Employment Update: Sex discrimination

13 May 2008

What are the requirements for a risk assessment in the case of a pregnant employee? Can an employer ever ‘go behind’ an employee’s sick note?

In Stevenson v JM Skinner & Co the claimant informed her employer that she was pregnant and was concerned that there might be complications. She was also concerned that her job involved her having to walk up and down four flights of stairs and some lifting. She had meetings with the employer at which these concerns were discussed. She then had a dizzy spell and fell on the stairs but came back to work with her arm in a sling having been certified as fit to work by her GP.

Nevertheless the employer sent her home with a letter saying that she was neither dismissed nor suspended but that they did not consider her fit to work.

She argued that she had in fact been unfairly dismissed and this was also sex discrimination as it was a pregnancy-related dismissal.

The tribunal rejected her claims and the EAT have now agreed with the tribunal.

The employer's meetings with her constituted a proper 'risk assessment' of her condition as required by the Management of Health & Safety at Work Regulations 1999. There was no requirement that the employer had to confirm the outcome of such an assessment to her in writing.

The employer was entitled to 'go behind' the GP's certificate and send her home as being unfit to work. Even though the employer had specifically not called it a suspension, in the circumstances it was a proper suspension on maternity grounds under s66 ERA

Point to note:

· An employer will not usually be allowed to ‘go behind’ a sick note but this case confirms that it may be possible where the employer is not seeking to disadvantage the employee and where the employer has material to support its decision (in this case, the employee’s own concerns expressed at the earlier meetings and the injuries that she had plainly suffered at work).

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