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Who Is a Vulnerable Worker?

The Health and Safety Executive defines vulnerable workers as “those who are at risk of having their workplace entitlements denied, and who lack the capacity or means to secure them.”

Your employer is legally required to assess the health and safety risks to all employees including those in vulnerable groups. In addition, they have to pay particular attention to the health and safety of the following groups of employees and workers;

• Children and young persons
• Employees and workers who are most likely to be injured at work
• Employees and workers who are more likely to sustain significant injuries
• Employees and workers who need different methods of protection.

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Children

There are many prohibitions and restrictions on the employment of children and young persons. They are entitled to more legal protection because of their lack of life experience, knowledge of potential risks, and their general immaturity.

Children under the age of 14 are generally prohibited from any form of employment. Certain local authorities allow 13 year olds’ to be employed in jobs like newspaper delivery. Between 14 and 16, children cannot be employed in industries such as factories and construction sites, except where they are on a work experience scheme approved by the local authority. There are age-related restrictions that prohibit young workers, including children on work experience, from working with particular machinery or undertaking certain duties. The Health and Safety (Training for Employment) Regulations 1990 is owned and enforced by the Health and Safety Executive as well as local authorities. It makes children on work experience employees for the purposes of health and safety legislation.

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Young Workers

Young workers are youth who are under the age of 18. Where an employer has young workers on their staff, Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 says that they have to make a more thorough health and safety risk assessment. An employer must not employ a young person unless a health and safety risk assessment has been conducted that takes account of the following;

• Young workers inexperience, lack of awareness of risks and immaturity
• The fitting out and layout of the workplace and workstations
• The nature, degree and duration of exposure to physical, biological and chemical agents
• The form, range and use of work equipment and how they are handled
• Organisation, processes and activities
• The extent of the health and safety training provided (or to be provided) to young workers
• Any risks from agents, processes and work which are contained in the Annexes to the Young Workers Directive

Any Employer who employs five or more workers must record the significant findings of the health and safety risk assessment under Regulation 3(6) of the Management of Health and Safety at Work Regulations 1999. In addition, an employer must not employ a young worker;

• For work that is beyond the young workers physical or psychological capacity
• For work that involves harmful exposure to agents that are toxic or carcinogenic, cause heritable genetic damage or harm to unborn children, or in any other way chronically affect human health
• For work that involves harmful exposure to radiation
• For work that involves the risk of accidents that it may reasonably be assumed cannot be recognised or avoided by young workers because of their insufficient attention to safety or lack of experience or training; or work in which there is a risk to health from extreme cold or heat.

An employer can employ a young person aged 16 or 17 if;

• The work is necessary for the young person’s training
• The young worker will be supervised by a competent person
• Any risk will be reduced to the lowest level that it is reasonably practicable

If your employer breaches health and safety law in relation to you as a young worker, you will have a claim in the employment tribunal. You would first need to raise a grievance. [see How to raise a grievance at work]

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New or Expectant Mothers and Women of Childbearing Age

Your employer must carry out a risk assessment at the start of the employment of a woman of childbearing age.  For the purposes of health and safety law, a “new or expectant mother” is an employee who is pregnant, who has given birth within the previous six months, or who is breastfeeding. “Given birth” is defined in the Management of Health and Safety at Work Regulations 1999 as “delivered a living child or, after 24 weeks of pregnancy, a stillborn child”.

The Health and Safety Executive (HSE) has stated that pregnancy should not be regarded as ill health. It is part of everyday life and its health and safety implications can be adequately addressed by normal health and safety risk management procedures. Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 requires employers to make a suitable and sufficient general assessment of the risks to the health and safety of their employees while at work. Where this general assessment identifies women of childbearing age, the employer should carry out a more thorough assessment under Regulation 16 (1).

There are many physical, biological and chemical agents, processes and working conditions that may affect the health and safety of new or expectant mothers.

If you are pregnant, you need to let your Employer know as soon as possible. This is because your Employer has health and safety duties as soon as you provide written notification that you are pregnant, have given birth within the previous six months or are breastfeeding. Because many women do not know that they are pregnant for the first few weeks of pregnancy, your Employer must identify hazards and risks for all female employees of childbearing age. Your Employer also needs to take account of the fact that some hazards can present more of a risk at different stages of pregnancy.

