The People Bulletin

Employers all breathed a sigh of relief when the O’Neill v Buckinghamshire County Council judgment was handed down a couple of months ago on 5 January 2010[1]. It provided much-needed clarification that employers are only required to carry out a risk assessment on pregnant workers if there is evidence their work involves a risk the health and safety of the expectant mother. The obligation  arises if:

• the employee notifies her employers that she is pregnant in writing;
• the work is of a kind which could involve a risk of harm or danger to the health and safety of a new expectant mother or to that of her baby; and
• if the risk arises from either processes or working conditions or physical biological chemical agents in the workplace.

‘The ruling represents a more realistic approach towards pregnancy and sex discrimination in the workplace’ says Richard Hignett, an employment barrister for No5 Chambers, who acted as counsel for Buckinghamshire County Council, “Pregnancy is not an exceptional state of affairs. There will be many scenarios where a formal risk assessment is simply not required because the working environment poses no particular risk to the pregnant employee’[2].

Previous case law in this area from the EAT failed to make it clear when and in what circumstances the obligation on the employer to carry out a risk assessment on a pregnant worker was triggered, Hardman v Mallon (2002).

Mrs O'Neill was employed by Holmer Green Junior School as a teacher which launched disciplinary proceedings against her to deal with various allegations relating to performance. She then informed the school that she was pregnant and raised a grievance in respect of the conduct of the disciplinary investigation and the school failing to carry out a comprehensive risk assessment. Eventually, Ms O'Neill resigned and claimed constructive dismissal and discrimination on the grounds of her pregnancy.

The EAT held that pregnant workers are not automatically entitled to a work assessment under regulation 16 of the Management of Health and Safety at Work Regulations 1999 (MHSWR) in the absence of evidence that the work involved a risk as to health and safety to the expectant mother.

In addition, the EAT also noted that there is nothing in the Pregnant Workers Directive or the MHSWR to suggest that a meeting with the worker is necessary in order to fulfil the obligation to carry out a risk assessment. But there is still a requirement that an employer provide that worker with comprehensive and relevant information on any identified risks to her health and safety. Howard Fidderman, editor of Health and Safety Bulletin[3] observed that a ‘prudent employer’ would best avoid uncertainty by conducting a risk assessment for all pregnant employees for two reasons: the list of ‘triggers’ is in any case non-exhaustive; and the list of ‘physical’ agents in the workplace is particularly open to interpretation.  He also makes the point that failure to conduct a pregnancy-related risk assessment could lay the employer open to a charge of sex discrimination and, far more worryingly, expose the pregnant worker and her baby to harmful consequences. 

[1] http://www.bailii.org/uk/cases/UKEAT/2010/0020_09_0501.html

[2] http://www.no5.com/news-publications/news/new-case-law-on-risk-assessments-for-pregnant-employees

[3] Health and Safety Bulletin, March 2010, published by LexisNexis.