Pregnant Employees and Nursing Mothers (Rest facilities, risk assessment and suspension from work)

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Key points
  • Pregnant employees, breastfeeding mothers, and women who have given birth within the previous six months, enjoy a variety of rights under contemporary employment law and health and safety legislation. A pregnant employee has the right to be permitted a reasonable amount of paid time off work to attend at a clinic or similar place for ante-natal care. If her expected week of childbirth (EWC) begins on or after 6 April 2003, she has the right also to 26 weeks' ordinary maternity leave and, if she qualifies, a right to 26 weeks' additional maternity leave (beginning on the day immediately following the day on which her ordinary maternity leave period ends). If she has worked for her employer for at least 26 weeks by the end of the 15th week before her expected week of childbirth, and earns an average of £77 or more per week, she is entitled to up to 26 weeks' statutory maternity pay (SMP). Finally, she has the right to return to work with her employer after her baby is born and the right to take up to 13 weeks' unpaid parental leave (sections 47C and 99, Employment Rights Act 1996, supplemented by the Maternity & Parental Leave etc Regulations 1999). 
Right not to be unfairly dismissed
  • It is inadmissible and automatically unfair for an employer to dismiss a woman, select her for redundancy or subject her to any detriment because she is a woman; or because she is pregnant or has given birth to a child; or for having been suspended from work on maternity grounds (see below); or for exercising her statutory right to ordinary or additional maternity leave, parental leave or time off work for ante- natal care. The same rules apply if she is dismissed either for challenging her employer's refusal or failure to acknowledge her rights or, for bringing proceedings before a tribunal or court in order to enforce those rights (ibid. section 104) – as to which, please turn to the sections referred to at the end of the previous paragraph.
Health and safety legislation
  • There is also legislation which requires an employer to provide suitable rest facilities for pregnant employees and nursing mothers, to pay (or otherwise accommodate) women who have been suspended from work on maternity grounds, and to transfer a woman from night work to day work if her doctor or midwife certifies that this would be advisable.
Rest facilities
  • Every employer (whether the proprietor of a fish and chip shop or the managing director of a multi-national corporation) is duty-bound to provide suitable rest facilities for those of his (or her) employees who are pregnant or nursing mothers, including (where necessary) the facility to lie down. Common sense will dictate what is suitable in relation to one workplace, and what is unsuitable in relation to another. In a large factory, office block, hotel or department store, an employer would be expected to set aside a small, well-ventilated room equipped with a toilet and washbasin and furnished with one or more beds or reclining chairs. In a small establishment, employing just a handful of employees, a small curtained-off area with a comfortable reclining chair would probably satisfy the requirement. However grand or modest, the room or facility must either be equipped with a toilet or washbasin or be conveniently situated in relation to the staff wash- rooms and toilets. A failure to provide such a facility is a criminal offence which could lead to prosecution and a heavy fine under the Health & Safety at Work etc Act 1974 (per regulation 25(4), Workplace (Health, Safety & Welfare) Regulations 1992).
Suspension from work on maternity grounds
  • Under the Management of Health & Safety at Work Regulations 1999, the 'risk assessment' exercise necessarily carried out by every employer must include an assessment of the risk to the health and safety of new or expectant mothers (or to that of their babies) arising out of their working conditions, the type of work in which they are engaged (eg, manual handling of loads, noise, vibration, hot or humid conditions, etc), or their exposure to hazardous physical, biological or chemical agents. If there is a risk, the employer must either transfer a pregnant employee or new mother to suitable alternative employment or suspend her from work on full pay until that risk has passed (ibid. regulation 16).
    Note 
    The expression 'new or expectant mother' means an employee who is pregnant; who has given birth within the previous six months; or who is breastfeeding (ibid. regulation 1(1)).

  • The right of a new or expectant mother to be paid her normal wages or salary while suspended from work on maternity grounds is to be found in sections 66 to 68 of the Employment Rights Act 1996. Any woman denied her statutory rights in this respect may obtain redress by presenting a complaint to an employment tribunal. 

  • Similar provisions are to be found in the Control of Lead at Work Regulations 2002 and in the Ionising Radiations Regulations 1999, both of which require the suspension of a pregnant employee in specified circumstances. Indeed, both sets of Regulations caution that a 'woman of reproductive capacity' (that is to say, a woman who is capable of bearing a child, but who is not necessarily pregnant at the time) must be suspended from work involving exposure to lead or ionising radiation, on the advice of an employment medical adviser or HSE- appointed doctor, if her blood-lead or urinary-lead concentration or, as appropriate, the radiation dose limit for her abdomen is likely to be (or has been) exceeded.
Night work
  • If a doctor or registered midwife certifies that a particular employee who is pregnant or breastfeeding (or has given birth to a child within the previous six months) should not work at night, her employer must either offer her suitable alternative work on the day shift or, if that is not reasonably practicable, suspend her from work on full pay until the danger has passed (regulation 17, Management of Health & Safety at Work Regulations 1999 (qv)).
Further information
  • The HSE publications listed below are available from HSE Books, PO Box 1999, Sudbury, Suffolk C010 6FS (Telephone: 01787 881165):
    New and Expectant Mothers at Work: A Guide for Employers (1994) ISBN 0 7176 0826 3
    Infections in the Workplace to New and Expectant Mothers (1997) ISBN 0 7176 1360 7

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