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Consultation on the exception for pregnant workers and workers who have recently given birth or are breastfeeding1 from section 69 of the Enterprise and Regulatory Reform Act 2013

This consultation is being carried out by the Health and Safety Executive in compliance with its duty to consult under section 50(3) of the Health and Safety at Work Act etc 1974. 

Background

In his report Reclaiming health and safety for all: An independent review of health and safety legislation (November 2011) Professor Löfstedt identified the potential unfairness that arises in his view where health and safety at work regulations impose a strict liability on employers, making them legally responsible to pay compensation despite having done all that was reasonable to protect their employees.  Professor Löfstedt recommended that regulatory provisions which impose strict liability should be reviewed. 

In its response to the report the Government confirmed its recognition of this potential unfairness and committed to look at ways to redress the balance, in particular by preventing civil liability from attaching to a breach of such provisions.  

Implementation of section 69 of the Enterprise and Regulatory Reform Act 2013 

The Enterprise and Regulatory Reform Act 2013 (ERRA) received Royal Assent on 25 April 2013,

Section 69 ERRA fulfils the Government’s commitment in respect of strict duties by amending section 47(2) of the Health and Safety at Work etc Act 1974 (HSWA) with the effect that there will be no right to bring a claim for breach of statutory duty in relation to breaches of health and safety regulations.  In future claimants will only be able to bring claims in negligence.  

This approach addresses the potential unfairness identified by Professor Löfstedt by ensuring that duty holders, usually an employer, will always have the opportunity to defend themselves on the basis of having taken reasonable steps to avoid, or reduce, the risk of accidents.

It is planned to bring section 69 ERRA into force on the 1 October 2013 common commencement date.

Exception for pregnant workers

In order to bring section 69 into force it is necessary to make an exception to the policy for pregnant workers in respect of rights derived from the Pregnant Workers Directive (EEC 92/85 as amended).   This would mean a pregnant worker would continue, as now, to have the right to bring a claim for breach of statutory duty for breaches of obligations imposed by this Directive in addition to any other right of action she may have.

The exception for pregnant workers is required to ensure the ongoing correct transposition of the relevant Directive.  This is because Article 12 of the Pregnant Workers Directive requires member States to enable workers who believe they have been wronged by a failure to comply with duties in that Directive to enforce their rights.  There is no such explicit requirement in other health and safety directives and hence no further exceptions are proposed.

Because the proposed exception for pregnant workers maintains the current position in relation to civil liability for this group of workers it does not give rise to any additional costs to business. 

Consultation

The exception will be made under the vires of HSWA which means there is a statutory requirement to consult. 

You may provide comments on the proposal to exclude pregnant workers from section 69 ERRA to the following email address: errasection69consultation@hse.gov.uk or by post to the address below.   

This consultation will run for a two week period from 6 June and ended on 20 June 2013.  Comments should be submitted by the closing date, late comments may not be considered.

Responses should be sent by 20 June 2013 to:

Email:  errasection69consultation@hse.gov.uk     

or

Health and Safety Executive
FOA Jeremy Bevan
5.1S Redgrave Court
Merton Road
Bootle
Merseyside L20 7HS

At the end of the consultation the comments received will be collated and made publicly available, although any comments submitted can be treated anonymously on request, subject to the following. 

As a public authority the Health and Safety Executive may be subject to a requirement to publish or disclose information in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 1998 (DPA) and the Environmental Information Regulations 2004 (EIR)).  If we receive a request under FOIA or EIR for the information you have provided, we will take full account of your request for anonymity but cannot give an assurance that confidentiality can be maintained in all circumstances.

HSE will process all personal data in accordance with the DPA. This means that personal data will not normally be disclosed to third parties and any such disclosures will only be made in accordance with the Act.


1 All three categories of worker are protected by Directive 92/85/EEC (as amended).  For convenience in this Consultation Document, the term ‘pregnant workers’ should be read as referring to all three.

Updated 2015-07-20