16.—(1) Where—
(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, including those specified in Annexes I and II of Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, as amended by Directive 2014/27/EU,
the assessment required by regulation 3(1) shall also include an assessment of such risk.
(2) Where, in the case of an individual employee, 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.
(3) If it is not reasonable to alter the working conditions or hours of work, or if it would not avoid such risk, the employer shall, subject to section 67 of the 1996 Act suspend the employee from work for so long as is necessary to avoid such risk.
(4) In paragraphs (1) to (3) references to risk, in relation to risk from any infectious or contagious disease, are references to a level of risk at work which is in addition to the level to which a new or expectant mother may be expected to be exposed outside the workplace.
Cases considering regulation 16 5
[2007] EWCA Civ 33 · 26 January 2007Interprets
Regulation 16(1) required an evidential finding that the work could involve a risk, by reason of pregnancy, to the health or safety of the employee or baby before an obligation to assess risk arose. The Tribunal had made no such finding and lacked evidence for one. (see paras [131]-[139])
Regulation 16(2) concerns altering working conditions or hours where other action would not avoid a relevant risk. The court considered it as part of the regulatory scheme, but the appeal failed because no qualifying risk under regulation 16(1) had been established. (see paras [131]-[132]; [138]-[139])
Cited only.
[2005] EWCA Civ 983 · 27 July 2005Limits
The court confirmed that the risk assessment required by Regulation 3(1) had to include risks arising from work conditions affecting a new or expectant mother or her baby, where the statutory conditions were met. Breaches at both stages could support the discrimination finding. (see paras [16]; [21]; [23])
The court applied Regulation 16(1) as requiring the general risk assessment to include pregnancy-related risks from relevant processes, working conditions, or physical, biological or chemical agents. The inadequate assessments were treated as breaches contributing to pregnancy discrimination. (see paras [16]; [21]; [23])
The court included the condition that the undertaking included women of child-bearing age when setting out the pregnancy-related risk-assessment duty. It formed part of the regulatory framework underlying the discrimination finding. (see para [21])
The court included the condition that the work could involve pregnancy-related risks to a new or expectant mother or her baby. It formed part of the regulatory framework underlying the discrimination finding. (see para [21])
The court set out the duty to alter an individual employee’s working conditions or hours where reasonable and sufficient to avoid the relevant risk. The provision formed part of the obligations whose breach supported the discrimination finding. (see para [21])
The court set out the duty to suspend an employee where altering working conditions or hours was unreasonable or would not avoid the relevant risk, subject to section 67 of the Employment Rights Act 1996. It formed part of the statutory context but was not separately determinative. (see para [21])
The court set out the rule that, for infectious or contagious disease, the relevant risk was an additional workplace risk beyond that reasonably expected outside work. The provision was not analysed or applied to the outcome. (see para [21])
[2005] EWCA Civ 104 · 9 February 2005
The court treated the operation of Regulation 16 as an arguable issue arising from the employer’s response to the employee’s pregnancy and workplace risk. The provision was relevant to whether adequate risk assessment and protective measures had been undertaken. (see paras [6], [20])
The court identified as arguable whether suspension was required where the relevant risk could not be avoided by altering working conditions or hours of work. The issue was left for determination by the full appellate court. (see paras [7], [19]–[20])
What each judgment says about regulation 16 is in the case-law panel in the full Regulations.