Article 4 of the Pregnant Workers Directive 92/85 requires employers to carry out risk assessments for pregnant women, and Article 12 requires member states to introduce measures to enable workers to pursue their rights by judicial process.

In the case of Day v T Pickles Farms Ltd [1999], The Employment Appeal Tribunal said that an employer should not wait for written notification of an employee’s pregnancy before carrying out a risk assessment, and that its failure to carry out an assessment could also be sex discrimination.

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Suspension on Medical Grounds

If you are a new or expectant mother who works at night, you can give your employer a certificate from your GP or a registered midwife showing that it is best for your health and safety that you do not work nights. Your employer should suspend you from work for the period stated in the certificate. Section 64 Employment Rights Act 1996 says that you should be offered suitable alternative daytime work on the same terms and conditions as your normal work should be offered before the employee is suspended from work. [ see Suspension on maternity grounds and Pay during medical suspension]

Under the Workplace (Health, Safety and Welfare) Regulations 1992 your employer has to provide suitable rest facilities for workers who are pregnant or breastfeeding. The facilities should be suitably located, for example near toilets, and, where necessary, should allow the new or expectant mother to lie down. If your employer breaches health and safety law in relation to you as a new or expectant mothers it may be unlawful discrimination. [ see Suspension on maternity grounds]

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Disabled Workers

The Management of Health and Safety at Work Regulations 1999 and the Equality Act 2010 provide protection at work for disabled employees and those with ill-health.  Regulation 13 of the Management of Health and Safety at Work Regulations 1999 requires your employer to make all reasonably practicable adjustments for the benefit of all employees with a level of ill health or disability with health and safety implications and not just for those with protected characteristics under the Equality Act 2010.

Disabled employees are further protected by s20 of the Equality Act 2010 which requires your employer to take reasonable steps so as not to place that disabled employee at a substantial disadvantage. Your employee is required to make reasonable adjustments to enable you to do your job. See the reasonable adjustment recommendations made by the Equality and Human rights Commission in their Employment Statutory Code of Practice.

Disabled employees also have additional protection under the Workplace (Health, Safety and Welfare) Regulations 1992. Under these regulations, those parts of the workplace (doors, passageways, stairs, showers, washbasins, lavatories and workstations) used or occupied directly by disabled employees must be adjusted or organised to make it easy for them to use.

Under Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 your employer must make a suitable and sufficient general assessment of the risks to the health and safety of employees while at work. Your employer must carry out a more thorough risk assessment, if the general risk assessment shows that there are employees with any level of disability or ill health. Your employer must assess the capabilities and vulnerabilities of all employees and take these into account when designing systems of work and relevant control measures for employees who have disabilities or ill-health.

Regulation 13 of the Management of Health and Safety at Work Regulations 1999 says that “every employer shall, in entrusting tasks to [its] employees, take into account their capabilities as regards health and safety”.

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Dismissal for Inability to Do Work That Able Bodied Colleagues Can (Even if You Want to Keep on Working)?

Your employer has a duty to protect you from physical danger, even if you want to keep on working. In such a situation the case law says that there are two competing principles;

• on the one hand the desire of the common law to refrain from imposing a restriction upon the freedom of the individual;
• on the other hand, the need for employers to bear some overall responsibility for the health and safety of their workforce.

The issue of whether or not the employee can decide to take this risk was considered in Withers v Perry Chain Co Ltd [1961]. In that case, Mr Withers returned to work after a bout of dermatitis when he and his employer knew that continuing to work would give rise to a small risk of the dermatitis returning or getting worse. The Court of Appeal said that; “…there is no duty at common law requiring an employer to dismiss an employee rather than retain him in employment and allowing him to earn wages, because there may be some risk.”

The Court of Appeal said that Perry Chain Co Ltd was under no duty to dismiss or to refuse to employ an adult employee who wished to do a job merely because there might be some slight risk to the employee in doing the work.

In Coxall v Goodyear Great Britain Ltd [2002] however, the Court of Appeal held the employer liable where an employee continued working with paint despite the advice of a doctor that he should stop due to his predisposition to asthma, although Goodyear reduced the risk as far as possible by supplying protective equipment. Wayne Coxall worked for Goodyear as a paint operator. On introduction of a new spray paint, Goodyear took all reasonably practicable precautions to protect the paint operators from ill effects of the paint. Mr Coxall had a predisposition to asthma. When this came to light, the works doctor advised him to cease working with the paint. Neither the health & safety officer nor Mr Coxall’s manager were made aware of this advice. Mr Coxall chose to ignore the advice and carry on working as he needed the money. A month later, he collapsed and was diagnosed as suffering from occupational asthma caused by irritant fumes at work consequent on his predisposition to asthma.

