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 and expectant mothers.
When does the additional duty apply?
This additional obligation is activated by women of childbearing 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? | Consider a risk assessment
The following case study demonstrates the process you should follow and highlights some issues which might arise.
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 from a risk assessment?
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 to note that a suspension in these circumstances will not, provided it is done as part of an employer’s duty to protect pregnant women and ensure the health and safety of its workers, amount to pregnancy discrimination.
However, 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 an 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 an employee 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.
How does Covid-19 impact on an employer’s obligations?
There has been a lot of recent media attention on the impacts of Covid-19 on pregnant woman and the low take up rate for the vaccine. It appears that many pregnant women are reluctant to have the vaccine because it is new and they are uncertain about the impact on their unborn child. England’s Chief Midwifery Officer has now stepped up her plea for pregnant woman to get vaccinated.
In the early days of the pandemic, Government guidance was issued to the effect that a pregnant woman should be regarded as being clinically vulnerable. This was a precautionary measure as for the most part, pregnant women are not at a higher risk of getting Covid-19 than anyone else. However, there will be some women who have underlying health conditions that might put them at greater risk at any stage of their pregnancy and current Government advice for such women and those who are 28 weeks pregnant or beyond is to take a more precautionary approach.
Notwithstanding that general advice and whether or not a pregnant woman is vaccinated she might still feel vulnerable and have concerns about her safety in the workplace. The approach and risk assessment suggested above should be followed in the same way but should specifically take into consideration Covid-19 and what measures can be put in place to reduce the risk to the women and her unborn child. It will, in particular, be important to maintain social distancing and other protective measures for such individuals wherever possible.
Whilst, as noted, pregnancy alone will not class a woman as clinically vulnerable or clinically extremely vulnerable, the approach taken in relation to their concerns and protection might be similar. The article here offers guidance on clinically extremely vulnerable individuals in the workplace.