Risk assessment for new and expectant mothers

Pregnant women and risk assessment

TUC Briefing

The last thing that a pregnant woman needs is concern that the health of either herself or her future baby could be made worse by working.

The law requires employers to take account of the special position of new and expectant mothers and to conduct a risk assessment. This should then take account of any risks where the worker may be exposed to any process, working conditions, or physical, chemical, or biological agents which might adversely affect the health and safety of the worker or their baby. Risk assessments should include consideration of the risks for those who are pregnant, those who have given birth or miscarried in the last six months, or those who are breast-feeding. The risks should be avoided by prevention and control measures initiated by the employer. But if the risks cannot be avoided the employers must make provision to alter the working conditions or hours of work of new or expectant mothers. In certain circumstances this may mean suspending the woman from work for as long as is necessary to avoid the risks identified.

Unfortunately most employers do not conduct risk assessments for new or expectant mothers. Surveys by both the TUC and the Equal Opportunities Commission have shown that most employers have ignored the regulations. In addition employers are not obliged to take these actions unless they have received written notification from the woman of her condition. However many women fear notifying their employer early on because they fear that the employer may discriminate against them. Every year there are around 1,500 potential tribunal cases involving pregnancy maternity-related discrimination. Of these the vast majority (over 90%) involved some breach of health and safety legislation.

Safety representatives must therefore ensure that employers fulfil their legal obligations and protect both pregnant women and those who return to work while breast-feeding. Around 350,000 women continue to work during their pregnancy every year and of those, 69% return to work after giving birth.

The regulations on new and expectant mothers at work are very important. Many hazards in the workplace can affect the health and safety of new and expectant mothers and their children and therefore working conditions, normally considered acceptable, may no longer be suitable when a worker is pregnant or breast-feeding.

Because pregnancy usually goes undetected for the first few weeks after a conception, employers should identify hazards and risks for all female employees of childbearing age, not only those that they know are pregnant. In addition some hazards can present more of a risk at different stages of pregnancy.

However controlling common workplace risks better will reduce the need for special action for new and expectant mothers and a good employer will ensure that the workplace is safe for all employees, including pregnant employees regardless of whether they know that any of the workforce is pregnant.

The law

The Management of Health and Safety at Work Regulations 1999 states 'You are required to assess risks to all your employees and to do what is reasonably practical to control these risks. You are also required to take into account risks to new and expectant mothers while assessing risks in your work activity.' The regulations also state that if an employer cannot avoid a risk by other means they are specifically required to make changes to the working conditions or hours of a new or expectant mother, offer her suitable alternative work, or if that is not possible, suspend her for as long necessary to protect her health and safety and that of her baby.

This requirement commences as soon as the employer has been notified in writing that the worker is pregnant, has given birth in the last six months, or is breast-feeding. The employer does have the right to request a certificate from a GP or a midwife confirming the pregnancy.

Where an employee works nights and has a certificate from a doctor or midwife showing that it is necessary for her health and safety not to work nights then the employer should suspend her from working nights for the period identified in the certificate. The employer must offer suitable alternative daytime work on the same terms and conditions.

In addition there is a requirement under the Workplace (Health, Safety and Welfare) Regulations 1992 to provide suitable facilities for workers who are pregnant or breast-feeding to rest.

Although the regulations do not say what 'suitable' includes, the Code of Practice says that the facility should be conveniently situated in relation to sanitary facilities and include the facility to lie down. As breast-feeding can include expressing milk, the TUC believes that employers should also provide a private place where employees are able to express milk at work. This means a private area where there are facilities to sterilise equipment and a fridge to store milk in.

Risk assessment

Where an employer employs any women of childbearing age in the workforce and the work that the employee does is of a kind that could involve any risk either because of a woman’s condition or the health and safety of a new or expectant mother, or their baby then the employer must take the following steps.

Step 1

They must carry out a 'risk assessment' of any processes, working conditions or agents that could jeopardise the health and safety of any employee or their baby. If the employer has more than 5 employees the assessment must be recorded. The kind of risks that should be included include:

Is there

continuous standing? constant sitting? any work in confined spaces? manual handling? any shocks or vibration? ionising radiation? high pressure?

chemical or biological agents? stress? excess travelling? passive smoking? heat or cold? work at heights? work-related violence?

In addition the assessment should look at the possible risks of any women who are working alone should require medical attention and ensure that any protective equipment is designed specifically to meet the needs of pregnant women. The European Pregnant Workers directive gives more detail on the kind of possible risks (Annexes 1 & 2)

Step 2

If a significant risk is found the employer must do all that they reasonably can to remove it or prevent exposure to it. They must also give information to their employees on the risk and what action has been taken.

Step 3

The employer should give information about any risk and what action they consider it necessary to take and consult with the employee and their safety representative about what is being proposed.

Step 4

If any risk remains the employer should temporarily alter the woman’s working conditions or hours of work if it is reasonably practical to do so and if this leads to the risk being removed. Again this should be after consultation.

Step 5

Once a woman has informed her employer in writing that she is pregnant, if the risk cannot be avoided, the employer must offer her suitable alternative work on terms and conditions which are not substantially less favourable than her original job. In considering whether an offer of alternative work is suitable consideration should be taken of issues such as the working conditions, status, hours of work, location, travelling time and pay.

Step 6

If there is no suitable alternative work available the employer must suspend her on full pay for as long as is necessary to avoid the risk. The employee’s pay is based on what she would have received had she been working normally.

Other legislation

Pregnant workers are covered by a number of different regulations. Some of these are enforceable by the local authority and HSE inspectors, others are enforceable through the courts.

Regulations protecting new and expectant mothers at work include:

• Management of Health and Safety at Work Regulations 1999

• Manual Handling Regulations 1992

• Display Screen Equipment Regulations 1992

• Control of Substances Hazardous to Health Regulations 1999

• Maternity and Parental Leave Regulations 1999

• Equal Pay Act 1970

• Sex Discrimination Act 1975

• Employment Protection (Consolidation) Act 1978

• Employment Rights Act 1996

• Details of these rights can be found on the EOC health and safety law pages

• A Guide from the Health and Safety Executive for new and expectant mothers can be downloaded here

• The HSE have produced also a detailed guide for employers called 'New and Expectant Mothers at work'. It is available from HSE Books at £9:50.