In the Spring and Summer issues of Management in Practice, I wrote a two-part article about maternity rights, flexible working and indirect sex discrimination.
This article is about some of the special health and safety rights which arise in respect of maternity. It will look at the special risk assessments that apply and the avoidance measures that might have to be put in place. People should bear in mind that these issues may be of considerable importance when looking at the ‘personnel’ type issues to be found in the care quality commission (CQC)’s outcomes 12, 13 and 14.
Matters are dealt with under the EU Pregnant Workers’ Directive (EU 92/85) and, within this country, under the Management of Health and Safety at Work Regulations 1999.
Under the regulations, a surgery should conduct a risk assessment of new or expectant mothers. This is defined as a person who is pregnant, one who has recently given birth (that is, within the last six months) or one who is breastfeeding.
Most employers are of the view that the risk assessment will therefore need to be conducted only when the employee advises the employer that she is pregnant, or assuming that she joins the employer after the pregnancy, that she has given birth within the previous six months or is breastfeeding.
This is incorrect. The regulations provide that a risk assessment must be undertaken in respect of those who are of childbearing age. The risk assessment does not arise on the notification of the pregnancy, but simply as a result of employing a female of childbearing age within the surgery. This is specified under the regulations, and there is clear case law to this effect.
In one case (Day v Pickles Farms Ltd  IRLR 217) the employee worked as a shop assistant in a shop providing food, in particular roasting chickens to then be sliced into sandwiches and sold in the shop. The employee suffered particularly badly with morning sickness and found the smell and handling of the food exceptionally nauseating. As a result of this, she was signed off sick by her GP, and then did not return to work after the birth of her child.
The matter reached the employment appeal tribunal (EAT), and it was held that the employer should not only have carried out a ‘standard’ health and safety risk assessment, but also a special risk assessment under the maternity and health and safety provisions. This should have been done, at the very latest, at the commencement of Ms Day’s employment.
The EAT was of the view that the duty to undertake the special maternity risk assessment did not arise when the employee advised her employer that she was pregnant but, instead, became a requirement simply on the basis of employing females of childbearing age within the company.
It should be kept in mind that, frequently, an employee may not know she is pregnant and, even if she does, she may not advise her employer in the very early stages of her pregnancy that this is the case. It is perhaps in those early stages that the risks to the unborn child may be at their greatest, and that is why the risk assessment should have been carried out before any such triggering event, such as the employee advising the employer that she was pregnant.
A failure to carry out this special type of risk assessment can create many problems for the employee. Firstly, any such failure is likely to amount to sex discrimination. Secondly, as the risk assessment is required under a statutory instrument, a surgery’s failure to carry out such a risk assessment could entitle the employee to bring a claim against the surgery for breach of statutory duty. Thirdly, there is the risk of a breach of the Health and Safety at Work Act 1974, which could result in a criminal prosecution.
Depending upon how effective the CQC inspections are, this is also something a keen CQC inspector might pick up on in the various health and safety duties owed to employees.
What should a surgery look for when undertaking its special health and safety risk assessment with regard to those of childbearing age?
In broad terms, the employer should consider physical agents, biological agents, chemical agents, industrial processes, and underground mining work. Unless you are running a most bizarre surgery, it is likely that there will be few industrial processes and, in spite of the many changes to the NHS, the author is not aware that underground mining work has become one of the government’s latest ideas for health improvement!
There are one or two other requirements, and they will be dealt with later in this article.
The regulations go into somewhat greater detail, and the risk assessment should cover the following:
- Shocks, vibrations or movement.
- Major physical shocks or regular exposure to lesser shocks or low frequency vibration may increase the risk of a miscarriage. Activities involving any such risks should be avoided by pregnant women.
Readers may consider a strange example of this to be a nurse or salaried GP who is required to undertake visits and who does so in a rural area served by the practice. The use of off-road vehicles on uneven ground has been identified as a risk factor. Specific reference may need to be had to the current vibration at work regulations.
- R40 – limited evidence of a carcinogenic effect.
- R45 – may cause cancer.
- R46 – may cause heritable genetic damage.
- R49 – may cause cancer by inhalation.
- R61 – may cause harm to the unborn child.
- R63 – possible risk of harm to the unborn child.
- R64 – may cause harm to breastfed babies.
- R68 – possible risk of irreversible effects.
