The Management of Health and Safety at Work Regulations 1999 (MHSW) include regulations that protect the health and safety of new and expectant mothers who work. This requirement goes beyond those who you know are pregnant to include workers who could become pregnant as well. The Sex Discrimination Act 1975 also provides that, if an employer fails to protect the health and safety of their pregnant workers, such an omission is automatically considered sex discrimination. Risk assessment
Some substances, processes and working conditions may affect human fertility as well as pose a risk to a pregnant worker and/or her unborn child. Therefore, you must think about the health of women of childbearing age, not just those who have told you that they are pregnant.
Many employers unwittingly fall into the trap of waiting until they are informed that an employee is pregnant before arranging for a risk assessment to be undertaken. This may already be too late, since the law requires an assessment of the risks to all workers including those who, in future, could become expectant mothers. This means that any significant risks to unborn children and expectant mothers even at the early stages should be identified. Having said that it is better to be late than not do it at all.
You should also encourage workers – e.g. via your staff handbook – to notify you as soon as possible if they become pregnant. This is so you can identify if any further action is needed. Until your employee has given written notification of her pregnancy you are not obliged to take any further action other than those resulting from the risk assessment for all employees.
As soon as it is known that an employee is pregnant, arrange to meet her to discuss her job duties and working environment and whether any measures need to be taken to protect her health and safety. You might also seek advice from an occupational doctor and/or the employee’s GP regarding any recommendations in respect of the employee’s health and well-being during her pregnancy. You must take all necessary steps to ensure that an employee who is pregnant, is not required to perform any work that could knowingly place her health or safety at risk. Things that might be hazardous to female employees – and pregnant workers in particular – include: long hours. stress, noise, violence from customers, exposure to toxic substances, e.g. lead, pesticides, mercury, radiation and regular manual handling.
In a recent case before the Employment Appeal Tribunal, a Ms O’Neill argued that there was a general obligation to carry out a risk assessment for pregnant workers. However, the (EAT) rejected this approach, and found that the duty to carry out a risk assessment is only triggered where the following pre-conditions are met:
The employee has notified the employer in writing that she is pregnant
The work must be of a kind that could involve a risk of harm or danger to the health and safety of the expectant mother or her baby
The risk must arise from either processes, working conditions or physical, chemical or biological agents in the workplace.
There is no more a general obligation to carry out a risk assessment for a pregnant worker.
The EAT also confirmed that where the duty to carry out a risk assessment arises, there is nothing in the legislation to suggest that the employer is required to meet with the employee to satisfy its obligations. However, the employer is required to inform the employee of the results of the risk assessment, and provide them with comprehensive and relevant information on the risks to their health and safety as identified by the assessment.
This is quite a difficult case which turned on the particular facts but it is difficult for employers to be certain that there is no risk from processes or working conditions.
Therefore, where there is an element of doubt, a sensible employer would carry out a risk assessment and should involve her in the process and continue to review the assessment as her pregnancy progresses to see if any adjustments are necessary.
Delay
It is important to act promptly as the case of Mrs Nnachi demonstrates. She had notified her employer of her pregnancy on 9 May 2005. On 22 May 2005, a risk assessment meeting took place. An employment tribunal was critical of the employer for the delay in carrying out the assessment. The employer explained that the delay was caused by a manager being absent. However, the employer could not explain why another manager could not have carried out the assessment.
The tribunal and then the EAT found that Nnachi, a care worker, was working in conditions which could, by reason of her pregnancy, pose risks to herself and her baby. In particular her work as a care worker posed risks of physical aggression, lifting and carrying, and stressful situations. In that case, there was a finding of sex discrimination against the employer.
Going too far
The case of New Southern Railway Ltd. v Quinn illustrates that when carrying out the necessary risk assessments, it is possible to take this requirement too far.
Ms Quinn successfully applied for the more senior post of duty station manager. Shortly before the end of her trial period, she found she was pregnant. This prompted her employer to undertake a risk assessment. The draft report highlighted a number of risks, but indicated that, with some adjustments, Quinn could continue in the role. However, two weeks later, she was told that, due to health and safety concerns (particularly the perceived risk of assault), she was suspended from her duties, and must return to her former post with a reduced salary. She claimed for detrimental treatment by reason of her pregnancy, and sex discrimination.
The tribunal concluded that Quinn had been removed from her role due to her pregnancy, and not for legitimate health and safety reasons. It found her employer had been patronising and paternalistic, having no regard for the contents of the draft risk assessment and, as a result, was guilty of sex discrimination. The EAT held that the term avoid the risk does not mean to eliminate any risks entirely but to reduce them as far as is reasonably possible. Adopting an over-protective or paternalistic approach in circumstances such as these can cause a breach of the law. It is important to carry out proper risk assessments based on facts, not supposition, and taking a common sense approach..
Other Problems
If the risk assessment requires it or you are otherwise made aware of a significant risk you should review whether an employee’s job duties can be altered, or whether she can be transferred to suitable alternative work in order to ensure that she does not perform any work that presents a real risk to her health or safety during pregnancy. Ensure that any alternative work offered to an employee during pregnancy is suitable and appropriate for her to do in the circumstances and is on terms and conditions not substantially less favourable than those of her normal job. If alternative work is not available or would not remove or reduce the risks to the employee, you may have to place her on paid suspension until the commencement of her maternity leave. This is an expensive option so we recommend that you find alternative and reasonable work that she is capable of carrying out.
Rest facilities
The Workplace (Health Safety and Welfare) Regulations 1992 recommend that facilities be provided for workers who are pregnant to rest and be conveniently situated in relation to sanitary facilities.
Time Off
All pregnant employees, however long or short they have been in employment, are entitled to reasonable time off work for antenatal care. Any time off must be paid at their normal rate of pay. You can ask for evidence of antenatal appointments from the second appointment onwards. Antenatal care may include relaxation or parent craft classes as well as medical examinations, if these are recommended by the doctor. You can ask but not insist that they try to avoid taking time off work when they can reasonably arrange classes or examinations outside working hours.
Nights
The MHSW Regulations also states that where a new or expectant mother works nights and provides a medical certificate from her GP or Midwife which says that working nights will affect the health of the woman, then the employer must be prepared to adjust her working hours or shift pattern on the same terms and conditions and if that is not possible to suspend her from work, on full pay, for as long as necessary.
Summary
In reality there are few jobs that immediately pose a real risk to expectant and new mothers but that is not an excuse to do nothing. As soon as you are informed of her pregnancy undertake with her an agreed risk assessment identifying any temporary changes that may be sensible, particularly later on in her pregnancy, and make sure the risk assessment is documented and the employee is given a copy. If you are unsure please do not hesitate to contact your HR Consultant who will be happy to offer further assistance.
