The failure of a nursing home to carry out an assessment of the risk posed by working conditions for new or expectant mothers was sex discrimination, according to a recent decision made by the Employment Appeal Tribunal. Mrs Hardman had been employed as a care assistant at the Orchard Lodge Nursing Home, Birkenhead from July 1999. When she became pregnant, the Nursing Home failed to carry out a risk assessment of her working conditions, which included lifting elderly patients, or to offer her suitable alternative work.
Jenny Watson, deputy chair of the Equal Opportunities Commission, which supported Mrs Hardman’s case, said:
“Many pregnant women who come to us seeking advice are concerned that practices at work pose a danger to their safety or that of their unborn child. The decision means that other new and expectant mothers now have a way, through the Sex Discrimination Act, of ensuring that the necessary risk assessment is carried out by their employer.”
The Home argued that as it had also failed to carry out a risk assessment of the risk to male and non- pregnant workers, they had not discriminated on the grounds of sex, because Mrs Hardman had not been treated any worse than employees who were not pregnant. However the Employment Appeal Tribunal ruled that European law regards a new or expectant mother as being in a special position, and she does not need to prove that she was treated less favourably than a man for her claim of sex discrimination to succeed.
One Response
Managing pregnant workers
Having worked with employers for a number of years on this issue, the important thing is that any risk assessment carried out on a pregnant worker is both sensible and meaningful. We have encountered employers who have gone to the other extreme and effectively removed any physical aspect of the job resulting in it being impossible for the worker to perform their duties. There is no one size fits all approach to this – and that is the point. Risk assessment in this sense is about a manager and employee having a dialogue about potential hazards in the workplace and drawing up guidance for the employee the manager and her colleagues, that is monitored and reviewed regulary, before and after the birth of the child.
We have a very simple free factsheet, that is aimed at line managers. If anyone would like a copy, drop me a line on robs@parentsatwork.org.uk