EMPLOYMENT CASE LAW - Effective Risk Management of Pregnant and Post Natal Employees
Pregnancy is a part of normal everyday life. However, for a pregnant Employee in a work environment pregnancy may result in a change to the status of the workplace for the Employee and her unborn child from a safe place to work to a potentially dangerous place to work. In essence, there are some hazards in the workplace which may adversely affect the health of the woman (pre and post natal) and/or that of her developing child.
Given the known hazards associated with pregnancy in the workplace, most countries have legislation in place to ensure that being pregnant in the workplace should not result in being exposed to additional risk. In Ireland, following lengthy consultation, the legislation relating to pregnancy in the workplace was updated as part of the Safety, Health and Welfare at Work (General Application) Regulations (SHWWGAR) 2007. This specific legislation, namely the SHWWGAR 2007, Chapter 2 of Part 6: Protection of Pregnant, Post Natal and Breastfeeding Employees, imposes strict duties on an Employer so that any pregnant and post natal Employee is not exposed to undue risk during work.
The main provisions of the SHWWGAR 2007 are outlined below in the form of guidance:
Notification: The pregnant Employee must notify her Employer of her condition as soon as is practicable, but provide no less than 4 weeks’ notice of intention to commence maternity leave. This can be done by informing their supervisor, the HR department or by the doctor sending in a medical certificate, confirming pregnancy and the expected date of confinement. The Employee must provide the Employer with a medical certificate upon notification.
Given that the early stages of pregnancy are the most critical, it is important that the Employer provides sufficient information to Employees, in particular if there are identified risks that could adversely affect the mother and/or the unborn child. It is in the Employee’s interest to let her Employer know she is pregnant as soon as possible in order to avoid undue exposure to these risks.
There is no obligation for Organisations to pay maternity benefit. In order for an Employee to claim statutory maternity benefit, the Employee must submit an MB10 form completed by their Employer to the Department of Social Protection in advance of the leave commencing.
Risk Assessment: Once informed of the pregnancy, the Employer must arrange for a risk assessment to be conducted with the Employee. The objective of the risk assessment is to assess any risk to the safety or health of the Employee and any possible effect on the pregnancy of, or breastfeeding by the Employee, resulting from any activity at that Employer's place of work likely to involve a risk of exposure to any agent, process or working condition which could prove hazardous to either the Employee or her unborn child.
This risk assessment must take account of the known workplace hazards and the hazards specified in Part A and B of Schedule 8 of the SHWWGAR 2007. In addition, the risk assessment must identify the type, quantity and duration of exposure to any agent, process or working condition. If the risk assessment identifies possible exposure to the specified risks as identified in Part B of Schedule 8 of the SHWWGAR 2007, the Employer must ensure that the Employee does not carry out duties which would result in the Employee being exposed to these risks.
Finally, the risk assessment must take account of any medical issues or complications associated with the Employee.
Once the hazards have been identified in the risk assessment, appropriate protective and preventative measures must be put in place to ensure that the Employee and her unborn child are suitably protected in the workplace. The options for the Employer are as follows:
Step 1: Adjust the working conditions and/or hours of work
(If this step does not remove the risk, then progress to step 2.)
Step 2: Provide suitable alternative work (must be risk assessed)
(If it is not possible to provide suitable alternative work then progress to step 3.)
Step 3: Assist the Employee to receive Health and Safety (Maternity) Leave.
Please note that Step 3 applies once the Employer has conducted the risk assessment which has identified occupational risks which arise for normal pregnancies and which they cannot reasonably control using Steps 1 or 2.
Night Work by Pregnant Employees: Night work in the context of the SHWWGAR 2007 is a pregnant Employee working between the hours of 11pm and 6am, where they work either 3 hours within this period in the normal course, or at least 25% of their monthly hours are performed within this time frame.
If this is the case, on production of a medical certificate from a registered medical practitioner which states that by working at night the Employee’s safety and/or health is compromised and that she should not be required to perform night work during pregnancy or for 14 weeks following childbirth, request to be removed from night work. The Employer must:
Information: The Employer is required to give the Employee or their representative information about the outcome of the risk assessment and any protective and preventative measures that are being put in place to ensure a safe place of work for both the Employee and her unborn child.
In addition to the specific legislation outlined above, there are other sections of health and safety legislation relating to pregnant Employees that Employers should be aware of such as:
The SHWWGAR 2007, Chapter 1 of Part 2; Regulation 24: Pregnant, postnatal and breastfeeding Employees requires Employers to provide a suitable place within the workplace where they can sit and lie down. The selected area should respect the Employee’s privacy and dignity.
When Things go Wrong: It is unfortunately the case that a significant number of Employees who notify their Employers of their pregnancy do not get the desired response. Studies have shown in fact that rather than comply with the requirements of health and safety legislation as outlined above, some Employers disregard their responsibilities in this regard.
Implementation: It is important that Employers are aware of the provisions of the legislation, ensure that they put the appropriate policies and procedures in place to comply with the legislation and when required act in accordance with the requirements of the legislation so that the safety, health and welfare of the Employee and their unborn child is protected.
Please note that this article focuses on some of the possible health and safety issues relating to pregnancy and is not exhaustive in this regard. Also, there may be significant Human Resource Management and Employment related issues that also apply which again are not addressed for the purposes of this article.
