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Kate Phelon

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New legal ruling clarifies employers’ obligation to risks assessments of pregnant workers

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A new legal ruling clarifying that employers are only obliged to carry out assessments on pregnant workers if evidence shows they are subject to health and safety risks should help to reduce the burden on HR professionals.
 
The clarification in the law came about following a judgement handed down in respect of O’Neill versus Buckinghamshire County Council earlier this month by His Honour Judge Ansell.
 
Previous case law in this area had failed to make it clear when and in what circumstances employers were obliged to carry out risk assessments, which led them to undertake such activity for all pregnant employees.
 
Richard Hignett, an employment barrister for No.5 Chambers, who acted as counsel for the local authority, said: "The ruling represents a more realistic approach towards pregnancy and sex discrimination in the workplace."
 
Pregnancy was not an exceptional state of affairs, he added, and there would be many scenarios where a formal risk assessment was simply not required because the working environment posed no particular risk to expectant mothers.
 
In the case of O’Neill versus Buckinghamshire County Council, which was heard in October 2008, the Employment Appeal Tribunal (EAT) dismissed claims for constructive unfair dismissal and sex discrimination, which were brought by a primary school teacher.
 
She became pregnant during a disciplinary investigation and contended that the allegations against her should have been abandoned in their entirety once her condition was known. The sex discrimination claim related to a failure by her employer to undertake a risk assessment despite being informed that she was pregnant.
 
O’Neill appealed against the decision to dismiss her claims and was represented by her father, Howard Morrison at the EAT in September 2009. He argued that the failure to carry out a risk assessment was automatic sex discrimination, based on a previous EAT ruling made in 2002 in the Hardman versus Mallon case. This involved an assistant who had to lift elderly residents in a care home.
 
But barrister Hignett argued that there was no general obligation on an employer to undertake a risk assessment on pregnant workers and the nature of their employment dictated where such an activity was necessary or not.
 
"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," he added.
 
The EAT indicated that organisations are now required to undertake such activity when three preconditions are met. Firstly, a staff member must notify her employers in writing that she is pregnant.
 
Secondly, a risk assessment is necessary if the kind of work she engages in could involve a risk of harm or danger to the health and safety of herself or her baby. The risk must also arise as a result of either processes, working conditions or physical biological chemical agents that are present in the workplace.

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Kate Phelon

Content manager

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