Avoiding risks

We touched briefly in last week’s article on the obligations of an employer in relation to a pregnant employee pursuant to the Safety and Health at Work Act which recently became law.

The relevant parts of Section 6 provide that upon production of a medical certificate the employer must not “require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of the child and must adapt her working conditions to suit”.

Further, “during an employee’s pregnancy and for a period of six months after the birth of her child, the employer shall offer her suitable alternative employment on terms and conditions of work that are no less favourable than her ordinary terms and conditions of work where the employee is required to perform work that poses a danger to her safety or health or that of her child, unless there is no alternative employment or that in doing so the employer will incur costs greater than ordinary administrative costs”.

In researching how these provisions have been treated in other courts it became quite apparent that similar legislation is viewed as a springboard for hundreds of more specific regulations addressing various types of workplaces and workers.

For example, Regulation 16 of the UK Health and Safety at Work Regulations 1999 provides for the usual risk assessment and that

(2) [w]here, in the case of an individual employee the taking of any other action … would not avoid the risk … 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, … suspend the employee from work for so long as is necessary to avoid such risk.”

In the Barbados case if there is no alternative employment or the cost is too much to justify it, there is no provision for what happens next. So does the pregnant employee have to be laid off thereby triggering our severance payments provisions or does it entitle the employer to continue to require her to perform her pre-pregnancy employment? In the UK on the other hand the employer is required to grant paid leave for the duration of the pregnancy and any requisite period thereafter.

The Sheffield Occupational Health Advisory Service reports that studies have indicated that heavy and/or repetitive lifting or significant physical exertion or standing for more than three hours per day may significantly increase a woman’s risk of adverse pregnancy outcome. Standing and walking at work between the third to six months of pregnancy may present a particular risk for pre-term delivery.

Since the penalties for breach of the UK provisions make ours look like the price of admission to a fair, one was hard pressed to find specific cases of infractions dealt with by the courts so we look at hypothetical examples. In the case of a nurse whose duties include the lifting of elderly persons or interaction with potentially violent psychiatric patients the risks are obvious and the adjustments to be made in such conditions equally so.

What is perhaps not so obvious is the receptionist in the office or the reporter assigned to cover the election campaigning which has now beset us. In the first situation the adjustments could perhaps relate to more ergonomic seating (which should have been in place anyhow), facility for regular rest breaks and so on. In the second example, most political meetings are held at night with persons standing at the side of the road and as far as I know Barbados is not replete with publicly accessible bathrooms.

In the UK there is no general prohibition on the assignment of night work to employees but in the case of the issuing of a medical certificate then adjustments must be made in the employees scheduled hours. The fact that an employee is willing does not exempt the employer from liability.

The Shops Act Cap. 356A provides that a shop owner must provide seating for each cashier and one seat for every 3 shop assistants. This is a minimum requirement but my cursory observation of many of the stores I enter in this country lead me to believe that this ratio is strictly observed. Compliance could mean that a stool should be provided specifically for that employee’s use.

In addition, Section 6(5) of the Shops Act indicates that overtime is voluntary but given the current economic climate the definition of “voluntary” assumes shades of grey. The specificity of the Workplace (Health Safety and Welfare Regulations UK, 1992 is astounding and for example employers are to provide “suitable facilities … for any person at work who is a pregnant woman or a nursing mother to rest” even if the employee does not feel they can refuse to do overtime.

Sections 105 through 108 of the act allow the minister responsible for labour to make regulations to flesh out the Act and one would have thought that having been on the books since 2005 this statute and the attendant regulations would have been rolled out en masse. In their absence it will be left to the court’s interpretation and sometimes not even lawyers profit from unnecessary litigation.

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