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Regulation 16 of the Management of Health and Safety at Work Regulations 1999 obliges employers to carry out a risk assessment if:
- a women gives written notification that she is pregnant (e.g. the MATB1 form), or has given birth in the previous six months, or is breastfeeding, and
- her work is of a kind which could involve risk risks at work to a new or expectant mother, or to her baby, "from any processes or working conditions, or physical, biological or chemical agents".
Guidance on health and safety law as it affects new and expectant mothers is available on the website of the Health and Safety Executive, at http://www.hse.gov.uk/mothers/index.htm. Two useful booklets are available, A guide for new and expectant mothers who work, from http://www.hse.gov.uk/pubns/indg373.pdf, and New and expectant mothers at work - a guide for health professionals, from http://www.hse.gov.uk/pubns/indg373hp.pdf.
If risks exist, the employer must, first of all, consider altering the woman's working conditions or hours of work. If that is not a reasonable solution, the woman must be suspended for as long as is necessary to avoid the risks to her and, if relevant, to her baby. Note that suspension could continue after the baby is born if the risks continue.
The statutory rules on maternity suspension are set out in sections 66 to 70 of the Employment Rights Act 1996 (ERA). A woman has the right to be offered "suitable" alternative work before being suspended on maternity grounds. The work 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". 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.
Throughout the period of maternity suspension a woman's must be paid a "week's pay" for each week of absence, pro-rata for part weeks, based on the contractual rate of pay on the day before the date on which the suspension begins. A "week's pay", as defined in the ERA, is
- the woman's normal pay if that does not vary each week when she works her normal hours, or
- her average pay over a twelve-week period preceding the start of suspension if her pay varies because she receives bonuses, commissions or premium rates for working shifts.
Further, more detailed, guidance on maternity suspension is provided by the Department of Trade and Industry at http://www.dti.gov.uk/...html.
Example: A woman's job involves visiting different sites to install and maintain computer equipment. She notifies her employer that she is pregnant. A risk assessment shows that she is finding it difficult to drive her car and perform the physical aspects of her job, such as carrying equipment and working in confined spaces. She is also suffering from stress, caused by the deadlines she has to work to. The employer decides that reducing her hours of work is not practical.
In these circumstances, the employer should endeavour to find an alternative job for her 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. She must continue to receive her full pay throughout the period of suspension.
...back to 5 October 2006
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For Payroll and Human Resource Professionals
