July 2010: Under the Management of Health & Safety at Work Regulations 1999, every employer has to assess workplace risks for all their employees, and take practical action to control those risks. In addition, employers must take particular account of risks to new and expectant mothers.
The definition of a new or expectant mother is someone who is pregnant, has given birth within the previous six months, or is breastfeeding. Employers must identify hazards in their workplace that could pose a health or safety risk to new and expectant mothers and take appropriate action to remove or reduce the risk.
Employers must also make this information known to all their female employees of childbearing age, not just those who have informed them they are pregnant. This is particularly important for expectant mothers, as it is possible for the first 4-6 weeks of pregnancy to go undetected.
If a risk is identified, possible action may include:
- Changing the system of working to avoid the risk
- Giving the pregnant employee other work to do
- Or in the most extreme cases suspension (on full pay) for as long as the risk subsides.
Common risks may include unusually high levels of work-related stress, or jobs which involve a fair amount of lifting.
In one reported case, New Southern Railway –v- Quinn in 2005, the Employment Appeals Tribunal considered regulation 16 of the Management of Health and Safety at Work Regulations 1999. When Mrs Quinn was (effectively) demoted from her position after telling her bosses she was pregnant, Her employer claimed the demotion was justified because it was taking steps to “avoid” physical risks (in this instance the risk of assault from the members of the public she worked with). The Tribunal took the view that the reason given by the employer was a sham and the EAT held that the duty to ‘avoid’ risks simply meant to ‘reduce to a low risk’ or ‘reduce the risk as far as possible’, rather than to eliminate the risk entirely.
In O’Neill v Buckinghamshire County Council 2010, the EAT has held that, for an employer to fall under a duty to conduct a risk assessment for a pregnant worker, these preconditions must be met:
(a) the employee notifies the employer in writing that she is pregnant;
(b) the work is of a kind which could involve a risk of harm or danger to the health and safety of the expectant mother or her baby;
(c) the risk arises from either processes, working conditions or physical, chemical or biological agents in the workplace.
There is no more general obligation to carry out a risk assessment for a pregnant worker. In discharging its risk assessment obligations, where they arise, there is nothing in either the Pregnant Workers Directive or the Management of Health and Safety at Work Regulations 1999 to indicate that a meeting with the worker is required before the obligation to carry out a risk assessment is satisfied. But an employer must provide her with comprehensive and relevant information on the identified risks to her health and safety.
It appears that if an obligation to carry out a risk assessment, and a failure to carry out that risk assessment is established, then discrimination results. Proof of detriment is not necessary. Employers, accordingly, need to be astute to carrying out risk assessments where the preconditions are met.