Barrister Robert Spicer reports on key case law relating to risk assessments for new and expectant mothers.
The Management of Health and Safety at Work Regulations 1999 require employers to carry out a specific risk assessment where women of childbearing age or new or expectant mothers may be at risk from a work process, working conditions or physical, chemical or biological agents.
New or expectant mothers are defined as women who are pregnant, who have recently given birth or who are breastfeeding.
This topic has recently been considered by the Court of Justice of the European Union (CJEU) in the case of Eida Otero Ramos v Servicio Galego de Saude (2018).
The facts, in summary, were that Ms OR, a nurse, returned to work at a hospital after having had a baby. She told her employer that she was breastfeeding and that her work was liable to have an adverse effect on her milk and to expose her to health and safety risks arising from a complex shift system, ionising radiation, healthcare associated infections and stress. The employer issued a report stating that there were no risks and no need to put preventive measures in place.
OR requested a medical certificate stating that there was a risk to the breastfeeding of her child. This was refused on the basis that her job was included in a list of risk-free jobs. She appealed against this decision to the local Social Court. Her appeal was dismissed and she appealed further to the High Court on the basis that her employer’s failure to carry out an adequate risk assessment was in breach of the relevant EU directive. The High Court referred the matter to the CJEU. That Court agreed with OR and made the following points.
1. A general assessment of a worker’s role does not meet the requirement to carry out a risk assessment under the directive to improve the health and safety at work of pregnant and breastfeeding workers.
2. Where an employer breaches the obligation to carry out a risk assessment, this amounts to direct discrimination on the ground that the failure amounts to less favourable treatment of a breastfeeding woman.
3. The burden of proof passed to the employer to prove that the risk assessment had been carried out to the required standard.
This case highlighted the fact that in cases such as these a generic risk assessment is not sufficient: a failure to carry out a specific risk assessment where the breastfeeding woman is exposed to health and safety risks amounts to direct sexual discrimination.
In the English case of Bunning v GT Bunning & Sons Ltd (2005), Ms B was employed as a welder/fitter by a company which was controlled by her father and his brothers. She became pregnant and told her employers that the workshop where she worked was not safe for a pregnant woman. The employers asked a health and safety consultant for advice, which was later described as inadequate. Ms B was told to carry on as normal.
She refused and was transferred to work in the stores. A risk assessment concluded that the risk of working in the stores was medium. This was later criticised because there was a risk of slips and trips in the stores and she had to drive a fork-lift truck and use a computer and VDU screen.
Ms B suffered a miscarriage. She blamed her employers for this and resigned. She complained to an employment tribunal of sex discrimination and constructive unfair dismissal. On appeal to the Court of Appeal, that Court found that she had not been constructively dismissed. However, it made the point that Regulation 16 of the Management of Health and Safety at Work Regulations 1999 imposes an obligation on an employer to carry out a risk assessment for a pregnant worker. Regulation 16 requires that if employers employ a woman of childbearing age, and the work could involve risk to the health and safety of a new or expectant mother from any processes, working conditions or physical, chemical or biological agents, then there is an obligation to conduct an assessment of the risks to pregnant employees. The employers in the present case had been in breach of this obligation and this amounted to sex discrimination.
Another example is the case of O’Neill v Buckinghamshire County Council (2010). O was a primary school teacher who was the subject of disciplinary proceedings. During the proceedings she informed her employers that she was pregnant. The disciplinary procedure was delayed. She resigned and complained of constructive dismissal and pregnancy-related sex discrimination. She complained that the employers had failed to carry out a risk assessment after she had informed them of her pregnancy. The Employment Appeal Tribunal made the following points.
The duty to carry out a risk assessment for pregnant workers only arises where the employee has notified 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 mother or the baby; and the risk arises from processes, working conditions or physical, chemical or biological conditions in the workplace.
There is no general obligation to carry out a risk assessment for a pregnant employee.
When the duty to carry out a risk assessment arises, the employer does not have to hold a meeting with the employee.
The employer is under a duty to inform the employee of the results of the assessment, and to provide the employee with relevant and comprehensive information about the risks.
In Day v T Pickles Farms Ltd (1999), a case decided under the Management of Health and Safety at Work Regulations 1992, Ms D was employed as a counter assistant in a sandwich shop. She told the shop manager that she was pregnant. The smell of cooking and handling food made her feel nauseous. Her doctor gave her a sick note which she passed to her employer. She continued to provide sick notes. She resigned and complained of sex discrimination. The basis of her claim was that the employer had subjected her to a detriment by failing to carry out a risk assessment. That failure meant that the employer had failed to suspend her from work on maternity grounds for the duration of her pregnancy. The employment tribunal ruled that the employers were not liable because Ms D had not given written notice of her pregnancy. Ms D appealed to the Employment Appeal Tribunal. That tribunal stated that the employers should have carried out an assessment at the start of Ms D’s employment. The series of sick notes which Ms D had supplied amounted to a written notification of her pregnancy because they stated that she was suffering from a pregnancy-related illness.
Last reviewed 6 December 2018