Under the Health and Safety at Work (Northern Ireland) Order 1978, and related regulations, all employers have a duty to protect the health and safety of their employees in the workplace. This duty is enhanced in relation to expectant and new mothers, while also protecting employees of childbearing age.

 

As part of your health and safety obligations, you must regularly carry out “suitable and sufficient” risk assessments, as standard procedure, to consider whether any work is likely to present a particular risk to women of childbearing age. In line with your obligations as an employer, you should have an existing risk assessment already within the workplace.

 

Let’s take as an example a care worker who is pregnant and starts to struggle with their duties and long hours as a result. In this instance you should review your current risk assessment due to the employee’s change in circumstances. A pregnancy risk assessment will identify whether any adjustments are required to protect the employee and her unborn baby’s health, as well as ensuring a safe, comfortable, and productive work environment for the employee.

 

It is advisable to involve the employee in the process and keep the assessment under review for the duration of the employee’s pregnancy, as further adjustments may be required as the pregnancy progresses. It is important to consider any medical recommendations provided by the employee’s GP or midwife in any risk assessment. You should make sure that any risk assessment is aligned to your industry, taking into account the employee’s job duties as a Care Assistant.

 

If risks are identified following the risk assessment, you should take appropriate steps to remove the risk or stop the employee being exposed to the risk, for example, by altering the employee’s working conditions, duties or hours of work. The employee should not work more than 8 hours a day, and if the employee feels tired at work, she should be excused from work to rest. Does the employee work shifts as a Care Assistant? If so, how long are they and are they worked during the day or night? Shift work (especially night shift) can have a significant effect on the health of new, expectant and breastfeeding mothers. As part of your assessment, you should therefore consider whether it is possible to move the employee to work during the day. You could also make a temporary adjustment to her working hours, including the timing and frequency of rest breaks (additional breaks may be required depending on the employee’s needs) but again all of this should be undertaken in consultation with the employee. Your approach will depend on your business requirements and options available at the time.

 

If it is not possible to alter her working conditions or hours, or where such changes would not be sufficient to avoid an identified risk, you should offer the employee suitable alternative work on terms that are not “substantially less favourable” to her existing terms. You should make sure that any alternative work, if available, is not unsuitable, as this creates a risk of discrimination on grounds of sex and pregnancy.

 

Depending on business requirements, if it is not possible to offer the employee suitable alternative work, or the employee reasonably refuses it, you may have to suspend the employee on full pay for the duration of her pregnancy/as long as is necessary to avoid the risk. You should not move to suspend the employee before consulting with her and offering alternative work if possible.
Changing duties or suspending the employee because she is pregnant could amount to unlawful discrimination or detriment, unless you can demonstrate that the treatment is necessary and proportionate for health and safety reasons. Each case will differ and careful consideration of the facts will be required before you take any action.

 

You should be aware that failure to carry out a risk assessment in respect of a pregnant employee, could amount to discrimination on grounds of sex and pregnancy.

 

There are many workplace factors that can impact pregnancy at any stage, and in the most serious cases, could increase the likelihood of premature birth or miscarriage. The most common risks include; standing or sitting for long periods, lifting or carrying heavy loads, periods of exertion, working long hours, work related stress, working at height, lone-working and so on. Associated risks will depend on the industry and some jobs may include higher risk. You may need to seek external advice. You should fully document your considerations and discussions with the employee.

 

The  article was provided by Tughans employment team. Should anyone have any queries about employment related issued please contact Patricia Rooney or Emma Doherty.  For enquiries relating to Health and Safety Regulatory issues please contact Kathy McGillie or Pauline Walker for advice in this area.

 

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.