What options does an employer have if an employee


is at risk from substances hazardous to health at work?

Regulation 11 of the Control of Substances Hazardous to Health Regulations 1999 (COSHH) provides that employees whose health is at risk from hazardous substances and who are subject to medical surveillance by a Medical Inspector of the Employment Medical Advisory Service (EMAS) or an appointed doctor can be suspended from work if the inspector or doctor so certifies in their health record.

The expression "substance hazardous to health" embraces substances in any form which can be hazardous by inhalation, ingestion, absorption or injection through the skin or by contact with the skin or mucous membranes. However, the Regulations only apply to substances arising out of, or in connection with, work that is under the control of the employer. Therefore, for example, COSHH would apply to laboratory workers carrying out work with pathogenic micro-organisms or to nurses attending patients with infectious diseases, but would not apply to the same people catching colds incidentally from colleagues.

Two other sets of Regulations, which relate to specific substances, contain similar provisions, namely the Control of Lead at Work Regulations 1998 and the Ionising Radiation Regulations 1999.

Information about the services of the Employment Medical Advisory Service is available in the booklet The Employment Medical Advisory Service and You, from http://www.hse.gov.uk/pubns/hse5.pdf.

The statutory rules on medical suspension are set out in sections 64, 65, 69 and 70 of the Employment Rights Act 1996 (ERA). An employee who has at least one month's continuous employment on the day before the suspension begins is entitled to be paid during the period of suspension for up to 26 weeks. However, there is no entitlement to medical suspension pay if the employer offers suitable alternative work and the employee unreasonably refuses to perform that work or does not comply with reasonable requirements to be available for work. An employee who believes that the employer has failed to pay all or part of the suspension pay due may make a complaint to an employment tribunal.

Medical suspension is not a type of sickness absence. Employees who are suspended for medical reasons are healthy, but their health is at risk from their work. Employees who are "incapable of work by reason of disease or bodily or mental disablement" should be considered for statutory and/or occupational sick pay.

Throughout the period of medical suspension an employee 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 employee's normal pay if that does not vary each week when normal hours are worked, or
  
  
• the employee's average pay over a twelve-week period preceding the start of suspension if pay varies due to the payment of bonuses, commissions or premium rates for working shifts.

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