Question: What responsibilities do we have to a pregnant employee? She tells us that she has been advised by her doctor that she should reduce her hours, as she has a high risk pregnancy. However, she says she cannot afford to lose pay. What obligations do employers have in this situation?
This question involves an overlap between health and safety law and employment law. In the particular situation you have referred to, it doesn’t sound as if you have had the benefit of any medical advice yet, and I am not sure if a risk assessment has been carried out. In the first instance, it would be a good idea to get some medical advice so that you can be better informed about her condition and what steps you can take to remove the risks to her health. For example, what level of reduction is the doctor recommending and why?
As soon as an employer becomes aware that an employee is pregnant, has given birth or is breastfeeding they are under a duty to take reasonable steps to remove or prevent exposure to risks, and must inform the employee of the risks and the steps taken. This is why employers carry out a risk assessment. Failure to undertake a risk assessment (or to act on its findings) may amount to discrimination on the grounds of pregnancy or maternity.
If a risk is found, then the employer is required to temporarily alter the employee’s working conditions or hours of work (if this is reasonable and if it would avoid the risk). This might include reducing the hours of the employee you have mentioned, but it might also include giving her alternative duties (this would of course depend on the nature of the role etc).
If you do this, then any alternative duties must be suitable and appropriate for her to do in the circumstances, and the terms and conditions must not be substantially less favourable. In practice, this means that pay and benefits should normally be the same.
There is a bit of a grey area around whether employees who reduce their hours in these circumstances should have their pay reduced pro rata, as the law is unclear. She should however not lose any components of her pay which reflect her status (e.g. length of service). In practice, many employers do choose to pay full pay, but your view on this may depend on factors such as the extent of the reduction in hours. I am happy to advise you further on this once we have more information.
If you do not have any suitable alternative work, or if she reasonably refuses it, you would need to suspend her for as long as is necessary to avoid the risk. The pay during maternity suspension is calculated based on an average over the previous 12 weeks, but if the employee does have normal working hours then it is based on basic pay only. This can mean that some women do suffer a loss of income when they are suspended.
If you make an offer of alternative work and the employee unreasonably refuses it, she is not entitled to be paid during the period of suspension.
As I mentioned above, I would suggest that you ask the employee for her consent to contact her doctor so that you can be clear on their view of the risk, and then you can take that into account when conducting your risk assessment. From there, you can consider whether you are able to offer the reduction in hours, whether there may be alternative duties, or whether as a last resort you need to suspend.
It is also important to keep the situation under review, as it may be that her condition improves or deteriorates as her pregnancy continues.
You might find it useful to refer to the Health and Safety Executive’s helpful flowchart on this subject, which is available here: http://www.hse.gov.uk/mothers/docs/pregnant-workers-flow-chart.pdf
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).