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Health, safety and pregnancy and maternity case law
[ch 3: pages 49-51]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 or breastfeeding (although see HSE advice below).
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 or breastfeeding 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) cases show:
Mrs Quinn was removed from her duties as duty railway station manager after the employer learned that she was pregnant. The company said its main motivation was the risk of a physical assault while Quinn was carrying out her duties. It also cut her salary to reflect the change in her duties. She brought a claim of sex discrimination. The EAT upheld an employment tribunal finding that Quinn had been discriminated against and that her employer had suspended her because of its “paternalistic and patronising attitude” rather than for any real health and safety reasons. It was the employer’s responsibility to justify the suspension by providing evidence of the gravity of the risk and the impossibility of avoiding it by making appropriate adjustments to her hours and conditions of work. It had done none of these things.
New Southern Railway Ltd v Quinn [2006] IRLR 266
www.bailii.org/uk/cases/UKEAT/2005/0313_05_2811.html
When Suzanne Bunning became pregnant, her employer carried out a general risk assessment. Bunning was suspended on full pay pending the outcome of the risk assessment. The risk assessment concluded that her welding job was not “high risk” and that she should return to that role. Following a miscarriage, she argued that her employer had discriminated against her by not taking steps to avoid any health risks. The EAT agreed. The requirement that Ms Bunning return to her welding job or to another medium-risk job was a “detriment” and sex discrimination. The Court of Appeal agreed.
Bunning v GT Bunning and Sons Ltd [2005] EWCA Civ 983
There is no requirement for a pregnancy risk assessment to be in writing.
In one case, the EAT accepted that the employer had carried out a risk assessment which took the form of meetings addressing particular concerns, as well as using a generic pregnancy risk assessment. The employer also kept a record of the risk assessment, as required by the legislation (Stevenson v J M Skinner & Co UKEAT/0584/07).
In September 2016, general union Unite won a landmark legal victory on breastfeeding against airline easyJet. An employment tribunal ruled that the airline’s failure to allow two new mothers working as cabin crew to limit their duty days to eight hours to allow them to express milk or offer them ground duties while they continued to breastfeed, was discriminatory. It should have found them alternative duties or suspended them on full pay (McFarlane & Ambacher v easyjet Airline Co Ltd, September 2016).
In a recent European Court of Justice (ECJ) case, Elda Otera Ramos v Servicio Galego de Saúde, Instituto Nacional de la Seguridad Social Case C-531/15, a nurse employed in the accident and emergency unit of a Spanish public hospital informed her employer she was breastfeeding when she returned to work after giving birth. She was concerned her job might expose her to health and safety risks that would have an adverse effect on breastmilk — a complex shift rotation pattern, exposure to ionising radiation, healthcare-associated infections and stress. She requested various changes to her work but the hospital produced a report saying her job did not involve risks to breastfeeding and rejected her request. She was also refused a medical certificate confirming that there was a risk to breastfeeding on the basis that her job was on an agreed list of “risk-free” jobs.
She challenged the decision and her appeal reached the ECJ. She said she had been discriminated against when an inadequate risk assessment had concluded her work was risk free, without suitable investigation. The ECJ confirmed that where a breastfeeding mother can show a risk assessment is inadequate (or indeed not carried out at all) this can give rise to a potential discrimination claim.