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Q: A woman’s job involves visiting different sites and installing and maintaining computer equipment. She is pregnant and, as a result, is unable to drive her car or perform the physical aspects of her job, such as carrying equipment and working in confined spaces. Can the employer avoid suspending her on full pay?
A: The Management of Health and Safety at Work Regulations 1999 imposes a requirement on employers to make “a suitable and sufficient assessment of the risks to the health and safety of [their] employees to which they are exposed whilst they are at work”.
If the employees in a particular establishment include women of child-bearing age, the assessment must also consider the risks from “any processes or working conditions, or physical, biological or chemical agents,” to a woman if she were pregnant, had just given birth or were breastfeeding. (A comprehensive list of such agents is provided in booklet PL958 from the Department of Trade and Industry).
Such risks include a risk from any infectious or contagious disease which would be over and above the level of risk that she might be expected to be exposed to outside of the workplace.
It should be noted that the requirement is not that the employer perform a health and safety assessment after it is known that a woman is pregnant. For any particular job that is being performed by a woman of child-bearing age, the employer must perform an assessment in anticipation of that situation and, if risks are identified, information about them must be given to all women of childbearing age in the workplace who could be affected, along with information about the measures that the employer intends to take to protect them. When a woman informs her employer that she is pregnant, the employer should already be aware of the risks and how she can be protected from them.
An employer is not required to take any action to address any risk until a woman notifies the employer that she is pregnant, or has given birth in the past six month, or is breastfeeding. In addition, where relevant, she must produce a certificate from a doctor or midwife stating that she is pregnant.
The actions that an employer must take where a risk exists are in three stages:
1. To take measures that would enable the woman to continue in her job, such as altering her working conditions or hours of work,
2. If that is not possible, to offer her alternative work, if any is available, and
3. If that is not possible, to suspend her from work for as long as is necessary to avoid the risk.
This three-stage process does not apply if a new or expectant mother works at night. If she presents a certificate from a doctor or midwife stating that she may not be at work for a specific period of time, she must be suspended from work for as long as is necessary for her health and safety. However, there is nothing to prevent the employer and employee coming to an agreement over alternative temporary work arrangements, such as working during the day.
So far we have considered only actions that an employer must take for health and safety reasons. Guidance with regard to the nature of alternative work that may be offered and to the level of payment during maternity suspension is provided in the Employment Rights Act 1996 (ERA).
Any alternative work offered must be suitable for that particular woman to perform and appropriate for her to do in the circumstances. The terms and conditions offered for the alternative work must not be “substantially less favourable” than those that apply to her regular job. She is entitled to refuse to undertake alternative work if these conditions are not met and the employer may then have no other option than to suspend her.
However, there is clearly a level of subjectivity in deciding whether the alternative work is suitable and a woman is not entitled to payment during her period of suspension if the employer believes that she has unreasonably refused suitable alternative work. If the woman believes that her refusal is reasonable, she may make a complaint to an employment tribunal.
The period of suspension could last for months or even years if she is breastfeeding and the health and safety of her child is at risk. Throughout the period of suspension, she is entitled to be paid in full, using the “week’s pay” rules as set out in the ERA. This means that she must receive her normal pay if her normal pay does not vary each week or, if she normally receives bonuses, commissions or premium rates for working shifts, her pay must be based on a twelve-week average.
In this particular example, the employer should endeavour to find an alternative job for the woman to do during her pregnancy. A less demanding non-risk job might be available, but she could reasonably refuse it if she were to lose out financially. As she must receive full pay if she is suspended, it would make financial sense to preserve her normal pay and conditions if she is offered a lower level job. At least the employer is getting something in return for the pay. If there is really no suitable job, the woman must be suspended for as long as is necessary to protect her and, if relevant, her child from the identified risks.
The legislation is not specific about the effect on maternity suspension of entitlement to ordinary and additional maternity leave and to SMP. As maternity suspension is not a specified reason for not paying SMP, the inference is that maternity suspension ends when ordinary maternity leave begins, and this is the general guidance given by commentators. A woman on maternity suspension is likely to indicate that she wishes to start maternity leave from the birth of the baby. There is also no statutory guidance as to the position of a woman who gives notice to return from leave early but cannot resume work because her, or her baby’s, health and safety are still at risk.
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