New South Railway Limited v Quinn
Employment Appeal Tribunal: Pregnant employee moved to a lower-paid job for reasons other than health and safety
BOXTEXT: New and expectant mothers are protected from health and safety risks at work under the Health & Safety at Work Regulations, which ensure that employers conduct risk assessments and make adjustments to the employee’s working environment.
Mrs Quinn had recently been promoted from PA to deputy station manager on a three-month trial period when she discovered she was pregnant. To avoid her morning sickness, she was initially swapped on to a day shift in her newly-promoted position. Health and safety risk assessments were carried out for this post and for her original, lower-paid position.
Although the risk assessments anticipated that she would be able to continue as deputy station manager, a group of managers subsequently decided that Quinn should return to her previous post in view of the risks to her and her baby. They did not consult her.
As a result, she was asked to return to her previous post and her salary was reduced. Quinn took sick leave and subsequently resigned. She claimed sex discrimination, failure to offer her suitable alternative employment, unfair (constructive) dismissal and unlawful deductions from wages.
The tribunal found that Quinn had been discriminated against on grounds of her sex and had been subjected to a detriment by reason of her pregnancy due to the reduction in pay. It also held that she had suffered unlawful deductions from wages and that she had been constructively and unfairly dismissed.
The EAT upheld these findings. Southern had argued that it had moved Quinn to the PA post to avoid the health and safety risks identified for the deputy manager position. The EAT disagreed and stated that the term “avoid” did not mean to eliminate entirely, but simply to reduce the risk to its lowest acceptable level.
The role of PA carried the same level of risk as the deputy station manager’s post and the employer did not show that its actions were genuinely taken to remove the health and safety risk. These risks could have been reduced to an acceptable level by altering the hours or conditions applicable to the deputy station manager role, which it would have been reasonable to do.
In the EAT’s view, an employer should not take a unilateral decision to demote or reduce the duties of a pregnant employee on health and safety grounds without considering whether there are alternative ways to reduce the risks to an acceptable level by altering hours or conditions.
The EAT also considered what would be the proper steps to take before suspending a pregnant employee on health and safety grounds. It stated that such a suspension should not occur until the employer had assessed the risks, considered steps to reduce their affect by taking appropriate measures, and offered suitable alternative work in the event that the risk could not be avoided or reduced to an acceptable level.
The EAT stated that expert health and safety or medical evidence is generally desirable for risk assessments, but is not always necessary. Despite the risk assessment document being used by Southern’s managers to make the decision to demote Quinn, the EAT found that it provided virtually no evidence of any actual risk to her health and safety.
What you should do
Be aware that health and safety risk assessments must be thorough and accurate.
Ensure that the decisions made on the basis of these reports take into account the alternatives available, including altering hours or conditions of work or offering suitable, alternative work.
Be aware that the obligation on employers to act on risk assessments is only to reduce the risk to the employee to its lowest acceptable level.