Pregnant Workers & Risk Assessment

Regulation 16 of the Management of Health and Safety at Work Regulations 1999 places a duty on employers to carry out a risk assessment in respect of new or expectant mothers. It states:

1. Where -
   1. the persons working in an undertaking include women of child bearing age; and
   2. the work is of a kind which could involve risk, by reason of her condition, to the health and safety of a new or expectant mother, or to that of her baby, from any process or working conditions or physical, biological or chemical agents, including those specified in Annexes I and II of Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding,
   the risk assessment required by regulation 3(1) shall also include an assessment of such risk.
2. Where, in the case of an individual employee, the taking of any other action the employer is required to take under the relevant statutory provisions would not avoid the risk referred to in paragraph (1) the employer shall, if it is reasonable to do so and would avoid such risks, alter her working conditions or hours of work.
3. If it is not reasonable to alter her working conditions or hours of work, or if it would not avoid such risk, the employer shall, subject to section 67 of the Employment Rights Act 1996 suspend the employee from work for so long as is necessary to avoid such risk.
4. In paragraphs (1) to (3) references to risk, in relation to risk from any infectious or contagious disease, are references to a level of risk at work which is in addition to the level to which a new or expectant mother may be expected to be exposed outside the workplace.

The Approved Code of Practice explains:

Where the risk assessment identifies risks to new and expectant mothers and these risks cannot be avoided by the preventive and protective measures taken by an employer, the employer will need to:

1. alter her working conditions or hours of work if it is reasonable to do so and would avoid the risks or, if these conditions cannot be met;
2. identify and offer her suitable alternative work that is available, and if that is not feasible;
3. suspend her from work. The Employment Rights Act 1996 (which is the responsibility of the department of trade and industry) requires that this suspension should be on full pay. Employment rights are enforced through the employment tribunals.

All employers should take account of women of child-bearing age when carrying out the risk assessment and identify the preventive and protective measures that are required in regulation 3. The additional steps of altering working conditions or hours of work, offering suitable alternative work or suspension as outlined above may be taken once an employee has given her employer notice in writing that she is pregnant, has given birth within the last six months or is breastfeeding. If the employee continues to breastfeed for more than six months after the birth she should ensure the employer is informed of this, so that the appropriate measures can continue to be taken. Employers need to ensure that those workers who are breastfeeding are not exposed to risks that could damage their health and safety as long as they breastfeed. If the employee informs her employer that she is pregnant for the purpose of any other statutory requirements, such as statutory maternity pay, this will be sufficient for the purpose of these regulations.

Once an employer has been informed in writing that an employee is a new or expectant mother, the employer needs to immediately put into place the steps described. The employer may request confirmation of the pregnancy by means of a certificate from a registered medical practitioner or a registered midwife in writing. If this certificate has not been produced within a reasonable period of time, the employer is not bound to maintain changes to working hours or conditions or to maintain paid leave. A reasonable period of time will allow for all necessary medical examinations and tests to be completed.

Reference

L21, The Management of Health and Safety at Work Regulations 1999: Approved Code of Practice and Guidance, ISBN 9780717624881, priced at £8.00. This can be downloaded online.

The following leaflets may also be useful to you:

• INDG163 - Five Steps to Risk Assessment

All of the publications referred to are also available from HSE Books:

HSE Books
PO Box 1999,
Sudbury,
Suffolk, CO10 2WA.
Tel: 01787 881165
Fax: 01787 313995
Email: hsebooks@prolog.uk.com
Internet: HSE Books

The Department for Business, Innovation and Skills have produced the guidance which is available online:

• Pregnancy and maternity rights in the workplace

Further advice may be available from:

Department for Business, Innovation & Skills
1 Victoria Street
London
SW1H 0ET
Telephone: 020 7215 5000
Minicom: 020 7215 6740
Email: enquiries@bis.gsi.gov.uk
Internet: Department for Business, Innovation and Skills