Employers MUST carry out individual risk assessments for pregnant workers and new mothers

Health and safety has always been a priority for the trade union movement

When the women and girls of the Bryant and May matchstick factory took strike action in 1888, on their list of demands was improved health and safety. Many of them had experienced appalling health and safety conditions including the spread of illnesses such as phossy jaw; after three weeks of strike action the Matchgirls won nearly all their demands. Fast forward to the pandemic and it is unions that have demanded and fought for health and safety protections in the workplace, and called the government out on their unclear guidance, and lack of provision of Personal Protective Equipment (PPE) for frontline workers.

The pandemic put a spotlight on the experiences of pregnant workers and new mothers

The pandemic has been a particularly scary time for pregnant workers and new mothers. Guidance has often been conflicting and confusing, not making clear what employers should be doing to protect pregnant workers and new mothers in the workplace. The TUC surveyed over 3000 pregnant workers and new mums in June 2020 and found shocking levels of discrimination and a disregard for their health and safety from many of their employers.

Our report ‘Pregnant and Precarious’ found that:

• 30 per cent of pregnant women in our survey felt very or somewhat unsafe at work.
• Two in five pregnant women in our survey have not had a health and safety risk assessment.

Of those workers in our survey that did have a health and safety risk assessment:

• Almost half (46 per cent) said their employer did not take the necessary action to reduce the risks identified.
• Over a quarter of pregnant women said the risk assessment did not include the additional risks posed by Covid-19.

Many of the women told us that their employers had forced them to take sick leave or start their maternity leave early, or they’d been singled out for redundancy.

More recent research from Maternity Action in 2021 found similar health and safety issues with over half of the women they surveyed saying they had raised concerns with employers, and one in five saying their employer took no action to address them.

Pregnant workers and new mothers’ health and safety at work has been undermined for years by the guidance around risk assessments which has been unclear, and in our view incorrect. We believed that it had been established in case law that all pregnant workers, new mothers and mothers who are breastfeeding are legally entitled to an Individual Risk Assessment from their employer. We went and sought legal advice to clarify the law… and we were right.

We took our legal advice to the Equality and Human Rights Commission (EHRC) and the Health and Safety Executive (HSE) and working with them, affiliates and other stakeholders got the guidance updated to reflect the law – a huge win that will make a big difference to pregnant workers and new mums in the workplace.

What does the new guidance say?

The guidance makes clear that employers have a legal responsibility to consider risks to women pregnant women, new mothers and women of childbearing age in their general workplace risk assessments.

BUT what our legal advice clarified is that once an employer is informed that a worker is pregnant, is breastfeeding, or has given birth within the last six months, then they must carry out an individual risk assessment.

In carrying out the individual risk assessment an employer must:

• Review their existing general risk management and controls for pregnant workers and new mothers
• Talk to the worker to see if there are any conditions or circumstances with their pregnancy that could affect their work
• Discuss any concerns they have about how their work could affect their pregnancy
• Consult with their safety representative or trade union if they have one
• Take account of any medical recommendations provided by their doctor or midwife.

The guidance also makes clear employers should review the individual risk assessment as the pregnancy progresses or if there are any significant changes to a workers' activity or workplace.

Employers are legally required to reduce or remove risks to a pregnant woman’s health. If this cannot be done, then they have a right to be offered suitable alternative work, on the same rate of pay, or to have working conditions adjusted. If none of these measures are possible, she should be suspended on full pay, based on her usual earnings, until the risk is gone.

The guidance now makes clear what pregnant workers and new mums health and safety rights are and what employers must do to protect them in the workplace. Our history and campaigning shows that we when organise we win and we make workplaces better and safer for everyone.