Current legal obligations of employer

Employers have a legal obligation to: 

• Conduct a personalised individual risk assessment, addressing the doctor’s specific and unique requirements, when they have been informed via a written notification that the doctor is pregnant, is breastfeeding, or has given birth in the last 6 months
• Evaluate the hazards faced by women of childbearing age as part of their overall workplace risk assessment and evaluations. 

The individual risk assessment must have three key features: 

• Be personalised to the individual
• Educate the pregnant doctor about the occupational risks they may face during their pregnancy
• Educate the pregnant doctor about their legal entitlements and relevant statutory rights during and after pregnancy.

When creating and developing an individual’s risk assessment, it is necessary for employers to: 

• Examine and continuously review current and up-to-date general risk management protocols and controls for both pregnant doctors and new parents
• Engage in dialogue with these doctors to ascertain if there are any pregnancy-related conditions or circumstances that may impact their duties
• Address and discuss with the doctor any apprehensions regarding how their work may influence their pregnancy
• Consult with a safety representative and the relevant trade union (for doctors, the BMA). 

Employers must also take account of any medical recommendations and advice given by a doctor or midwife regarding an individual employed by them. 

The employer must periodically reassess and regularly review the doctor’s individual and personalised risk assessment. They must implement any required adjustments as the doctor progresses in their pregnancy and in the event of any notable alterations and changes to the doctor's tasks or work environment.

It is important to note that working conditions may pose potential risks to both the pregnant doctor and/or the child/foetus at different stages of their pregnancy. Furthermore, there is clear evidence which demonstrates a detrimental impact of certain working patterns (notably long shifts and night shifts) during pregnancy on a number of maternal and fetal conditions (please see Appendix 1 for further information).

As the pregnancy progresses, it may therefore impact the doctor’s:

• manual dexterity
• physical and mental agility
• coordination
• reach.

After completing the individual risk assessment, as identified by the employer, they must document and record the findings, and share them with the doctor and their safety representative. 

It is crucial to articulate and communicate to the individual the measures that the employer, will undertake to ensure the safety of both the doctor and their child/foetus. 

If a risk is identified as part of this process 

If an employer identifies a risk that could cause harm to the doctor or their child, the employer must firstly decide if the risk can be controlled/managed. Further information is provided here.

If the employer cannot control or remove the risks identified within the risk assessment

The employer must adjust the individual’s working conditions, schedules, or hours to remove the risk from occurring.

If an adjustment is not feasible

Offer suitable alternative work to the affected individual.

In accordance with the Employment Rights Act 1996, suitable alternative work should be, where appropriate, offered and provided, prior to any proposed suspension from work. The alternative offered work must be suitable for the pregnant worker or new mother, ensuring that the role itself is reasonable and does not have the same identified risk as the previous role. The employer, in offering this role, must maintain the same terms and conditions of work, including pay.

If neither adjustment nor alternative work is possible

For as long as necessary, the employer must suspend the individual on paid leave in order to appropriately safeguard the individual’s health and safety, and that of their child.

It is vital that doctors are aware that they are legally entitled to a risk assessment upon their return to work after giving birth. This must take place once the doctor, have informed their employer they have given birth within the previous 6 months to that date. This is to be followed based upon the standards as set out above.  

Our survey indicates that many doctors are not aware of this. This is a mandated right. All protocol should be followed on this.  

When protocol has not been followed  

These are the doctor’s legal rights and responsibilities. This is the bare minimum the doctor should be receiving from their employer based on the legal frameworks in place. If:

• The risk assessment is not taking place
• the doctor disagrees with the risk assessment; or
• A risk has been identified but their employer has not undertaken the set-out actions.

As a BMA member, doctors should contact the BMA with all correspondence regarding this issue as soon as possible.

We would emphasise to junior doctors that, upon rotation to a new employer, they are legally entitled to a further risk assessment at their new employer. This is to ensure that they can work in this new workplace. The same processes as outlined above should be applied.