The Employment Appeal Tribunal (EAT) has ruled that there is no general obligation on employers to carry out a risk assessment for all pregnant workers. However where the obligation arises and the employer fails to carry out the risk assessment, this will 'automatically' constitute sex discrimination.
Given the EAT's finding that a failure to conduct a risk assessment where the duty arises will automatically constitute sex discrimination, employers should familiarise themselves with the circumstances where the obligation to carry out such an assessment arises (we summarise these in the Details section below). However where there is doubt as to whether the obligation arises, the 'prudent' course of action would be to carry out a risk assessment.
The EAT also confirms that employers' risk assessments do not have to involve a meeting with the pregnant worker. It can instead be a 'paper exercise' conducted by the employer, provided the worker is given comprehensive and relevant information on the identified risks to her health and safety.
In the case of O'Neill v Buckinghamshire County Council, the EAT held that pregnant workers are not automatically entitled to a risk assessment – evidence that their work involves a risk to their health and safety is required.
Ms O'Neill was a primary school teacher. She claimed that her employer's failure to carry out a risk assessment when she became pregnant constituted sex discrimination. Her claim was dismissed by the Employment Tribunal and she appealed to the EAT.
The EAT noted that under Regulation 16 of the Management of Health and Safety at Work Regulations 1999 employers should carry out a risk assessment in respect of new or expectant mothers where the work could involve a risk to the health and safety of the worker or her baby "from any process or working conditions, or physical, biological or chemical agents". These include workers exposed to shocks/vibrations, heavy lifting, noise, radiation, extremes of cold or heat and certain biological and chemical agents. Therefore the EAT confirmed that there was no general obligation to carry out a risk assessment on all pregnant workers. Although it noted that "prudent" employers may wish to conduct such assessments for all pregnant workers.
The EAT then set out certain pre-conditions that would need to be met before the duty to carry out a risk assessment of a pregnant worker was triggered:-
- that the employee notifies the employer that she is pregnant in writing;
- the work is of a kind that 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
- the risk arises from either processes or working conditions or physical, biological, chemical agents in the work place.
In Ms O'Neill's case the EAT found that there was no material before the Employment Tribunal which could have led it to conclude that the kind of work that Ms O'Neill carried out, involved a risk of harm or danger to her as a pregnant worker.
The EAT then considered the position when that obligation on the employer was triggered.
First it ruled that the employer was obliged to provide the pregnant worker with comprehensive and relevant information on the risks to their health and safety as identified by the risk assessment. However there was no requirement that the employer had to meet with the employee in order to satisfy their obligation to carry out a risk assessment.
Secondly, where the employer is under an obligation to conduct a risk assessment and fails to do so, the pregnant worker does not need to show that they have suffered a detriment as a result of that failure. The employer's failure is in itself enough for the pregnant worker to establish that they have been discriminated against.