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URN No: 06/549
Introduction
This document outlines provisions relating to instances where employees are required to be suspended from work on medical grounds or maternity grounds under employment legislation. It also aims to explain the means of redress available to an employee whose employer does not comply with the provisions. It is intended to give general guidance only and should not be regarded as a complete or authoritative statement of the law. Readers should be alert to the possibility of developments in case law that might affect the rights described.
Further information on these matters may be obtained from any regional office of the Advisory, Conciliation and Arbitration Service (Acas).
Employees not covered by medical and maternity suspension arrangements
The medical and maternity suspension provisions do not cover:
Seafarers
A different scheme applies to the suspension of pregnant seafarers. The provisions of this scheme are contained in merchant shipping legislation and are not covered in this document.
Employees not covered by medical suspension provisions only
The medical suspension provisions also do not cover anyone who has not been continuously employed by his or her employer for at least one month before the day on which the suspension begins.
Some jobs are covered by special health and safety regulations under which employees may be suspended from normal work on medical grounds.
Outline of provisions
The following health and safety regulations currently apply to employees who work with radiation, lead or some other potentially hazardous substance:
Under these provisions, some employees have to be suspended from work if continued exposure to these hazardous substances might damage their health.
Most employees who are suspended in these circumstances are entitled to receive their normal pay for up to 26 weeks. However, any medical suspension payments an employee receives under his or her contract of employment can be offset against the employer's statutory liability.
An employee is regarded as suspended from work only if he or she continues to be employed by his or her employer but is not provided with work or does not perform the work normally performed before suspension. Current health and safety regulations under which employees can be suspended on medical grounds are listed at the beginning of this section.
At present these are concerned with jobs involving exposure to ionising radiation, lead and certain other substances which are hazardous to health. If further regulations are made by the appropriate Minister, or codes of practice approved by the Health and Safety Commission, which contain requirements for suspension of employees on medical grounds, these will be added to the list accordingly.
In the case of work with ionising radiation, an Employment Medical Adviser of the Employment Medical Advisory Service or another appointed doctor, may decide, as a result of routine or special medical surveillance required by the Ionising Radiation Regulations 1999, that a particular employee is not fit to continue this work. (Health surveillance need not include a medical examination unless the employee concerned has received a dose of ionising radiation in excess of twice any dose limit.)
In the case of exposure to lead or certain other substances which are hazardous to health, examination by an Employment Medical Adviser, or other appointed doctor, may show that an employee's health would be endangered if exposure to the particular substance continued. Where a female employee is exposed to lead, the health of a developing foetus may be at risk rather than the woman herself if exposure is continued. The doctor will inform the employer who must then suspend the employee from working on that job, or any other job where he or she would continue to be exposed to the substance. The employee should not recommence employment on such a job until the doctor declares it safe for him or her to do so. An employee subject to medical or health surveillance can apply to the Health and Safety Executive to review a decision by an Employment Medical Adviser or appointed doctor to suspend him or her.
The right to medical suspension pay
An employee suspended under the regulations listed at the beginning of this section should receive from his or her employer a normal week's pay for every week of suspension (up to a maximum of 26 weeks). An employee who has a right to pay under his or her contract of employment while suspended should continue to receive that pay. The employer will not have to pay medical suspension pay in addition but, if the actual pay is less than a normal week's pay, the employer must make up the difference. The calculation of a week's pay is based on a specific 'calculation date' which for medical suspension pay purposes is the day before that on which the suspension begins. For an explanation of how to calculate a week's pay see Continuous employment and a week's pay - Guidance.
Suspension on maternity grounds
Outline of provisions
An employee who is pregnant, or who has recently given birth, or who is breast-feeding may have to be suspended from work on maternity grounds if continued attendance might damage her, or her baby's, health. A woman on maternity suspension must be paid her normal wages or salary by her employer for as long as the suspension lasts. (For more detailed information about the rights contained in this section, and other maternity rights see Maternity rights: a guide for employers and employees).
Risk AssessmentAll employers are required by the Management of Health and Safety at Work (MHSW) Regulations 1992 (as amended) to assess the risks to health and safety to which their employees and others could be exposed as a result of their undertakings.
Employers of women of childbearing age, whose workplace or work activity could involve a risk to the health or safety of a new or expectant mother or her baby, are specifically required by law to assess those risks. Information concerning agents, processes, and working conditions that could present a risk to the health or safety of new or expectant mothers, with some advice about the nature of the possible risks, can be found in Maternity Rights: a guide for employers and employees and in the Health and Safety Executive booklet New and Expectant Mothers at Work: a Guide for Employers.
If risks are identified by the assessment, information about them should be given to all women of childbearing age in the workplace. Employers should also explain what they will do to make sure that new and expectant mothers are not exposed to the risks that could cause them harm.
If an individual believes there is a risk to her health or safety, or to that of her baby, which her employer has not considered in the risk assessment, she should bring the risk to the attention of her employer or health and safety representative. If the employer discounts the risk, and the individual remains concerned, she may wish to discuss it with her doctor, or get in touch with her local office of the Health & Safety Executive (HSE) to ask for advice. Individuals can also get advice from their local HSE office if the risk assessment identifies a risk but the employer will not take the necessary preventative action.
