O'Neill v Buckinghamshire County Council EAT/0020/09

pregnancy | risk assessment | sex discrimination

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal finding that the employer had not failed to carry out a risk assessment on the basis that the requirement to carry out an assessment did not apply to the employee's work. There is no general obligation to carry out a risk assessment on pregnant employees so that a failure to do so amounts to discrimination per se. The obligation to carry out a risk assessment is triggered only in certain circumstances.

Ms O’Neill was a primary school teacher. A disciplinary investigation into her conduct was commenced around May 2006. On 13 June, she informed Mrs Cox, the headteacher, that she was pregnant. The next day she went on sick leave, returning on 30 June to the end of term on 21 July. On 17 July, Mrs Cox began preparing a risk assessment in the standard form. She did not, in general, consider the risks attached to pregnancy in the work of a teacher at the school. She intended to complete the assessment later, in conjunction with Ms O’Neill, when the opportunity arose, namely later in the pregnancy when the stress of the start of the disciplinary investigation had died down and school returned in September. On 19 September Ms O’Neill was informed, in writing, that there would be a disciplinary hearing. She went on sick leave the next day and did not return. She then went on maternity leave, from which she was due to return in September 2007. She resigned on 30 August 2007. She brought claims against her employer in an employment tribunal, including a claim of pregnancy-related sex discrimination, in particular in connection with the employer’s failure to carry out a risk assessment once she had informed Mrs Cox that she was pregnant. The employment tribunal dismissed her claims and she appealed.

Referring to Hardman v Mallon t/a Orchard Lodge Nursing Home [2002] IRLR 516 EAT, Ms O’Neill argued that the health and safety requirements in the Pregnant Workers Directive 92/85/EC and the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) should lead to a conclusion that s.3A of the Sex Discrimination Act 1975 should support positive discrimination in a more general form, relating to possible adjustments in her favour, in particular that the disciplinary proceedings should have been dropped once it was known that she was pregnant. The EAT disagreed. It held that the employment tribunal was right to hold that s.3A does not provide a regime of positive discrimination as suggested by Ms O’Neill. In relation to the tribunal decision that the employer had not failed to carry out a risk assessment on the basis that the 1999 Regulations did not apply to Ms O’Neill’s work, the EAT agreed with the employer that Madarassy v Nomura International plc [2007] IRLR 246 CA makes clear that there is no general obligation to carry out a risk assessment on pregnant employees so that a failure to do so amounts to discrimination per se. Under the Directive and Regulations, the obligation to carry out a risk assessment of a pregnant worker would be triggered only in certain circumstances, namely where:

• the employee notifies the employer that she is pregnant;
• the work could involve the risk of harm or danger to the expectant mother or her baby; and
• the risk arises from the processes or working conditions or physical or biological agents specified in the Directive.

The EAT found that there was no evidence from which the tribunal could have concluded that the work carried out by Ms O’Neill involved a risk of harm or danger to her as a pregnant worker, under the Regulations and Directive.

The tribunal had also found in the alternative that, even if there was an obligation to carry out a risk assessment, there was no failure on the employer’s part. The EAT held that the tribunal was correct in its alternative view to find that a risk assessment had been carried out even though there had not been a meeting with Ms O’Neill. Ms O’Neill’s argument that the existence of an assessment form at the school meant that the tribunal should have concluded that work at the school did involve some or all of the specified risks was also rejected. The EAT held that Madarassy makes clear that there must be evidence of possible risk for the tribunal to find that there was a failure to carry out a risk assessment.

The EAT dismissed the appeal. However, it held that Hardman supported the view that discrimination occured if an obligation to carry out a risk assessment was established and the employer failed in this obligation. Proof of detriment was not necessary.

Case transcript of O'Neill v Buckinghamshire County Council (Microsoft Word format, 137K) (on the EAT website)

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