Factsheet: Employer’s Responsibilities to Pregnant Staff

Employees and women who provide personal employment services (apart from the genuinely self-employed) are protected against discrimination on the grounds of pregnancy at the point the woman becomes pregnant. This protected period runs until the end of maternity leave. However, many of the rights available to pregnant employees are dependent on them informing you that they are pregnant.

1. Risk Assessments
2. Antenatal appointments
3. Pregnancy-related sickness
4. Statutory Maternity Pay
5. Written reasons for dismissal
6. Unfair dismissal

Risk Assessments

You are under a duty to make a suitable and sufficient assessment of the risks to health and safety which your employees are exposed to while at work. An employer that employs any women of child-bearing age to do work of a kind that could involve risk to the health and safety of a new or expectant mother or her baby from any processes, working conditions or physical, chemical or biological agents, must include an assessment of those risks in its risk assessment. The Health and Safety Executive has produced a guide for new and expectant mothers who work, which includes known risks. Common risks include work-related stress, long working hours, lifting and carrying, excessive noise, handling chemicals, extremes of heat and cold, and movements and postures. You should not wait until an employee becomes pregnant before carrying out this assessment. Where you have identified risks as the result of a risk assessment, you do not have any specific obligation to take action to avoid those risks until it has been notified in writing that one of your employees is pregnant.

Once you have been notified in writing of the pregnancy, you are under an obligation to do all that is reasonable to remove or prevent exposure to any significant risk that has been found, and must give information to your employee about the risk and what action has been taken. Unless the risk can be avoided through other action, you must temporarily alter the woman’s working conditions or hours of work, if this is reasonable and would avoid the risk. If it is not reasonable to alter your employee’s working conditions or hours of work, or if the risk cannot be avoided, you must offer the woman suitable alternative work. If there is no suitable alternative work available, or if your employee reasonably refuses it, you must suspend your employee for as long as is necessary to avoid the risk. An employee who is suspended on maternity grounds is entitled to be paid remuneration.

Antenatal appointments

All pregnant employees have a statutory right to paid time off during working hours “for the purpose of receiving antenatal care”, regardless of hours worked or length of service. Antenatal care is not defined by legislation. According to government guidance, antenatal care is not restricted to medical examinations and can include relaxation classes and parentcraft classes, provided that these are recommended by a registered medical practitioner, registered midwife or registered health visitor.

There are no formalities for exercising the right. Your employee should simply inform you of the date and time of the appointment. Ideally, as much notice as possible should be given, as it may be reasonable to refuse a request. There is no guidance in the legislation as to when it would be reasonable for you as an employer to refuse a request for time off and a scarcity of case law to assist. The timing, length and frequency of the appointments may be a factor in assessing the reasonableness of a refusal. For example, it may be reasonable for you to refuse time off if your employee gives short notice for a non-urgent appointment for which you cannot arrange cover for the employee, or where the employee could reasonably make arrangements to attend the appointment outside normal working hours.

With the exception of the first appointment (presumably because the employee will not have evidence of pregnancy until after that appointment), you are entitled to ask for evidence of antenatal appointments. It is generally accepted that the amount of time off includes travel to and from the appointment.

Expectant fathers and partners, who are your employees, have a legal right to take unpaid time off work to accompany their spouse/partner to up to two antenatal appointments. Your employee is entitled to take up to 6.5 hours per appointment, including travelling and waiting time. Any additional time can be taken as annual leave.

Pregnancy-related sickness

If an employee is treated unfavourably because of a pregnancy-related illness, this will constitute unlawful pregnancy and maternity discrimination and any dismissal will be automatically unfair. Any pregnancy-related absence or maternity leave absence should therefore be ignored in respect of any promotion decision or the assessment of any other benefits at any stage of her employment.

Statutory Maternity Pay

Any of your employees entitled to Statutory Maternity Pay (SMP) will start receiving payments 11 weeks before the expected week of confinement (EWC) unless she notifies you of a later date. This can be as late in the pregnancy as the woman chooses but in some circumstances SMP will start earlier. The most common of these is if the baby is born earlier or if the woman is absent from work wholly or partly because of pregnancy on any day falling on or after the beginning of the fourth week before the EWC, the SMP period will start on the day after that date.

Written reasons for dismissal

Regardless of their length of service, any of your employees dismissed when they are pregnant are entitled to receive written reasons for their dismissal without having to request them.

Unfair dismissal

It is automatically unfair to dismiss a female employee or select her for redundancy due to pregnancy. There is no minimum qualifying service period.

If you want to know more, contact the Martin Searle Solicitors Employment Team on 01273 609911 or info@ms-solicitors.co.uk.