Is a pregnant worker automatically entitled to a risk assessment in the absence of evidence that the work involves a health and safety risk to the expectant mother? This is the question which was considered by the Employment Appeal Tribunal in the case of O’Neill -v- Buckinghamshire County Council. Many employers carry out risk assessments for all pregnant employees as a matter of course. Ms O’Neill, a teacher at Holmer Green Junior School, was described by one of her fellow teachers as the most difficult teacher she had ever partnered in her career of almost 30 years. She was alleged to have failed to comply with requirements and procedures particularly in planning lessons, to have failed to engage with colleagues and her response to guidance and criticism “ranged from truculent to aggressive”. On June 13 2006 Ms O’Neill notified her employer that she was pregnant. A standard risk assessment was commenced on 17 July but it was not completed before the end of term in July. Ms O’Neill returned to work in September but was off on sick leave from 19 September (when she was notified that she was required to attend a disciplinary hearing) so the assessment was still not completed. It was agreed that the disciplinary hearing should be postponed taking into account the sickness absence and pregnancy. Ms O’Neill subsequently resigned and claimed constructive unfair dismissal.
The tribunal concluded that the Management of Health and Safety at Work Regulations 1999 did not apply to the work undertaken by Ms O’Neill so that there was no need to carry out a pregnancy risk assessment. Alternatively, even if there had been an obligation to do so, it was not correct that an assessment had not been undertaken, even though it had not been completed. Ms O’Neill appealed on the grounds that a risk assessment was required, it was wrong that the school had not failed to carry out a risk assessment because this required a meeting with her which had not taken place and the tribunal had failed to make a finding as to whether she had suffered a detriment during her “protected period”.
The appeal failed. There was no requirement under the Regulations to carry out an assessment. Even if there had been there was nothing in either the Pregnant Workers Directive or in the Regulations to indicate that a meeting with the employee was required before the obligation to carry out a risk assessment was satisfied. As for detriment, if there was no requirement for an assessment, there was no evidence of obligation and failure to comply with that obligation so that there was no evidence of detriment. Had there been an obligation which had not been complied with, detriment would have been automatically established.