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However, they have now disclosed that they are pregnant and cannot lift anything over 5kg. My client says they cannot guarantee that as the employee is expected to take equal part in the work that is available. They are now saying they want to terminate the new starters employment. Are there any issues with that? .
A. Whilst managing this employee effectively will require some changes moving forward, termination would not be recommended for this employee. This is because the reason the employee cannot do elements of their job is their pregnancy, and so dismissal would be because of the pregnancy and therefore discriminatory.
If your client were to do this, they could face an uncapped (i.e. without an upper limit) award by an employment tribunal if they lost any subsequent claim.
Your client should arrange a meeting with the employee as soon as possible to discuss their needs during their employment. From the way you have described it, it seems there are several duties the employee could do, so it may be that your client can arrange for those that involve lifting loads of over 5kg to be allocated to other people.
Your client will need to come up with a plan, working with the employee, how this could work practically. It may be that the employee is allocated to a specific area of the centre in which lifting is not involved, or they are partnered with another worker who can take on the lifting for them, where it is practical to do so. The pregnant employee could in turn take on the other employee’s duties whilst they are doing the lifting.
If it is not possible to reallocate duties, it may be necessary to temporarily reassign the employee to a different part of the business, where there is sufficient work for them to do.
This may be different to their current area or work duties, and so your client will need to discuss with the employee about the suitability of any alternative roles. Any move would only be temporary whilst the employee cannot perform their usual duties due to pregnancy. Ultimately, if this cannot be done, the employee will need to be suspended on pay, and so it is in your client’s best interests to identify more suitable duties for the employee.
Now that your client is aware of the pregnancy, they should carry out a risk assessment with the employee which will consider any hazards they may encounter during their work and any action that needs to be taken because of them.
This should be regularly reviewed as the pregnancy progresses to ensure it remains appropriate to meet the employee’s (potentially) changing needs.
