Weekly dilemma: Health and safety risk assessments

I’m a small employer, and someone recently told me down the pub that I have to do health and safety risk assessments for my employees. This is news to me! What should I do?

Regardless of the size of your business, as an employer, the law requires you to assess and manage health and safety risks. For most businesses, this is not a difficult job. A risk assessment is simply a careful examination of what could cause harm to people in your workplace, so that you can consider whether you have taken enough precautions, or should do more, to prevent that harm. The type of potential risks will greatly depend on the type of business you run. In an office environment, they may be as simple as people tripping over cupboard drawers if they are not closed properly. Alternatively, your business may involve employees engaging in heavy lifting, or working with dangerous materials. The law does not expect you to eliminate all risk, but you are required to protect people as far as is “reasonably practicable”. You are required to identify any possible risks and put in place precautions to prevent harm.

There are, however, special rules which you should be aware of in respect of new and expectant mothers in the workplace. An employer that employs any women of child-bearing age to do work of a kind that could involve risk to the health and safety of a new or expectant mother or her baby, must include an assessment of those risks. You should not wait until an employee becomes pregnant before you carry out this assessment. However, you do not need to take any action to mitigate those risks until you have been notified in writing that an employee is pregnant, has given birth within the previous six months, or is breastfeeding. Common risks for new and expectant mothers may include work-related stress, long working hours, lifting and carrying, excessive noise, handling chemicals, and movements and postures. Failure to undertake a required risk assessment or to act on its findings may be an act of pregnancy and maternity discrimination.

If you are notified of a pregnancy, birth or the fact that an employee is breastfeeding, you will be under an obligation to do all that is reasonable to remove or prevent exposure to any significant risk that has been identified, and must give information to the employee about the risk and what action has been taken. If the risk cannot be avoided through any other action, you may have to temporarily alter the woman’s hours of work or working conditions, if this is reasonable and would remove the risk. If you cannot alter working hours or conditions, or to do this wouldn’t remove the risk, you may have to offer suitable alternative work. If there is no suitable alternative work available, or if the employee reasonably refuses it, you may have to suspend the employee for as long as is necessary to avoid the risk. An employee who is suspended on maternity grounds is entitled to be paid remuneration during the period of the suspension.

Kate Dunn, solicitor, employment, Shepherd and Wedderburn LLP

Key tips on health and safety risk assessments

• All employers must carry out health and safety assessments to assess any potential risks in their workplace, and put in place any precautions necessary to mitigate the risks. Employers with five or more employees must record their findings, and have in place a formal health and safety policy.
  
• When carrying out health and safety assessments, consider what risks might exist for new and expectant mothers in the workplace, even if you do not have any employees in these categories at the time.
  
• If there are significant risks to the health and safety of new or expectant mothers in your workplace, you may have to consider altering the woman’s working hours or conditions, offering suitable alternative employment, or even maternity suspension, if necessary, to mitigate the risks.
  
• A failure to carry out a risk assessment for new and expectant mothers, or a refusal to recruit a pregnant woman who cannot perform her contract because of the health and safety reasons connected with her pregnancy, may constitute unlawful pregnancy and maternity discrimination under the Equality Act 2010. Further, an employee may be able to claim compensation for a failure to offer her suitable alternative work before suspending her on maternity grounds, or for not paying her during a maternity suspension.