Ensuring the health and safety of pregnant workers

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.

Risk assessments

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.

Written notice of pregnancy

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

Where an employee has not yet given notice

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).

Review of risk assessment

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.

Hazards

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.

Employees' right to paid time off for antenatal care

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.

Evidence of antenatal appointments

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.

Protection from dismissal/discrimination

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

Claims for unfair dismissal and unlawful discrimination

Unfair dismissal

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.

Sex discrimination

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 an employment tribunal can be very costly to your business.

The right to accompany partners to an antenatal appointment

Employees and agency workers who have a 'qualifying relationship' have a right to unpaid time off during working hours to accompany a pregnant woman to 2 antenatal appointments. The time off is limited to 6.5 hours for each attended appointment.

The right is available immediately to all employees who have a 'qualifying relationship' but agency workers have to fulfil certain pre-qualifying criteria.

Eligibility of agency workers

Before having the same rights as employees, an agency worker must have completed the 12-week qualifying period required by the Agency Workers Regulations 2010. During that time they must not have taken on a different role with the hirer or had a break between assignments.

What is the 'qualifying relationship'?

Your employees or agency workers will have a qualifying relationship if any of the following are true:

• They are the pregnant women's husband or civil partner.
• They live with an expectant mother in an enduring family relationship and are not her relative.
• They are the expected child's father.
• They are in a same-sex relationship and will be treated as the child's other parent under the assisted reproduction provisions in the Human Fertilisation and Embryology Act 2008 (HFEA).
• They intend to apply for a parental order under the HFEA 2008 for a child who is expected to be born to a surrogate mother. Both they and the other applicant must be a married couple, a couple in a civil partnership, or 2 people living in an enduring family relationship who are not related to each other. If a parental order has been granted, the child will be treated in law as the applicants' child.

Making the request

If you request to be notified before the employee or agency worker takes time off to attend an appointment, they must declare the following to you in writing (an email is fine):

• That they have a qualifying relationship with the pregnant women or expected child.
• That the purpose of taking the time off is to attend an antenatal appointment.
• That the appointment has been made on the advice of a registered doctor, registered midwife or registered nurse.
• The date and time of the appointment.

Protection from dismissal

You could refuse a request for time off where it is reasonable to do so. However there is no legal guidance on when it would be reasonable. Employees and agency workers have a right to start a tribunal claim if their right has been unreasonably refused.

A tribunal claim must normally be made within 3 months from the date of the refused appointment. If successful, damages will be awarded for the time they would have been absent for whilst attending the appointment, calculated at twice their hourly rate.

Employees will be able to claim automatic unfair dismissal where the primary reason for their dismissal is that they took time off to accompany a pregnant woman to an antenatal appointment. In addition, employees and agency workers are protected from being subjected to a detriment for taking time off to accompany a pregnant women to an antenatal appointment.