Failure to carry out a risk assessment in respect of a pregnant employee under the Management of Health and Safety at Work Regulations 1999 is unlawful sex discrimination. A record of the findings of the assessment must be made but need not be given to the employee, if information about the risks is provided orally. Sending an employee home without duties, without dismissing her but on full pay, is in law suspension and meets the terms of Employment Rights Act 1996 s66.
The Health and Safety Regulations Concerning Pregnant Employees
1. The Management of Health and Safety at Work Regulations 1999 SI 1999/3242 provide in relevant part as follows:
3. (1) Every employer shall make a suitable and sufficient assessment of-
(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; …
for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions …
(3) Any assessment such as is referred to in paragraph (1) … shall be reviewed by the employer … if –
(a) there is reason to suspect that it is no longer valid; or
(b) there has been a significant change in the matters to which it relates; and where as a result of any such review changes to an assessment are required, the employer … shall make them.
(6) Where the employer employs five or more employees, he shall record –
(a) the significant findings of the assessment; and
(b) any group of his employees identified by it as being especially at risk.
Information for employees
10. (1) Every employer shall provide his employees with comprehensible and relevant information on –
(a) the risks to their health and safety identified by the assessment;
(b) the preventive and protective measures; …
16. (1) Where-
(a) the persons working in an undertaking include women of child-bearing age; and
(b) the work is of a kind which could involve risk, by reason of her condition…
the assessment required by regulation 3(1) shall also include an assessment of such risk.
(3) If it is not reasonable to alter the working conditions or hours of work, or if it would not avoid such risk, the employer shall, subject to section 67 of the [Employment Rights Act 1996] suspend the employee from work for so long as is necessary to avoid such risk.
Notification by new or expectant mothers
18. (1) Nothing in paragraph (2) or (3) of regulation 16 shall require the employer to take any action in relation to an employee until she has notified the employer in writing that she is pregnant …”.
As for sex discrimination, there is no dispute that the Employment Tribunal summarised the provisions unexceptionally:
34. Under Section 1 of the Sex Discrimination Act 1975, a person discriminates unlawfully against a woman if on the ground of her sex he treats her less favourably that he treats or would treat a man.
35. Under Section 63A of the 1975 Act, if a claimant proves facts from which the Tribunal could conclude in the absence of an adequate explanation that a respondent has unlawfully discriminated, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit that act.”