Given the known hazards associated with pregnancy in the workplace, most countries have legislation in place to ensure that being pregnant in the workplace should not result in being exposed to additional risk. In Ireland, following lengthy consultation, the legislation relating to pregnancy in the workplace was updated as part of the Safety, Health and Welfare at Work (General Application) Regulations (SHWWGAR) 2007. This specific legislation, namely the SHWWGAR 2007, Chapter 2 of Part 6: Protection of Pregnant, Post Natal and Breastfeeding Employees, imposes strict duties on an Employer so that any pregnant and post natal Employee is not exposed to undue risk during work.
The main provisions of the SHWWGAR 2007 are outlined below in the form of guidance:
Notification: The pregnant Employee must notify her Employer of her condition as soon as is practicable, but provide no less than 4 weeks’ notice of intention to commence maternity leave. This can be done by informing their supervisor, the HR department or by the doctor sending in a medical certificate, confirming pregnancy and the expected date of confinement. The Employee must provide the Employer with a medical certificate upon notification.
Given that the early stages of pregnancy are the most critical, it is important that the Employer provides sufficient information to Employees, in particular if there are identified risks that could adversely affect the mother and/or the unborn child. It is in the Employee’s interest to let her Employer know she is pregnant as soon as possible in order to avoid undue exposure to these risks.
There is no obligation for Organisations to pay maternity benefit. In order for an Employee to claim statutory maternity benefit, the Employee must submit an MB10 form completed by their Employer to the Department of Social Protection in advance of the leave commencing.
Risk Assessment: Once informed of the pregnancy, the Employer must arrange for a risk assessment to be conducted with the Employee. The objective of the risk assessment is to assess any risk to the safety or health of the Employee and any possible effect on the pregnancy of, or breastfeeding by the Employee, resulting from any activity at that Employer's place of work likely to involve a risk of exposure to any agent, process or working condition which could prove hazardous to either the Employee or her unborn child.
This risk assessment must take account of the known workplace hazards and the hazards specified in Part A and B of Schedule 8 of the SHWWGAR 2007. In addition, the risk assessment must identify the type, quantity and duration of exposure to any agent, process or working condition. If the risk assessment identifies possible exposure to the specified risks as identified in Part B of Schedule 8 of the SHWWGAR 2007, the Employer must ensure that the Employee does not carry out duties which would result in the Employee being exposed to these risks.
Finally, the risk assessment must take account of any medical issues or complications associated with the Employee.
Once the hazards have been identified in the risk assessment, appropriate protective and preventative measures must be put in place to ensure that the Employee and her unborn child are suitably protected in the workplace. The options for the Employer are as follows:
Step 1: Adjust the working conditions and/or hours of work
(If this step does not remove the risk, then progress to step 2.)
Step 2: Provide suitable alternative work (must be risk assessed)
(If it is not possible to provide suitable alternative work then progress to step 3.)
Step 3: Assist the Employee to receive Health and Safety (Maternity) Leave.
Please note that Step 3 applies once the Employer has conducted the risk assessment which has identified occupational risks which arise for normal pregnancies and which they cannot reasonably control using Steps 1 or 2.
Night Work by Pregnant Employees: Night work in the context of the SHWWGAR 2007 is a pregnant Employee working between the hours of 11pm and 6am, where they work either 3 hours within this period in the normal course, or at least 25% of their monthly hours are performed within this time frame.
If this is the case, on production of a medical certificate from a registered medical practitioner which states that by working at night the Employee’s safety and/or health is compromised and that she should not be required to perform night work during pregnancy or for 14 weeks following childbirth, request to be removed from night work. The Employer must:
- Transfer the Employee to daytime work; or if this is not possible or feasible,
- Grant the Employee leave or extend the period of maternity leave. In this case, the Employee may have entitlement to apply for Health and Safety (Maternity) Leave.
Information: The Employer is required to give the Employee or their representative information about the outcome of the risk assessment and any protective and preventative measures that are being put in place to ensure a safe place of work for both the Employee and her unborn child.
In addition to the specific legislation outlined above, there are other sections of health and safety legislation relating to pregnant Employees that Employers should be aware of such as:
The SHWWGAR 2007, Chapter 1 of Part 2; Regulation 24: Pregnant, postnatal and breastfeeding Employees requires Employers to provide a suitable place within the workplace where they can sit and lie down. The selected area should respect the Employee’s privacy and dignity.
When Things go Wrong: It is unfortunately the case that a significant number of Employees who notify their Employers of their pregnancy do not get the desired response. Studies have shown in fact that rather than comply with the requirements of health and safety legislation as outlined above, some Employers disregard their responsibilities in this regard.
Implementation: It is important that Employers are aware of the provisions of the legislation, ensure that they put the appropriate policies and procedures in place to comply with the legislation and when required act in accordance with the requirements of the legislation so that the safety, health and welfare of the Employee and their unborn child is protected.
Please note that this article focuses on some of the possible health and safety issues relating to pregnancy and is not exhaustive in this regard. Also, there may be significant Human Resource Management and Employment related issues that also apply which again are not addressed for the purposes of this article.
