Pregnant Women and Risk Assessments

Under the Management of Health and Safety at Work Regulations 1999 employers have a duty to alter working conditions to ‘avoid’ risk to a new or expectant mother. However, the case of New Southern Railway Ltd. v Quinn illustrates that when carrying out the necessary risk assessments, it is possible for an employer to take this requirement too far.

Mrs Quinn began working for New Southern Railway Ltd., in Brighton, in April 2000 in the post of Station Manager Support Clerk. In September 2003 she was offered the vacant post of Duty Station Manager, with a three-month trial period, and her salary was increased accordingly. If she made reasonable progress and wished to continue in the job, the post would be made permanent. Mrs Quinn went on various courses and on 12 November was told by the Station Manager that he intended to speak with the manger concerned to ensure that she was appointed to the post full time.

However, on 18 November Mrs Quinn became ill and was off work until 5 December. During this time, she discovered that she was pregnant and informed her employer of the fact. When she returned to work it was agreed that she should work on permanent middle shifts until the worst of her morning sickness was over and then a risk assessment of her job would be carried out. In fact, an assessment was made in respect of her new post and her previous job. Various possible areas of concern were identified, including the risk of verbal or physical abuse, should Mrs Quinn continue in her role as Duty Station Manager. The assessments were only completed in draft and Mrs Quinn’s immediate managers did not discuss any of the issues raised in them with the person who carried them out, who was of the opinion that Mrs Quinn would be able to continue in her present role, or with Mrs Quinn herself.

On 23 December 2003, Mrs Quinn was told that it had been decided that she should return to her former post at her previous salary. It was only at this point that she was given a copy of the risk assessments. Her managers were reported as saying that they wouldn’t be able to forgive themselves if anything happened to her baby.

In March 2004, Mrs Quinn presented her first claim to the Employment Tribunal (ET), alleging that the reduction in her salary was a detriment by reason of her pregnancy. However, she continued to work until April when she became ill again and remained off work until she commenced her maternity leave in June 2004. She then resigned and brought a claim for constructive dismissal and unlawful deduction of wages.

The ET found in Mrs Quinn’s favour, noting that New Southern Railway Ltd. had adopted ‘an extremely paternalistic and patronising attitude towards the Claimant and her condition’. Her managers had jumped to the conclusion that Mrs Quinn could not continue in her position because of their personal feelings and labelled it as a health and safety concern. At no time had they carried out a proper or reasonable analysis of the risk assessment and the risk of an assault was small.

New Southern Railway Ltd. appealed to the Employment Appeal Tribunal (EAT) on several grounds. The main arguments were that the phrase ‘avoid the risk’ in the Management of Health and Safety at Work Regulations meant that an employer was under an absolute obligation to eliminate any risks and therefore, in order to avoid any risk of an assault on Mrs Quinn, there had been no alternative but to remove her from her post. In addition, Mrs Quinn could not claim that she had been forced to resign when she had taken sick pay and maternity leave after the breach she complained of. New Southern Railway Ltd. regarded this as her acceptance of its actions and affirmation of her continuing contract of employment.

The EAT held that the term ‘avoid the risk’ does not mean to eliminate any risks entirely but to reduce them as far as is reasonably possible. In addition, when there is an ongoing reduction in someone’s pay, as there was in this case, it should not be treated as a single breach of contract. It was an individual fundamental breach each time the company failed to pay Mrs Quinn’s full salary. She was therefore entitled to treat her contract as repudiated at the time of her resignation.

This case makes it plain that adopting an over-protective or paternalistic approach in circumstances such as these can cause a breach of the law. It is important to carry out proper risk assessments based on facts, not supposition.
 

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