The legal background
Under the Management of Health and Safety at Work Regulations 1999 (the Regulations) all employers must assess the health and safety risks in their workplace.
Where you employ women of childbearing age the assessment must take account of special risks posed to new or expectant mothers, i.e. women who are pregnant or breastfeeding or who have given birth within the last six months.
Where a woman notifies you she is pregnant you should take the following steps:
Step 1
Ensure there is an appropriate risk assessment for her. If a risk is identified, take whatever preventative or protective action is required by any specific legislation that covers the hazard concerned.
Step 2
If Step 1 would not be enough, then you must alter the woman’s working conditions or hours of work.
Step 3
If altering the woman’s working conditions or hours would not be reasonable or would not avoid the risk, then, under the Employment Rights Act 1996, you must consider whether it is possible to offer the woman suitable alternative work. The alternative must be offered on terms and conditions broadly similar to those that apply to the employee’s normal job.
Step 4
If no suitable work is available, or if the woman refuses an offer of alternative work, then you must suspend her for as long as is necessary to avoid the risk. You should continue to pay her normal pay during her ‘maternity suspension’ unless she has unreasonably refused an offer of suitable alternative work, in which case you can suspend her without pay.
If you fail to follow the above process then the employee may claim sex discrimination and/or unfair constructive dismissal.
What happened here?
Mrs Stevenson worked as an accounts manager in a law firm which was spread over three floors. She told the partners she was pregnant and in meetings they discussed concerns about risks identified in her previous pregnancies. Adjustments were made to minimise lifting and running up and down stairs.
One day, however, she sustained an injury after she became dizzy and fell down stairs at work. A locum GP gave her a certificate (one-line long) saying she was fit to work but one of the partners concluded she was not. He wrote her a letter saying that she was neither dismissed nor suspended but could not come to work. Mrs Stevenson resigned claiming unfair constructive dismissal and sex discrimination.
EAT’s judgment
The tribunal dismissed both the sex discrimination and constructive dismissal complaints holding that she resigned and was not forced to do so. In the EAT, Mrs Stevenson argued, on the contrary, her employer had failed to carry out a risk assessment, had not kept a record of it as was required by the Regulations and had unlawfully excluded her from the workplace. As these failings related to her pregnancy they amounted to breaches of the Sex Discrimination Act 1975 and justified her resigning.
The EAT agreed that a breach of the Regulations could set up a sex discrimination claim but crucially held that the discussions the employer had had with Mrs Stevenson amounted to a risk assessment.
They described a risk assessment as “a thought process” involving judgement, evaluation and examination of all the circumstances and this process had taken place. It was necessary to record the assessment and communicate its result to the employee, but under the Regulations, the communication could be done orally; surprisingly, thought the court, it was not necessary to hand a written copy to the employee.
However, in any event, the employer had given the employee a copy of a generic risk assessment relating to pregnant employees done previously. Also, the EAT commented that it is best to conduct an assessment about risks to pregnant employees with the individual employee so that particular difficulties can be addressed specifically.
In these circumstances, the EAT concluded the employer was not in breach of the Regulations and so there was no breach of the Sex Discrimination Act. It also confirmed that it is generally impermissible for an employer to go behind a medical certificate unless there is other material available to the employer to justify doing so. In this case, the fall and the injury, together with Mrs Stevenson’s own account of the medical advice she had previously been given, was sufficient justification.
The employment tribunal had criticised the letter the company had sent the employee but the EAT agreed that the employer had suspended the employee; there was no other explanation for her legal status, as the firm continued to pay her until she resigned.
Comment
Whilst this employer successfully defended its position and the EAT found that it had, strictly speaking, complied with the legislation, much confusion could have been avoided if it had labelled the processes it went through for the employee.
That would involve telling the employee it was carrying out a risk assessment specific to her, putting the results in writing to her and then spelling out that it was suspending her with pay as required by employment protection legislation.
Read the full judgment