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Health and safety in respect of pregnant workers

Employers are required to monitor and assess workplace health and safety risks to new and expectant mothers and their babies when they employ women of child-bearing age. Furthermore, once an employee gives written notice to the employer that she is pregnant, has given birth within the last 6 months or is breastfeeding, the employer must assess whether more needs to be done to avoid risks to her.

In summary, the law requires employers:

  • To assess the workplace risks posed to new or expectant mothers or their babies.
  • To alter the employee’s working conditions or hours of work to avoid any significant risk.
  • Where it is not reasonable to alter working conditions or hours, or would not avoid the risk, to offer suitable alternative work on terms that are not “substantially less favourable”.
  • Where suitable alternative work is not available, or the employee reasonably refuses it, to suspend the employee on full pay.

Risk assessments

Under regulation 3 of theManagement of Health and Safety at Work Regulations (“MHSW Regulations”) employers have to make suitable and sufficient assessments of the risks to the health and safety its employees whilst they are at work.

However, under regulation 16 of the MHSW Regulations there is a further requirement for employers to include an assessment of additional risks where they employ women of child-bearing age to do work of a kind that could involve risk to the health and safety of a new or expectant mother or her baby from any processes, working conditions or physical, chemical or biological agents.

The employer should not wait until an employee becomes pregnant before it carries out this assessment however the Court of Appeal has found that there should be a duty on the Employer to conduct a risk assessment under regulation 16 only where the work is of a kind which could involve a special risk to a new or expectant mother or her baby. In 2009, the Employment Appeals Tribunal refused to accept that “the stressful nature of the work in general terms” (teaching) was work of a kind which involved a special risk.

Where an employer has identified risks as the result of a risk assessment under regulation 16, it does not have any specific obligation to take action to avoid those risks until it has been notified in writing that an employee is pregnant, has given birth within the previous six months or is breastfeeding.

As well as the general risk assessments, an employer also has an additional duty to perform an individual risk assessment when it receives written notification from an employee that she is pregnant, has given birth within the last 6 months or is breast feeding. The employer must then consider whether the measures taken to avoid risks identified by the general risk assessment will sufficiently avoid risks to the individual employee. If not sufficient, the employer must take action to avoid those risks.

Failure to undertake a required risk assessment or to act on its findings may be an act of pregnancy and maternity discrimination.

Avoiding risks

When the employer has been notified in writing of the pregnancy, birth or the fact that the employee is breastfeeding, the employer will be under an obligation to do all that is reasonable to remove or prevent exposure to any significant risk that is found, and must give information to the employee about the risk and what action has been taken.

Unless the risk can be avoided through other action, under the MHSW Regulations, the employer must temporarily alter the woman’s working conditions or hours of work, if this is reasonable and would avoid the risk.

Employers should be wary of changing an employee’s hours of work without the employee’s agreement, particularly where this would result in the loss of pay.

Suitable alternative work

If it is not reasonable to alter the employee’s working conditions or hours of work, or if the risk cannot be avoided, the employer must offer the woman suitable alternative work.

An offer of alternative work will be suitable where it is of a kind which is both suitable and appropriate for the employee to do in the circumstances; and the terms and conditions applicable for her performing the work are not substantially less favourable to the employee than her current terms and conditions.

The overall level of remuneration for the alternative work should not be substantially less than the employee’s previous pay levels, even if that pay included an allowance, bonus or commission for particular duties that the employee will not be doing in the alternative employment. Employers should therefore consider ensuring that the employee receives some sort of compensatory package for any variable element of her pay.

Suspension and pay

If there is no suitable alternative work available, or if the employee reasonably refuses it, the employer must suspend the employee for as long as is necessary to avoid the risk. An employee who is suspended on maternity grounds is entitled to be paid remuneration under section 68 of the Employment Rights Act1996. “Remuneration” is defined as a week’s pay (with no statutory limit), which can be set off against any contractual remuneration received during the suspension. However, if the employee unreasonably refuses an offer of suitable alternative work, she will lose the right to be paid during the suspension under section 68 of the Employment Rights Act 1996.

Remedies

Health and safety law is normally enforced by the Health and Safety Executive and local authorities. However, there are a number of different employment tribunal claims a woman can make in order to enforce her rights under health and safety legislation:

  • If an employer fails to offer a pregnant woman suitable alternative work before suspending her, the employee would have a claim for just and equitable compensation.
  • If an employer fails to pay a pregnant employee while she is suspended, the employee can bring a claim, however, she will not be entitled to payment if she has been offered suitable alternative work and has unreasonably refused to perform it.
  • If an employer fails to carry out the risk assessment required by regulation 16 of the MHSW Regulations or refuses to recruit a pregnant woman who cannot perform her contract because of the health and safety reasons connected with her pregnancy, this may constitute unlawful pregnancy and maternity discrimination under the Equality Act 2010.

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