Pregnancy and Breast Feeding – The Employer's 5 Key Health & Safety obligations
Employers often lack some of the knowledge to help them treat mothers fairly. This was among the findings of the recent research by the Equality and Human Rights Commission (EHRC) and prompted the launch this month of its initiative called ‘Working Forward – supporting pregnancy and maternity rights.’ This article focuses on one part of that jigsaw, name the employer's health and safety obligations to pregnant women and breast feeding mothers.
Meanwhile the recent ET finding of indirect sex discrimination against Easyjet is a reminder of the employment law consequences of failing to comply. The Bristol tribunal found that easyJet’s failure to limit the duty days of two cabin crew to 8 hours to allow them to express milk or to offer them ground duties whilst they continued to breastfeed was discriminatory. The employees were supported by Unite Legal Services whose summary of the case is found here
Why it matters?
In August 2016 the Equality and Human Rights Commission (EHRC) published their research into the prevalence and nature of pregnancy discrimination and disadvantage in the workplace. Their findings were based on interviews with over 3000 employers and 3000 mothers and included a finding that 11% were either dismissed; made compulsorily redundant, where others in their workplace were not; or treated so poorly they felt they had to leave their job.
The EHRC quotes findings that if women's participation in the labour market increased to roughly the same as men’s, it would add 10% to the size of the economy by 2030 and that top performing companies for gender diversity are 15% more likely to perform better financially than the average.
Following on from the research, the EHRC have launched an initiative called ‘Working Forward – supporting pregnancy and maternity rights. The aim is for its founding members (including Barclays and BT Group) to share their knowledge, experience and good practice with businesses who sign up and to highlight the economic benefits they get from retaining the talent and experience of their female employees
Emplaw Online contains detailed information on all relevant issues such as discrimination on the grounds of pregnancy or maternity, all types of family leave and rights to flexible working. However one area where we are aware employers and employees often lack knowledge is around maternity health and safety. Hence this article summarises the employer’s 5 key duties in that arena.
For subscribers there is more detailed information in our guide on Maternity Health and Safety by barrister Tom Gillie from Cloisters
The Employer’s Key 5 Duties
1.Employers must assess risks to pregnant, new or breastfeeding mothers .If an employer employs at least one woman of child baring age, it must include as part of its general assessment any specific risks posed by the working environment to employees who are pregnant, new or breastfeeding mothers. (Management of Health and Safety at Work Regulations 1999, SI 1999/3242 Reg 16). The risk assessment must identify the steps which need to be taken to comply with health, safety and fire precaution requirements; it must be reviewed as necessary and (if there are more than 5 employees) be recorded.
2.Employers may be under an obligation to undertake specific risk assessments relating to individual employees who are new, breastfeeding or expectant mothers. Under the Management of Health and Safety at Work Regulations 1999, SI 1999/3242 Reg 16. Following O’Neill v Buchinghamshire County Council  IRLR 348, this obligation arises where:
- an employee notifies her employer in writing that she is pregnant or has given birth within the previous six months, or is breastfeeding (the employer is entitled to ask for a medical certificate);
- the work undertaken by her gives rise to a risk, which is not trivial or fanciful, to her or her baby’s health;
- that risk arises from processes, working conditions or exposure to physical, biological or chemical agents.
3.Employers’ duty to change working conditions or hours of work or offer alternative work (both at the same pay as normal) for new and expectant mothers, if the risks to the employee or her baby cannot be removed, and if reasonable to do so to avoid such risks. (Reg 16 MHSWR 1999)
4.Employers’ duty to suspend employees on maternity grounds (known as Maternity Suspension) where the hazard to health cannot be removed (Gassmayer v Bundesminister fur Wissenschaft und Forschung: C-194/08 and no suitable alternative work can be found (ERA s 66 (3) (b)) (Reg 16 (3) MHSWR 1999)
5.Employer’s duty to provide facilities for breast feeding mothers. Reg.25 (4) of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) requires employers to provide “suitable facilities … for any person at work who is a pregnant woman or nursing mother to rest.” This includes making provision for the woman to be able to lie down. There is no obligation on an employee to conduct a specific, separate risk assessment for an employee returning from maternity leave who has given notice of her intention to breastfeed; however, the ACAS Guide Accommodating breastfeeding employees in the work place (para 1) suggests that it is good business practice to do so.
If an employer fails to carry out its obligations under health and safety regulations, it may be liable for breach of statutory duty and/or direct pregnancy and maternity discrimination if it fails to undertake a specific risk assessment.
Failure to provide nursing mothers with a rest area suitable to breastfeed may amount to direct sex discrimination
Where an employer fails to pay, or provide work to, new or expectant mother employees in contravention of its duties, it may be liable to pay compensation.
For more detail please see the Emplaw guide on Maternity Health and Safety by barrister Tom Gillie from Cloisters
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