Background Facts

In certain circumstances the law holds that an employer must conduct a risk assessment for a pregnant worker. There has always been something of a grey area in law however regarding the extent to which that obligation applies, particularly with workers who are in seemingly non dangerous occupations.

In O’Neill v Buckinghamshire County Council the Employment Appeal Tribunal held that for an employer to fall under a duty to conduct a risk assessment for a pregnant worker, the following conditions must be met:

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

It went on to hold there is no more general obligation to carry out risk assessment for a pregnant worker.

Furthermore they found that in discharging its risk assessment obligations when they arise there is nothing in the Pregnant Workers Directive or the Health and Safety at Work Regulations to indicate that a meeting with a worker is required before the obligation to carry out a risk assessment is satisfied.  Having said that, the Court said that an employer must provide the pregnant employee with comprehensive and relevant information on the identified risks to health and safety.

Comment

The above cases provide helpful clarification on protections for female employees, whilst also limiting the risk for an employer that there is a wider duty to carry out risk assessments for all workers, regardless of the type of work they do.

The decision did however also provide support for the proposition previously seen in case law that if an obligation to carry out a risk assessment arises and there is a failure to carry out that assessment, then that results necessarily in sex discrimination under the law.  Proof of detriment is not necessarily needed and therefore employers, accordingly, despite the helpful clarification above need to be astute to carry out risk assessments where the pre-conditions set out are satisfied.