What options does an employer have if an employee is at risk from substances hazardous to health at work?

Under the provisions of Regulation 11 of the Control of Substances Hazardous to Health Regulations 2002 (COSHH), where

• an employee is subject to medical surveillance by an employment medical adviser or an appointed doctor because the nature of the employee's work means that the employee may be exposed to substances hazardous to health, and
  
  
• the adviser or doctor decides that the employee should not be engaged in such work and makes an entry to that effect in the employee's health record,

the employer must not permit the employee to perform such work.

The expression "substances hazardous to health" is defined precisely in the Regulations and covers a wide range of natural or artificial substances, whether in solid or liquid form, or in the form of gas or vapour, that are used or are present in the workplace and that create a risk to health.

Two other sets of Regulations, which relate to specific substances, contain similar provisions, namely Regulation 10 of the Control of Lead at Work Regulations 2002 and Regulation 24 of the Ionising Radiation Regulations 1999.

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.

...UK Payroll News - Latest

The UK Payroll News is sponsored by HRD & Payroll Solutions

Discuss this news item in the PayPerShop Forum