What to do when a worker advises she’s pregnant.
When a worker advises her employer that she’s pregnant, there are several steps that need to be taken. If the employer doesn’t follow those steps correctly, it can end up costing them significantly in terms of time and money having to defend a tribunal claim.
One such case that shows where problems can arise was heard recently in the Employment Tribunal: Miss C Thompson v E Zec Medical Transport Services Ltd: 3303881/2020
Miss Thompson was employed by E-Zec Medical Transport Services Ltd (E-Zec), a private medical transport services company, as an Ambulance Care Assistant Driver from 29th July 2019.
Her role consisted of being assigned to jobs to collect patients in the company’s ambulance and deliver them to NHS Trust Hospitals for pre-arranged treatments.
Sometimes this involved her working with a colleague, or working alone, and would also include working with patients who were bariatric (obese). When she joined the company in July 2019, Miss Thompson was not pregnant; however, she became pregnant after joining the company but suffered a miscarriage at around 5-6 weeks of pregnancy in August 2019.
She found out that she was pregnant again on 12th October and at the start of her next shift (15th October) she informed her supervisor that she was pregnant.
She was surprised that she was not reassigned due to this information, including the fact that she had suffered a previous miscarriage. At the end of the shift, she was assigned a rota for the following day, which involved working with patients with high body mass index, including using a stretcher and wheelchair.
After she raised this, it was changed back to a stretcher ambulance which would still involve the manoeuvring of heavy individuals.
On 17th October 2019, she informed E-Zec by email that she was pregnant again and that following her earlier miscarriage, she was very anxious and was concerned about her duties especially those which involved lifting heavier patients with a higher BMI.
She requested a Risk Assessment and one was conducted by her manager at the time, Mr Pepper. Miss Thompson told the Tribunal that Mr Pepper was inexperienced at conducting such assessments and had told her that this was the first one that he had carried out.
The Risk Assessment was carried out and a form was completed, consisting of a number of boxes being ticked and some recommendations for action being inserted. Miss Thompson was asked to sign the form to show that she agreed with it. It noted three hazards and some recommendations were suggested.
There was generally a lack of detail and, in the Tribunal’s view, a lack of proper consideration of the real risks that Miss Thompson would face if she continued to be rostered to work in transporting Out Patients to and from Hospital.
Following this, there were 10 incidents, occurring between 6th November and 30th December 2019, where Miss Thompson was either assigned to jobs alone, and / or was assigned to jobs which involved manoeuvring of bariatric patients with a high BMI. In several of these incidents, she was obliged to use a TW Vehicle which was a larger vehicle than a car and was very uncomfortable. The TW vehicle would vibrate a lot which would cause stress on her core and upper legs.
The Tribunal observed that:
“…with all of these complained incidents, it appears as a matter of fact that no due cognisance was taken of the Risk Assessment carried out by Mr Pepper and that these jobs were just assigned to the Claimant in any event. It is true that some of the jobs were in a car and not in the larger TW Vehicle, which Mr Pepper had recommended be avoided, but there appears to have been no cognisance of the Risk Assessment in any event when allocating them.”
Miss Thompson suffered another miscarriage 5 months into her pregnancy in January 2020. She then took E-Zec to an Employment Tribunal (ET)
She said that after having informed E-Zec that she was pregnant, they failed to carry out a suitable and sufficient Risk Assessment, contrary to the Management of Health and Safety at Work Regulations 1999, Regulation 16 and this amounted to discrimination under Section 18(2) Equality Act 2010.
She also said that the 10 acts and omissions by E-Zec between 6th November and 30th December were acts of discrimination contrary to Section 18 of the Equality Act 2010 and/or amounted to detriment contrary to Section 47C(1)(2a) of the Employment Rights Act 1996 (ERA).
What does the law say?
The Management of Health and Safety at Work Regulations 1999, Regulation 16
(a)the persons working in an undertaking include women of child-bearing age; and
(b)the work is of a kind which could involve risk, by reason of her condition, to the health and safety of a new or expectant mother, or to that of her baby, from any processes or working conditions, or physical, biological or chemical agents…
the assessment required by regulation 3(1) shall also include an assessment of such risk.”
The regulation also says that in the case of an individual employee, if
“the taking of any other action the employer is required to take under the relevant statutory provisions would not avoid the risk referred to in paragraph (1) the employer shall, if it is reasonable to do so, and would avoid such risks, alter her working conditions or hours of work.”
Section 18(2) of the Equality Act 2010 says:
(2) A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably —
(a)because of the pregnancy, or
(b)because of illness suffered by her as a result of it.”
Section 47C(1)(2a) of the Employment Rights Act 1996 (ERA) says:
(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.
(2) A prescribed reason is one which is prescribed by regulations…and which relates to—
(a)pregnancy, childbirth or maternity,”
What did the Tribunal say?
They said that:
1. Miss Thompson’s claim that E-Zec’s Risk Assessment amounted to a breach of the Management of Health and Safety at Work Regulations 1999 and was discriminatory under Section 18 of the Equality Act 2010, succeeded.
2. Miss Thompson’s claim that 10 acts or omissions taking place between 6th November 2019 and 30th December 2019, amounted to discrimination under Section 18 of the Equality Act 2010, and detriment contrary to Section 47C(1) & (2A) of the Employment Rights Act 1996, succeeded.
A remedy hearing will be listed to discuss the compensation to be awarded to her.
What should employers bear in mind?
The key takeaway for employers from this case is that they need to ensure that once a worker notifies them about her pregnancy, they respond with a genuine, meaningful and throughout risk assessment, completed in co-operation with the employee and that all reasonable attempts are made to implement adjustments and measures to remove all identifiable risks.
In this case, the employer could have conducted a more thorough risk assessment including removing the employee from any heavy lifting or manoeuvring duties with patients with a high BMI, or - where this could not be avoided - looking instead to place the employee in an administrative role on a temporary basis until the start of her maternity leave.
It's also worth noting that Miss Thompson’s manager at the time, Mr Pepper, had never carried out a risk assessment and his lack of experience was a key factor in the ultimate outcome of her claim. It makes sense, therefore, if a manager’s job description says that they might have to carry out such a task, that they are given the appropriate training for it. It’s worth an employer contacting a health and safety trainer as soon as the need is identified.