricultural estates (e.g., sugar, tea, and rubber) are required to provide clinics and hospitals for their employees and dependents. This is one way of ensuring that health services are provided to people working far from the main urban health services. It is, however, difficult to ensure that employers comply with the spirit of the law. Moreover, employees may suspect that the doctors and nurses working in such services owe their primary loyalty to the employer and thus tend to economize on the treatment or are reluctant to certify time off for sickness. A further problem is that it is uneconomic to provide government services in these areas for the remainder of the population who are not employed by the major local employer and is difficult to integrate employers’ services with government services.

In several countries employers are required to provide defined levels of cash benefits during short periods of sickness (e.g., six to eight weeks). This avoids the administrative complexity of a social insurance benefit paid by a national scheme or a sick fund supplemented by an employer’s scheme. Provision may be made to protect the workers’ rights if the employer goes out of business.

While social insurance is preferred to the employer liability approach by social security experts because it can give better protection, employer liability is still widely used in developing countries not only for employment injury but also for sickness and maternity benefits and employer severance payments.