A case reported yesterday has set out more clearly the tests to decide whether or not an employer has an obligation to carry out a new and special risk assessment for a pregnant worker. The test falls into three parts.
· A – has the employee notified the employer in writing that she is pregnant?
· B – does the work risk harm or danger the health and safety of either the mother or her unborn baby?
· C – do those risks come out of processes, conditions or physical chemicals (including biological agents) in the work place?
If these three conditions are satisfied, then the employer is under an obligation to carry out a risk assessment and the case lends support to the fact that where an obligation to carry out a risk assessment arises, a failure to carry out that risk assessment is likely to be a form of discrimination and proof of the employee suffering any detriment will not be necessary in order for the employee to win a claim. The name of the case is O’Neill v Buckinghamshire County Council and it was heard in the Appeal Tribunals.