Pregnancy and risk assessments

1 January 2010

The recent case of O’Neill v Buckinghamshire County Council makes clear that the requirement to carry out a risk assessment in relation to pregnant workers is not a general obligation and will arise only if certain pre-conditions are satisfied.

Ms O’Neill was employed as a teacher and, over a substantial period, a number of complaints were made against her by her colleagues. Ms O’Neill refused to speak to the head teacher about these complaints and investigations were made in relation to Ms O’Neill’s conduct with a view to disciplinary proceedings being taken against her. Prior to the disciplinary proceedings being conducted and whilst she was on sick leave, Ms O’Neill became pregnant and informed the head teacher of her pregnancy. The head teacher began to prepare a standard risk assessment which she intended to discuss with Ms O’Neill when she returned from sick leave. However, school holidays subsequently intervened and Ms O’Neill continued to refuse to speak to the head teacher who wanted to resolve the disciplinary matter before carrying out the risk assessment. Ms O’Neill then went on a further period of sick leave and did not return to work until after her period of maternity leave and the birth of her baby. Consequently, no risk assessment was ever carried out.

Ms O’Neill resigned and brought employment tribunal proceedings complaining about her employer’s failure to carry out a risk assessment and alleging, amongst other things, pregnancy based discrimination.

An Employment Tribunal found against Ms O’Neill on these points and her subsequent appeal to the Employment Appeal Tribunal (EAT) failed.

The EAT held that “it is a consistent theme of the authorities in this area that pregnancy is not an exceptional state of affairs and that the Sex Discrimination Act 1975 does not provide for a regime similar to the one contained in the reasonable adjustments provision of the Disability Discrimination Act”. Accordingly, Ms O’Neill’s argument that special exceptions and exemptions should have been made in view of her pregnancy, including her contention that the disciplinary proceedings should have been stopped when her pregnancy became known, were rejected.

Moreover, the EAT made clear that “the obligation to carry out a risk assessment of a pregnant worker would only be triggered in certain circumstances”. In particular, the following pre-conditions will have to be met:

(a) the employee must notify the employer in writing of her pregnancy;

(b) the work must be 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

(c) the risk must arise from processes, working conditions or physical/biological/chemical agents in the workplace as specified in a non-exhaustive list at Annexes I and II of European Council Directive 92/85/EEC.

It was held that teaching did not expose Ms O’Neill to any such risks.

Comment

This case provides useful guidance for employers in relation to the treatment of pregnant workers and is likely to provide re-assurance to employers who often believe that the duties they have towards pregnant workers are much more onerous than they, in fact, are. However, despite this case making clear that the obligation on employers to carry out risk assessments of pregnant workers will not be present in all cases, it remains good practice for employers to carry out risk assessments for all pregnant workers wherever possible.