Date 12 January 2010
The European Union Advocate General has delivered his opinion in respect of a Finnish ECJ case that has implications on UK maternity rights. The Advocate General indicated in this case that an employer does not need to pay a pregnant employee the same salary that she was previously earning in circumstances where she has been temporarily moved to a different position to prevent her being exposed to health and safety risks.
Background
All employers are under a duty to protect the health and safety of their employees by making a suitable and sufficient assessment of the risks to health and safety to which its employees are exposed. If the employer employs any women of child-bearing age, and the work is of a kind which could involve risk to the health and safety of a new or expectant mother or her baby from any processes, working conditions or physical, chemical or biological agents, the risk assessment must include an assessment of those risks.
As soon as an employer has been informed in writing of the pregnancy, birth or the fact that the employee is breastfeeding, that employer must take all reasonable steps to remove or prevent exposure to any significant risk that has been found, must give information to the employee about the risk, and informed them what action has been taken.
If the risk cannot be avoided through other action, the employer must temporarily alter the woman's working conditions or hours of work, if this is reasonable and would avoid the risk. If it is not reasonable to alter the employee's working conditions or hours of work, or if the risk cannot be avoided, the employer must offer the woman suitable alternative work. An offer of alternative work will be suitable where:
(1) It is of a kind which is both suitable and appropriate for the employee to do in the circumstances.
(2) The terms and conditions applicable for her performing the work are not substantially less favourable to the employee than her current terms and conditions.
Implications of the Opinion
It is important to emphasise that the opinion is not directly effective in the UK. However, it now appears possible that a derogation might follow in respect of an employer’s obligation to ensure that terms applicable where alternative work is offered to a pregnant employee must be materially the same as the terms of her present role. This would therefore be a significant deterioration in salary protection for pregnant employees in these circumstances.
If you have any queries as to the implications that this could have on you or your organisation, please contact Chris Cook on 01727 798017 or by email at chris.cook@salaw.com.
© SA Law 2010
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