Many employers are falling short of their duties under health and safety legislation to assess and manage risks for new and expectant mothers, thereby exposing themselves to potential sex discrimination claims.

General duty
Most employers will be aware of their general duty under The Management of Health and Safety at Work Regulations 1999 to assess and control risks to their employees in the workplace. Under this general duty to carry out risk assessments, employers are specifically required to consider risks to new and expectant mothers (defined as someone who is pregnant, has given birth within the last six months, or is breastfeeding).

Risks to new and expectant mothers
Instruction 16 of the Regulations requires that a risk assessment in respect of new or expectant mothers be conducted where the organisation includes women of child-bearing age, and the work is of a kind that could involve risk to a new or expectant mother or her baby. This can be done as part of the general duty to carry out risk assessments.

As many pregnancies go undetected for the first few weeks, it is suggested by some, including the Trades Union Congress (TUC), that risk assessments should include all women of child-bearing age. It is certainly advisable that all those of child-bearing age be provided with the details and results of any risk assessment.

This is 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 that notice, then has to carry out another separate risk assessment specific to that employee.

This separate assessment 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.

The various stages the employer needs to go through are as follows:

Step 1
The employer must think about all potential risks to new and expectant mothers. For example, are there risks from continuous standing or sitting, manual handling or lifting, excess travel, working alone, night work, exposure to cigarette smoke or stress, or are there 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, and keep their female employees informed. A sensible risk assessment should note details of the risk, its level of seriousness and the likely effect on the employee.

Step 3
If the risk cannot be removed, then the employer should try to adjust her conditions and/or hours of work if this would remove the risk, following consultation with the employee.

Step 4
If this cannot be achieved, the employer should consider alternative suitable work, again through consultation.

Step 5
If it is not possible to offer suitable alternative work, the employee must be suspended on full pay for as long as necessary to protect her and her child’s health and safety.

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 new and expectant mothers, they run the risk of affecting the safety and well-being of the employee and their baby, and also of a sex discrimination claim.

In the case of Hardman v Mallan (t/a Orchard Lodge Nursing Home) (2002), the Employment Appeal Tribunal decided that the failure to carry out a risk assessment for pregnant and breastfeeding women amounted to direct sex discrimination.

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 in danger.

This article is contributed by Ashfords Solicitors.