This Q&A takes a look at some of the obligations employers face when assessing workplace health and safety risks for new and expectant mothers.
Q: When do the obligations kick in?
A: An employer must assess whether more needs to be done to avoid risks to new and expectant mothers once an employee:
– gives written notice that she is pregnant
– has given birth within the last six months
– is breastfeeding.
Q: What should an employer do in this situation?
A: The employer must consider whether measures taken to avoid risks identified by a general risk assessment will sufficiently avoid risks to an individual employee who is a new or expectant mother. If the answer is no, the employer must then take additional action to avoid these risks, by changing some aspect of her working conditions or hours of work, offering her suitable alternative employment or, as a last resort, suspending her on full pay.
Q: What if the employer fails to carry out a risk assessment?
A: An employer’s failure to carry out a risk assessment when required will entitle an employee to claim damages for breach of a statutory duty. In addition, the employer could be prosecuted under the criminal law. It is also the case that the failure to carry out a risk assessment can itself amount to sex or pregnancy discrimination. Any dismissal in these circumstances will almost certainly be automatically unfair provided the reason or principal reason for the dismissal is related to the pregnancy.
Q: What records must an employer keep?
A: Once an assessment has been carried out, employers with five or more employees must record the significant findings and any group of employees identified as being especially at risk. This report is not part of the risk assessment itself, which does not necessarily have to be in writing (although we would strongly advise that it is).
Q: Once the risk assessment is completed and a report made, is there anything else an employer should do?
A: An employer should review a risk assessment if: there is reason to suspect that it is no longer valid; or there has been a significant change in the matters to which it relates. Where, as a result of such a review, changes to an assessment are required, the employer must make them.
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