The Importance of Pregnancy Risk Assessments and Employer Liability When Things Go Wrong

Pursuant to Regulation 3(1) of the Management of Health & Safety at Work Regulations 1999, SI 1999/3242 (MHSW Regs 1999), every employer is under a general duty to make a suitable and sufficient assessment of the risks to the health and safety of all of its employees to which they are exposed at work. The purpose of undertaking such a risk assessment is for the employer to identify the measures which it needs to take to eliminate any identified risk or, where that is not possible, reduce it.

Where an employer employs women of child-bearing age and the work being done could involve risk, the law requires that an employer must take additional steps to protect the health and safety of new or expectant mothers and their babies. In this article, Charlotte Buck, Senior Associate in our Employment Department, sets out the additional steps which an employer must take in these circumstances and the serious consequences for employers of getting it wrong.    

Identifying Risk

Step 1: General Risk Assessment – Regulation 16(1) MHSW Regs 1999

In certain circumstances, under Regulation 16(1) MHSW Regs 1999, an employer will be subject to a duty to conduct a risk assessment that relates specifically to potential risks to the health and safety of new or expectant mothers or their babies. This duty will only arise where (1) the persons working for an employer include women of child-bearing age and (2) the work being done is of a kind which could involve risk, by reason of her condition to the health and safety of a new or expectant mother, or to that of her baby, from any processes, working conditions or physical, biological or chemical agents.

The Health and Safety Executive (HSE) has produced a guide for employers – Protecting New and Expectant Mothers which lists some of the common risks to new or expectant mothers or their babies (https://www.hse.gov.uk/mothers/employer/index.htm.) These include movements and postures, work related stress, long working hours, lifting and carrying, excessive noise, handling chemicals and extremes of heat and cold.  

The duty pursuant to Regulation 16(1) is a general duty which applies without the need for any notification by an employee that she is pregnant or whether or not there are, in fact, any pregnant women or new mothers in the workforce.

The employer must review its assessment if there is reason to suspect it is no longer valid or that there has been a significant change in matters to which it relates (Regulation 16(2) MHSW Regs 1999).

Step 2: General Risk Assessment – Recording and Informing Employees

Where any general risk assessment has been made, if the employer employs five or more employees, it must make a record of the significant findings of the assessment, and of any group of the employees identified by it as being especially at risk. There is no obligation to the employer to pass that record over to an employee, however under Regulation 10(1), MHSW Regs 1999, it must provide its employees with comprehensive and relevant information on the risk to their health and safety identified by the assessment, and on any protective measures. This can be done orally. 

Notwithstanding the above, it would be best practice for employers to keep full written records of all risk assessments undertaken and of all discussions with new and expectant mothers about such matters. It is also advisable to make a written copy of the assessment   available to all relevant employees, whether by providing it to them directly or posting it on workplace noticeboards or the intranet.

Step 3: Specific Risk Assessment – Regulation 16(1) MHSW Regs 1999

Where an employer is notified in writing that an employee is pregnant, an employer will, in some circumstances, be under a duty to carry out a specific individual risk assessment in respect of that individual. Historically, it had been assumed that an employer was required to carry out an individual risk assessment in respect of every woman who provided written notice of her pregnancy. Following decisions in the cases of Madarassay -v Nomural [2007] IRLR 246, [2007] ICR 867CA and O’Neill v Buckinghamshire CC [2010] IRLR 384, however, the obligation to carry out an individual risk assessment was found only to apply where the work undertaken by the employee is such that it gives risk to a risk to her health or that of her baby and the risk arises from processes, working conditions or exposure to physical, chemical or biological agents. A trivial or fanciful risk will not trigger the obligation. In O’Neill, for example, the Employment Appeal Tribunal found that there was no obligation to carry out a specific risk assessment where the Claimant, a school teacher, might be exposed to the coughs and colds of the children she taught.

Once the obligation to carry out an individual risk assessment is triggered, the employer should conduct a specific investigation of the employees’ individual work circumstances in order to determine whether the work she is required to do involves risk, by reason of her condition, to her health and safety or that of her baby, from any processes, working conditions or physical, biological or chemical agents.

