The Management of Health and Safety at Work Regulations 1999 implement the health and safety requirements of the Pregnant Workers Directive (92/85/EEC) into GB law.
Management of Health and Safety at Work Regulations 1999 (MHSW)
Specific health and safety requirements relating to new and expectant mothers at work are mainly contained in Regulations 16 to 18 of the Management of Health and Safety at Work (MHSW) Regulations 1999 (SI 1999/3242).
Regulation 3 of MHSW places a legal duty on all employers to assess the health and safety risks that their employees are exposed to whilst at work. Once the risks have been assessed, the employer is then required to put in place the appropriate health and safety measures to control those identified risks.
In addition to the requirements of Regulation 3 MHSW, Re\gulation 16 of MHSW also requires that the risk assessment should include any specific risks to females of childbearing age who could become pregnant, and any risks to new and expectant mothers. These risks can be from any process, working conditions, or physical, biological or chemical agents.
Employers have certain obligations towards their employees once they have been notified in writing that she is a new or expectant mother. When an employee provides written notification (regulation 18 of MHSW) to her employer stating that she is pregnant, or that she has given birth within the past six months or that she is breastfeeding, the employer should immediately take into account any risks identified in their workplace risk assessment. If that risk assessment has identified any risks to the health and safety of a new or expectant mother, or that of her baby, and these risks cannot be avoided by taking any necessary preventive and protective measures under other relevant health and safety legislation, then employers must take action to remove, reduce or control the risk.
If the risk cannot be removed employers must take the following actions:
- Action 1 - Temporarily adjust her working conditions and/or hours of work; or if that is not possible
- Action 2 - Offer her suitable alternative work (at the same rate of pay) if available, or if that is not feasible;
- Action 3 - Suspend her from work on paid leave for as long as necessary, to protect her health and safety, and that of her child.
MHSW also states that where a new or expectant mother works nights and she provides a medical certificate from her GP or Midwife which says that working night shifts will affect her health, then her employer must suspend her from work, on full pay, for as long as necessary. However, the Employment Rights Act 1996 provides that where appropriate, suitable alternative work should be offered, on the same terms and conditions, before any suspension from work is considered.
Although it is not a legal requirement for employers to conduct another specific or further individual risk assessment for new and expectant mothers, employers may choose to do so as part of the process by which they reach a decision about what action should be taken. An employer’s risk assessment should have already considered any specific risks to new and expectant mothers when considering the rest of the workplace. This will enable employers to take immediate action, if and when necessary.
However, if an employer suspects that the general risk assessment is no longer valid or that there has been a significant change to the matters to which it relates, then the employer should revisit and review that risk assessment accordingly. This would be the case for all risks, including those to new and expectant mothers.
Other HSE legislation that protects the health and safety of new and expectant mothers at work is the Workplace (Health, Safety and Welfare) Regulations 1992
Workplace (Health, Safety and Welfare) Regulations 1992 (the Workplace Regulations)
The Workplace Regulations require employers to provide suitable rest facilities for workers who are pregnant or breastfeeding. The facilities should be suitably located (e.g. near to toilets) and where necessary should provide appropriate facilities for the new or expectant mother to lie down.
Equality Act 2010
A breach of MHSW may in addition be unlawful discrimination under the Equality Act, depending on the circumstances. There is no length of service qualification, and the Act gives protective rights to a broad range of employees including contract (or agency) workers and apprentices. A breach of the Equality Act could give rise to civil liability.