UK issues a notice relating to new and expectant mothers

UK Maritime and Coastguard Agency has issued a merchant shipping notice relating to new and expectant mothers.

This notice (MSN 1890 (M+F) Amendment 3) was published on 12 May 2023.

Summary

This notice gives detailed information required to comply with the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 (“the 1997 Regulations”) as they relate to new or expectant mothers.

This notice provides guidance on this subject. Many women continue to work while they are pregnant and return to work while breastfeeding.

shipowners and employers are required to take into account the safety and health of new or expectant workers when carrying out a risk assessment, in particular if the woman is required to do night work (guidance is in paragraph 6 and annex 1);
subject to the findings of the risk assessment, and medical advice, a woman may continue to work at sea during pregnancy.
the procedure to be followed is set out.

The 1997 regulations implemented (among others) 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 and form part of the UK’s retained law. All the obligations in the EU legislation mentioned in MSN 1890 (M+F) Amendment 3, which have affect in the UK prior to the 1st January 2021, are retained in UK law, with any necessary modifications, after the end of the EU Exit implementation period.

Amendment 3 updates references only.

1. Introduction

1.1 The Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 (S.I. 1997/2962) came into force on 31 March 1998. Regulations 8, 9 and 10 make provision for the safety and health at work of pregnant workers, those who have recently given birth or are breastfeeding. The regulations apply to United Kingdom ships and to other ships when they are in United Kingdom waters.

1.2 The medical fitness standards for those working at sea are published in MSN 1886 (M+F) Amendment 1. They have statutory force under the Merchant Shipping (Maritime Labour Convention) (Medical Certification) Regulations 2010 (S.I. 2010/737) and the Merchant Shipping (Work in Fishing Convention) (Medical Certification) Regulations 2018.

1.3 Copies of the regulations are available on the legislation website.

1.4 Merchant shipping notices, marine guidance notices and marine information notes are available to download from the GOV.UK website

1.5 Paragraphs 2 to 5 of this merchant shipping notice are based on the guidance issued by the Health Safety Executive. Further information is available from the HSE website.

2. New and expectant mothers: health and safety

2.1 Pregnancy should not be equated to ill health. It should be regarded as part of everyday life and its health and safety implications can be adequately addressed by normal health and safety management procedures. Many women work while they are pregnant, and many return to work while they are still breastfeeding.

2.2 However, the particular demands of working on board ship can place pregnant workers at risk. Very few ships carry doctors, and in the event of problems developing during pregnancy, an equivalent level of care to that available to an expectant mother working ashore is unlikely. For example, sophisticated investigations for the slightest abnormality in a previously normal pregnancy, which may be needed fairly urgently, could not be duplicated even on a ship with medical facilities. In addition, ship turnaround in ports is often very rapid allowing no time for routine ante-natal care.

2.3 Account must also be taken of the fact that, should labour begin prematurely, access to medical facilities for the mother and new-born child in the event of premature birth might be delayed at least until the ship reaches port.

2.4 The guidance and medical standards used to assess the fitness of seafarers are given in MSN 1886 (M+F) Amendment 1.

3. Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 (S.I. 1997/2962)

3.1 These regulations require the employer to assess risks to all workers and to do all that is reasonably practicable to control those risks.

3.2 Regulations 8, 9 and 10 specifically require that the employer takes particular account of risks to expectant and new mothers in that risk assessment.

3.3 Compliance with specific regulations (e.g. for the storage and handling of dangerous goods) will normally be enough to reduce the risk, but consideration should always be given to removing the hazard or completely preventing exposure to the risk. Where this is not feasible, the risk should be controlled.

4. Risks from living and working conditions subject to risk assessment in respect of new or expectant mothers (regulation 8 (1))

4.1 Employers must assess the nature, degree and duration of exposure of new and expectant mothers and any risks to their health and safety in respect of the activities listed in annexes A and B. The risk assessment carried out under regulation 7(1) (see paragraph 3.2) must include these risks. The list is not exhaustive.

