Employment rights recap: Elite sportswomen and pregnancy – Entitlement to a risk assessment
In the UK, pregnant employees are legally entitled to a risk assessment in the workplace to ensure their health and safety, as well as that of their unborn child. This entitlement applies equally to employed elite sportswomen, and it is particularly critical, given the physically demanding nature of their work and the unique risks posed by high-intensity training and a demanding fixtures schedule.
In recent years, successes of high-profile athletes and mothers such as Serena Williams, Shelly-Ann Fraser-Pryce and Jessica Ennis-Hill have demonstrated that elite sport and having a family need not be mutually exclusive. Attention is turning to ensuring that elite female athletes are protected by their legal rights during this crucial stage of life, with growing recognition of the need for proper risk assessment and tailored support during pregnancy. The benefits are far reaching – not only to the athlete and her unborn baby, but to her future career post-birth and therefore more widely, women’s sport as a whole.
Professional sport has a very wide remit and captures professional players and elite athletes across a broad range of sports. Professional players will normally be engaged on standard form professional playing employment contracts with their employer club, and the status of funded athletes has been challenged – notably in the case of Jess Varnish v British Cycling where the Employment Appeal Tribunal determined that she did not qualify for ‘worker’ status. This article focusses on the legal framework for professional sports employees in the UK. No doubt the status of athletes, will be ripe for challenge again in the future, given the direction of travel and the extent of changes being proposed by the Labour Government, alongside the EAT highlighting the fact specific nature of determining ‘worker’ or ‘employee’ status in the Varnish case.
Legal Framework for Pregnant Employees in the UK
UK employment legislation mandates that employers must assess workplace risks to all employees, including those who are pregnant, new mothers, or breastfeeding. This applies equally to any employed elite sportswoman. Specifically, when an employee notifies her employer that she is pregnant, the employer must:
- Assess the risks to the health and safety of the athlete and her baby.
- Take action to remove, reduce, or control any risks identified.
- Provide reasonable adjustments or alternative work if necessary.
For elite sportswomen, this risk assessment is critical, as their roles involve intense physical activity, exposure to potential injury, and a need for specialised training environments, with optimum nutrition, strength and conditioning, and rehabilitation from injury. Indeed medical science in this area is advancing significantly, following an increased focus on the importance of protecting female athletes and the challenges that they face.
The Importance of Risk Assessments for Pregnant Athletes
Elite sportswomen’s careers come with specific physical and environmental risks, many of which can pose heightened dangers during pregnancy. These risks include:
- High-Impact Activities, involving high-impact movements, physical contact, and a risk of falls or collisions. These activities could pose significant risks to a pregnant athlete and her baby, particularly after the first trimester.
- Overexertion and Physical Stress: Pregnancy naturally impacts a woman’s cardiovascular system, joints, and balance, which are crucial for athletic performance. Overexertion during intense training could increase the risk of complications, such as premature labour or injury.
- Travel and Competition Schedules: Elite athletes often travel frequently for competitions, which can involve long hours in transit and increased stress, raising health concerns for pregnant athletes.
- Hydration and Nutrition: Pregnant athletes may require tailored nutrition and hydration strategies to meet the changing needs of their bodies, especially during physical exertion.
A comprehensive risk assessment helps ensure these risks are properly addressed, allowing sportswomen to continue their careers safely while protecting their health and that of their unborn child.
Key Elements of Risk Assessment for Pregnant Elite Athletes
Risk assessments for pregnant athletes should take into account both general health and safety concerns for pregnant employees, as well as the specific demands of their sport. Key considerations include the physical demands of the sport, such as contact activities; training modifications; ongoing medical monitoring and collaboration with healthcare professionals such as obstetricians; and environmental factors such as heat and travel schedules.
Workplace Adjustments: If necessary, the risk assessment should lead to adjustments in the athlete’s working conditions. For example, she may be reassigned to less physically demanding roles within her club or sporting organisation, such as mentorship or coaching, where feasible.
Employer Responsibilities
Under UK law, employers must act on the results of a risk assessment by implementing any necessary changes to protect the pregnant employee. Of major importance, if risks cannot be adequately controlled within the athlete’s current role, the employer is obliged to explore alternative solutions. The risk factors vary significantly across sports (for example, whether a contact or non-contact sport), however common themes and solutions could include:
- Modifying the player/athlete’s duties: For instance, allowing the athlete to reduce her physical involvement in training and competition while still participating in less strenuous aspects of the sport.
- Offering alternative work: If adjustments within the current role are not possible, the employer must consider offering the athlete an alternative role that poses fewer risks to her health.
- Paid Suspension: If neither of the above options is feasible, and the risks to the player/athlete’s health and safety remain, the employer is required to suspend her from work on full pay for as long as necessary to protect her health and that of her baby.
Consequences for Clubs who fail to comply
Elite professional sports clubs and sporting organisations, like all UK employers, must comply with their legal obligations for employee’s pregnancy and health and safety. Failure to provide an adequate risk assessment or failure to take appropriate action based on the assessment can lead to claims of discrimination under the Equality Act 2010, which prohibits discrimination against women on the grounds of pregnancy and maternity. An employer has a duty to provide a safe working environment for all employees, and employers and club coaches should be acutely aware of these specific heightened risks.
Elite sportswomen who feel their employer has failed to conduct a proper risk assessment or take the necessary steps to protect them can raise the issue formally with their club and should seek independent legal advice on their positions. Employers who fail to fulfil their obligations may face legal consequences, including employment tribunals or claims for unfair dismissal or discrimination. A breach of duty of care could also give rise to a personal injury claim.
Comment
The entitlement to a risk assessment for pregnant elite sportswomen in the UK is a critical aspect of protecting their health and ensuring that they can balance their careers with motherhood. While the physically demanding nature of elite sports presents unique challenges, employers are legally obliged to conduct thorough risk assessments and take action to mitigate any risks. By providing appropriate support, modifying training programs, and offering alternative work when necessary, professional sports clubs and organisations can ensure that pregnant athletes are protected while continuing to participate safely in their sports, and thereafter support their active return to play/compete when they wish after maternity leave.
As awareness around pregnancy and maternity rights grows in the world of elite sports, it is essential that employers and stake holders work together to ensure that all female athletes receive the leading medical support and employment protections they are entitled to under UK law. This will not only help safeguard their health but also encourage a more inclusive and supportive environment for women in sport. There has been notable progress in professional sport achieved through agreement between the players unions and governing bodies, notably with standard minimum enhanced maternity leave pay rates being agreed by the Football Association, Rugby Football Union, UK Sport, and the England and Wales Cricket Board. In professional football the FIFA Regulations on the Status and Transfer of Players also underpin the minimum standards required for players and coaches (implemented by the member associations). With the exciting growth of women’s professional sport, players and athletes should ensure that they are fully informed of their statutory rights and protections, to ensure they receive optimum support within their high-performance environment.
To find out more information, please speak to a member of our top ranked tier 1 Sport and Employment team.
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