FREE CHAPTER from ‘A Practical Guide to the Law of Pregnancy and Maternity at Work’ by Rebecca Thomas

CHAPTER TWO – PROTECTION OF HEALTH AND SAFETY

Management of Health and Safety At Work Regulations

Employers, of course, have an obligation to ensure the Health and Safety of all of their employees as contained in the Management of Health and Safety at Work Regulations 1999 (“MHSWR 99”). In particular, under Reg. 3, an employer has an obligation to make a ‘suitable and sufficient’ assessment of the risks to the health and safety. However, the regulations in conjunction with the ERA 96, also contain specific provisions for the protection of new or expectant mothers. There are protections for both employees and agency workers.

Reg. 16 MHSWR 99 requires that, where the persons working in an undertaking include women of child-bearing age; and the work could involve a risk to a new or expectant mother, or her baby, the risk assessment required by Reg. 3(1) shall include an assessment of those risks. Reg. 16(2) provides that if the taking of action by the employer will not avoid the risk identified then the employer shall, if reasonable to do so, and it would avoid such risks, alter her working conditions or hours of work. Reg. 16A(1) contains the same obligation in respect of agency workers.


Suspension of employees

If it is not reasonable to alter working conditions or hours of work, or it would not avoid the risk, then the employer shall suspend the employee from work for as long as necessary to so to avoid the risk Reg. 16(3). Part VII ERA 96 makes specific provision for suspension from work. S66 provides that an employee is suspended from work on maternity grounds if because of a relevant requirement or recommendation she is suspended on the grounds she is;

  • Pregnant
  • Has recently given birth; or
  • Is breastfeeding

Reg. 16(3) is a relevant requirement.

Reg. 16(3) is expressly subject to s67 ERA 96 which gives an employee rights to be offered alternative work. If an employer has suitable alternative work available the employee has the right to be offered if before being suspended. For the work to be suitable for the purposes of this section it must be:

  • Of a kind which is both suitable in relation to her and appropriate in the circumstances; and
  • If the terms and conditions differ from the terms and conditions for the work she normally undertakes they should must not be substantially less favourable.

Under s68 an employee who is suspended on maternity grounds is entitled to be paid unless she has been offered suitable alternative work and she has unreasonably refused to undertake that work.

Reg. 17 specifically deals with employees who are night workers. New or expectant mothers who work nights and have a certificate from a medical practitioner or midwife that shows it is necessary for her health and safety that she should not be at work for any period identified in the certificate, should be suspended by her employer. The provisions of s67 and 68 apply equally to suspensions under Reg. 17.

Agency Workers

The Regulations in relation to agency workers differ. If it is not possible to alter the working conditions or hours of work of an agency worker, or such actions wouldn’t avoid the risk, then the hirer must inform the temporary work agency who shall end the supply of the agency worker, Reg. 16A. The supply of the agency worker shall also be ended if she is a night worker and a medical practitioner or midwife supplies a certificate in the terms discussed above Reg. 17A. The ending of an assignment under Reg. 16A or 17A will be the ending of the supply of an agency worker on maternity grounds for the purposes of s68A ERA 96.

Agency workers whose supply is ended on maternity grounds within the meaning of s68A have the right to the offer of alternative work from the temporary work agency, s68B. As well as similar rights as those contained in s67, as to the suitability of work and the terms and conditions not being substantially less favourable. S68B provides that an agency worker does not have such a right where;

  • She has confirmed in writing that she no longer requires the work finding service of the agency; or
  • It is beyond the original intended duration, or likely duration, whichever is longer, of the original assignment

Under s68C, agency workers are entitled to be paid by the temporary work agency unless the agency has offered to propose the agency worker to a hirer which has suitable alternative work available within the meaning of s68B or, has proposed the agency worker to a hirer that has such suitable alternative work and the hirer has agreed to the supply of that agency worker and the worker has unreasonably refused the offer.

It is important to note that the rights under s68A -68C do not apply if an agency worker has not completed the qualifying period within the meaning of Reg 7. AWR 10 (12 weeks) or is no longer entitled to the rights contained in Reg 5 AWR 10 pursuant to Reg 8(a) or (b). For discussion of the AWR 10 and in particular the qualifying period see Chapter 1.


Notice Requirements

Reg. 18 MHSWR 99 contains important caveats in relation to the obligations under Reg. 16 and 17 for employees.

Firstly, there is no obligation for an employer to take action by altering working conditions or suspending an employee under Reg. 16(2) & (3) or Reg. 17 unless the employee has notified the employer in writing that she is pregnant, has given birth in the last 6 months or is breast feeding.

Secondly, there is no obligation to maintain any action under Reg 16(2) & (3) or Reg 17;

  • Where Reg 16(2) or (3) applies; and where, having informed her employer that she is pregnant, she has failed within a reasonable period of time after being requested, to produce a certificate from a medical practitioner or a midwife confirming that she is pregnant
  • Once an employer knows that the woman is no longer a new or expectant mother
  • If the employer cannot establish whether the woman remains a new or expectant mother

Reg. 18A deals with the equivalent notice requirements for agency workers.

 

Health and Safety Executive

The HSE have provided a guidance and a flowchart to assist employers in complying with their H&S obligations in relation to new and expectant mothers. It is worth reading the document in its entirety, but the following key points can be drawn from it;

  • When you are informed that an employee or worker is a new or expectant mother conduct an individual risk assessment.
  • Discuss that individual risk assessment with the new or expectant mother.
  • Consult with any H&S rep or trade union representative.
  • Regularly review the risk assessment.

The guidance also provides examples of the types of common risks to new and expectant mothers which include:

  • Posture and Position;
    • Sitting or standing for long periods
    • Carrying heavy loads
  • Working conditions;
    • Stress at work
    • Temperature
    • Noise
  • Risk of physical injury;
    • Working at height
    • Working alone
    • Risk of violence
    • Vibrations
  • Exposure to harmful substances


Complaints to the Employment Tribunal

Under S70 ERA 96, the employment tribunal has jurisdiction to hear complaints from employees that the employer has failed to offer them work under s67 or to pay them while suspended as required under s68. Under s70A the tribunal has equivalent jurisdiction to hear complaints brought by agency workers.

A claim under s70 or s70A is subject to the requirements of early conciliation and, subject to any extension under those provisions, the time limit is three months beginning with either the failure to pay, in a remuneration claim or, the first day of the suspension in a case of a failure to offer work. The three-month time limit is subject to the reasonable practicability test (s70(5)(b)/70A(5)(b).

The remedy for a failure to pay is the amount of remuneration that the Tribunal finds is due and, in a failure to offer work case, the tribunal shall award an amount of compensation it considers just and equitable having regard to:

  • The infringement of the employee/ agency worker’s right
  • Any loss sustained by the employee/ agency worker which is attributable to the failure.

In addition to the above claims breach of obligations to ensure the health and safety of a pregnant employee might form the basis for a discrimination claim under the Equality Act (see Chapter 8) or a detriment claim (See Chapter 6).

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