Mr Coxall sued Goodyear for negligence and breach of duty. He won and Goodyear had to pay him £7,500.00. Goodyear appealed, arguing that because of the Withers v Perry Chain Co Ltd case, an employer was not under a duty to dismiss an employee from work which could be safely undertaken merely because of a particular susceptibility on the employee’s part, which exposed him to a risk of harm.

The Court of Appeal disagreed and said that there are instances where an employer has a duty to dismiss an employee to protect him from harm. The Court of Appeal acknowledged that the issue involves conflicting principles.

On the one hand, there is the Withers principle that “imposing a restriction on the freedom of the individual…is foreign to the whole spirit of the common law of our country” and that “the relationship between employer and employee is not that of schoolmaster and pupil”. On the other hand, employers clearly must bear some overall responsibility for the health and safety of their workforce.

The Court of Appeal stated that the principal consideration in determining whether or not any particular case falls within the Withers principle must be the actual nature and extent of the known risk. Cases will undoubtedly arise when, despite the employee’s desire to remain at work notwithstanding his or her recognition of the risk, the employer will nevertheless be under a duty in law to dismiss the employee for his or her own good so as to protect him or her against physical danger.

In Sutherland v Hatton [2002], the cases of four separate employees – Hatton, Barber, Bishop and Jones were considered by the Court of Appeal. The first three lost in the Court of Appeal and were stripped of the damages awarded by the first court. Ms Jones won her case in the Court of Appeal. The Court of Appeal laid down 16 propositions that should be considered in personal injury cases arising from work-related stress.

Ms Hatton
Ms Hatton was a secondary school teacher who suffered from depression and a nervous breakdown and was initially awarded £90,765. The Court of Appeal disagreed and said that Ms Hatton gave the school she worked for no notice that she was growing unable to cope with her work. She had suffered some distressing events outside of work, which the school could reasonably have attributed her absence to, particularly as other staff did not suffer from health problems as a result of restructuring in the school, and the fact that she did not complain. The court held that as teaching cannot be regarded as intrinsically stressful, the school had done all they could reasonably be expected to do. It was unnecessary to have in place systems to overcome the reluctance of people to voluntarily seek help.

Mr Barber
Another teacher employed by Somerset Council. Reorganisation of the school increased his workload and he suffered depression which led to his taking early retirement. Mr Barber was awarded £101,042 damages by the first court. The Court of Appeal did not agree because Mr Barber was not the only teacher to have an increased workload, and he did not inform his employer of his depressive symptoms. The Court said that the school did not breach its duty of care.

Mr Bishop
Mr Bishop worked in a factory for 18 years. He was awarded £7000 damages after suffering from a mental breakdown and attempting suicide. The Court of Appeal revoked the award because Mr Bishop could not cope with restructuring of the company, while all his workmates could. Also, Mr Bishop did not make his employers aware of his condition, or that his GP had advised him to change jobs. It was held that the work demands were not excessive, but that he was “set in his ways” and wanted his old job back.

Ms Jones
Ms Jones was an administrative assistant employed by the Sandwell Metropolitan Borough Council. She was awarded £157,541 by the first court because she suffered from anxiety and depression after a period of extreme overwork. Unlike Hatton, Barber and Bishop, she had complained of her excessive workload to her manager, but she still received no help. The Court of Appeal upheld her award and she got to keep her £157,541. This was because her employer knew of her excessive workload and it was reasonable to conclude that it was foreseeable that harm would result from the stress and from the employer’s breach of duty.

What this means is that in each case, your employer has to evaluate the risk of continuing in your job. Your employer must;

• Assess whether the risk be minimised to an acceptable level
• Consider alternative work
• Make an informed decision after consulting with you and taking account of
  medical advice
• Dismissal or demotion should be the last resort

It is only after all reasonably practicable adjustments under health and safety law and, if applicable, all reasonable adjustments required by the disability discrimination provisions of the Equality Act 2010 have been made that you and your employer can consider the actual nature and extent of any risk, and it is only at this point that the principles in Withers can be considered.

