In the case of O’Neill v Buckinghamshire County Council the EAT held that in the absence of evidence that the work involved a health and safety risk to the expectant mother, pregnant workers are not automatically entitled to a risk assessment.
The EAT held that the obligation to carry out a risk assessment in respect of new or expectant mothers will only arise where the following 3 conditions are met:
- The employee notifies the employer in writing that she is pregnant;
- The work is of a kind which could involve a risk of harm or danger to the health and safety of the a new expectant mother or to that of her baby;
- The risk arises from either processes or working conditions or physical biological chemical agents in the workplace.
In considering whether a risk assessment had been carried out in the case, the EAT also held that:
- a meeting need not take place with the employee;
- the existence of a standard risk assessment form within a company does not automatically mean that the work done by the new or expectant mother includes any of the relevant risks.
The EAT’s judgment also supports the previous decisions of Madarassy and Hardman which found that proof of a detriment is not necessary. This would suggest that where the 3 conditions listed above are met and the obligation arises on an employer to carry out a risk assessment, an employer who fails to carry out such an assessment will automatically have discriminated against the new or expectant mother. Accordingly, to avoid a finding of discrimination, employers need to carry out risk assessments wherever the above 3 conditions are met.