Hi there

In a recent case held by the Employment Appeal Tribunal, L O'Neill v Buckinghamshire Council, a Judgment was taken and the Summary of that Judgment listed as: "Pregnant workers are not automatically entitled to a work assessment under Regulation 16 Management of Health and Safety at Work Regulations 1999 in the absence of evidence that the work involved a risk as to the health and safety to the expectant mother".

It was argued, and agreed, that this lady's job, i.e. a teacher, did not involve risks which would warrant the completion of a risk assessment.

How does one go about ascertaining the absence of evidence that the work involved a risk as to the health and safety to the expectant mother? Task Analysis? And should this be in writing? With this case, they do not appear to make reference to any documentation which would offer evidence of the non-existence of occupational hazards thereby eliminating the need to complete a risk assessment. They do however make reference to the Management of Health and Safety at Work Regulations - Reg 16 and their interpretation of its requirements; and it is this bit in particular I would like to seek your expert opinions on.

The Appeal Tribunal were of the view that the under the Directive and UK Regulations the obligation to carry out a Risk Assessment will only be triggered in certain circumstances. The following pre- conditions should be met:

- The employee notifies that employer that she is pregnant in writing
- The work is of a kind which could involve risk of harm or danger to the Health and safety of a new expectant mother or to that of her baby
- The risk arises of either processes or working conditions or physical biological chemical agents in the workplace at the time specified.


Here is the link to the Paper:

http://www.employmentapp...oad/09_0020rjfhwwJOJ.doc

We will continue to request the completion of a specific risk assessment for all new and expectant mothers within our workforce, however it would be interesting to get your professional opinions on this case; as a learning curve for myself!

Many thanks for your assistance and time.

Regards,

Deborah

Deborah

As Claire implies the MHSWR s16 does include an exclusion that a RA does not need to be completed if there (paraphrasing) is no risk to the expectant mother or baby etc. Therefore it appears the judgment only expands on the Regs. That said, I think most organisations provide an RA regardless of the risks as a prudent measure. I think it could be a 'slippery slope' if either someone called it wrong or there was a mishap for expectant mother or baby. Then all and sundry would be blessed by the benefit of hindsight.

I dare say there will be some interesting comments from other colleagues.

The story behind this is quite lengthy and caused substantial cost to Buckinghamshire Council (Tax payers) in defending this case. There would also have been considerable management time spent on this and disruption for the school staff involved.
For those who have not read any background to the case; it is about a school teacher who after numerous complaints to her by the Head and other staff over a long period of time to her for not complying with school teaching policies and procedures, aggressive nature to other teachers etc etc. she was put through the disciplinary procedure. She had mentioned before the disciplinary procedure started that she was pregnant and then had some time off sick.
The Head had already started the New Expectant mother RA after she was first notified but decided not to complete this until she could sit down with the teacher concerned on her return to work.
On her return to work the lengthy disciplinary procedures were followed up. Allowances were made during this for regular breaks / postponements to take account of her condition.

The teacher eventually left on her own accord and claimed constructive dismissal on the grounds that the disciplinary action was causing her stress / upset.
The argument was that the disciplinary action should have been withdrawn to protect the Expectant Mother from the stress.

This is not a simple case of should we carry out a New Expectant RA or not.
The case was brought on the grounds that because a NEM Risk Assessment had not been carried out this was evidence of sex discrimination. Hence the claim for Constructive Dismissal.
My opinion is "A good outcome to this case" but I have only scan read the case notes.
Steve

Thank you all very much for your professional opinions on my post; I agree with the consensus that it is best to err on the side of caution; we will continue to request assessments for all our new and expectant mothers;and we do also consider females of child-bearing age during the assessment process.

Again, thank you very much.

Kind regards,

Deborah

What do you do when a lady does not formally (in writing) notify that she is pregnant and it is apparent that she is. I remind staff annually and on Induction so the excuse "I didn't know" isn't valid.

