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.
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.
Contact Ironmonger Curtis with Bell & Buxton Employment Solicitors for further information.