Health and safety for pregnant women in the workplace

General risk assessment

Since the Management of Health and Safety at Work Regulations 1999 came into force, there is a duty on employers to generally assess their workplace to identify any risks to the women of ‘childbearing age’ in their company.  ‘Childbearing age’ is a wide group, effectively from teenagers through to women in their 40s. This evaluationshould highlight any potential risks to women who are pregnant, breastfeeding or ‘new mothers’ (women coming back to work up to six months after a birth).  Where risks are discovered, these – and steps that have been taken to reduce, eradicate, or deal with these – must be made clear to employees.

Where the work being done is inherently risky to the health or safety of a new mother, pregnant women or her baby and an employer has taken on a woman who is of childbearing age, the assessment should be carried out as soon as possible – there is no need for that woman to actually be pregnant.

Individual risk assessment

When a pregnant woman notifies an employer (in writing) of her pregnancy, the employer must make an individual assessment of the woman’s’ working conditions and whether there are any risks to the woman’s health, the baby’s health or to the woman breastfeeding.  Any medical advice a pregnant women has received should also be taken into account and an employer is entitled to ask for medical proof of thepregnancy.  For example, if an employee has a history of miscarriages and medical advice she has received is to take regular breaks then an employer must take this into account and allow adjustments to working conditions.  Medical advice is very relevant in a situation where an employee has been working nights but has been advised not to by a medical professional – here an employer must offer day time work on the same terms and conditions, or suspend the employee on full pay as long as is required to avoid the nighttime working risk.

During a suspension on full pay for health and safety reasons related to pregnancy, an employee should still receive contractual entitlements, such as pay rises, bonuses, or a pay review.

Where an employee submits written notice that she is breastfeeding, an employer must provide somewhere the woman can rest, as well as the specific individual risk assessment, and should look into the provision of somewhere to express milk (i.e. somewhere private with a fridge).

A risk assessment should take into account the physical elements of the workplace, including an employee’s workstation (whether heavy loads are handled, the movements and positions used, extremes of noise, temperature or vibration), the hours worked, any travel that is a requirement of the job and the weight of the workload, as well as the impact of the role in terms of physical and mental tiredness.

Where the assessment brings risks to light, these should be notified to the employee and an employer should take steps to remove or reduce the risk and its effects.  Alternatively, an employer must alter the situation of the individual to avoid the risk (for example, reduce hours), offer suitable alternative work on at least the same terms, or suspend the individual on full pay until the risk has been removed.

Antenatal appointments

Pregnant women have the right to attend antenatal appointments – medical consultations at a hospital, with a health visitor, midwife or GP – which should be allowed as paid time off work by the employer (unless there is a good reason to refuse this).  The law does not set a maximum time that can be taken and the legal right may extend to parenting classes or even some form of relaxation session, if this has been medically advised.  An employer is entitled to ask for proof of antenatal sessions.

If an employer attempts to prevent a pregnant employee from attending antenatal appointments, that employee can apply to an Employment Tribunal for pay to cover the time off that should have been given. If a woman was forced to take the time as unpaid leave, this may be ‘missing pay’ and a Tribunal can award this as compensation.

Making a claim in an Employment Tribunal

Situations where a claim may be made in an Employment Tribunal include:

– An employer has not conducted a risk assessment where there has been notification of a pregnancy (unlawful detriment).

– An employer has failed to deal with risks that came to light during the risk assessment (unlawful detriment).

– An employer dismisses a woman because of her pregnancy (unlawful maternity discrimination).

– A woman is subjected to detrimental treatment as a result of being pregnant (unlawful maternity discrimination).

– A woman is dismissed because medical grounds mean she is allowed to take paid suspension (unfair dismissal).

Where there is a health and safety issue that results in a pregnant woman being suspended, but an employer does not suspend her on full pay, this can be claimed from an Employment Tribunal.  Where there is a failure to offer suitable alternative work, the Tribunal can award compensation.