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Pregnancy at Work: Am I legally entitled to a risk assessment?
I am currently pregnant with my second child, and notified my employer about eight weeks ago. I have not had a risk assessment done. I tripped over some boxes yesterday and hurt my back, so I am off work today, but I will not get paid for it. I submitted a grievance two weeks ago, but I have not heard anything back. Also the firm are trying to get out of paying me for the bank holiday 29th April and all other staff despite our contracts having a separate paragraph relating to bank holidays written into them. Can you advise please?
Thank you for your email.
Risk Assessments:
The regulations stipulate that an employer should make two risk assessments:
1. A general one at the point he/she employs women who are of a child-bearing age; and
2. A specific one when an employee gives notice in writing of, in your case, being pregnant – this should be carried out promptly, particularly if the type of work you carry out could be a risk to either you or the baby’s health.
A risk assessment should be collaborative and is a thought process between you and your employer. As outlined above, your employer should have conducted a general assessment in relation to health and safety when you or other women of around your age began employment at the company and another when you gave notice of your pregnancy. This should have been carried out without undue delay particularly if there is a special risk to the baby or you as I have said above, and therefore 8 weeks seems like undue delay if you are in this special risk category.
Did you give notice of your pregnancy in writing? If you didn’t, I would recommend you do so immediately.
The fact that you have not had a risk assessment and then you had an accident at work, should concern your employer since, depending on the facts you may be able to claim :
- Constructive dismissal based on the fact that you raised a health and safety issue, but it was ignored. This might amount to an automatic unfair dismissal if proven;
- Potential sex discrimination on the basis of your treatment in relation to the failure to carry out the risk assessment, although this might not work if there is a possibility that all workers requesting risk assessments (male or female) would be similarly ignored;
- Failure to carry out a risk assessment could amount to ‘detriment’ in relation to Sex Discrimination, however is risky to bring such a claim because an employer’s duty to conduct a risk assessment only arises where the work is of a kind which could involve a special risk to a new or expectant mother or her baby. For example this could be work-related, stress or carrying heavy loads ; and
- Possibly personal injury if a direct link can be shown between the breach and the injury.
Grievance:
I assume that your grievance is in relation to not being given a risk assessment. There is not legislation which specifically governs grievance procedures, but there is guidance published by a conciliatory board called ACAS. ACAS suggests that a meeting should be held without reasonable delay to discuss the grievance after it has been received by the employer in writing. It recommends this should be done within five working days. It is clear that your employer is not following its duties in this regard.
Bank Holidays
Unfortunately, there is not automatic right to time off for bank holidays. Also strictly speaking the 29th April was not a usual bank holiday as it was for the royal wedding and therefore represented a 9th bank holiday. Whether you or your colleagues were entitled to a day off to celebrate the Royal Wedding very much depends on the terms of your contract. If your contract simply says you are entitled to ‘bank/public holidays’ then 29 April should be included in that. If the contract lists all the 8 bank and public holidays and does not include 29 April, then it will not be included in your entitlement. This will also be the case if your contract says ’28 days holiday per year’ as this is the minimum allowed by law and allows for 20 days’ holidays plus eight bank holidays, not nine as has been the case this year.
Advice
If you haven’t already done so, I would advise that you give notice of your pregnancy in writing to your employer. Then you could wait around a week before chasing for a risk assessment. If you have already given notice in writing, I would recommend that you chase for a meeting to hear your grievance, also making your employer aware of the fact that he is in breach of the ACAS guidelines in relation to the grievance and in breach of the Health and Safety at Work Regulations in relation to carrying out the risk assessment. Hopefully it was recorded in the accident report book about damaging your back. If so, you can point this out and the fact that it is even more vital that a risk assessment is carried out.
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Comments [5]
Louise says:
I work in quite a physical job and also deal with lots of chemicals as a health club shift manager. I informed my manager and regional manager via text that I was pregnant and asked what I needed to do. I was not tol dot put it in writing which I have since found out I should have done. I was around 7 weeks when I told them. I sufferent a miscarriage at around 12 weeks. A risk assessment was never done.
I was acting as general maanger for the site and was under a lot of stress and was told on 2 occasions I was expected to work 6 day weeks.
Where do I stand?
Vicki says:
Hi there,
I told my work I was pregnant at 12 weeks. I asked on numerous occasions for a risk assessment to be carried out. I worked at an air terminal which is aging and nothing works properly. At 31 weeks I still did not have a risk assessment and after working all day, pulling bags along a baggage belt that doesn’t work properly I got home that night and went into premature labour. I had my son 2 days later by emergency c section. Can I put in a complaint or can I take action here? Any advice would be greatly appreciated!
Thanks
Jacqui says:
I supply agency workers to various sites. I have just been informed by the client at one of their warehouses that my temp worker is 7 months pregnant. The first thing I did was to arrange a risk assessment. Today the manager of the warehouse says the worker cannot continue with them, they cannot find her other work or reduce her working hours. This means she will have to be suspended on full pay. The question is can the client do this, even though a risk assessment hasnt been carried out?
Anonymous says:
I work in a mental health hospital & recently experienced two miscarriages at around 9wks. With both pregnancys I informed my employer verbally about the pregnancy as soon as I knew(around 4wks) & was told there would be no risk assessment until I was 12wks. On both occasions my boss told me to inform other staff as it was important due to risk factors. I was unaware I needed to put anything in writing. With the second pregnancy I requested an early risk assessment but wasn't given one. I was exposed to aggressive behaviour & very stressful environment in both pregnancys. Do I have grounds to take this further. I feel very let down.
Editor: According to the Health and Safety Executive, a specific pregnancy-related risk assessment does not legally have to be carried out, although it is recommended. They say: If you think that your employer (or anyone else’s) work activity is putting your safety at risk or damaging your health, you should raise these concerns with your employer or that person. Your workplace safety representative, union representative (if you belong to one) or occupational health service (if your employer provides one) may be able to offer further advice.
For more information on making a complaint about health and safety in a specific workplace, what action you can take and what happens after the complaint is made, please contact HSE.
Anonymous says:
I am currently 6 months pregnant and have asked my employer if I could work from home for 3 days per week and go into the office 2 days. I have been assessed by the O.H. Who having assessed me recommend the same, this was about 2 months ago! My doctor has also indicated thAt I suffer quite badly with anaemia and have had previous miscarriages and a blood transfusion during a previous pregnancy. I now only have 10 weeks before I begin my maternity leave and they are still delaying making a decision. I've now been told they wish to conduct a risk assessment at my home address despite being allowed to work from home on a temporary basis and when I have medical appointments. Do I have to agree. I feel a decision can be made without it especially as I have worked from home in the past.
Please advise me.
Editor: Our HR expert Sandra Beale suggests you comply with the company's assessment process.