The recent case of O'Neill v Buckinghamshire County Council has brought up some interesting issues regarding pregnancy and health and safety at work.
Ms O'Neill was a primary school teacher who was faced with disciplinary proceedings at work. During the proceedings she informed her school that she was pregnant. The disciplinary process was delayed due to a period of sick leave taken by Ms O'Neill and then her maternity leave (http://www.ashbycohen.co.uk/maternity-leave-rights.html) .
Eventually, Ms O'Neill resigned, claiming constructive dismissal and sex discrimination related to her pregnancy. The discrimination claim centred around the fact that the school did not perform a health and safety risk assessment after she had notified them that she was pregnant.
According to the Management of Health and Safety at Work Regulations 1999, employers have a responsibility to conduct "general" risk assessments for employees concerning the work they perform.
Also, if the company employs women of child-bearing age and has them working in conditions which could harm the health of a new or expectant mother or her baby through any "processes, working conditions or physical, chemical or biological agents", then a risk assessment must be performed.
Ms O'Neill argued that there was a general obligation on employers to perform a risk assessment for pregnant workers; the Employment Appeal Tribunal (EAT) disagreed, and set out the conditions that must be met for an assessment to become necessary:
- The worker has notified the employer in writing that she is pregnant.
- The work itself must be of a type which could involve a risk of harm or threat to the health and safety of the pregnant worker or her baby.
- The risk must arise from either processes, working conditions or physical, chemical or biological agents in the workplace.
A general obligation for assessments for all pregnant workers does not exist.
Ms O'Neill contended that the disciplinary procedure fell under the third condition stated above. The EAT rejected this argument, and reminded employers that, where it was unclear if the third condition obtained or not, employers would be prudent to carry out an assessment anyway to ensure any obligations were met.
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