When employers have identified a significant risk that could damage the health or safety of a new or expectant mother, they need to decide what action to take. Some risks, for instance from chemicals, are already covered by specific health and safety regulations. In those cases employers should follow the requirements of those regulations. Generally employers should try to remove the hazard or prevent exposure to the risk. If that is not possible the employer should take steps to reduce or remove the effect of the risk, for instance by providing aids to help with manual handling duties.
Removal of employees from risk
If, despite taking all reasonably practical measures, there is still a risk that could jeopardise the health or safety of a new or expectant mother or her baby, employers must follow a sequence of steps to remove any employee who is a new or expectant mother from the risk. The regulations provide that employers need to do this when they have been told in writing that an employee is pregnant. They also provide for employers to request in writing a certificate from a registered medical practitioner, or a registered midwife, confirming the pregnancy. Despite the requirement of written notification of pregnancy, more general legal duties require employers to take the action necessary to protect a worker they know to be pregnant or breast-feeding whether or not formal notification has been received. The three steps to remove an employee from a risk are as follows:
The measures taken to avoid the risk must continue for as long as the risk exists.
Employers need to consider risks to new and expectant mothers who work at night. If an employee who is a new or expectant mother works at night, and has a medical certificate stating that night work could affect her health or safety, the employer must either:
Offers of suitable alternative work
Where an employee is offered suitable alternative work, the work must be:
The right to maternity suspension pay
A woman who is suspended on maternity grounds must be paid her normal wages or salary by her employer for as long as the suspension lasts. However, if a woman has unreasonably refused suitable, alternative work, she is not entitled to maternity suspension pay.
If an employee has both a statutory right and a contractual right to remuneration during maternity suspension, these entitlements can be offset against each other.
Continuity of employment and contractual benefits
The employee continues to be employed during the period of maternity suspension, which therefore counts towards her period of continuous employment for the purposes of assessing seniority, pension rights and other personal length of service payments, such as pay increments. Contractual benefits are also likely to continue as normal during the maternity suspension unless the employer and employee have mutually agreed to vary them. Employers must also ensure they are acting lawfully under the Equal Pay Act 1970 and the Sex Discrimination Act 1975, and where pension entitlement is concerned under Schedule 5 to the Social Security Act 1989.
Remedies
Failure to offer suitable alternative work
An employee is entitled to make a complaint to an employment tribunal if there is suitable alternative work available which her employer has failed to offer her before suspending her from work on maternity grounds.
Employees who do not get medical or maternity suspension pay to which they consider they are entitled, or who think they have been underpaid, can complain to an employment tribunal. If the tribunal finds the complaint justified it will order the employer to pay the amount it thinks is due.
The right to complain of unfair dismissal
Generally, an employee who believes he or she has been unfairly dismissed can complain to an employment tribunal if he or she has been continuously employed by his or her employer for one year. However, an employee may complain to an employment tribunal, after only one month's continuous service, if he or she believes that the dismissal resulted from a legal requirement or a recommendation in a Code of Practice that could otherwise have led to medical suspension and pay.
It is also unlawful to dismiss an employee, or select her for redundancy in preference to other comparable employees, solely or mainly because of a health and safety regulation which could give rise to maternity suspension. In these circumstances a woman may complain of unfair dismissal regardless of length of service.
Complaints of unfair dismissal should be made within three months of the effective date of dismissal. For further information on this subject see Unfairly Dismissed? and Dismissal - fair and unfair: a guide for employers.
Temporary replacements
An employer who takes on a temporary replacement for an employee suspended on medical or maternity grounds should inform the replacement in writing when he or she makes the appointment that the employment will only last until the suspended employee returns to the job. If the employer then dismissed the replacement, to enable the suspended employee to return, this will not normally be unfair dismissal.
An employee who believes that he or she is entitled to make a complaint to an employment tribunal should first seek to resolve the dispute by mutual agreement with his or her employer - perhaps through the business's own grievance or appeals procedure where one exists. If an employee does not try to resolve the problem in this way, any compensation awarded by an employment tribunal at a later stage may be reduced. The employee and employer may also seek advice from Acas. However, it should be noted that the time limit for making a complaint to an employment tribunal will still apply and will not normally be extended to allow for the fact that attempts have been made to settle the dispute in advance.
Complaints to employment tribunals
Complaints about payment for any day for which payment is claimed should be made within three months of that day. This three month period for complaints can be extended by the tribunal only if it is satisfied that it was not reasonably practicable for the time limit to be met.
Anyone wanting to complain to an employment tribunal should contact a local office of the Employment Service, which will provide the necessary application form IT1 or IT1(Scot) in Scotland and explanatory booklet 'How to apply to an employment tribunal'.
The tribunal will send a copy of the application form to a conciliator of Acas who may attempt to get both sides to reach a settlement. Employers and employees may also get advice from a conciliator without a formal application having been made.
If conciliation is not possible, or if it fails, the tribunal will hear the case. Hearings are conducted informally and both parties should normally attend. They may claim travelling and other expenses within certain limits, including loss of earnings. It is not necessary to have a lawyer but if either party wants one it can have one; or it may be represented by any other person it chooses, such as a representative of a trade union or employers' association. The tribunal hearings are conducted in a way that makes it easy for the parties to present their own case if they wish.
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