The recent Judgment in the case of O’Neill v Buckinghamshire County Council, which can be accessed here found that there is no general obligation on employers to carry out risk assessments on pregnant employees and therefore failure to do so will not amount to discrimination per se, although that is not to say that discrimination cannot be shown. However, employers will be under a duty to carry out a risk assessment if the following preconditions apply:
- the employee has notified the employer that she is pregnant;
- the work carried out by the employee could involve the risk of harm or danger to her or her baby; and
- the risk arises from the processes or working conditions or physical or biological agents in the workplace.
So in every case, therefore, clearly some form of assessment will need to be carried out as soon as an employee gives notice that she is pregnant, in order to establish whether or not the above circumstances apply.
This judgment cannot therefore be taken as licence to ignore the need to carry out risk assessments on pregnant employees and employers should remain ever mindful of their overall duty of care. Where the obligation arises and the employer fails to carry out a full risk assessment, it is likely that a tribunal would find there had been discrimination in any resulting proceedings.