Protect new and expectant mothers at work

As an employer, you have specific legal duties to protect new and expectant mothers at work. These duties go beyond your general health and safety obligations and require you to take proactive steps once you are notified that an employee is pregnant, has recently given birth, or is breastfeeding.

Failing to comply can result in HSE enforcement action, and may also constitute pregnancy discrimination under the Equality Act 2010 - exposing you to unlimited compensation claims in the employment tribunal.

Who is protected

The regulations protect three groups of workers:

• Pregnant employees - from the point you are notified in writing
• Employees who have given birth within the previous 6 months - including those returning from maternity leave
• Breastfeeding employees - for as long as they continue to breastfeed

The term "new or expectant mother" in the regulations covers all three groups.

The notification trigger

Your specific duties under Regulations 16-18 are triggered when an employee notifies you in writing that she:

• is pregnant
• has given birth within the previous 6 months, or
• is breastfeeding

You cannot require medical evidence. The 2003 amendment to these regulations removed any requirement for a medical certificate or other proof. A simple written statement from the employee is sufficient to trigger your duties.

However, you can ask for confirmation of the pregnancy in writing if the employee initially tells you verbally. Once you receive written confirmation, your duties begin immediately.

Before notification: generic risk assessment

If women of childbearing age work in your business and could be exposed to risks from their work that might affect a new or expectant mother or her baby, you must include these risks in your general workplace risk assessment. This applies even if no employee has notified you of pregnancy.

This generic assessment should identify:

• Which roles involve hazards that could affect pregnancy or breastfeeding
• What control measures are already in place
• What additional measures might be needed when an employee notifies you

Having this assessment ready means you can respond quickly when notification is received.

After notification: individual risk assessment

Once you receive written notification, you must conduct a specific individual risk assessment for that employee. This is not optional - it is a legal requirement.

The individual assessment must consider:

• The specific hazards in her role and workplace
• How her pregnancy (or recent birth, or breastfeeding) affects the risks
• How the risks may change as pregnancy progresses
• Any health conditions affecting the pregnancy

You should involve the employee in the assessment. She knows her own health situation and may have information from her midwife or GP that is relevant.

Specific risks to assess

HSE guidance identifies workplace hazards that may particularly affect new and expectant mothers:

The action hierarchy: what you must do if risk is identified

If your risk assessment identifies a risk that cannot be avoided, you must follow a strict hierarchy of protective measures. You cannot skip steps - you must consider each option in order and document why it is not possible before moving to the next.

Night work provisions (Regulation 17)

Special provisions apply where an employee normally works at night.

If a registered medical practitioner or registered midwife provides a certificate stating that night work would be a risk to the employee's health or safety, you must:

1. First: Offer her suitable daytime work on terms no less favourable than her normal role
2. If no suitable day work available: Suspend her on full pay for as long as necessary

The medical certificate triggers this duty. You cannot require the employee to continue night work while awaiting investigation of whether day work is available.

What counts as night work: Work during the period between 11pm and 6am (unless a different period is agreed in a collective or workforce agreement, but it must include midnight to 5am).

Rest facilities

The Workplace (Health, Safety and Welfare) Regulations 1992 require you to provide suitable rest facilities for pregnant employees and breastfeeding mothers.

For pregnant employees, this means:

• Somewhere to sit or lie down if needed
• Facilities should be near toilets and allow privacy
• Easy access - not up multiple flights of stairs

For breastfeeding mothers, this means:

• A private, hygienic room (not a toilet) where she can express milk
• Access to a refrigerator for storing expressed milk
• Time during the working day to express milk (frequency and duration will vary)

The specific facilities needed depend on your workplace and the employee's needs. Discuss arrangements with her.

Reviewing the risk assessment

A risk assessment for a new or expectant mother is not a one-off exercise. You should review it:

• As pregnancy progresses - risks from manual handling and prolonged standing increase in later pregnancy
• If health complications arise - conditions like gestational diabetes, pre-eclampsia, or SPD may require additional adjustments
• When the employee returns from maternity leave - particularly if she is breastfeeding
• If the role or workplace changes - new equipment, new processes, or changes to working arrangements

Good practice is to review at least once per trimester during pregnancy, and again when the employee confirms her return to work date.

Pregnancy discrimination: the Equality Act 2010 link

Failing to comply with these health and safety requirements may also constitute pregnancy discrimination under the Equality Act 2010. Pregnancy and maternity is a protected characteristic.

Common discrimination risks:

• Failing to conduct a risk assessment when notified of pregnancy
• Suspending the employee without genuinely considering adjusted conditions or alternative work
• Offering alternative work on less favourable terms
• Treating the employee less favourably because of pregnancy-related sickness
• Making redundancy decisions influenced by pregnancy
• Failing to keep the employee informed about workplace developments during maternity leave

Pregnancy discrimination claims have no cap on compensation. The employee can bring both a health and safety claim and a discrimination claim arising from the same facts.