HR Focus - January 2010

When does an employer fall under a duty to conduct a risk assessment for a pregnant worker and what are the potential consequences of breaching that duty?

Every employer is under a duty to make a suitable and sufficient assessment of the risks to health and safety to which its employees (whether pregnant or not) are exposed while at work and is required to record the findings of the assessment.

The employer should not wait until an employee becomes pregnant before it carries out this assessment.

The January 2010 EAT decision in O'Neill v Buckinghamshire County Council concerned a pregnant teacher alleging that the generally stressful nature of teaching involved a special risk that resulted a duty on her employer to conduct a risk assessment. Whilst the EAT rejected that argument (declining to accept "the stressful nature of teaching in general terms” was work of a kind which involved a special risk), it did set out the preconditions that must be met before an employer falls under a duty to conduct a risk assessment for a pregnant worker;

 a.  The employee notifies the employer in writing that she is pregnant;

 b.  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;

 c.  The risk arises from either processes, working conditions or physical,
      chemical or biological agents in the workplace.

There is no more general obligation to carry out a risk assessment for a pregnant worker.

Madarassy v Nomura International PLC is an earlier case where the Court of Appeal considered (and rejected) Madarassy's assertions that discomfort and "radiation exposure" from sitting at a computer triggered the duty to conduct a risk assessment. Accordingly, her claim of pregnancy related sex discrimination arising out of the failure of Nomura to undertake any such assessment failed. The duty had not arisen as the work was not of a kind which could involve special risk to a new or expectant mother or her baby.

Employers should, however, be encouraged to carry out risk assessments as a matter of course. The potential ‘banana skin’  is that if an obligation to carry out a risk assessment does arise, and a failure to carry out that risk assessment is established, then discrimination results and proof of detriment is not necessary.

Queen Victoria Seamen’s Rest Ltd v Wardis an example of an employer’s course of detrimental treatment of an employee on the grounds of her pregnancy resulting in a substantial discrimination award. The treatment that led the employee to resign when she was 7 months pregnant included the facts that her employer;

1. Had not carried out a risk assessment despite being aware of a risk of violence from residents at the premises at which the employee worked and a potential risk from night working;

2. Changed its attitude towards her once she disclosed she was pregnant, in particular moving her to a wholly inappropriate work station without consultation. There was a demonstrable contrast between the support it gave her before the pregnancy and the lack of support it provided afterwards;

3. Failed to adequately investigate the employee's grievance about her treatment, in particular, failing to consider any impact her pregnancy might have had on events as they unfolded in the workplace;

The HSE has produced a useful ‘Guide for New & Expectant Mothers Who Work’, which includes known risks. Common risks include work-related stress, long working hours, lifting and carrying, excessive noise, handling chemicals, extremes of heat and cold, and movements and postures.

Once the employer has been notified in writing of the pregnancy, birth or the fact that the employee is breastfeeding, it is under an obligation to do all that is reasonable to remove or prevent exposure to any significant risk that has been found, and must give information to the employee about the risk and what action has been taken.

Unless the risk can be avoided through other action, the employer must temporarily alter the woman's working conditions or hours of work, if this is reasonable and would avoid the risk.

Steve Peacock, Partner, steve.peacock@weightmans.com