A pregnant employee’s current role places her and her unborn baby at risk of harm. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, advise on whether to suspend this employee, with or without pay, because she refuses to accept an alternative, less risky role within the company.
We have a member of staff who is pregnant. We have identified the possibility of a risk in her role (manual handling and standing for long periods of time) and have offered her an alternative role within the company that does not involve any lifting. This, we believe, is in the best interests of the person and her unborn baby.
The new role is sitting down with the offer of plenty of breaks to avoid any problems with her back.
Our employee has refused the offer of this alternative role as it is in a different part of the building (away from her mates)and she states that sitting down all day causes her back ache (which is a change from her original reason, which was the job was boring).
We have received two different answers to this question – one being from ACAS – about what we can do next.
One employment law person stated that we could suspend the employee without pay if she refuses to accept the new role.
ACAS stated that we should suspend with pay, which I am inclined to agree with, although it sticks in the throat a bit as the cynics amongst our management team feel that this employee wants to do nothing as she is somewhat lazy.
And before anybody jumps on the bandwagon that she is being persecuted for being pregnant this is not the case – she is just one of UK Plc’s bone idle people!
This employee is due to leave to start her maternity leave in approximately seven to eight weeks and the baby is due in January 2008.
Esther Smith, partner, Thomas Eggar
Where an employee is pregnant and continuation of their current duties would place them or their unborn baby at risk of harm, the employer does have a duty to take actions to remove them from that risk of harm. This involves either suspension on pay or provision of a suitable alternative position during the period of suspension.
As with most employment law queries there is a legal answer and a practical answer. The legal answer is that if the employee is unreasonably refusing an alternative role which would remove her from the risk of harm then the employer can suspend without pay. The purpose of this provision is to avoid people being lazy and opting for paid leave rather than working in a different position.
However, before taking this action to suspend without pay, I would recommend that you sought medical confirmation as to whether or not the alternative role would cause her a problem with her back as she is suggesting (having realised that the “its boring” argument is probably not the best one to use). This would obviously take some time and would probably involve the cost on the company’s part of getting the medical opinion.
Turning to the practical answer, given that she is due to go on leave in seven to eight weeks’ time and the delay likely to be caused in getting a medical opinion on the alternative role, I think your best route would be to put her on paid suspension until her leave commences. Whilst this is very frustrating, you always need to approach any potential maternity issue very cautiously and whilst there may not be any other issues now, if she wants to return part time after she has had the baby, and the company does not agree to this, she may try and involve this suspension issue in a claim.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar
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Martin Brewer, partner and employment law specialist, Mills & Reeve
Actually they are both sort of right, so let’s see if we can sort this out for you.
Section 66 of the Employment Rights Act 1996 essentially says that you can suspend an employee on ‘maternity grounds’ as a consequence of a ‘relevant requirement’ or ‘relevant recommendation’. For reasons too boring to go into, a relevant requirement includes the requirement under the Management of Health and Safety at Work Regulations 1992 to, as you have done, carry out a risk assessment.
The Regulations say that if the risk assessment highlights a risk to the pregnant employee, you must either seek to alter the working conditions giving rise to the risk and, if that cannot be done, suspend the employee ‘for so long as is necessary to avoid the risk’.
That suspension, to square the circle, will be a suspension on maternity grounds under section 66 of the 1996 Act. Now, section 68 of the 1996 Act says that suspension on these grounds is suspension with pay, unless the employer has offered to provide the employee with suitable alternative work, which the employee has unreasonably refused, in which case suspension is without pay.
Suitable alternative work means work of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances. The terms of that alternative work should be the same as those of her normal work or at worst, not substantially less favourable.
So the key points are:
- Have you undertaken a risk assessment?
- If so, have you identified a risk?
- If you have identified a risk, can you alter the working conditions to avoid the risk?
- If you can’t alter the working conditions, have you offered suitable alternative work?
- If you haven’t offered suitable alternative work, then either do so or suspend with pay.
- If you have offered suitable alternative work, has the employee unreasonably refused it?
- If so, then you can suspend without pay.
Martin Brewer is a partner at Mills & Reeve. Martin can be contacted at: [email protected]
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