UK Employers: What to Know About Pregnancy, Health, and Performance at Work.

Having robust measures in place for managing pregnancy in the workplace is essential as part of an HR Risk Audit and having a “nice-to-have” policy in place will no longer suffice. Supporting pregnant workers through the  pregnancy journey and thereafter, is a fundamental legal obligation under UK law and employers must ensure that working conditions do not put the health of a pregnant employee or their baby at risk. Failure to adhere to these regulations is not only a breach of health and safety standards but can also lead to claims of unlawful discrimination or unfair treatment.

This guide outlines your responsibilities as an employer, from the moment of notification through to the employee’s return to work.

 

Understanding the Legal Framework and Protection

In the UK, it is unlawful to dismiss an employee or treat them unfavorably in any way because of pregnancy, childbirth, or their inability to perform specific tasks due to pregnancy-related health and safety risks. These protections are robust and broad in scope.

Who is covered?

These rights apply to:

• All female employees, regardless of their length of service or whether they work full-time or part-time.
• New mothers  who have given birth or had a stillbirth within the last six months.
• Breastfeeding employees.
• Agency workers, who have health and safety protection from “Day One,” though specific rights to alternative work or paid suspension typically trigger after a 12-week qualifying period in the same placement.
• For casual or freelance workers, while they may not have the same rights to suspension on full pay, businesses still have a legal duty to assess risks for anyone affected by their operations and must take reasonable action to reduce those risks.

The Trigger: Written Notification of Pregnancy

An employer’s specific duties to provide health and safety protection are officially triggered once the employee has provided written notification of their pregnancy.

Proof of Pregnancy

While you may request a certificate from a doctor or midwife as proof, it is best practice to not delay taking action while waiting for this evidence. Furthermore, you cannot insist on seeing a MATB1 certificate before acting, as this form is not issued until the 20th week of pregnancy, and health risks may arise much earlier.

Risk Assessments: General vs. Individual

Risk management is a dual-layered process. Every business must already have completed a general workplace risk assessment that considers risks to all workers, including those of childbearing age.

Individual Risk Assessments

Once you receive written notice of a pregnancy, you are legally required to carry out an individual risk assessment. This assessment must:

• Account for the specific job role and the individual’s health conditions.
• Be reviewed regularly throughout the pregnancy, as the risks involved can change significantly at different stages of the pregnancy.
• Take the employees personal medical history into account.  

Legal Precedent: In the case of Otero Ramos v Servicio Galego de Saude, the court ruled that failing to conduct a specific assessment for an individual’s situation, relying instead on a generic “risk-free” workplace report, constituted sex discrimination.

Identifying Workplace Hazards

When conducting assessments, you must specifically evaluate risks arising from “processes, working conditions, physical, biological and chemical agents”.

Key Risks to Monitor:

• Physical Factors: Movements, postures, manual handling (heavy lifting), shocks, vibrations, noise, and radiation.
• Biological/Chemical Factors: Infectious diseases (especially in healthcare or public-facing roles), toxic chemicals, mercury, lead, pesticides, and carbon monoxide.
• Working Conditions: Mental and physical fatigue, long hours, stress, temperature extremes, working at height, alone, or extensive travelling.
• Facilities: You are legally required to provide suitable facilities for rest, which must include a place for the employee to lie down.

 The Mandatory Three-Step Action Plan

If a risk is identified, the law mandates a strict hierarchy of actions. You must follow these steps in order; you cannot move to the next step unless the previous one is impossible to implement.

Step 1: Temporarily Alter Conditions or Hours

The first priority is to make reasonable adjustments to the current role to avoid the risk.

Examples: Providing a chair to avoid prolonged standing, allowing extra breaks, or removing heavy lifting tasks.

Pay: The employee’s terms and conditions, including pay, must remain the same during these alterations.

Step 2: Offer Suitable Alternative Work

If alterations are not enough, you must offer suitable alternative work.

Definition of “Suitable”: The work must be similar to the original job, using similar skills, and provided on terms and conditions that are not substantially less favourable.

