Maternity Suspension - Obligation to 'Avoid' Risks

An interesting point of construction of regulation 16 of the Management of Health and Safety at Work Regulations 1999 is dealt with in the EAT's judgment in New Southern Railway v Quinn.

Mrs Quinn was (effectively) demoted from the Duty Station Manager's post at Brighton station when she announced her pregnancy. The Respondent justified the demotion on the basis that it was taking steps to "avoid" physical risks (eg assault) flowing from the Duty Station Manager's position.

The employment tribunal found that this assertion was a sham, and that the Respondent had simply adopted "an extremely paternalistic and patronizing attitude towards the Claimant and her condition." It also found that the risk of assault was small and could easily be reduced further.

Before the EAT, the Appellant (employer) argued that the obligation to "avoid" risks was an absolute obligation under European law, so that if there was any risk of harm, the employer was under an absolute obligation to avoid it - in this case, by demoting the Claimant.

The EAT held this argument was wrong. Adopting a purposive approach to the word 'avoid', it held that it meant 'reduce to a low risk' or 'reduce the risk as far as possible', rather than 'eliminate the risk entirely'.

The EAT also dealt with a number of other arguments, including waiver of breach (for the purpose of constructive dismissal). This decision makes interesting reading, not least for the very lucid way both sides arguments are set out and analysed.

New Southern Railway v Quinn