The much needed clarification in the law follows the recent decision by the Employment Appeal Tribunal (EAT), in a judgement handed down in respect of O’Neill v Buckinghamshire County Council earlier this month (January 2010) by HH Judge Ansell.
Common sense has at last prevailed, with the outcome that employers will only be required to carry out a risk assessment on pregnant workers where there is evidence that the work involves a risk to the health and safety of the expectant mother.
“The ruling represents a more realistic approach towards pregnancy and sex discrimination in the workplace” says Richard Hignett, a leading employment barrister for No5 Chambers, who acted as counsel for Buckinghamshire County Council, “Pregnancy is not an exceptional state of affairs. There will be many scenarios where a formal risk assessment is simply not required because the working environment poses no particular risk to the pregnant employee”.
Previous case law in this area by the EAT failed to make it clear when and in what circumstances the obligation on the employer to carry out a risk assessment on a pregnant worker was triggered, Hardman v Mallon (2002).
In the case of O’Neill v Buckinghamshire County Council, heard on October 2008, the Tribunal dismissed claims for constructive unfair dismissal and sex discrimination brought by a primary school teacher, who fell pregnant during a disciplinary investigation. The employee contended that the disciplinary allegations against her should have been dropped and abandoned in their entirety, once it was known she was pregnant. The sex discrimination claim related to a failure by the employer to carry out a risk assessment, despite being informed that she was pregnant. The employee appealed against the decision to dismiss her claims to the EAT.
Mrs O’Neill was represented by her father, Mr Howard Morrison at the EAT in September 2009.
Mr Morrison argued that the failure to carry out a risk assessment was automatic sex discrimination. His argument was based on a previous ruling by the EAT (Hardman v Mallon (2002)). However this case involved an assistant in a care home for old and frail residents who had to lift residents.
Mr Richard Hignett argued against Mr Morrison’s submission to the effect that, properly understood, there was no general obligation on an employer to carry out a risk assessment on a pregnant worker. Rather the nature of the employment dictated whether an assessment was required or not. In Mr Hignett’s own word’s: “Whilst it may be prudent for employers to carry out a risk assessment for all its pregnant workers, this was not what the law required”.
The EAT, providing welcome clarification to the law held that the obligation to carry out a risk assessment is triggered when the following preconditions are met: the employee notifies her employers that she is pregnant in writing; the work is of a kind which 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 finally that the risk arises from either processes or working conditions or physical biological chemical agents in the workplace.