New and expectant mothers

The Management Regulations contain specific provisions for women of childbearing age in the workforce. Regulation 16 says any risk assessment must take account of how hazards may affect the health and safety of new or expectant mothers.

The employer should address risks from any work processes, working conditions or physical, biological or chemical agents.

A worker is not legally obliged to inform her employer that she is pregnant or breastfeeding. However, an employer who does not know about the pregnancy will not be able to address any specific risks that arise as a result. The HSE recommends that women workers inform their employers in writing as early as possible that they are pregnant, have given birth in the previous six months or are breastfeeding. Several specific pieces of legislation provide additional safety protection to expectant and new mothers in the workplace and are examined elsewhere in this booklet. These include:

• the Ionising Radiation Regulations 1999; (see Chapter 8: Physical Hazards);

• the Control of Lead at Work Regulations 1998 (see Chapter 6: Hazardous substances);

• the Workplace (Health, Safety and Welfare) Regulations 1992 (see Chapter 5: the Workplace and working environment); and

• the Equality Act 2010 which provides protection against discrimination on the grounds of sex, pregnancy and maternity (see below).

Is an employer obliged to carry out a specific separate risk assessment as soon as an employee confirms she is pregnant or breastfeeding?

Some workplaces present particular risks to pregnant workers. Whether an employer needs to carry out a separate risk assessment as soon as an employee confirms that she is pregnant or breastfeeding depends on the kind of work she does.

There is no free-standing legal obligation on every employer always to conduct a specific separate risk assessment once a worker confirms that she is pregnant. Instead, whether or not a separate risk assessment is required will depend on the particular circumstances of the individual worker and the kind or work she is doing (O’Neill v Buckinghamshire County Council, UKEAT/0020/09/JOJ). Even though there is no general obligation on an employer, carrying out a risk assessment is the most sensible way to identify what new risks are presented by the pregnancy and what extra action should be taken.

The employer should always discuss any concerns and ideas about solving them with the worker. It would be sex discrimination to force a worker to accept a change of duties or suspension where the risk is low and does not require such a drastic response, as the following Employment Appeal Tribunal (EAT) case shows:

Workplace hazards for pregnant and breastfeeding women

The kinds of workplace hazard an employer should pay particular attention to when considering risks to pregnant or breastfeeding women will depend on the kind of work being carried out but could include:

• exposure to lead, and certain other chemicals such as drugs and pesticides;

• working with ionising radiation;

• lifting and other physical work;

• exposure to infections;

• standing up for long periods;

• heat;

• excessive working hours;

• lone working;

• work at heights;

• travelling;

• bad smells which may make morning sickness worse;

• violence, for example if they work with members of the public; and

• exposure to vibration, such as riding in off-road vehicles.

Online HSE guidance says that if a significant health and safety risk is identified for a new or expectant mother (going beyond the normal level of risk found outside the workplace) an employer must take the following steps:

• Step 1: Temporarily adjust working conditions and/or working hours; or if this is not possible;

• Step 2: Offer suitable alternative work for the same pay, if available; or if this is not possible;

• Step 3: Suspend her from work on paid leave for as long as necessary to protect her health and safety and that of her child.

Any alternative work must be suitable and appropriate for her to do in the circumstances and on terms and conditions no less favourable than her normal terms (Employment Rights Act 1996 (as amended by the Employment Relations Act 1999)).

The kinds of precautions an employer could consider will depend on the work being done. Possible responses include:

• putting the worker on light duties if the role involves manual handling;

• letting a worker sit down if the job involves standing;

• flexible rostering so that a worker can come in late if she suffers from morning sickness or to avoid a busy rush hour.

Online guidance from the HSE for new and expectant mothers is available at: www.hse.gov.uk/mothers

Agency workers

The duties owed to pregnant workers under the Management Regulations cover pregnant agency workers as well as permanent employees. The Agency Workers Regulations 2010 improved the position of agency workers by extending the right to a “maternity suspension” to all agency workers who have completed a statutory twelve-week qualifying period. Any pregnancy-related absence counts towards this qualifying period.

This means that as long as the agency worker has enough qualifying service, whenever health and safety considerations prevent a temporary assignment continuing, the employment agency must provide an alternative assignment. If there is nothing suitable available, the agency must pay the agency worker for the rest of the original assignment.

Pregnancy and night work

Regulation 17 of the Management Regulations says that new or expectant mothers may be suspended from night work where they have a signed certificate from a registered medical practitioner or midwife stating that this is necessary in the interests of health and safety.