An employer’s guide to dealing with pregnant employees: Sickness & Risk

Pregnancy Risk Assessment

Contrary to popular belief there is no legal obligation upon you as an employer to carry out a specific risk assessment for a pregnant employee.

Employers are required to protect the health and safety of all employees which includes undertaking a risk assessment of possible risks in the workplace. If you are an employer who employs women of child bearing age then you have an obligation to include in your risk assessment an assessment of the risks to pregnant employees, even before you have any pregnant employees.

This means that you should include considerations relating to pregnant employees when you undertake your normal risk assessments. This should be recorded in writing and a note made of any specific risks for pregnant employees.

You have a legal obligation to undertake a specific risk assessment for a pregnant employee where the work they undertake is of a kind which could involve a special risk to a new or expectant mother or her baby.

My recommendation however is that you also undertake a risk assessment for each individual employee who notifies you that they are pregnant. It need not be a full formal risk assessment, but some time should be spent with the employee and consideration given to the potential risks to them. In my view this is good employer practice and may identify any particular issues or points that you should be aware of.

Clearly if your employee works in an environment where there is a higher safety risk anyway your risk assessment will need to be fuller and more in-depth compared to someone who works in an office at a desk for example.

The HSE identify the following possible risks for pregnant employees which you should take into account:

Physical agents

• Movements and postures
• Manual handling
• Shocks and vibrations
• Noise
• Radiation (ionising and non-ionising)
• Compressed air and diving
• Underground mining work

Biological agents

• Infectious diseases

Chemical agents

• Toxic chemicals
• Mercury
• Antimitotic (cytotoxic) drugs
• Pesticides
• Carbon monoxide
• Lead

Working conditions

• Facilities (including rest rooms)
• Mental and physical fatigue, working hours
• Stress (including post-natal depression)
• Passive smoking
• Temperature
• Working with visual display units (VDUs)
• Working alone
• Working at height
• Travelling
• Violence
• Personal protective equipment
• Nutrition

(The list has been taken from  http://www.hse.gov.uk/mothers/faqs.htm )

You can also find lots of helpful free information and guidance on health and safety for expectant mothers here: http://www.hse.gov.uk/mothers/index.htm

Suitable alternatives for the employee

If you identify that there are risks to the employee and/or her unborn child then you have an obligation to make alterations to the job role, working conditions, hours or anything else that will reduce and/or remove the risk.

If making changes to the employees existing job role will not be sufficient then you have an obligation to look for a suitable alternative role in the business. If there is a suitable alternative, then the terms and conditions applicable should not be substantially less favourable to the employee than her existing terms.

What happens if the risk is too high & there are no suitable alternatives?

If you identify that the employee’s job role puts her and/or her unborn child at significant risk and there are no alternatives (or the employee reasonably refuses an alternative role) you can suspend the employee on maternity grounds on her normal weeks’ pay until her maternity leave starts.

If the employee unreasonably refuses an alternative role then she would not be entitled to be paid during the maternity suspension.

I recommend that you seek advice if you find yourself in a situation with an employee who is pregnant and has a high risk at work.

Employee sickness during pregnancy

It can often be the case that pregnant employees have periods of sickness absence due to their pregnancy and it can be difficult to manage the situation. Of course, no two women are the same during their pregnancy and where one employee may work consistently with no problems at all you may find another employee has constant ill health or complications. The key is to be patient and treat the employee fairly and with compassion.

I understand that it can be stressful for you and colleagues in continually covering for the pregnant employee and not knowing from one day to the next if they are actually going to show up, but you need to take care not to treat the employee badly as a result of your frustrations.

Employees who are pregnant have additional protection from unfavourable treatment because of a pregnancy related illness, and any unfavourable treatment will constitute pregnancy and maternity discrimination and any dismissal of an employee because of pregnancy related illness will be automatically unfair.

So, what can you do?

It is important to establish the real reason for the employee’s absence(s) and if it is related to pregnancy or something else. The starting point is to talk to the employee and find out what the problems are and then if necessary ask the employee to obtain details from her GP or Midwife. If you cannot establish the information from the employee directly then it is advisable to contact their GP or medical professional (with the employees’ permission of course).

If the employee’s sickness absence is actually unrelated to pregnancy, then you can treat it in the same way as you would any other absence and follow your internal procedures accordingly.

If, however the sickness absence is pregnancy related then my advice is to either ignore this absence in any sickness procedures or scoring you use, and/or make adjustments to your processes to ensure that the employee is not at a detriment as a result of her pregnancy.

Starting maternity leave early

It is important to establish the real reason for the employee’s absence(s) and if it is related to pregnancy or something else. The starting point is to talk to the employee and find out what the problems are and then if necessary ask the employee to obtain details from her GP or Midwife. If you cannot establish the information from the employee directly then it is advisable to contact their GP or medical professional (with the employees’ permission of course).

Please feel free to leave a comment, question or observation below. Alternatively get in touch directly: hello@realemploymentlawadvice.co.uk

This article was written and researched by Alison Colley, Solicitor and Director at Real Employment Law Advice.

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