Safety first: Risk assessments for expectant mums

Jo Robson, founder and principal solicitor of Babylaw solicitor explains the level or risk assessment that should be carried out to ensure work is safe for expectant mums.

Jo Robson, founder and principal solicitor of Babylaw solicitor explains the level or risk assessment that should be carried out to ensure work is safe for expectant mums.
 
So, you have discovered you are pregnant and you have told your employer of your great news. Once they have been notified of your pregnancy in writing, your employer is under a continuing duty to protect you as a pregnant employee.  This may be done by way of a separate and individual risk assessment to identify and eliminate any health and safety risks in your pregnancy that may affect you during your pregnancy. It is also best practice for your employer to hold regular review meetings with you to review the findings of any risk assessment as your pregnancy develops.
 
The Management of Health and Safety at Work Regulations 1999 (MHSW) contains regulations to ensure that any health and safety risks to new and expectant mothers is eliminated from the workplace.  This includes pregnant employees, new mums and breastfeeding mums returning to work.
 
In the recent case of O’Neill v Buckinghamshire County Court, the Employment Appeal Tribunal (EAT) recently considered whether there should be a general duty on employers to carry out risk assessments in respect of new and expectant mothers pursuant to regulation 16 of the MHSW Regulations. The EAT held that there will be no automatic right for new and expectant mums to be risk assessed in their workplaces, unless they can show that their work poses a risk to their or their unborn child’s health and safety.
 
Whilst this recent decision has determined that there is now no general legal duty on your employer to conduct a pregnancy risk assessment, their obligation will be triggered in the event that your work is of a kind which could involve exposure to risks of harm and/or danger to you or your unborn baby.  The HSE has published on their website (www.hse.gov.uk/mothers) a list of what they consider to constitute hazards and risks to new and expectant mums in their workplace. Such risks may include:
 
  • awkward spaces, compromise of posture and workstations;
  • vibration;
  • noise;
  • radiation;
  • infections;
  • chemical handling;
  • inadequate facilities (including failure to provide a rest room);
  • heavy lifting;
  • arduous manual tasks;
  • excessive working hours;
  • unusually stressful work;
  • work related stress;
  • exposure to cigarette smoke;
  • high or low temperatures;
  • lone working;
  • working without adequate resources;
  • working at heights;
  • travelling;
  • exposure to violence. 

These hazards may extend to new and expectant mums who are working in conditions with insufficient staff resources or support and in some cases, to those who work night shifts.  Your employer will also not be under any obligation to conduct any such risk assessment until you have provided notification of your pregnancy in writing. A reasonable employer should not delay in undertaking a risk assessment where they are obliged to do so.  The employer must also provide you with a comprehensive evaluation of the identified risks and the steps taken to eliminate you from such risks.  Unless the risk can be eliminated voluntarily by the employer through their own means, you will be entitled to insist that your working conditions and/or hours are adjusted or reduced so as to eliminate you from such risk.  
 
Whilst you are under no obligation to formally notify an employer of your pregnancy until the 25th week of your pregnancy, it is advisable to inform your employer sooner, particularly where you may be exposed to work of a kind which could involve a risk of harm and danger to you or your unborn child.
 
If your employer fails to carry out a risk assessment where they are obliged to do so, this may constitute an automatic finding of unlawful sex discrimination, for which you may be able to recover damages in the Employment Tribunal.  
 
The recent case of O’Neill v Buckinghamshire County Council provides useful guidance for employers and employees in relation to the treatment of new and expectant mums and whilst the obligation on employers to carry out risk assessments will no longer arise for all new and expectant mums in the workplace, the case highlights that employers should continue to exercise good practice and provide a risk assessment to all, so as to avoid being caught under the sanctions for non-compliance, under circumstances where such a duty is triggered.
 

Joanna Robson is the founder and principal solicitor of Babylaw Solicitors. Babylaw is a niche employment law practice specialising only in providing advice and representation to those who are suffering from disadvantage and detriment at work resulting from their pregnancy, child birth and/or maternity leave status. We can assist you if you are having difficulties at work whether it is because of your pregnancy or returning to work following a period of maternity leave. We work exclusively for employees, offering a confidential and personal service. We also offer a 30 minute free initial consultation with one of our qualified solicitors by telephone or email so that you can weigh up your options. Further information can be viewed at www.babylaw.co.uk

 
 
Information on this article does not constitute legal advice.





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