FAQ's - Health and Safety and Maternity Rights

Who is covered under the health and safety and maternity rights?

It covers the protection of the health and safety of women of childbearing age, including new and expectant mothers. The terms "new and expectant mothers" includes women who:-

are pregnant;

have given birth within the last six months; or

who are breastfeeding.

Has an employer got to carry out a risk assessment?

Under the Management of Health and Safety at Work Regulations 1992 (as amended), all employers are required to assess risks to the health and safety of their employees and others, including risks to new and expectant mothers and their children.

What will happen if an employer fails to carry out a risk assessment?

If an employer fails to carry out a risk assessment, then a new and/or expectant mother may be able to claim unlawful sex discrimination.

I am an employer and I have carried out a risk assessment and have identified risks. What should I do now?

Information of the risks should be given to all women of childbearing age in the workplace. An explanation of what will be done to ensure that new and expectant mothers are not exposed to the risks that could cause them harm should be given. Employees of child bearing age should also be informed that written notification of pregnancy/breastfeeding should be given as soon as possible.

It is important that the hazards should be removed to prevent exposure to the risk. If that is not possible, then steps should be taken to remove or reduce the effect of the risk, for example, by providing an assistant or an aid to help with manual lifting duties.

There are three steps which should be followed in order to remove the employee from a risk:-

Temporarily adjust the employee's working conditions and/or hours of work. However, if it is not reasonable to do so, or doing so would not avoid the risk, then

You must offer her suitable alternative work if any is available. If this is not feasible then

Suspend her from work for as long as is necessary to protect her safety and health, or health of her child.

The measures taken to avoid the risk must continue for as long as the risk exists.

What is suitable alternative work?

Suitable alternative work must be:-

Both suitable and appropriate for her to do in the circumstances; and

On terms and conditions no less favourable than her normal terms and conditions.

What happens if the is no suitable alternative work?

If there is no suitable alternative work, then the employee must be suspended. An employee on maternity suspension is entitled to be paid remuneration (i.e. wages or salary) at her full normal rate for as long as the suspension continues.

What happens if the employee has refused alternative work?

If an employee refuses work on the basis that she thinks that it is not suitable, then the best advice is to sit down with her and discuss why she thinks it is not suitable. It could be the hours and therefore you would be advised to offer her alternative hours and/or flexible working. It would be better to have her in work for a majority percentage of her hours than none at all.

If she unreasonably refuses an offer of suitable alternative work, then no remuneration is payable for the period during which the offer applies.

If an employee is on maternity suspension, does this count towards her continuous employment?

Whilst an employee is on maternity suspension, this period counts towards her continuous employment for the purposes of assessing seniority, pension rights and other personal length-of-service payments e.g. pay increments.

Contractual benefits will continue as normal during the maternity suspension unless it has otherwise been mutually agreed between both parties.

Contact

Judith Ellery Head of Employment

Angelina Rigby Partner

Bethan Southcombe Solicitor

Related Issues

This article summarises the law on issues which we believe may be of interest to your business. It is not a comprehensive review of the subjects and accordingly is published without responsibility for loss occasioned to any person(s) acting or refraining from action as a result of information published. This document is provided for information only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.