The question is: Should we train someone in physical skills (restraint, breakaway or self-defence) if they are pregnant?
Employers have certain obligations towards their employees once they have been notified in writing that she is a new or expectant mother.
Health and Safety at Work Regulations
Regulations 2 and 3 of the Health & Safety at Work Act places a legal duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees and others.
In addition, Regulation 3 of the Management of Health & Safety at Work Regulations 1999, places a further legal duty on all employers to assess the health and safety risks that their employees and others are exposed to whilst at work, and once the risks have been assessed, the employer is then required to put in place the appropriate health and safety measures to control those identified risks.
In addition to the requirements of Regulation 3 of the Management of Health & Safety at Work Regulations 1999, Regulation 16 also requires that the risk assessment should include any specific risks to females of childbearing age who could become pregnant, and any risks to new and expectant mothers. These risks can be from any process, working conditions, or physical, biological or chemical agents.
When an employee provides written notification (Regulation 18 of the Management of Health & Safety at Work Regulations 1999) to her employer stating that she is pregnant, or that she has given birth within the past six months or that she is breastfeeding, the employer should immediately take into account any risks identified in their workplace risk assessment.
If that risk assessment has identified any risks to the health and safety of a new or expectant mother or that of her baby, and these risks cannot be avoided by taking any necessary preventive and protective measures under other relevant health and safety legislation, then employers must take action to remove, reduce or control the risk.
If the risk cannot be removed employers must take the following actions:
Action 1 – Temporarily adjust her working conditions and/or hours of work, or if that is not possible;
Action 2 – Offer her suitable alternative work (at the same rate of pay) if available, or if that is not feasible;
Action 3 – Suspend her from work on paid leave for as long as necessary, to protect her health and safety, and that of her child;
The Management of Health & Safety at Work Regulations 1999 also state that where a new or expectant mother works nights and she provides a medical certificate from her GP or Midwife which says that working night shifts will affect her health, then her employer must suspend her from work, on full pay, for as long as necessary. However, the Employment Rights Act 1996 link to external website provides that where appropriate, suitable alternative work should be offered, on the same terms and conditions, before any suspension from work is considered.
Although it is not a legal requirement for employers to conduct another specific or further individual risk assessment for new and expectant mothers, employers may choose to do so as part of the process by which they reach a decision about what action should be taken. An employer’s risk assessment should have already considered any specific risks to new and expectant mothers when considering the rest of the workplace. This will enable employers to take immediate action, if and when necessary.
However, if an employer suspects that the general risk assessment is no longer valid or that there has been a significant change to the matters to which it relates, then the employer should revisit and review that risk assessment accordingly. This would be the case for all risks, including those to new and expectant mothers.
Workplace (Health, Safety and Welfare) Regulations 1992 (the Workplace Regulations)
The Workplace Regulations require employers to provide suitable rest facilities for workers who are pregnant or breastfeeding. The facilities should be suitably located (e.g. near to toilets) and where necessary should provide appropriate facilities for the new or expectant mother to lie down.
Equality Act 2010
A breach of the Management of Health & Safety at Work Regulations 1999 may, in addition, be unlawful discrimination under the Equality Act, depending on the circumstances. There is no length of service qualification, and the Act gives protective rights to a broad range of employees including contract (or agency) workers and apprentices. A breach of the Equality Act could give rise to civil liability.
It is, of course, unlawful to discriminate against anyone, even expectant mothers and this could be something that could be raised under the Sex Discrimination and/or The Employment Rights Act.
However, the employer has a strict duty of care to the expectant mother and the unborn child and therefore has to consider all of the risks to the pregnant mother and the unborn child.
There are many risks with physical restraint; slips, trips, falls, twisting and turning, bending, trying to control an unstable and potentially dangerous load, violence, etc., which should all be identified in the risk assessment that the employer already has in place. The Stage 1 and Stage 2 processes in the HSG122 document are quite clear about what processes for expectant mothers should entail.
In my opinion, any employer should not be expecting any pregnant women to undertake restraint due to the potential foreseeable risks involved.
Therefore, if this is the case, why would the employer allow a pregnant woman to undertake training?
I hope all of that helps but do get back to me if you need anything else.
Mark Dawes