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Ask Employment Law |
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Remember: There is no substitute for legal advice on the actual
situation you find yourself in. The information posted on this site is for
general information only, is based on |
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Question: |
What duties do
employers have to protect the health and safety of pregnant workers? |
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Answer: |
Under
the Management of Health & Safety at Work Regulations 1999, every
employer has to assess workplace risks for all their employees, and take practical
action to control those risks. In addition, employers must take particular
account of risks to new and expectant mothers. The
definition of a new or expectant mother is someone who is pregnant, has given
birth within the previous six months, or is breastfeeding. Employers must
identify hazards in their workplace that could pose a health or safety risk
to new and expectant mothers and take appropriate action to remove or reduce
the risk. Employers
must also make this information known to all their female employees of
childbearing age, not just those who have informed them they are pregnant.
This is particularly important for expectant mothers, as it is possible for
the first 4-6 weeks of pregnancy to go undetected. If
a risk is identified, possible action may include: ·
Changing the system of working to avoid the risk ·
Giving the pregnant employee other work to do ·
Or in the most extreme cases suspension (on full pay) for as
long as the risk subsides. Common
risks may include unusually high levels of work-related stress, or jobs which
involve a fair amount of lifting. In one
reported case, New Southern Railway –v- Quinn in 2005, the Employment
Appeals Tribunal considered regulation 16 of the Management of Health and
Safety at Work Regulations 1999.
When Mrs Quinn was (effectively) demoted from her position after
telling her bosses she was pregnant, Her employer claimed the demotion was
justified because it was taking steps to "avoid" physical risks (in
this instance the risk of assault from
the members of the public she worked with). The Tribunal took the view that
the reason given by the employer was a sham and the EAT held that the duty to
‘avoid’ risks simply meant to ‘reduce to a low risk' or 'reduce the risk as
far as possible', rather than to eliminate the risk entirely. In O'Neill
v Buckinghamshire County Council 2010, the EAT has held that, for an
employer to fall under a duty to conduct a risk assessment for a pregnant
worker, these preconditions must be met: (a) the
employee notifies the employer in writing that she is pregnant; (b) the
work is of a kind which could involve a risk of harm or danger to the health
and safety of the expectant mother or her baby; (c) the
risk arises from either processes, working conditions or physical, chemical
or biological agents in the workplace. There is
no more general obligation to carry out a risk assessment for a pregnant worker.
In discharging its risk assessment obligations, where they arise, there is
nothing in either the Pregnant Workers Directive or the Management of Health
and Safety at Work Regulations 1999 to indicate that a meeting with the
worker is required before the obligation to carry out a risk assessment is
satisfied. But an employer must provide her with comprehensive and relevant
information on the identified risks to her health and safety. It appears
that if an obligation to carry out a risk assessment, and a failure to carry
out that risk assessment is established, then discrimination results. Proof
of detriment is not necessary. Employers, accordingly, need to be astute to
carrying out risk assessments where the preconditions are met. See also
our page on returning to work part
time after maternity Last
reviewed: July 2010. |
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Employment
Solicitor Reculver Solicitors Tel
0207 324 6271 Regulated
by the Solicitors Regulation Authority ©
Reculver Solicitors. 2005- |
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