This is one in a series of factsheets produced by the Maternity Alliance information service.

Health &Safety at Work factsheet (Feb 2002)

 

 Health and safety at wor

 

 

The following rights apply to all employees who are pregnant, who are breastfeeding, or who have given birth (including stillbirth) within the last six months (whether breastfeeding or not). Self-employed women have some but not all of the rights.

 

To exercise most of the rights described below, you must:

·          tell your employer in writing that you are pregnant or breastfeeding, or that you have given birth in the last six months

·          if your employer asks in writing for proof that you are pregnant, show them your certificate of pregnancy from your doctor or midwife.

 

You should discuss any job-related concerns about your health or the health of your baby with your doctor or midwife. If they advise you that there could be a risk, ask for a letter which you can show to your employer so that they can take this into account.

 

Your employer must:

STEP 1, carry out a "risk assessment" of any processes, working conditions, physical, chemical and biological agents which could jeopardise your health or safety or that of your child while you are pregnant, breastfeeding, or have given birth within the previous six months.

STEP 2, if the assessment reveals a risk, your employer must do all that is reasonable to remove it or prevent your exposure to it

STEP 3, give you information on the risk and what action has been taken

STEP 4, if the risk remains, temporarily alter your working conditions or hours of work, if this is reasonable and if this avoids the risk; and if that is not possible

STEP 5, offer you suitable alternative work (on terms and conditions which are not substantially less favourable than your original job); and if this is not possible,

STEP 6, suspend you on full pay (ie give you paid leave) for as long as is necessary to avoid the risk.

 

Your employer has a legal duty to take reasonable care to have safe systems of work, to provide a safe place of work, to provide safe plant and equipment and a safe working environment. Your employer must also comply with legal ‘regulations’ about specific hazards at work for example, chemicals or carrying heavy loads. Whether or not there is anyone actually pregnant at work at the time, your employer also has a duty to assess the workplace for risks to the health and the safety of a new or expectant mother or her baby. All employers are required by law to do this if they employ any women of childbearing age (ie they must do this even before you tell them you are pregnant). If there is a significant risk, they must follow steps 2 & 3 (see page 1). But you do not have the right to be transferred or suspended (steps 4 to 6) until you are actually pregnant and have told your employer in writing.

It is AGAINST THE LAW for an employer to sack a woman because she is pregnant, even if she can't do the same work as before. It is also against the law for an employer to sack you for raising a health and safety concern. Your employer must carry out a risk assessment. If they agree there is a risk, they must follow the steps on page 1. For example, they should consider whether the lifting can be avoided by using machinery (step 2), or alter your duties to reduce the amount of lifting you do (step 4 or 5). If your employer doesn't accept that the type of lifting you do may be harmful to you or your baby, ask your doctor or midwife for a letter or certificate stating that it is. If the lifting you do involves the risk of your being injured this may be contrary to the Manual Handling Operations Regulations 1992. See ‘What can I do to enforce my rights?’ on page 6.

 

Under the Working Time Regulations 1998 you are not allowed to work more than 8 hours at night in a 24 hour period. When you are pregnant, have recently given birth or are breastfeeding, you have the right to transfer to suitable alternative day work or, if that is not suitable, to be suspended (on full pay). You must tell your employer in writing that you are pregnant. You must provide your employer with a medical certificate from your doctor or midwife stating that you cannot work at night for health or safety reasons. If you do this, your employer MUST transfer or suspend you (see steps 4, 5 or 6 on page 1). If you have good reasons not to be able to work days then day time work may not be suitable and you should be suspended.

 

Your employer must carry out a risk assessment even if they only employ one person: the rules apply to ALL employers (and employees)[1].

 

The law recognises that high temperatures can be a risk to a pregnant woman. Discuss your concerns with your doctor or midwife and ask for a letter stating that your working conditions are a risk to you or your baby. You should not have to take sick leave because of a health and safety risk at work. Your employer must follow the steps on page 1. If a risk remains, you have the right to suitable alternative work or, if none exists, to be suspended on full pay. If you are forced to take sick leave and you only receive Statutory Sick Pay during that time, when you should have been suspended on full pay, you may be entitled to claim full pay from your employer by making a claim for ‘unlawful deduction of wages’ in an Employment Tribunal[2]. Also, if you are forced to take sick leave and you don’t receive full pay, you may lose all or most of your Statutory Maternity Pay (see ‘Taking sick leave during pregnancy’ below).

 

If your employer refuses to carry out a suitable and sufficient risk assessment see ‘What can I do to enforce my rights?’ on page 6.

