In the recent upheavals of
maternity law one area is often overlooked. All employers have a duty to
undertake a suitable and sufficient assessment of the risk to the health and
safety of their employees while they are at work.
Legal issues
When there are women
of child-bearing age in employment, the assessment must be extended to cover
the particular risks to the health and safety of new or expectant mothers and
their babies, whether born or unborn, caused by a pregnancy or the need to
breast-feed (Management of Health and Safety at Work Regulations 1999).
This assessment is not
triggered by any particular employee becoming pregnant, but by the fact that
women of child-bearing age are employed. In reality this means all employers
must undertake this assessment.
"New or expectant
mother" means a pregnant woman, a woman who has given birth within the
previous six months or a woman who is breast-feeding. It also includes women
who have miscarried within the previous six months if the miscarriage was 24 weeks
into the pregnancy.
There has been a
recent trend of employees when they have become pregnant demanding a risk
assessment under the regulations. There is no right in law for a specific
employee to demand such an assessment in respect of their own pregnancy.
However a failure to undertake an assessment or a failure to act on its
recommendations can amount to unlawful sex discrimination (Day v T Pickles
Farms, 1999, IRLR 217).
Once an assessment
takes place the employer has to take reasonable action to alter conditions or
working hours to avoid the risks identified in the assessment – if this can’t
be done the employer must consider redeployment if this is practicable and if
not, suspending the employee on medical grounds on full pay and benefits, which
is an expensive option.
Practical issues
Failure to implement
the risk assessment can lead the Health and Safety Executive to issue
improvements or prohibition notices and could result in criminal prosecution. If
a pregnant employee or a new mother does request an assessment, you should
always respond.
If one has been
carried out, make her aware of it. If not, you should agree to carry one out
and ideally give her a written report on the outcome and comply with any
recommendations.
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Contact the HSE for
direct help in finding an assessor and in obtaining technical help.
The HSE can be
contacted on 020-7556 2100.
