Legal Q&A: Pregnancy and risk assessment
Managing pregnant workers can be a sensitive issue for employers, but every organisation has a responsibility to carry out a risk assessment and take any necessary precautions to protect any pregnant employees. Several high-profile cases have recently highlighted the need to ensure that employers carry out a thorough risk assessment.
Q As an employer, what is my duty to carry out a risk assessment?
A Under section 3 (1) of the Management of Health and Safety at Work Regulations 1999, every employer has a duty to make a suitable and sufficient assessment of the health and safety risks its employees are exposed to while at work.
Q Must the risk assessment be in writing?
A Yes. The regulations explicitly require the employer to record in writing the "significant findings of the assessment, and any group of his employees identified by it as being especially at risk".
Q How should an assessment be carried out?
A A risk assessment should not be overly technical, and should be easy to understand. It is simply a careful examination of what aspects of work could cause harm to people, so that an employer can weigh up whether they have taken enough precautions or whether they should do more to prevent harm. The Health and Safety Executive suggests a five-step process (see box, right). In a larger organisation, it is likely that health and safety advisers will be engaged to carry out this process as part of risk management.
Q Are any of our employees at special risk?
A This should be considered as part of risk management. For example, there are additional legal duties where an employer employs expectant mothers. This means that a separate risk assessment should be carried out, identifying the particular risks or hazards associated with the pregnancy. This will very much depend upon the workplace and the kind of work carried out, but may well include the risks of heavy lifting and carrying, excessive time spent standing up, or for some staff (for example, bar workers and shop staff) the risks of having to deal with unruly customers or the risk of violence.
Q When should a pregnancy risk assessment be carried out?
A Certainly, on receiving written notification of pregnancy, an employer should not delay in undertaking a specific assessment. Many employers and HR professionals unwittingly fall into the trap of waiting until they are informed that an employee is pregnant before arranging for a general risk assessment to be undertaken. This will often be too late, since the law requires an assessment of the risks to all workers including those who, in future, could become expectant mothers. This means that any significant risks to unborn children and expectant mothers even at the early stages should be identified.
Q What are the risks of not carrying out a risk assessment?
A It has now been well established that a failure to carry out a risk assessment may well constitute an act of sex discrimination against the pregnant mother. In the recently reported case of Nnachi v Home Farm Trust Ltd, Mrs Nnachi had notified her employer of her pregnancy on 9 May 2005. On 22 May 2005, a risk assessment meeting took place. An employment tribunal was critical of the employer for the delay in carrying out the assessment. The employer explained that the delay was caused by a manager being absent. However, the employer could not explain why another manager could not have carried out the assessment.
The tribunal found that Nnachi, a care worker, was working in conditions which could, by reason of her pregnancy, pose risks to herself and her baby. In particular her work as a care worker posed risks of physical aggression, lifting and carrying, and stressful situations. In that case, there was a finding of sex discrimination against the employer. The employer also tried to argue, on appeal, that a generic checklist of all hazards should have been considered to be a proper risk assessment. But the Employment Appeal Tribunal disagreed.
By Lee Jefcott, partner, Blue Sky Law
Five-step risk assessment process
- Identify the hazards
- Decide who might be harmed and how
- Evaluate the risks and decide on precautions
- Record your findings and implement them
- Review your assessment and update if necessary
Source: Health and Safety Executive
