There is one, very small, element of civil liability for breach of statutory duty that remains. Here we look at the action for breach of duties owed to pregnant women and breastfeeding mothers. The exceptions are limited but practitioners need to be aware of them.
I am grateful to Cenric Clement-Evans of New Law Solicitors in Cardiff for directing my attention to these two exceptions. They can be found in The Health and Safety at Wok Act 1974 (Civil Liability) (Exceptions) Regulations 2013 (2013 No 1667).
AN ACTION FOR BREACH OF SECTION 72(1) OF THE Employment Rights Act 1996
The Regulations provide that a breach of the duty imposed by section 72(1) the Employment Rights Act 1996 shall, insofar as it causes damage, be actionable.
That section deals with compulsory maternity leave it states:
“(1) An employer shall not permit an employee who satisfies prescribed conditions to work during a compulsory maternity leave period.”
(It is made actionable by section 72(4)and this right of action is preserved).
In essence this prevents an employer from permitting an employee to work within two weeks of the date of giving birth.
BREACHES OF THE MANAGEMENT OF HEALTH AND SAFETY AT WORK REGULATIONS THAT REMAIN ACTIONABLE
Certain parts of the Management of Health and Safety at Work Regulations still give rise to civil liability in an action brought by a new or expectant mother that is Regulations 16, 16A, 17 and 17A.
REGULATIONS THAT REMAIN IN FORCE
Regulation 16: duty to risk assess in relation to pregnant women and new mothers
Which involves a duty to carry out a risk assessment in relation to new or expectant mothers where:
“the work is of a kind which could involve risk, by reason of her condition, to the health and safety of a new or expectant mother, or to that of her baby, from any processes or working conditions, or physical, biological or chemical agents, including those specified in Annexes I and II of Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding,”
Regulation 16A: risk assessment and agency workers
This provides specific duties in relation to agency workers
“(1) Where, in the case of an individual agency worker, the taking of any other action the hirer is required to take under the relevant statutory provisions would not avoid the risk referred to in regulation 16(1) the hirer shall, if it is reasonable to do so, and would avoid such risks, alter her working conditions or hours of work.
(2) If it is not reasonable to alter the working conditions or hours of work, or if it would not avoid such risk, the hirer shall without delay inform the temporary work agency, who shall then end the supply of that agency worker to the hirer.
(3) In paragraphs (1) and (2) references to risk, in relation to risk from any infectious or contagious disease, are references to a level of risk at work which is in addition to the level to which a new or expectant mother may be expected to be exposed outside the workplace”
Regulation 17: pregnant women or new mothers should not work if medical certificate states they cannot
This states that where a new or expectant mother provides a medical certificate showing that for her health and safety she should not be required to work then she should not be at work for the period of time identified in that certificate.
Regulation 17A: duties in relation to new or expectant mother who is an agency worker
This section again imposes specific duties in relation to Agency Workers.
(a) a new or expectant mother works at night; and
(b) a certificate from a registered medical practitioner or a registered midwife shows that it is necessary for her health or safety that she should not be at work for any period of such work identified in the certificate,
the hirer shall without delay inform the temporary work agency, who shall then end the supply of that agency worker to the hirer.”
The Regulations can be found at http://www.legislation.gov.uk/uksi/2013/1667/contents/made
The consultation document which gave rise to these exceptions can be found at http://www.hse.gov.uk/consult/condocs/errasection69.htm
A discussion of the duty to risk assess generally can be found at https://accidentsatworkandlossofearningsclaims.wordpress.com/2013/10/01/the-duty-to-risk-assess-and-common-law-duty-after-1st-october-2013/