 

Under the Working Time Regulations 1998, your average working time should not be more than 48 hours in a seven day period. You can ‘opt out’ and work longer hours if you agree to it. Under the Regulations you are also entitled to a 20 minute ‘rest break’ after working 6 hours and more breaks if the work is monotonous, which your work may well be. When you are pregnant, breastfeeding or have recently given birth, the law recognizes that travelling outside your workplace for work purposes is a possible health and safety risk. Your employer must follow the steps set out on page 1, for example, by considering whether the amount of travelling you do can be temporarily reduced and replaced with some office work (steps 4 and 5).

 

Unfortunately, the Health and Safety rules do not apply to exhausting journeys to and from work. The "travelling" they refer to is only travelling which is part of the job itself. But you could ask your employer whether you can come in later, missing the rush hour, or leave earlier or whether you can temporarily reduce your hours. If you request a temporary reduction in hours and your employer refuses, you may have claims of indirect sex discrimination or ‘detriment’ (if you can show that you have suffered a disadvantage because of the employer’s refusal). If you are considering making a tribunal claim you should seek legal advice and you must make your claim within 3 months. Please send an SAE for our free leaflet Next Steps.

 

Yes, you can ask your employer to do this on a temporary basis or for a set period. BUT SEE THE QUESTION BELOW ON SICK LEAVE FOR THE EFFECT OF REDUCED EARNINGS ON MATERNITY PAY. If your working conditions are making you unwell, your employer must carry out a risk assessment which could result in you working less hours without loss of pay which means your maternity pay will not be affected. If your employer will not carry out a risk assessment you may have a claim of sex discrimination or of detrimental treatment on the grounds of pregnancy.

Yes, if you do not receive full pay from your employer when you are off sick and/or your earnings drop in approximately weeks 19 to 26 of your pregnancy, your SMP may be reduced. If you only receive Statutory Sick Pay (£63.25) during this period you will not qualify for SMP. It may be better to use some annual leave during these weeks if your maternity pay is at risk. For more information, please send £1 and an SAE for our factsheet Statutory Maternity Pay.

For more information on sickness during pregnancy please send £1 and an SAE for our leaflet Sickness during pregnancy and maternity.

 

Firstly, if your work is a risk to your health or your baby, your employer must carry out a risk assessment and go through the steps on page 1.

All employers must provide suitable facilities for a pregnant woman or nursing mother to rest under the Workplace (Health, Safety and Welfare) Regulations 1992, Reg 25. The Code of Practice states that rest facilities should include the facility to lie down, so do ask your employer about providing this and make sure you are at the very least, taking the 20 minute rest break that you are entitled to after working 6 hours. All workers are now legally entitled to 20 days paid holiday a year (pro rata if you are part-time). If your employer does not give at least 20 days paid holiday a year you can make a claim in an Employment Tribunal under the Working Time Regulations and you may get compensation. See below ‘What can I do to enforce my rights’ on page 6.

 

Because you are self-employed you are only partly covered by these health and safety rules. At each place where you work, the person responsible for health and safety must carry out a risk assessment taking into account the particular risks to you as a new or expectant mother. They must then comply with the health and safety legislation about those risks (see steps 1 and 2 on page 1). However, you do not have the automatic right to be offered different work or to be suspended but you could ask for alternative work if you are concerned. Note that it may be the case that you are actually an employee rather than a self employed person and, if so, you will benefit from the rights described in this leaflet[3]. If you are unsure whether you are an employee or self employed you should take further advice. For more information on maternity rights if you are self-employed, please send £1 and an SAE for our leaflet Self-employment.

 

Government advice from the Health and Safety Executive says that you shouldn't worry because the levels of radiation likely to be generated by VDU's do not pose a significant risk to health. Government advice to employers is that an employee should be given the opportunity to discuss her concerns with someone who is adequately informed about up to date scientific opinion, such as a workplace safety representative. You could ask your employer to give you non-VDU work (your trade union representative may be able to help). If that is not possible, take your breaks away from the VDU, switch it off when not in use and ask your employer to make sure that you have a comfortable chair and a well designed work station. Your employer has a duty to do this anyway under the Health and Safety (Display Screen Equipment) Regulations. For further advice contact the Health and Safety InformationLine 0541 545500.

 

Possibly. The health and safety rights in this leaflet only apply to women. But all employees are protected by the Control of Substances Hazardous to Health Regulations which require the employer to make a written assessment of health risks from the chemicals, and then to tell the employees about any risks and what measures are being taken to protect the employees. Your partner should ask his trade union or safety representative for help in finding out what the risks are and what can be done about them. If he isn't in a union, he should discuss his worries with his employer, the occupational health nurse or with the personnel department.

 

If there is a risk of infection from rubella or any other infectious disease during the early months of your pregnancy, it is highly likely that the school will have to suspend you during the period of risk. You will get full pay at this time, provided you have not unreasonably refused to work at another school where there is no risk. You can only be suspended if the risk at work is greater than the risk at home.

