Pregnancy at work

Contents

1. Ensuring the health and safety of pregnant workers 1.1. Risk assessments 1.2. Written notice of pregnancy 1.3. Where an employee has not yet given notice 1.4. Review of risk assessment 1.5. Hazards 2. Employees' right to paid time off for antenatal care 2.1. Evidence of antenatal appointments 2.2. Protection from dismissal/discrimination 3. Claims for unfair dismissal and unlawful discrimination 3.1. Unfair dismissal 3.2. Sex discrimination

In addition to your general duties to the health and safety of your workers, you have an additional legal duty to protect the health and safety of all women of child bearing age and pregnant mothers at work. This includes workers who could be pregnant as well as those who you know are pregnant.

You should carry out a specific health and safety risk assessment taking both preventive and protective measures for female workers in this group.

You should take all reasonable and practical steps to:

• Avoid risks, such as removing or preventing exposure to the hazards
• Reduce or remove any unavoidable risks
• Adapt the workplace or equipment for a worker
• Develop an overall prevention policy covering such matters as work conditions, working environment and organisation of work

Some substances, processes and working conditions may affect human fertility as well as pose a risk to a pregnant worker and/or her unborn child. Therefore, you must think about the health of women of childbearing age (whether or not they are pregnant), not just those who have told you that they are pregnant.

In particular, you should undertake a risk assessment if there is a possibility of exposure to any of the following risks:

• Physical agents such as shock, vibration or movement, manual handling, travel, mental and physical fatigue or other physical burdens, excessive mental or physical pressure, extremes of temperature or pressure
• Biological agents such as HIV, hepatitis B, typhoid, chickenpox, rubella etc.
• Chemical agents such as any substances that may cause an irreversible effect, cause cancer or a heritable genetic damage, carcinogenic agents, drugs or dangerous chemicals which may be absorbed through the skin, mercury and mercury derivatives, carbon monoxide and lead or lead derivatives

This list is not exhaustive.

You have a specific duty to prevent a new or expectant mother from being exposed to a risk provided that she has given you written notification that she is pregnant, has given birth within the last six months or is breastfeeding.

You may consider encouraging workers, e.g. via your maternity policy or employee handbook, to notify you as soon as possible if they become pregnant. This is so you can identify if any further action is needed.

You are required by law to provide somewhere for pregnant and breastfeeding mothers to rest.

It is also good practice to provide a private room for nursing mothers to express and store breast milk. Toilet facilities are not suitable for this purpose.

You are entitled to ask a pregnant worker to provide, within a reasonable time, a written certificate from a registered medical practitioner or a registered midwife showing that she is pregnant.

Note that you do not have an obligation to protect a worker or her child until she gives you the written notification that she is pregnant, has given birth within the last six months or is breastfeeding. This will include:

• Taking any action in relation to a particular pregnant worker's health and safety
• Maintaining any action in relation to her where she has failed to give you the certificate within a reasonable period of time - although you must have requested in writing to see the certificate

Although you do not have any legal obligation to protect a worker and her unborn child until she has notified you of her pregnancy, it is good practice to do a risk assessment for her if you become aware that she is pregnant (and she has not yet formally notified you).

Once a worker notifies you she is pregnant, you should review the risk assessment for her specific work and identify any changes that are necessary to protect her health and that of her unborn baby. Involve the worker in the process and review the assessment as her pregnancy progresses to see if any further adjustments are needed.

Things that might be hazardous to pregnant workers in particular include:

• Long hours
• Night-time working
• Stress
• Noise
• Violence from customers
• Exposure to toxic substances, e.g. lead, pesticides, mercury
• Radiation
• Manual handling

If you identify a hazard to a pregnant worker, you must take steps to remove it, e.g. by adjusting working conditions or working hours.

If this cannot be done, you can offer her a suitable alternative job, if available.

If a suitable alternative position is not available or if it is refused by the worker then so long as the risk is not remote and it remains necessary to protect the worker's (or her child's) health or safety, you should suspend the worker on full pay for as long as the risk to her and/or her unborn child remains. This should not be done lightly and you must ensure that all possible adjustments to minimise the risks have been considered and are found to be unreasonable or unsuitable in the circumstances.

A worker is not entitled to receive her pay whilst on suspension if she has unreasonably refused a suitable alternative job.

All pregnant employees have the right to paid time off to attend antenatal care appointments. Antenatal care covers not only medical examinations, but also, for example, relaxation classes and parent craft classes.

However, the right to time off only applies if the appointment is advised by a midwife, health visitor or registered medical practitioner.

You are entitled to ask for evidence of antenatal appointments - except in the case of the very first appointment.

You can request that the employee shows you:

• Written documentation from a registered medical practitioner, a midwife or a health visitor confirming that she is pregnant
• An appointment card or some other document showing that an appointment has been made

You must pay the employee her normal hourly rate during the period of time off for antenatal care.

A pregnant employee could bring an unlawful discrimination and/or unfair dismissal claim to a tribunal if you:

• Dismiss her or treat her unfairly because she tried to exercise her right to time off for antenatal care
• Unreasonably refuse her time off for antenatal care
• Refuse to pay her normal rate of pay during such time off

A dismissal (or selection for redundancy) is automatically unfair if you dismiss, or select an employee solely or mainly:

• For a reason relating to her pregnancy or maternity leave
• Because she tried to assert her right to paid time off for antenatal care

Only employees can claim unfair dismissal, but all workers can claim unlawful sex discrimination if they are dismissed for a reason relating to their pregnancy.

You must not treat a worker less favourably because she is pregnant as it may result in a claim of sex discrimination. Such treatment includes dismissal.

It amounts to unlawful sex discrimination if you:

• Treat a pregnant worker less favourably for a reason related to her pregnancy
• Dismiss or select a pregnant worker for redundancy solely or mainly for a reason related to her pregnancy
• Dismiss or select a pregnant employee for redundancy solely or mainly because she tried to assert her right to paid time off for antenatal care
• Refuse to interview or employ a job applicant solely or mainly on the grounds that she is pregnant (or you believe that she may be, or may become, pregnant)

You can never justify this type of discrimination.

As pregnancy-related dismissals are discriminatory, it is likely that a pregnant employee would not only claim unfair dismissal but also unlawful sex discrimination. It is important to note that while there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no cap in unlawful discrimination cases, which means any case brought before employment tribunal can be very costly to your business.