As an employer you are under a general obligation to carry out a suitable and sufficient assessment of any health and safety risks to which your employees are exposed while at work. We have seen increased awareness of the need to carry out such a risk assessment in recent years but the duty to carry out a risk assessment goes further in relation to new or expectant mothers.
When does the additional duty apply?
This additional obligation is activated by women of child-bearing age being in your employment and as such you should not wait until an employee becomes pregnant before you carry out the assessment.
However, it only arises if your employees carry out work of a kind which involves a “special risk” to a new or expectant mother or her baby. Case law has found that assertions of discomfort and work which was of a stressful nature are not, in and of themselves, “special risks”.
If you do identify any risks following an assessment then you are under no obligation to take action to avoid them until you have been notified in writing that an employee is pregnant, has given birth within the previous six months or is breastfeeding.
Even if the above obligation is not triggered due to an absence of any “special risks”, we would still encourage all employers to carry out a risk assessment. Doing so will minimise any risks in relation to personal injury claims and it is also a supportive step which should help to keep employees engaged with your business.
How might this arise in practice?
The following case study demonstrates the process you should follow and highlights some issues which might arise with a pregnant employee.
Anna works in the kitchen at the Cat and Bone as a chef and she tells you she is pregnant. The kitchen gets extremely hot during evening service and you identify that this might pose a risk to Anna and her unborn child. You haven’t previously carried out a risk assessment so should do without further delay. In carrying out the assessment you should:
- meet with Anna to discuss if she has any specific concerns herself; and
- bear in mind common risks that might arise including work-related stress, long working hours, lifting and carrying, excessive noise, handling chemicals, extremes of heat and cold and movements and postures.
You meet with Anna and discuss the risks that the kitchen environment might pose to her and how you might remove or reduce the risk. With her input, you prepare a risk assessment and agree the following changes to her working conditions or hours, which might alleviate the risks:
- assigning Anna to the cold desserts section;
- temporarily installing more fans; and
- giving her more breaks to ensure she has the opportunity to rest and stay hydrated.
You put these measures in place but after some weeks, Anna tells you that she feels ill in the kitchen and her doctor writes her a note saying it is the heat.
As there are no further steps you can reasonably take to address the heat and protect Anna and her unborn child, you consider whether she could undertake an alternative role for you. You offer her an office based role in administration and marketing at her same hourly rate. Anna refuses this alternative role on the grounds that 25% of her normal pay comes from tips which she will not receive when working in the office based role.
You seek advice and are advised that you do need to consider a way in which Anna’s pay can remain substantially the same, including any element of her pay linked to specific performance of her duties. The tips arise out of her duties in the kitchen, and are significant, so the loss of these would likely mean that the alternative role would be on substantially less favourable terms. You agree with Anna that you will make up her pay to the level she would have received had she continued as a chef and on this basis Anna agrees to the office based role.
What happens if we can’t remove or reduce risk?
If you cannot remove or reduce any risks posed, you should consider temporarily altering the employee’s working conditions or hours of work, if this is reasonable and would avoid the risk.
If it is not reasonable to alter the employee’s working conditions or hours of work, or if the risk cannot be avoided, you must offer the employee suitable alternative work where it is available. Work will be suitable alternative employment if:
- it is of a kind which is both suitable and appropriate for the employee to do in the circumstances; and
- the terms and conditions applicable for her performing the work are not substantially less favourable to the employee than her current terms and conditions.
If there is no suitable alternative work available, or if the employee reasonably refuses it, you must suspend the employee for as long as is necessary to avoid the risk. This suspension will be on full pay, unless the employee is deemed to have unreasonably refused an offer of suitable alternative employment.
It is important that careful consideration be given, at each stage above, to ensure that the steps taken are fair and reasonable. You need to be able to evidence your thought processes and avoid a knee jerk reaction to finding out an employee is pregnant.
It is also vital that every effort is made to ensure that if a pregnant employee is moved to alternative employment that they are not on substantially less favourable terms.
Talking with the employee and making sure they feel supported is key to successfully keeping pregnant employees safe at work during their pregnancy. Involve the employee in the risk assessment so it does not come across as you dictating changes. Each situation needs to be considered based on its specific circumstances and we recommend that you seek advice if you have any concerns.