Ms O’Neill was a primary school teacher. The facts are convoluted, but following various issues at the school, she was subject to disciplinary proceedings, during which she notified the school that she was pregnant. The disciplinary process was delayed as a result of both illness and then maternity leave.
O’Neill eventually resigned and claimed constructive dismissal and pregnancy-related sex discrimination. The sex discrimination complaint related, in particular, to a failure to carry out a risk assessment following her informing her employer that she was pregnant.
Under the Management of Health and Safety at Work Regulations 1999, employers are under a duty to conduct a “general” risk assessment of risks to employees from the work they do. In addition, Regulation 16 requires that, if employers employ women of child-bearing age, and the work could involve risk to the health and safety of a new or expectant mother or her baby from any “processes, working conditions or physical, chemical or biological agents”, then there is an obligation to conduct an assessment of the risks to pregnant staff.
O’Neill argued that there was a general obligation to carry out a risk assessment for pregnant workers. However, the employment appeal tribunal (EAT) rejected this approach, and found that the duty to carry out a risk assessment is only triggered where the following pre-conditions are met:
The employee has notified the employer in writing that she is pregnant
The work must be of a kind that could involve a risk of harm or danger to the health and safety of the expectant mother or her baby
The risk must arise from either processes, working conditions or physical, chemical or biological agents in the workplace.
There is no more general obligation to carry out a risk assessment for a pregnant worker.
The EAT also confirmed that where the duty to carry out a risk assessment arises, there is nothing in the legislation to suggest that the employer is required to meet with the employee to satisfy its obligations. However, the employer is required to inform the employee of the results of the risk assessment, and provide them with comprehensive and relevant information on the risks to their health and safety as identified by the assessment.
The first pre-condition listed above should be fairly straightforward to assess. The second and third pre-conditions may be more problematic. In particular, the scope of the third condition is fairly broad, as it includes physical factors associated with the work such as noise, movement and postures, and other physical burdens.
Although in this case the EAT rejected O’Neill’s contention that a disciplinary procedure would be covered by the third pre-condition, it is difficult for employers to be certain that there is no risk from processes or working conditions.
Additionally, the EAT in this case confirmed that if no risk assessment is conducted when the duty is in fact triggered, this would be automatic unlawful discrimination. Clearly therefore, where there is an element of doubt, a sensible employer would carry out a risk assessment.
Joanna Wort, professional support lawyer, Charles Russell