Do I go up to the lady and say "you're pregnant", I must do an RA - (and possibly get the answer "No I'm putting on weight") - or do I just ignore the situation.

My management insist on completing an RA even if the lady hasn't formally notified.

I also work across two schools and believe me just taking stress into account justifies an RA.

Hi Joe

I seem to recall that I contacted the HSENI regarding the non-notification of a pregnancy and I was advised that where someone refuses to notify us of their pregnancy, where it has been clearly acknowledged that they are pregnant, then this could become an issue that could possibly be dealt with by our Human Resources/Employee Relations department.

We haven't yet experienced such a scenario but I would like to think that the person's line manager would become aware of their staff member's pregnancy and would remind them of the requirement for notification to enable the risk assessment process to be commenced.

Unfortunately, there still appears to be a habit with expectant mothers to delay informing persons of their pregnancy until the end of the first trimester, which is understandable due to the fear of something going wrong, such as a miscarriage. I know in Ireland there is an old wives tale that to tell anyone about your pregnancy before the end of the first trimester is chancing fate.

However, the first trimester is a very important time for mother and baby as this is when the major fetal organs are formed and it is extremely important, as with the remaining trimesters, that the expectant mother is not exposed to certain agents.

For example we have female employees who work with animals, and there is a risk of acquiring an infection from animal tissue, faeces, bedding etc. Contact with these agents may lead to miscarriage, or still birth in later stages of pregnancy. However, due the fact that females may not be aware of their pregnancy until the fifth week, or due to their preference for waiting until the first trimester is over before notifying of their pregnancy, we have to ensure that our task risk assessments considers women of child bearing age and applicable control measures set in place, such as eliminating contact with the animals during feeding, and where contact with animals cannot be avoided, that all essential Personal Protective Equipment is worn and the stringent personal hygiene process is adhered to.

If we include this as a general control measure for all staff on the task risk assessment, as essentially other staff, aside from the women of child-bearing age/expectant mothers, may be at risk from the infectious agents, this would ensure that safe working practices would be carried out as a matter of course thereby protecting not just those persons of child-bearing age (who may not be aware that they are pregnant)/new and expectant mothers, but all members of staff.

On notification of a pregnancy, a specific risk assessment would be carried out.

Deborah

My years in university research and other laboratory environments remind me that for any hazardous or potentially hazardous environment, RAs must include the possibility of exposure of any woman of child-bearing age.

This addresses the safety and welfare of those who know they are pregnant, those who are pregnant but have chosen not to tell, those who are pregnant but do not yet know, and those who are truely expectant .... about the outcome of a hot date tonight!

I'm not entirely clear Mr 48 what it is that you're saying, but I think you are saying the same as me.

And don't forget, that there are some particularly hazardous situations where exposure even before pregnancy begins can be harmful to the as yet non-existent embryo.

Hence: "those who are truely expectant .... about the outcome of a hot date tonight!"

You can only carryout an assessment if provided with the information in the first place as the person concerned needs to be part of it.

If you ask and she is putting on weight you could end up in more trouble than it's worth.

I think it is clear from the comments on this topic that sometimes prescriptive legislation does not always provide the most ideal means of dealing with a situation. Common sense dictates that an initial (informal)assessment should take place with the expectant mother and if no hazards are identified, then job done. However, if interventions are needed then a formal RA should be completed and recorded. Those who wish to go down the formal route as a matter of course can't be accused of non-compliance either.

That said, things can still go wrong. I remember a few years ago I was asked by HR to interview a new starter, QS lady who was an epiletic working in the construction industry. I arranged an informal one-to-one and we agreed in principle some basic precuations. I completed a RA and sent it to her line manager for review as a matter of courtesy. So far so good. Then the doughnut forwarded it to the QS whilst commenting that she should have been consulted first blah, blah. All and sundry got involved and naturally the QS got quite upset. Fortunately for me HR saw through the mess and reprimanded the manager for his lack of discreetness. No good turn goes unpunished...