Expectant mothers could claim sex discrimination if companies do not meet
their health and safety needs
Most employers appreciate they must not discriminate against pregnant
employees. However, few realise the positive steps they now must take to
protect the health and safety of these employees, even before they know they
are pregnant. Ultimately, these steps can include suspending an employee on
full pay if there is no other way of protecting her.
If they do not, they run the risk not only of claims for sex discrimination,
but also damages for personal injury and fines for breaches of health and
safety regulations. This is an expensive cocktail. Employers need to act now to
identify potential risks to women who are or who may be pregnant and take steps
to reduce those risks.
The HSE has given guidance on the health and safety risks to pregnant women
and new mothers. Shocks, vibration or movement and manual handling are obvious
risks. Less obvious are the risks posed by stress, mental and physical fatigue.
The HSE points out excessive standing and other physical work can cause
premature birth, miscarriage and low birth weight. Excessive physical or mental
pressure can lead to stress and raised blood pressure. Passive smoking, already
a hot topic, is a particular danger to pregnant women.
The law requires employers to deal with these risks in various ways. All
employers should be familiar with their general duty to carry out risk
assessments, implement preventative measures and inform employees, as set out
in the 1992 Management of Health and Safety at Work Regulations. In addition,
the Employment Appeal Tribunal confirmed in the case of Day v Pickles Farms
that when a worker is a woman of child bearing age, that risk assessment should
take into account the possibility she may be pregnant. The logic is that the
worker might not know for some time herself if she was pregnant.
In any event, as soon as an employer knows an employee is pregnant, has
given birth within the previous six months or is breast-feeding, the law
requires them to carry out a specific personal risk assessment to identify
risks to her or her baby. If a risk is identified, the employer must prevent
exposure to it.
Sometimes specific regulations – for example, on manual handling or
hazardous chemicals – will set out requirements in detail. Otherwise, the
employer has to do what is reasonable. This would start with changing
conditions or hours temporarily then finding suitable alternative employment and,
as a last resort, suspending on full pay. The HSE recommends that wherever
possible new and expectant mothers have some control over how their work is
organised.
It can be expensive not to comply. The 1992 Regulations give a specific
right to compensation. The Employment Rights Act 1996 makes it automatically
unfair to dismiss a woman, because she should be suspended from her work on
maternity grounds. The same applies if she is dismissed for asserting her
rights. Plus, the Act gives her the right not to be dismissed or subjected to
any detriment because she has told her employer about actual or potential
health and safety risks.
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Hanging over this is the principle of special treatment for pregnant staff.
If they subject a woman to any detriment linked to her pregnancy, she can bring
a claim for sex discrimination, with unlimited compensation.
Penny Macmillan is an associate at Wragge and Co
