Please also see: A Summary of your Maternity Rights
Employers have a an obligation under Regulation 16 of the Management of Health and Safety at Work Regulations 1999 to carry out a pregnancy risk assessment in respect of expectant or new mothers (those who have given birth within the last 6 months).
Where there is a possibility that any process or working condition could cause a physical, biological or chemical risk to the health and safety of a new or expectant mother or her baby then steps must be taken to minimise that risk. There are three possibilities
1. Taking Steps to Avoid the Risk
An employer should seek to alter working conditions or hours so that the risk is avoided. In some cases this might be as simple as providing a seat for a worker who is normally required to stand for long periods in other cases the solution might be more involved.
Mrs Smith, who has recently informed her employer that she is pregnant, works as a night-cleaner in a hospital. A link has been established between night-shift work and an increased incidence of miscarriage which means that Mrs Smith’s employer must take steps to avoid that risk to the health of her baby. She should be moved on to the day shift.
2. Offering Alternative Employment
If the risk cannot be avoided by making alterations to working conditions or hours of work an employer should seek to provide alternative employment.
Miss P is pregnant and works as cabin crew for a commercial airline. An EC Health and Safety Directive requires that all cabin crew be prevented from flying and are moved to ground duties when they are pregnant. Miss P’s employer must find her an alternative role within the organisation such as greeting passengers or working at a check-in desk.
3. Maternity Suspension
Where the risk cannot be avoided by altering working conditions, section 67 of the Employment Rights Act 1996 requires that an employee is suspended on full pay for as long as is necessary to avoid such a risk. Provided that a pregnant worker has not refused any reasonable offer of alternative employment made by her employer then she is entitled to be paid whilst she is suspended.
Ms Jones is pregnant and works for a window cleaning business. Working at height is hazardous when pregnant because of restricted agility and increased consequences of falling. The company that Ms Jones works for are unable to offer her alternative employment and she must therefore be suspended from work for the duration of her pregnancy.
Ongoing Risk Assessment
In addition to carrying out an initial pregnancy risk assessment at the point of notification, the employer has a specific duty to continue to monitor the risks as the pregnancy progresses, when the mother returns to work and whilst she continues to breastfeed.
The Depth of the Risk Assessment
A pregnancy risk assessment must be “suitable and sufficient”. What constitutes such a risk assessment will depend on the circumstances. Provided that the employer can demonstrate that it has given careful consideration to the potential risks posed to the pregnant employee and has taken appropriate steps to avoid those risks then it is likely to be deemed ‘suitable and sufficient’.
What is an Employer Fails to Conduct a Risk Assessment?
If an employer fails to carry out a pregnancy risk assessment, this can potentially amount to unfavourable treatment on the grounds of the employee’s pregnancy and could therefore be an act of sexual discrimination.
If you are concerned about your health and safety at work and would like free initial advice please consider contacting our legal helpline on [phonenumber]. Any information that you give us will be treated in the strictest confidence and we may be able to represent you on a no win no fee basis.