Risk
assessment is not required for every pregnancy
In O’Neill v Buckinghamshire CC, the EAT held there is
no general obligation to carry out a risk assessment on pregnant employees.
In order to trigger the obligation the work must be of a kind which could
involve a risk of harm or danger to the health and safety of an expectant
mother or her baby.
assessment. Because of school holidays, sick leave and maternity leave, the
risk assessment was not discussed with Ms O’Neill. She claimed this was a
failure to conduct the risk assessment fully and amounted to sex
discrimination under S.3A of the Sex Discrimination Act, which makes less
favourable treatment on the grounds of pregnancy unlawful. The tribunal
disagreed. The evidence demonstrated that Ms O’Neill’s work involved no risks
to her or her baby, so the duty to conduct a risk assessment did not apply. Ms
O’Neill appealed, arguing that there is a general obligation to carry out a
risk assessment on pregnant employees.
The EAT rejected Ms O’Neill’s
appeal. The Court of Appeal in Madarassy v Nomura
International Plc [2007] IRLR 246 made it clear that
there was no general obligation to carry out a risk assessment on pregnant
employees with the result that failure to carry out such a risk assessment
would be automatic sex discrimination. The duty only arises where risks to the
health and safety of any new or expectant mother, or to that of their babies
could arise from work processes or conditions. In this case Ms O’Neill was
simply not
exposed to any such risks.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