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Night Workers

If you work at night, you have additional health and safety protection under the Working Time Regulations 1998. A night worker is defined as a worker whose daily working time includes at least three hours of night time;

• on the majority of days that the worker works
• on such a proportion of the days that the worker works as agreed between employer and workers in a collective or workforce agreement; or
• sufficiently often that the worker may be said to work such hours as their normal way of work.

Night time is a period of at least seven hours including midnight to 5 am. The precise times can be decided by a relevant agreement. If there is no agreement, night time will be 11 pm to 6 am. Under Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 your employer has to make an assessment of the risks to the health and safety of employees while at work. If the assessment shows that there is a possibility of night working, then your employer has to carry out a more thorough assessment.

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Night Work Involving Special Hazards or Heavy Physical or Mental Strain

If your night work involves special hazards or heavy physical or mental strain, then you are limited to eight hours on your actual daily working time – Regulation 6(7) of the Working Time Regulations 1998. This limit must be observed in any period of 24 hours during which you perform the hazardous work. This work can be identified in a collective or workforce agreement or it can be identified in a health and safety risk assessment.

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Free Health Assessment

Regulation 7 of the Working Time Regulations 1998 gives you the right to a free health assessment to see if you are fit to carry out your night work.  Your employer must also allow you to have further assessments at regular intervals. Young workers who work between 10 pm and 6 am are also entitled to free health assessments.

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Homeworkers

The International Labour Organisation defines homeworkers as people working from their homes or from other premises of their choosing other than the workplace, for payment. Homeworkers work on a product or service specified by the employer. Since 30 June 2014, almost all employees with at least 26 weeks’ service have the right to ask for flexible working which can include working from home. Most of the regulations under the Health and Safety at Work etc. Act 1974 apply to homeworkers as well as office based workers. Where the risk assessment under Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 shows the possibility of homeworking, your employer has to carry out a more detailed assessment. Some of the hazards to consider in a Homework assessment include manual handling, use of electrical equipment, substances and materials and working with visual display units. If your employer breaches health and safety law in relation to you as a homeworker you will have a claim in the employment tribunal.

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Lone Workers

Lone working can be defined as any situation where you are working on your own and out of sight and sound of others.  You must make a distinction between finding yourself alone at work, and work which is supposed to be carried out in isolation.  Regulation 3 of the Management of Health and Safety at Work Regulations (MHSWR) requires your employer to assess the risks involved in all activities undertaken, and to make sure that all the relevant risks are controlled. In assessing these risks, your employer must look at the activity itself, the environment in which it takes place and the risks that arise from working alone.

Examples of lone working defined by place;

• Working in a fixed establishment with no other persons on site, or when
• others may be elsewhere on site
• Working in a remote location, including outdoors
• Work on another employers’ premises or working from home
• Travelling as part of your job

Examples of lone working defined by occupation;

• Construction site workers
• Research workers and laboratory staff
• Care workers
• Health visitors
• Community mental health nurses
• Midwives
• Delivery/postal staff
• Service engineers
• Sales consultants
• Car park attendants
• Estate agents

Regulation 3 of the Health and Safety (First Aid) Regulations 1981 requires your employer to make appropriate provision for first aid to be given to employees. There are other specific legal requirements for work where the hazards are too great for a person to work alone. Some examples are;

• Regulation 5 of the Diving Operations at Work Regulations 1981 – there must be a supervisor appointed to take control of the exercise.
• Regulation 13(1) of the Woodworking Machines Regulations 1974 – where a young person is working on dangerous woodworking machinery, supervision is required until they have received full instruction and training in the dangers and precautions to be observed.
• Young people using certain prescribed dangerous machinery require supervision under s.21 of the Factories Act 1961 and s.19 of the Offices, Shops and Railway Premises Act 1963.
• There must be more than one person carrying out certain fumigation work, and other work with substances hazardous to health.
• A worker must be supervised when unloading petrol at certain premises under the Carriage of Dangerous Goods by Road Regulations 1996 (Except where an exemption has been issued)
• There are provisions for supervision of vehicles carrying certain explosives under the Carriage of Explosives by Road Regulations 1996.
• In certain operations that fall within the scope of the Construction (Health, Safety and Welfare) Regulations 1996, such as erecting scaffolding and using unsupported access equipment (Regulation 6) and the demolition of certain structures (Regulation 10), activities must be supervised.