Perhaps the most important legal issue facing the employer of a woman who is pregnant or has recently given birth is the need to meet its duty to protect the health and safety of the employee and her child. There are two aspects to this: the employer must respect the employee's right to time off for antenatal care (antenatal care ); and the employer must take whatever steps are necessary to deal with the specific risks to health and safety that the employee may face in the workplace as a pregnant woman or new mother (risks to new or expectant mothers ).
Under the Employment Rights Act 1996, any pregnant employee, regardless of her length of service with her employer, has the right not to be unreasonably refused paid time off during working hours to receive antenatal care.
Antenatal care can include exercise and relaxation classes and may also include parentcraft classes. The appointment must be made on the advice of the employee's doctor, midwife or health visitor. After the first appointment, the company can ask the employee to produce a certificate confirming her pregnancy and written evidence, such as her appointment card, that the appointment has been made.
An employee is entitled to sufficient time off to enable her to keep her appointment. So she may need to be allowed travelling time to and from the appointment and waiting time when she gets there, as well as time for the appointment itself.
An employee does not have an absolute right to time off, only the right not to be unreasonably refused it. If, for example, she works only part-time hours and could arrange her appointment for outside working hours without much difficulty, it may be reasonable to refuse her time off. On the other hand, a company does not have the right to ask an employee to alter her working hours so that the appointment falls outside her normal work time, or to make up her time off at another time.
It is automatically unfair for an employer to dismiss a woman for claiming her right to time off for antenatal care, or to select her for redundancy for that reason, regardless of her length of service. Dismissing a woman, or treating her unfavourably in any other way, because of this right to time off is also likely to amount to sex discrimination.
All employers are under a legal obligation, under the Management of Health and Safety at Work Regulations 1999, to carry out an assessment of the risks to health and safety in their workplace. Using this assessment as a basis, the employer must then plan what steps it needs to take to protect its workforce from those risks.
If an employer employs any women of childbearing age, its assessment must include any risk that might be posed to the health and safety of a 'new or expectant mother'. This means a woman who is pregnant or breastfeeding, or who has given birth within the previous six months.
If the assessment reveals a risk to an individual employee who is a new or expectant mother, the employer's first step should be to take whatever preventive or protective action is required by any specific legislation that covers the hazard concerned.
For example, a pregnant woman is at particular risk from manual handling injuries. It may be that this risk could be adequately addressed by implementing the requirements of the Manual Handling Operations Regulations 1992. But if that would not be enough to avoid the risk, then the employer must alter the woman's working conditions or hours of work to protect her. That might mean, for example, adjusting her job duties so that she is not involved in the heavier of the manual handling operations that would normally be included in her work.
If altering a woman's working conditions or hours of work would not be reasonable or would not avoid the risk, then the Employment Rights Act 1996 requires her employer to consider whether it would be possible to offer the woman suitable alternative work. If it is, then the work must be offered, and on terms and conditions that are broadly similar to those that apply to the employee's normal job.
If no suitable alternative work is available, or if the woman refuses an offer of alternative work, then the employer must suspend the employee from work for as long as is necessary to avoid the risk. An employee who is suspended on maternity grounds is entitled to her usual pay during her suspension, unless she has unreasonably refused an offer of suitable alternative work, in which case she can be suspended without pay.
There is a special rule for night workers. If a new or expectant mother does night work, and she has a certificate from her doctor or midwife that shows that it is necessary for her health and safety that she should not work at night for a specified period, then the employer must consider whether it would be possible to offer her suitable alternative day work. If the woman is transferred to day work, she is entitled to terms and conditions that are broadly similar to those that apply to night work. If a transfer to day work would not be possible, or if the employee refuses an offer of day work, then the company must suspend the woman from work (alternative work ).
The Health and Safety Executive has produced useful guidance on the known risks to new and expectant mothers and what employers must do to comply with the law (health and safety). The guidance also sets out some aspects of pregnancy that employers might want to take into account in considering their working arrangements and policies, even though these are not required by law.