Health & Safety During and After PregnancyPosted in : HR Updates on 23 October 2013 Issues covered:
Helen O'Brien writes:
What are the health and safety risks associated with pregnant and breastfeeding women in the workplace? Stephen Thomas, Health & Safety Consultant at Croner, considers what action employers need to take when informed that an employee is pregnant or has recently given birth.
All employers are required to provide suitable rest facilities at their premises for pregnant employees and those who are breastfeeding. The question of suitability will vary depending on the size and resources of the employer, but at the very least, an employer should provide a private area, away from other employees, where the pregnant or breastfeeding employee can put her feet up. Facilities for storing expressed breast milk should also be provided where possible.
Risks to Pregnant Employees
Particular risks to pregnant employees or to employees who have recently given birth include:
- hazardous chemical or biological agents
- heavy lifting
- extremes of noise and pressure
- excessive travelling
- air travel
- extremes of temperature
- mental or physical fatigue.
How to Assess the Risks
EU law requires all employers to assess and remove any risks to their pregnant employees. The Management of Health and Safety at Work Regulations (Northern Ireland) 2000 incorporate the specific obligations in respect of any employees of child-bearing age and pregnant employees. The risk assessment must specifically consider the risks mentioned previously with reference to new or expectant mothers and their babies, whether or not the particular job is carried out by a woman at all.
Note that the risks of any particular job may vary depending on the age of the foetus and whether the woman is pregnant or has actually given birth.
How to Deal with the Risks
The position in relation to pregnant employees for whom a risk is identified is as follows:
- The employer must alter the employee’s working conditions or hours of work.
- If that is not reasonable or would not avoid the risk, the employer must offer suitable alternative work.
- If that is not available, the employer must suspend the employee.
Altered Working Conditions
If the employee has told her employer that she is pregnant, then the employer must carry out the following.
- Take whatever action is necessary to avoid the risk to that employee, for example by issuing her with protective clothing or other special equipment.
- If this would not avoid the risk, then if it is reasonable for the employer to alter the employee conditions or hours of work, the employer should do so. For example, allowing the employee to work from home more frequently.
If working conditions cannot be altered, then the employer must consider whether alternative work could be offered. The alternative work should be work that an employee can safely do during her pregnancy.
The terms and conditions of any alternative work offered to a pregnant employee must not be “substantially less favourable” than her existing terms. So the basic salary must be paid, but it may not be necessary to pay the supplementary allowances.
If the employee refuses suitable alternative work, she will forfeit her right to be paid while suspended from work. For example, an employee is employed in the warehouse of a supermarket and her job involves lifting boxes onto pallets. If, when she is pregnant, she is moved onto the tills at the same rate of pay, this would be suitable alternative employment.
If it is not possible to alter the employee’s job and there is no suitable alternative work, the employee should be suspended for as long as there is a risk to the employee.
A woman with normal working hours who is suspended on maternity grounds should receive her usual week’s pay. An employee without normal working hours should receive an average of all her pay over the previous 12 weeks. These payments should include any additional elements such as:
- A woman suspended without pay can also make a claim to an employment tribunal. If the employee can prove her case, the tribunal will award her compensation equal to the amount of pay or benefits, which she should have received.
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.