O’Neill v Buckinghamshire County Council 2010 UKEAT0020 090501

Mrs O’Neill was a teacher who had had a chequered career with her employer. In June 2006 she informed her employer of her pregnancy and remained at work until the end of term on 21 July. On 17 July her employer began to prepare a risk assessment and formed the view that the appropriate time to complete it would be later in her pregnancy. The employer did not in general consider the risks attached to her pregnancy.

When she was told there would be a disciplinary hearing in respect of certain allegations made against her she went off sick and did not return. Her sick leave ran into her maternity leave in 2007. She resigned and claimed constructive dismissal and sex discrimination in relation to the failure to carry out the individual risk assessment following the notification that she was pregnant. The tribunal rejected her claim and she appealed.

The Appeal tribunal held that although it is prudent for employers to carry out risk assessments for pregnant workers, the relevant health and safety legislation makes it clear that employers only have an obligation to do so if the following pre-conditions are met:

  • The work is of a kind which would involve a risk of harm or danger to the health and safety of the expectant mother or her baby;
  • The risk arises from either processes of working conditions or physical chemicals or biological agents in the workplace.

There is no general obligation to carry out a risk assessment for a pregnant worker. Nor is a meeting with the worker required before the obligation to carry out a risk assessment is satisfied but an employer must provide the employee with comprehensive and relevant information on the identified risks to health and safety. There is no obligation for an employee to have input into the risk assessment. The only obligation is for the employer to inform the pregnant worker of the result.

The Appeal Tribunal also held that where there is an obligation to carry out a risk assessment and then there is a failure to carry out that assessment sex discrimination is established.

Key point: Employers need to be careful about carrying out risk assessments where the pre-conditions are met. In this case, although her work was stressful in general terms, there was no material before the Tribunal suggesting a risk of any harm or danger to the employee.