Case Study Failures: In Hardman v Mallon, offering a care assistant a cleaning role was deemed unsuitable. In British Airways v Moore & Botterill, flight attendants were offered ground work but denied their usual flight allowances; the court ruled this was not suitable alternative work because the pay was less favourable.

Step 3: Suspension on Full Pay

If no suitable alternative work is available, you must suspend the employee on full pay for as long as is necessary to protect their health.

Employee Rights: During suspension, the individual continues to benefit from pension rights, pay increments, and holiday accrual.

Exceptions: If an employee “unreasonably” refuses an offer of suitable alternative work, you may be entitled to withhold pay.

Navigating Performance and Health Difficulties

Pregnancy can involve physical and mental health challenges that impact performance, such as severe morning sickness, pain, or fatigue.

Managing Performance Amnesties

If an employee’s work is affected, you should discuss practical adjustments rather than initiating disciplinary procedures.

Consider:

• Varying start and finish times.
• Facilitating working from home.
• Arranging an occupational health assessment.
• Allowing extra breaks when the employee feels unwell.

Sickness Absence and Automatic Maternity Leave

You must not treat an employee unfavourably due to pregnancy-related sickness. However, there is a critical rule regarding the timing of leave:

The Four-Week Rule:

If an employee is absent due to a pregnancy-related reason (including health and safety suspension or illness) in the four weeks before the baby is due, the employer can automatically start their maternity leave and pay the day after the first day of absence.

General Sickness:

If the absence is unrelated to pregnancy, your standard company sickness policy applies.

Impact on Maternity Pay

Employers should be aware that if an employee’s pay is reduced, for example, if they move to Statutory Sick Pay or reduce their hours between weeks 18 and 26 of the pregnancy, this can significantly reduce or disqualify them from Statutory Maternity Pay (SMP). If you have made adjustments or offered alternative work for health and safety reasons, you must ensure their normal wages are maintained so their future maternity pay is not negatively impacted.

Post-Maternity: Breastfeeding and Return to Work

Your health and safety obligations continue once the employee returns to work, particularly if they are breastfeeding.

Breastfeeding Adjustments

Employees must notify you in writing that they are breastfeeding. You are then required to take reasonable action to avoid risks, such as:

• Allowing shorter shifts.
• Providing extra breaks to express milk.
• Avoiding overnight stays or night work.

Legal Precedent: In a case against easyJet, the tribunal found it was indirect sex discrimination and a breach of health and safety for the airline to refuse shorter, individual rosters for breastfeeding cabin crew who were at risk of health issues like mastitis due to long hours.

Flexible Working

While you are not obligated to grant every request for flexible work, you must consider them seriously and can only refuse for valid business reasons. Refusing a request that allows an employee to continue breastfeeding without a strong justification could lead to claims of indirect sex discrimination.

Resolving Disputes and Minimising Risk

Businesses that fail to provide adequate health and safety protection face several legal risks:

Pregnancy Discrimination Claims: For failing to carry out risk assessments or taking action.

Unauthorised Deduction of Wages: If an employee is suspended without pay or forced onto sick pay when they should have been on full pay.

HSE Intervention: Employees can report concerns directly to the Health and Safety Executive (HSE).

 

Best Practice for Employers:

• Maintain Amicable Communication: It is always best to resolve concerns through discussion before they escalate to a formal grievance or tribunal.
• Consult Health Professionals: If there is a dispute about a specific risk, request a letter or fit note from the employee’s GP or midwife to provide objective evidence for your assessment.
• Document Everything: Ensure all risk assessments, offers of alternative work, and adjustments are recorded in writing.
• Use External Support: Stability HR offers support and advice to HR Managers, HR teams and business owners on how to manage maternity leave, pregnant workers and return to work of employees following pregnancy. Get in touch today to find out how we can assist you.

 

In conclusion, a proactive and well-documented approach to pregnancy health and safety is the best way to support your staff, maintain productivity, and protect your business from legal liability.