In O’Neill v Buckinghamshire County Council, the EAT considered the question of when an employer becomes under a legal duty to conduct a risk assessment on a pregnant worker. The answer is when the following three pre-conditions are met:
(i) the employee notifies the employer in writing that she is pregnant;??
(ii) the work is of a kind which could involve a risk of harm or danger to the health and safety of the expectant mother or her baby
(iii) the risk arises from either processes, working conditions or physical, chemical or biological agents in the workplace.
The case also provides clarification on two points regarding the extent of the employer’s obligation once the duty arises:
(i) the employer must send the pregnant worker comprehensive and relevant information on the identified risks to her health and safety
(ii) A meeting with the pregnant worker (although desirable) is not a requirement of carrying out a risk assessment
Finally, the case provides a measure of support for the proposition first adopted by the EAT in Hardman v. Mallon [2002] IRLR 516 and considered by the Court of Appeal in Madarassy v Nomura [2007] IRLR 246, that a failure to carry out a risk assessment on a pregnant worker amounts to sex discrimination.
