The Health and Safety at Work etc. Act 1974 (Civil Liability) (Exceptions) Regulations 2013

EXPLANATORY NOTE

(This note is not part of the Regulations)

1.  These Regulations create some exceptions to section 47(2) of the Health and Safety at Work etc. Act 1974 (“the 1974 Act”), as amended, which provides that a breach of a duty in certain health and safety legislation is not actionable except to the extent provided for in regulations.

2.  Previously section 47 of the 1974 Act provided for a right of action in civil proceedings for breach of a duty imposed by a health and safety regulation. Section 47 was amended by section 69 of the Enterprise and Regulatory Reform Act 2013 to exclude the right to bring such a claim unless an exception had been created.

3.  These Regulations create exceptions from the exclusion of civil liability for breach of statutory duty for pregnant workers and workers who have recently given birth or are breastfeeding (“new and expectant mothers”) in relation to certain rights derived from Directive 92/85/EEC (OJ L348, 28.11.1992 p.1) (“the Pregnant Workers Directive”) and Directive 2008/104/EC (OJ L327, 5.12.2008, p.9) (“the Agency Workers Directive”).

4.  Section 72(1) of the Employment Rights Act 1996 (“the 1996 Act”) compels employers to prohibit a worker from working within a prescribed period known as the compulsory maternity leave period (which is 2 weeks from the date of giving birth). Section 72(4) applies the provisions of the 1974 Act to this prohibition as if it were contained in health and safety regulations made under section 15 of the 1974 Act. The effect of this, among other things, is to apply the provisions of section 47 relating to civil liability, including the power to create an exception, to a contravention of the prohibition in section 72(1) of the 1996 Act.

5.  Regulation 22 of the Management of Health and Safety at Work Regulations (“the 1999 Regulations”) excluded third parties from bringing claims for breach of a duty contained in those Regulations against employers and employees. This exclusion is no longer required because section 47 of the 1974 Act now automatically excludes liability and express provision is only required for exceptions.

6.  Regulation 2 of these Regulations creates a right of action in relation to a breach of the prohibition in section 72(1) of the 1996 Act, to the extent that the breach causes damage.

7.  Regulation 3 substitutes regulation 22 of the 1999 Regulations to provide that new and expectant mothers (including agency workers) will continue to have a right of action in civil proceedings in relation to breaches of sections 16 – 17A of the 1999 Regulations to the extent that the breach causes damage. These provisions of the 1999 Regulations relate to requirements to carry out risk assessments and make particular arrangements for new and expectant mothers to protect their health and safety.

8.  Regulation 4 revokes the Management of Health and Safety at Work (Amendment) Regulations 2006 which are now superseded.

9.  Regulation 5 requires the Secretary of State to review these Regulations and publish a report setting out the conclusions of the review every 5 years starting before 1st October 2018.

10.  No impact assessment has been prepared for this instrument as the provisions have no additional impact because they maintain existing rights of action for new and expectant mothers.