4.2 The table in annex C gives guidance on avoiding or mitigating the risks from such activities.

5. Action to be taken

5.1 Action in relation to an individual worker is required when the employer has been told in writing that a worker is pregnant, a certificate from a registered practitioner or registered midwife may be requested to confirm the pregnancy.

5.2 If there is a significant risk at work to the safety and health of a new or expectant mother, which goes beyond the level of risk to be expected outside the workplace, then the following actions must be taken to remove her from the risk;

Action 1: temporary adjustment of working conditions and hours of work; if this is not reasonable, or would not avoid the risk -

Action 2: provision of suitable alternative work, if any available, at the same rate of pay; or if that is not feasible -

Action 3: suspension from work on paid leave for as long as necessary to protect her safety or health or that of her child.

during the period of suspension, the worker must be paid (as required by the Employment Rights Act 1996 Sections 66 and 68) Further information is contained in the Department of Work and Pensions publication: Maternity Benefits: Detailed Guide

5.3 These actions are only necessary where there is genuine concern as the result of a risk assessment; if there is any doubt, the employer may want to seek professional advice on what the risks are and whether they arise from being carried out before offering alternative employment or paid leave.

6. Night work

6.1 Special consideration must be given to a new or expectant mother who works at night, and obtains a medical certificate stating that night work could affect her health and safety.

6.2 The following steps should be followed.

Step 1: if an employee who has notified the employer in writing that they are pregnant has a medical certificate stating that night work could affect her health or safety, she has a right under the Employment Rights Act 1996, sections 66 and 67, to be offered suitable alternative work on terms and conditions no less favourable than her normal terms and conditions.

Step 2: if it is not possible to offer the employee suitable alternative work then she must be suspended from work under regulations 8-10 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997. As mentioned in paragraph 5.2, the worker must be paid during the period of suspension (as required by the Employment Rights Act 1996 sections 66 and 68).

7. Medical Standards relating to pregnancy

7.1 Paragraphs 7.2-7.9 apply only to those required to hold an ENG 1 Medical Fitness Certificate under the Merchant Shipping (Maritime Labour Convention) (Medical Certification) Regulations 2010 and the Merchant Shipping (Work in Fishing Convention) (Medical Certification) Regulations 2018.

7.2 Nothing in the following paragraphs affects the rights of a worker to Maternity Leave in sections 71-80 of the Employment Rights Act 1996.

7.3 The ILO/IMO Guidelines on the Medical Examinations of Seafarers advise that the normal date for the cessation of work for expectant mothers employed at sea is 24 weeks. This is because the survival of a premature infant born at 24 to 28 weeks is now common with good onshore neonatal intensive care.

7.4 Where the worker wishes to delay the start of her maternity leave after the 24th week, the worker should agree with the employer any necessary changes to her duties and her hours of work so that the following criteria are met:

The seafarer

is employed only on trips of not more than two hours duration:
is able to attend the appropriate ante-natal checks within working time where necessary;
has no emergency duties.

7.5 The employer must undertake a risk assessment under regulations 8(1) of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997. This must take account of the medical advice from the seafarer’s doctor or obstetrician, as appropriate. The findings of the risk assessment must show no significant risks to the worker or her unborn child.

7.6 The employer should then make arrangements for the worker to see an approved doctor who will assess the position in the light of the medical evidence, the above criteria and the guidance in this merchant shipping notice.

7.7 If the approved doctor is satisfied that the seafarer is fit to continue working at sea, within the limits set out above, a new ENG 1 Medical Fitness Certificate may be issued with the following restrictions:

restricted to trips of not more than 2 hours;
not fit for emergency or muster duties.

7.8 If there is any doubt about the seafarer’s fitness to continue to work, an ENG 3 will be issued. The seafarer may then appeal to a medical referee in the normal way.

7.9 While she continues at sea, the seafarer must continue to undergo her ante-natal checks in order that her condition can be monitored. If there is any significant change in her condition, affecting her fitness to work her employer must be notified and she should return to the approved doctor for a reappraisal.