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Sunday 25 September 2016
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More maternity rights

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 [1999] 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:

 

  • Physical agents regarded as causing foetal lesions and/or likely to disrupt placental attachment, particularly:

 

- 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.

 

  • Handling of loads entailing risks: pregnant employees are particularly susceptible to risk from manual handling activities, as are those who have recently given birth, especially after a caesarean section. Employers should, therefore, conduct manual handling assessments quite specifically for these employees, and this should be done in accordance with the normal risk assessments for manual handling, although the assessment should be adapted especially for those who are new or expectant mothers.
  • Noise: the Health and Safety Executive does not consider that there are any specific risks from noise for new or expectant mothers. The assessment should, nonetheless, be conducted in accordance with the current regulations dealing with control of noise at work.
  • Ionising radiation: the foetus may be harmed by exposure to ionising radiation, including that from radioactive materials inhaled or ingested by the mother. Regulations dealing with ionising radiation set specific limits for the abdomen of any woman of reproductive capacity, and also contain specific requirements regarding providing information to female employees who may become pregnant or commence breastfeeding. Employers should ensure that any systems of work are such as to keep exposure of pregnant women to radiation from all sources as low as is reasonably practical. Surgeries might wish to consider that contamination of the skin of new or expectant mothers or those who are breastfeeding with radioactive substances can create risks for mother and child, and special precautions may be needed to avoid any such possibility.
  • Non-ionising radiation.
  • Extremes of cold or heat: pregnant employees are less tolerant of heat and may be more prone to fainting or heat stress. Although any such risk is likely to reduce after birth, dehydration may impair breastfeeding. Exposure to prolonged heat at work should be avoided. Maintenance or cleaning work in hot situations should also be avoided, particularly if this involves the use of less secure forms of access such as ladders, where fainting could result in a serious fall. The HSE has stated it does not consider that there are any specific problems from working in extreme cold although, obviously, appropriate precautions should be taken as they would be for other employees. It is unlikely this will be a serious problem within any surgery.
  • Movements and postures, including travelling either inside or outside the establishment, mental and physical fatigue, and other physical burdens connected with the activity of new or expectant mothers. Fatigue from standing and other physical work has been associated with miscarriage, premature birth and low birth weight. Such considerations will increase as the pregnancy advances and these could be affected by display screen equipment work stations, work in restricted spaces, and various other types of work. Driving for extended periods may also present postural problems. The risk assessment is likely to show that a pregnant employee should be allowed to pace her work appropriately, taking longer and more frequent breaks.  The employee may need to be restricted from carrying out certain tasks, and it may be necessary for the surgery to provide appropriate seating for work that might normally be undertaken while standing. Adjustments might also need to be made to display screen equipment and other work stations.Excessive physical or mental pressure could cause stress and lead to anxiety and raised blood pressure. The workload of a pregnant employee should be considered, along with the pressure of decision-making and, within surgeries, the trauma of potential work situations.
  • Biological agents of hazard groups 2, 3 and 4, as set out in the EU Biological Agents Directive (number 90/679), so far as it is known that these agents, or the therapeutic measures necessitated by these agents, endanger the health of pregnant women and unborn children. Some agents are so dangerous they can cause abortion of the foetus or, alternatively, extreme physical or neurological damage. Surgeries should also keep in mind that a number of infections might be passed on from the mother to her child, for example, while breastfeeding. The law has identified certain agents which present particular risks to children. These include hepatitis B, HIV, herpes, TB, syphilis, chicken pox, typhoid, rubella, cytomegalovirus and chlamydia in sheep. It is important to appreciate that most pregnant or breastfeeding employees will be at no more risk from these agents at work than living within the community, but, within a surgery, the risks are likely to be far higher. Those conducting risk assessments should give specific consideration to the appropriate guidance and  publications, for example, the Control of Substances Hazardous to Health (COSHH) regulations. The HSE provides a specific publication dealing with infection risks to new and expectant mothers. Consideration should always be given to taking precautions and, in some circumstances, to suspending the employee.
  • Chemical agents: many types of hazardous substances are labelled under regulations.  Care should also be taken in respect of the COSHH regulations. Of concern may be the following:

 

- 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.

 

  • Mercury and mercury derivatives: the HSE states that exposure to organic mercury compounds can slow the growth of the unborn baby, disrupt the nervous system and cause the mother to be poisoned. It considers that there is no clear evidence of adverse effects on the foetus from mercury itself and in organic mercury compounds. Mercury and its derivatives are subject to the COSHH regulations.
  • Anti-mitotic drugs – also known as cytotoxic drugs: these drugs (which may be inhaled or absorbed through the skin) can cause genetic damage to sperm and eggs and some can cause cancer. The dangers of these drugs have been realised, and are often prescribed by hospitals and/or subject to barrier nursing. However, if any surgery workers are involved in the preparation or administration of such drugs, or the disposal of chemical or human waste, they are normally considered to be at great risk. 
  • Carbon monoxide: exposure of pregnant women to carbon monoxide can cause the foetus to be starved of oxygen with the level and duration of exposure both being important factors. The COSHH regulations stipulate it is important to protect all members of the workforce from high levels of carbon monoxide.
  • Chemical agents of known and dangerous percutaneous absorption: various chemicals may be absorbed through the skin causing adverse effects. Several drugs can  cause problems in these areas, and it may be necessary for additional precautions to be taken in respect of new or expectant mothers. These might include modified handling methods, additional personal protective equipment or, quite possibly, a bar on any activities involving exposure to such substances.

 

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 execoffice@lawforbusness.co.uk