 

Full maternity rights and health and safety protection apply to everyone who has given birth, which includes giving birth to a stillborn child after 24 weeks or more of pregnancy. You are entitled to a proper risk assessment and all the other rights including the legal protection of the Manual Handling Operations Regulations 1992 (see page 2).

 

The alternative work which you are entitled to must not be substantially less favourable in terms of the conditions on offer, including pay[4]. If, for example, you lose a flight allowance then the position will not be ‘suitable’. If the terms and conditions on offer are the same as your usual work then the position is likely to be suitable and you cannot refuse it and ask to be suspended instead. If you think your terms and conditions are less favourable, then you may have a claim in an Employment Tribunal that you should have been suspended on your normal pay. See ‘What can I do to enforce my rights?’ on page 6.

 

The law says that you must be paid your normal wages or salary during suspension, unless your employer offered you suitable alternative work (step 5) and you ‘unreasonably’ refused to take the offer up. If your employer fails to pay you for any period during your suspension, you can make a claim to an Employment Tribunal (within 3 months). You continue to be employed during suspension, so all of your other contractual rights should continue and the period you are away counts towards continuous employment for seniority, pension rights, pay increments, holiday accrual etc.

Normally it is up to you when you go on maternity leave, but if you are suspended your employer may have the right to bump you onto maternity leave from six weeks before the week your baby is due. During maternity leave you will receive Statutory Maternity Pay if you are entitled to it. If the health and safety risk remains at the end of maternity leave, your suspension on full pay will start again at that point (provided this is within six months of the birth, or you are breastfeeding).

There is no statutory entitlement to paid breastfeeding breaks in the UK yet. However, all employers have a legal duty to protect the health and safety of breastfeeding mothers and to provide ‘suitable facilities’ for a breastfeeding mother ‘to rest’. This means that you should be able to have suitable facilities and breaks to breastfeed/express milk. You should be able to temporarily change your hours and/or be temporarily transferred to alternative work if your working conditions stop you from breastfeeding/expressing milk and your baby’s health is put at risk by a particular condition of your job.

In order to exercise these rights you should inform your employer in advance that you will be breastfeeding your baby at the time of your return and discuss what arrangements will be made. Your employer should carry out a risk assessment which should consider the risks to you as a breastfeeding mother and to your newborn child whose health could be jeopardized if you do not breastfeed. A letter from your GP may help.

Recent European Union Guidelines (COM 2000 466 final) recommend that rest facilities should ideally include access to a private room, access to a secure, clean fridge for storing milk and time off to express milk or to breastfeed. If these are not provided the lack of facilities could amount to a health and safety risk.

If you need to reduce or change your hours to continue breastfeeding, and you can show that your required hours would make it hard or impossible for you to breastfeed/express milk and your employer unjustifiably refuses, you may have a claim of indirect sex discrimination. If your employer refuses to let you return to work because you are breastfeeding, you may have claims of unfair dismissal and sex discrimination in an Employment Tribunal. If you are considering bringing a claim you should seek legal advice.

For more information please send £2.50 and a large SAE for our booklet ‘Having it All - a guide to combining Breastfeeding and Work’.

A failure by an employer to protect the health and safety of a new or expectant mother or her baby may lead to criminal prosecution as well as to civil proceedings in the High Court, County Court or Employment Tribunal. 

You can seek advice from your Safety Representative at work or Union. If your employer fails to carry out their duties, you can contact your local Health and Safety Executive (look in the phone book) or your Local Authority (ask for the Health and Safety Officer or the Environmental Health Officer depending on the type of work you do). They can advise on your next steps and this could include their carrying out a risk assessment for you. You should inform your employer in advance that you have had no option but to contact these outside agencies. The Environmental Health Department or Health and Safety Executive may themselves bring a criminal prosecution against you employer and the maximum fine is £5000 for most offences.

You can make a claim in an Employment Tribunal under the Employment Rights Act 1996 if:

·          your employer does not pay you whilst you are suspended from work, or

·          you are not offered suitable alternative work, or

·          you suffer a detriment as a result of your health and safety concern, or

·          you are dismissed because you have raised a health and safety concern, or

·          you leave work because you consider the health and safety risk to be ‘serious and imminent’.

You must bring the claim within three months of the circumstances described above. You can also claim compensation under the Sex Discrimination Act if you have suffered a disadvantage because of a failure to carry out a risk assessment. For more information on how to take a claim, please send £1 and an SAE for our factsheet Taking a case to an Employment Tribunal.

If you or your baby suffer any harm as the result of your employer's failure to follow the six steps set out on page 1, you may be able to sue your employer for damages in the County Court or High Court (as opposed to an Employment Tribunal).

 

* Courtesy the M.A. The Maternity Alliance Education and Research Trust.

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