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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.
