To risk assess or to not risk assess pregnant workers

The Employment Appeal Tribunal (EAT) has held in the case of O’Neill v Buckinghamshire County Council that there is no general duty for an employer to carry out a risk assessment on pregnant workers in the absence of evidence of a health and safety risk unless they satisfy three criteria:

• The employee notifies the employer in writing that she is pregnant.
• The work is of a kind which could involve a risk of harm or danger to the health and safety of the new expectant mother or to that of her baby.
• The risk arises from either processes or working conditions or physical biological chemical agents in the workplace.

The EAT also held that in deciding whether an assessment had been carried out on the facts of a case it was not necessary for the employer to have held a meeting with the employee.

As a result of this judgement an employer who does not carry out a risk assessment when required and an accident occurs as a result may be liable for health and safety breaches as well as having automatically discriminated against the new or expectant mother.