Employers should ensure they are familiar with the entitlements of staff who are pregnant or new mothers
Companies often run into problems on the question of the entitlements of workers who are pregnant or who have given birth.
A particularly difficult area is that of women for whom continuing in their usual jobs would present a risk to their health because they are pregnant, new mothers or breastfeeding – this is different from women who cannot work because they are ill. Under Section 66-68 ERA, such women must be offered suitable alternative work or, if none is available, suspended on full pay on maternity grounds.
The first hurdle for the employer is in deciding whether or not there is such a risk to the health and safety of the employee that it is obliged to suspend her.
The key lies in risk assessment. As demanded by the Management of Health and Safety at Work Regulations, all employers should carry out a risk assessment of the workplace for pregnant women and new mothers. This obligation is triggered merely by having women in the workforce of child bearing age.
An assessment should check for the various threats set out in the Pregnant Workers Directive, including movement, noise, extremes of temperature, lifting and exposure to dangerous chemicals.
There are few cases on this, probably because many women are unaware of their entitlements and assume that they are only due sick pay. However, the provisions were considered in Hickey v Lucas Service UK, where the employee was signed off work by her doctor because he considered the lifting she carried out at work could endanger her health.
The company had not carried out a risk assessment for pregnant women and failed to identify the risk, even after being warned about it by the employee’s doctor. It paid Hickey sick pay only during her absence and the tribunal decided that she was entitled to full pay for the period on the basis that she should have been suspended.
Once the risk is identified, the question arises as to what is a suitable alternative position for the employee to be offered.
British Airways recently fell foul of this provision in a claim brought against it by cabin crew members Moore and Botterill. Their contracts provided that they could not be employed on flying duties after the 16th week of pregnancy. Instead, they would be offered a ground post with consequent loss of their flying allowances.
The EAT decided that the ground posts did not constitute suitable alternative work because the applicants did not get the flying allowances which they normally enjoyed.
Can employers refuse to take on pregnant women because the work would involve a risk for them? The ECJ recently considered this in the case of Mahlburg.
Mahlburg was employed in a hospital on a fixed-term contract and applied, while pregnant, for permanent positions in which she would be exposed to dangerous substances.The hospital would not consider her for the posts because of the risk.
The ECJ found that it was unlawful sex discrimination to refuse to appoint a pregnant woman to a permanent job on the grounds that the working conditions would represent a risk to a pregnant woman. The financial loss to the employer in taking someone on who cannot do their job until after the baby is born is no justification for failing to do so.
Jill Kelly is a partner at Tunbridge Wells law firm Thomson Snell & Passmore.