Note: Notwithstanding the decisions in Madarassay and Nomura, it would be best practice to carry out an individual specific risk assessment in all cases where the employer has been notified of an employee’s pregnancy. This will serve not only to best protect pregnant employees but will also deter potential claims arising out of an assessment not having being carried out. It will of course be difficult to be certain that there is no risk to a pregnant employee from processes or working conditions and a failure to carry out a risk assessment where one is required, will almost certainly amount to unlawful direct sex discrimination.

What to do when Risks are Identified

Step 4: Altering Working Conditions or Hours of Work – Regulation 16(2) MHSW Regs 1999

Where risks to a pregnant employee or her baby are identified, the employer should take steps to remove those risks, if possible. Where it is not possible to do so, the employer must, if it is reasonable to do so, and would avoid such risks, alter the employee’s working conditions or hours of work. Ways in which working conditions/hours might be varied include: allowing the employee to vary her start and finish times to avoid travelling in rush hour, allowing her employee to take extra breaks or removing lifting from her role etc.

Step 5: Consider Suitable Alternative Work – Section 67(1) Employment Rights Act 1996 (ERA 1996)

Where it is not possible or reasonable to alter a pregnant employee’s working conditions or hours of work, or if the risks cannot be avoided, pursuant to section 67(1) ERA 1996, the employer must consider whether there is any suitable alternative work available for her and, if so, it must be offered to her.  An offer of alternative work will be suitable where it is: (1) of a kind which is both suitable and appropriate for the employee to do in the circumstances and (2) the terms and conditions applicable for her performing the work are not substantially less favourable than her current terms and conditions.

Step 6: Suspension and Pay – Regulation 16(3) MHSW Regs 1999

If there is no suitable employment available, or if the employee refuses to do it, the employer must suspend the employee for as long as is necessary to avoid the risk. The employee is entitled to be renumerated for every week or part week of the suspension calculated in accordance with the “weeks pay” provisions set out in ERA 1996 for as long as she is suspended. However, if the employee unreasonably refuses the offer of suitable alternative work, she will lose this right to be paid during her suspension.

The Consequences of Getting It Wrong

Where an employer fails to act in accordance with its legal obligations to pregnant employees, it potentially endangers the life of the expectant mother and her unborn child, which are paramount.

In addition to this, an employer will expose itself not only to serious reputational damage but also several, potentially costly, legal claims. Whilst Health and Safety Law is generally enforced by the HSE and local authorities, there are a number of different Employment Tribunal claims a woman might bring in order to enforce her rights under health and safety legislation. These include claims under section 70(4) ERA 1996 for failing to offer suitable alternative employment, a claim for failure to pay during suspension (ERA 1996 s70(1)) and constructive unfair dismissal (ERA 1996 s.98), where the woman resigns in response to the employer’s failures.

An employee will also have potential claims under the Equality Act 2010 for pregnancy and/or sex discrimination. Several claims of this nature have been brought and won by employees in the Employment Tribunal where an employer has failed in its duties including, in particular, its duty to carry out an individual risk assessment in respect of a pregnant woman. That said, it might be noted, there are currently no known cases, of an employee claiming/succeeding in a claim for discrimination based upon an employer’s failure to carry out a general risk assessment.

Conclusion

For a woman, notifying their employer that they are pregnant can be an important milestone. For an employer, however, it is likely to trigger fundamental obligations and duties designed to protect both mother and child; chief of these duties is the duty to carry out a pregnancy risk assessment.  Failing to comply with these obligations/duties not only risks endangering mother and child but can also lead to serious and costly legal consequences. The only way to avoid these risks is by getting it right from the start.

How Pinney Talfourd Can Help

At Pinney Talfourd LLP, we provide expert legal advice to both employers and employees on pregnancy and maternity rights in the workplace. If you would like advice on any aspect arising out of this article or on any related matters, then please contact either Charlotte Buck or Alex Pearce.