**This article has been updated in October 2019**
In this blog we look at the duties on your employer to look after your health and safety, and that of your baby, when you are pregnant, a new mother or are breastfeeding.
All employers are under a general duty to carry out a risk assessment to see whether there are any risks to the health and safety of employees whilst they are at work.
The Health & Safety Executive (an independent regulator) describes a risk assessment as “a careful examination of the harm that could be caused by any work activity”.
This means that the risk assessment should be detailed and cover all aspects of the workplace and the types of work being carried out.
In addition, there are extra duties where the employer employs women who are of an age at which they could have children.
Where this is the case, the risk assessment should include an assessment of any risk there would be to the health and safety of a new or expectant mother where the risks are from:
- any processes;
- any working conditions; or
- any physical, biological or chemical agents.
The employer should not wait for an employee to become pregnant or until it employs a new mother to include this in its risk assessment, it should be already included.
A chemical company uses chemicals that could cause a miscarriage.
As this is the case, as part of the employer’s general risk assessment, it should have identified this risk should any of its employees be or become new or expectant mothers.
Once the employer is notified of a woman’s pregnancy, it needs to take action to avoid the risk (see “Duties where there is a risk” below).
Who is classed as a “new mother”?
A new or expectant mother is a woman who is pregnant, who has given birth within the last 6 months or who is breastfeeding.
Duties where there is a risk
- Changing working conditions
If the risk assessment identifies a risk to a new or expectant mother, when the employer is notified (informed) by its employee that she is pregnant, has given birth or is breastfeeding, it must change the employee’s working conditions or hours of work to avoid any significant risk.
Using the example above, Karen works for the chemical company. She has written to her employer to say she is pregnant. Her employer should consider whether Karen can do her job in a different part of the workplace so that she is not exposed to the dangerous chemicals.
If changing an employee’s working conditions would not avoid the risk (or if it would not be reasonable for the employer to do this), the employer must offer the new or expectant mother alternative work on terms (such as hours and pay) which are not “substantially less favourable”.
This means the terms of the alternative role must be very similar and the Employment Appeal Tribunal decided in one case that pay should be pretty much the same even if it was previously made up of bonuses or allowances that would not be earned in the alternative role.
Karen needs to use the equipment in the labs where the dangerous chemicals might be being used. Therefore, her employer should see whether there is any different work she could do so she does not have to go into the labs. Her employer finds her office work to do. This is normally paid at a lower rate but her employer will have to pay Karen her normal salary.
Where the employer cannot offer the new or expectant mother alternative work, then it must suspend the employee on full pay. This means not allowing the employee to go to work but still paying her.
Karen’s employer has no office work she can do. In that situation, Karen would have to be suspended on full pay.
How should the employer be told that the employee is a new or expectant mother?
The employer only has to fulfil the above duties once the employee has written to them to inform them that she is a new or expectant mother (or is breastfeeding).
In a previous case, Truth Legal’s Georgina Parkin and Navya Shekhar, represented a cleaner who only verbally told her employer that she was pregnant. Her employer had failed to carry out a risk assessment and did not change our client’s duties to prevent her from being exposed to harmful chemicals. As a result of this failure, our client suffered a miscarriage.
Our client brought a claim against her employer for pregnancy discrimination and a settlement was reached out of court (see Settlement Agreements). We represented our client on a No Win, No Fee agreement.
However, given the law states that an employer should be notified in writing of the pregnancy and the fact it might be hard to prove that an employer has been told of the pregnancy if it is not done in writing, it is really important to put this information in a letter or email to the employer.
When should the employer be told?
It is up to the employee to decide when to tell her employer she is pregnant but as the employer does not have to take the above steps to avoid risks until it has been notified of the pregnancy in writing, it is better for the employee to inform her employer as soon as possible.
What claims can a new or expectant mother bring?
If an employer has not carried out a risk assessment or the risk assessment does not deal with risks to new or expectant mothers, the employee could bring a discrimination claim in the employment tribunal based on pregnancy or maternity. If the employee is breastfeeding, she could bring a discrimination claim based on sex. See Discrimination claims.
The employee might also have a detriment claim based on pregnancy or maternity if the employer deals with the health and safety issues incorrectly or unfairly.
In addition, if the employer has carried out a risk assessment and has suspended the employee but not paid her properly, she would also be able to bring a claim.
The employee would have to bring her claims within 3 months and comply with ACAS Early Conciliation.
With an honest and ethical approach to law, at Truth Legal you will have access to our specialist team of lawyers to help you with all your employment law matters. Our Head of Employment Law is Navya Shekhar, an employment law solicitor with over 10 years’ experience.
If you have any concerns about your treatment during your pregnancy, maternity leave or while you are breastfeeding – call us on 01423 788538 or contact us here.