To comply with Management of Health and Safety at Work Regulations 1999 (the Regulations), employers are now under an obligation to make suitable and sufficient assessment of the risks to the health and safety of their employees. This should incorporate an assessment of particular risks to new or expectant mothers when workers include women of childbearing age.

In addition employers have risk avoidance obligations which require them to consider, in relation to an employee who has given notice of pregnancy, whether the risks identified in the assessment might be avoided.

Case law – Stevenson v JM Skinner Co

This recent Employment Appeal Tribunal ("EAT") decision serves as a useful reminder to employers of their obligations. Mrs. Stevenson informed her employer that she was pregnant. Her job involved lifting boxes and the employer's premises occupied several floors, which meant that she would have to go up and down stairs. An employment tribunal found that the employer held meetings to discuss the risks and it was agreed that she should not lift heavy boxes or be required to run up and down the stairs.

Mrs. Stevenson was injured when dizziness caused her to fall down the stairs. She was willing to continue work and submitted a certificate from her GP indicating that she was fit to do so. The employer made its own assessment that she was not able to work and relieved her of her duties, but kept her on full pay. She later resigned and claimed constructive dismissal on the basis that she had been subjected to a series of treatments that constituted sex discrimination. The employment tribunal dismissed her claims of unfair constructive dismissal and sex discrimination. Mrs. Stevenson appealed against the tribunal's findings on sex discrimination, arguing that the employer had failed in its duties with regard to carrying out a risk assessment and providing information on it, and that there had been no proper suspension on maternity grounds.

The EAT dismissed the appeal. It found that there had been a risk assessment that complied with the Management of Health and Safety at Work Regulations 1999. The employer had made a judgment, evaluation and examination, taking into consideration all of Mrs Stevenson's circumstances. A risk assessment is a thought process and there is no requirement as to the form it takes.

Employment Appeal Tribunal guidance

The EAT provided useful guidance on how best an employer may discharge its obligations to pregnant employees:

  1. The EAT confirmed the assessment to be "an empirical valuation of when that risk is likely to occur and what the consequences of it will be ...The assessment is one of judgment, valuation and examination of all the circumstances".
  2. The assessment is best conducted with the involvement of the employee herself so that any particular difficulties she may encounter can be addressed specifically.
  3. The employer is not required to provide an employee with a formal written risk assessment
  4. An employer is obliged to record the findings of an assessment but is not under any obligation to provide a copy to the employee.
  5. The provision of the information to the employee orally, discharged the obligation on an employer in accordance with the Regulations. Thus, a meeting with an employee where assessments were made and within which agreement regarding relevant risks was reached discharged an employer's duty.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.