As if all the above were not enough, regulation 16 deals with infectious or contagious diseases. These may fall within some of the other agents, but, within a surgery, there is a particular onus upon the employer to evaluate the risks that might arise from infectious or contagious diseases because of the very nature of the work. It should be noted that exposure to rubella virus is prohibited unless the employee has been adequately immunised.
It seems unlikely that any surgery would be able to conduct a risk assessment and find that the employee was not at risk of some potential hazards. The European Commission has provided a long list of examples, several of which I have mentioned above. Most notable are long working hours, working alone, lack of rest and other welfare facilities, manual handling of loads, early shift work, prolonged standing or sitting, fatigue and stress.
It is wise for a surgery to conduct a general risk assessment and for that risk assessment to be further refined for departments and individuals. The risks to salaried GPs and nursing staff are likely to be far greater, at least under some of the potential hazards, than for someone who works in a back office. After the person has advised the surgery that she is pregnant, breastfeeding, etc, it would be wise to conduct a further risk assessment, and that should be taken with the individual herself. Indeed, a failure to consult individually with employees has been held to be an inadequate assessment, and thus capable of amounting to sex discrimination.
The longer the employee remains at work while pregnant, or perhaps the greater her complications, the more likely it is that the risk assessment will need to be carried out on a frequent and regular basis.
It is imperative for employers to keep full records of these assessments, and details of the assessment should be given to all those concerned.
It is wise (although not essential) to provide details of the risk assessment to female members of staff. If the risk assessments reveal any risk to prospective mothers, new or expectant mothers or their babies, measures must be put in place to deal with those risks.
As with any other type of risk assessment, the starting point should be avoiding the risk altogether. If that is not something which is feasible, then the surgery should consider what reasonable precautions it can take. However, in the case of any risks identified under this special type of maternity risk assessment, the surgery is required, under the regulations, to approach the matter somewhat differently to normal health and safety requirements.
There is a need to follow a strict process, and to follow it in order. The first thing the employer might have to do is to consider temporarily adjusting the employee’s conditions or hours of work. If that would not work, or would not be reasonable, then the employer must consider providing the employee with suitable alternative work. If this is not possible, then the surgery will be required to suspend the employee on maternity grounds.
Each of these matters are addressed below:
It is more than possible that, following the risk assessment, the surgery may have to consider altering the working conditions or hours of an employee.
This could involve many types of change, such as altering the employee’s duties or hours, extending her probationary period, reducing her output requirements, allowing her to start later, permitting her to work from home and providing her with more breaks. These are merely illustrative examples.
There is a specific requirement (under other regulations) for an employer to provide suitable facilities for a pregnant employee to rest, and the HSE has previously provided guidance that new or expectant mothers should be provided with facilities where they can lie down.
Should the employee’s hours be reduced, for example, from 30 hours to 15 hours per week, then the employee will continue to receive her pay for her original hours.
As I have mentioned above, if the amendment to the employee’s hours or conditions would not be reasonable or would not work as a means of preventing or avoiding the risk, then the employer is required to move, in step, to the consideration of suitable alternative work.
The suitable alternative work must be of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances. Further, any terms and conditions which apply to the employee in the undertaking of suitable alternative work, should not be substantially less favourable than those which applied to her previously under her contract.
Caution should be exercised with any change on this basis, and the employee’s pay, status and location are all potential areas for claim, should they differ from her previous terms and conditions. If the risk can not be avoided as a result of suitable alternative work, the regulations provide that the surgery must suspend the employee from work for so long as is necessary to avoid the risk.
The requirement to alter an employee’s working hours or conditions, or to suspend her on maternity grounds does not arise unless and until she has provided the employer with written notice that she is pregnant, that she has recently given birth (that is, within the last six months) or that she is breastfeeding.
If this suspension is exercised, the employee is entitled to receive her pay during the period of suspension. It should be appreciated that this suspension does not mean that the employee’s contract of employment has come to an end, or that she is anything other than an employee.
While many employers are entirely unfamiliar with these rights, it is hoped that this article will prove a starting point (if not more) for those who read it.
Darius Ferrigno is a Barrister and member of the Employment Lawyers’ Association. He is currently providing a significant number of seminars around the country to GPs and Practice Managers, especially in the areas of ‘CQC Outcomes 12, 13, and 14’; ‘Managing Absence’; ‘Discipline, Dismissal, and Grievance’; ‘Changing Contracts of Employment’; ‘Health and Safety at Work Law’; and, other general employment law seminars. He can be contacted, via his assistant, on 01453 890 984 or firstname.lastname@example.org