The Employment Appeal Tribunal (EAT), on consideration of an employer’s duty to conduct a risk assessment for a pregnant worker under the Management of Health and Safety at Work Regulations 1999, has held that, where there is no evidence that the work carried out by a pregnant worker would subject them to risk, that worker does not have an automatic entitlement to a pregnancy risk assessment.

The case of O’Neill v Buckinghamshire City Council involved Mrs O’Neill, who was a teacher who was the subject of disciplinary proceedings at the school where she was employed. Mrs O’Neill eventually resigned from her post but prior to this she became pregnant. Mrs O’Neill’s head teacher began to prepare a standard risk assessment but for a number of reasons, it was never completed. Mrs O’Neill subsequently complained to the Employment Tribunal (ET) that she had been subject to pregnancy based sex discrimination by her employer. Mrs O’Neill claimed that the Sex Discrimination Act 1975 provided pregnant workers with a special form of protection and that this should support positive discrimination in favour of such workers.

The ET rejected Mrs O’Neill’s claim and held that failing to carry out a risk assessment did not amount to sex discrimination in her case.  Mrs O’Neill appealed the decision.

The EAT Decision
The EAT rejected her appeal and agreed with the finding of the ET which was that there was no general obligation on an employer to perform a risk assessment on pregnant employees. The EAT held that an employer’s obligation was only triggered when the following three preconditions were met:

(a) the employee must notify the employer in writing of her pregnancy;
(b) the work carried out by the employee 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; and
(c) the risk must arise from either processes, working conditions or physical, biological or chemical agents in the workplace.

The EAT concluded that none of the above preconditions applied to Mrs O’Neill, so there was no liability on the Council for failing to conduct a risk assessment. The EAT also stated that where there is a duty to carry out a risk assessment for a pregnant employee, an employer does not have to hold a meeting with the employee. There is still, however, an obligation on the employer to provide the employee with comprehensive and relevant information on the identified risks to their health and safety, as a result of any assessment carried out.

Lastly, the EAT confirmed that pregnancy was not an exceptional state of affairs and that our sex discrimination laws did not, therefore, provide for a regime of positive discrimination in relation to pregnancy.

Implications of the decision
Despite the terms of the EAT’s decision, it is considered likely that many employers will continue to routinely carry out risk assessments for pregnant employees given the concern that a failure to do so would amount to sex discrimination. It is anticipated that very few employers will feel sufficiently confident that the work carried out by their employee provides no risk to that employee or her unborn baby. Employers are more likely to have that confidence in circumstances, where they have previously carried out a risk assessment for another pregnant employee which concluded that no protective measures were required or where they have carried out a generic risk assessments for pregnant workers in particular roles. Even in those circumstances, the employer would need to be clear that both employees performed the same (or similar) role and that there had been no other changes in the workplace, since the original risk assessment was carried out, that would undermine its reliability.  

Our advice is that employers need to give very careful consideration to the preconditions, when deciding whether to conduct a risk assessment for a pregnant employee and if an employer is any doubt, the safest course of action is to conduct the risk assessment. It would also be advisable for employers to record their consideration of the preconditions in a note in the employee’s HR file, especially in circumstances where the employer had decided that a risk assessment was not required. An accurate record of the employer’s considerations will be helpful in the event that the decision is later challenged by the employee.

Useful guidance for employers and employees on health and safety issues for new and expectant mothers can be obtained on the HSE website at www.hse.gov.uk/mothers/index.htm.

Further information
For further information on this or any employment issue, please contact Alan Masson, Chris McDowall or your usual contact within the Employment Unit. 

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.