EMPLOYMENT – DISCRIMINATION – LOCAL GOVERNMENT
DETRIMENT : MEETINGS : PREGNANCY DISCRIMINATION : RISK ASSESSMENT : SEX DISCRIMINATION : TEACHERS : NEED FOR RISK ASSESSMENT : reg.16 MANAGEMENT OF HEALTH AND SAFETY AT WORK REGULATIONS 1999 : DIRECTIVE 92/85 ON THE INTRODUCTION OF MEASURES TO ENCOURAGE IMPROVEMENTS IN THE SAFETY AND HEALTH AT WORK OF PREGNANT WORKERS AND WORKERS WHO HAVE RECENTLY GIVEN BIRTH OR ARE BREASTFEEDING 1992 : MANAGEMENT OF HEALTH AND SAFETY AT WORK REGULATIONS 1999
In the absence of evidence that the work of a pregnant teacher involved a risk to her health and safety, there had been no obligation on her employer to carry out a risk assessment under the Management of Health and Safety at Work Regulations 1999 reg.16.
The appellant (O) appealed against a decision of the employment tribunal to dismiss her claim against the respondent (B) for pregnancy-related sex discrimination. O, who had been employed by B as a teacher at a junior school, had asserted that the school’s head teacher (C) had failed to carry out a risk assessment after being informed that she was pregnant. On July 17, 2006, C had begun to prepare a risk assessment, some five weeks after being informed of O’s pregnancy. She did not in general consider the risks attaching to pregnancy in the work of a teacher at the school and drafted the form in default format indicating that she intended to complete it later in conjunction with O when there was an opportunity to do so. She did not do so before the end of term on July 21.
HELD: (1) As B had asserted, there was no general obligation to carry out a risk assessment in respect of pregnant employees, and a failure to carry out such an assessment would not be discrimination per se, Madarassy v Nomura International Plc (2007) EWCA Civ 33, (2007) ICR 867 followed. The obligation to carry out a risk assessment of a pregnant worker arose only where (a) the employee notified the employer in writing that she was pregnant, (b) the work was of a kind which could involve a risk of harm or danger to the health and safety of a new or expectant mother or her baby and (c) the risk arose from any processes or working conditions, or physical, biological or chemical agents, including those specified in Annexes I and II of Directive 92/85.
L O’NEILL v BUCKINGHAMSHIRE COUNTY COUNCIL (2010)