- Report on risk assessments for new and expectant mothers.

By Linnea Keldusild – Pay Magazine.

Many employers do not know the extent of, or choose to ignore, their health and safety obligations. However it is very much in their interests to be aware of their duties under health and safety legislation, which include assessing and managing risks to new and expectant mothers. If employers fail to carry out the required risk assessments, there are far-reaching consequences for them as well as for the employees, as employers may be exposing themselves to potential sex discrimination claims from new and expectant mothers.

General Duty

Employers have a general duty to all their employees under the The Safety Health & Welfare at Work Bill 2004 which raised the profile of Health & Safety legislation and its impact upon employers and employees. The Bill can be seen as a continuity of the “Report of the Commission of Inquiry on Safety, Health & Welfare at Work” in 1989 by Mr. Justice Barrington which directly led to the implementation of the Safety, Health & Welfare at Work Act 1989. The 2004 Bill is the result of a review of Health & Safety legislation by the Health & Safety Authority and the Bill provides for very significant changes in a number of areas which affect all employers, employees any person having a place of work in the public sector or private sector. The Safety, Health & Welfare at Work Act 1989 imposes general duties on all people in places of work whether employers, employees, the self-employed, manufacturers, designers or builders to ensure “in so far as it is reasonably practicable” the safety and welfare of persons at work.

New and expectant mothers may be particularly at risk from different processes and working conditions which would not normally put other employees at risk. In addition to the general duty to carry out risk assessments, employers are specifically required to consider risks to new and expectant mothers. A new or expectant mother is defined as someone who is pregnant, has given birth within the last six months or is breastfeeding.

Risks to New and Expectant Mothers

Employers are required to carry out risk assessment in respect of new or expectant mothers where the organisation employs women of child-bearing age, and the work is of a kind that could involve risk to the health and safety of a new or expectant mother or her baby.

This assessment can be done as part of the general duty to carry out risk assessments. This is a sensible approach, as many pregnancies go undetected for the first few weeks. It is certainly advisable that all those of child-bearing age be provided with the details and results of any risk assessment. However, this could be a difficult concept to put into practice, as it involves the employer in a complex exercise of deciding which women at their workplace could become pregnant.

As part of the process of informing female employees of any risks and steps to be taken to address those risks, the employer should also remind those employees of the aim of notifying the employer in writing if they become pregnant, are breastfeeding, or have given birth in the last six months. This is because the employer, on receiving this notice, then has to carry out another separate risk assessment specific to that employee.

However as well as this statutory duty, employers should be aware that they also have general legal duties which require them to protect employees who they know are pregnant or breast feeding. This duty arises whether or not the employer has received formal notice of the pregnancy.

The separate individual assessment following the notice will be based on the initial general assessment, and also any medical advice received from the employee’s doctor or midwife. The employer has the right to request a certificate from a doctor or midwife confirming the pregnancy.

To comply with health and safety legislation the employer needs to go through the following stages when carrying out a risk assessment:

STEP 1

The employer must consider all potential risks to new and expectant mothers and their children. It is important to remember that the risks could arise from many different sources.

Some of the most common risks include continuous standing or sitting, manual handling or lifting, excess travel, working alone, night work, exposure to infectious diseases, exposure to cigarette smoke or stress and chemical or biological hazards.

STEP 2

If a risk has been identified the employer must do all it reasonably can to remove or prevent exposure to that risk. They must also keep their female employees informed about the risks, and what can be done to make sure that they are not exposed to those risks. A sensible risk assessment should note details of the risk, its level of seriousness and the likely effect on employee.

Removing the risk could sometimes be as easy as adjusting the employee’s workstation, or providing help with manual handling. Removal of other risks, such as those from some chemicals, is covered by specific health and safety legislation and employers should adhere to the requirements of that legislation. The measure taken should continue as long as the risk to the employee or her baby exists.

STEP 3

If the risk itself cannot be removed, then the employer should try to remove the employee from risk. This may mean a temporary adjustment to her conditions or hours of work, following consultation with the employee.

STEP 4

If this cannot be achieved, the employer should consider alternative suitable work, again through consultation. The work offered must be suitable and appropriate for her to do in the circumstances, and on terms and conditions no less favourable than her normal terms and conditions. Special rules apply to female night workers, who must be offered suitable daytime work if they have a medical certificate saying that night work could affect their health and safety.

STEP 5

If it is not possible to offer suitable alternative work, the employee must be suspended for as long as necessary to protect her and her child’s health and safety. While suspended, the employee should be paid her full normal pay, unless she has unreasonably refused an offer of suitable alternative work.

If the new or expectant mother can continue working without risk, the employer must bear in mind that the situation should be regularly assessed, as new risks may develop for that employee, particularly with differing stages of pregnancy, or her state of health.

Risks to Employers

If employers do not satisfy their health and safety duties to a new or expectant mother they run the risk of affecting the safety and well-being of the employee and their baby and also of a sex discrimination claim.

Failure to carry out any of the stages set out earlier, such as not offering suitable alternative work where this is available, could also result in a tribunal claim.

Employers therefore cannot afford to ignore health and safety legislation, and are strongly encouraged to get up to speed with the regulations, if they are not already. Putting their pregnant employees at risk puts themselves at risk