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Is an employer obliged to carry out a specific separate risk assessment as soon as an employee confirms she is pregnant or breastfeeding?
Some workplaces present particular risks to pregnant workers. Whether an employer needs to carry out a separate risk assessment as soon as an employee confirms that she is pregnant or breastfeeding depends on the kind of work she does.
There is no free-standing legal obligation on every employer always to conduct a specific separate risk assessment once a worker confirms that she is pregnant. Instead, whether or not a separate risk assessment is required will depend on the particular circumstances of the individual worker and the kind or work she is doing (O’Neill v Buckinghamshire County Council, UKEAT/0020/09/JOJ). Even though there is no obligation to carry out a risk assessment whenever an employee confirms she is pregnant or breastfeeding, carrying out a risk assessment is the most sensible way to identify what new risks are presented by the pregnancy and what extra action should be taken.
The employer should always discuss any concerns and ideas about solving them with the worker. It would be sex discrimination to force a worker to accept a change of duties or suspension where the risk is low and does not require such a drastic response as the following case shows:
Mrs Quinn was removed from her duties as duty railway station manager after the employer learned that she was pregnant. The company said its main motivation was the risk of a physical assault while she was carrying out her duties. It also cut Mrs Quinn’s salary to reflect the change in her duties. She brought a claim of sex discrimination. The EAT upheld an employment tribunal finding that Mrs Quinn had been discriminated against and that her employer had suspended her because of its “paternalistic and patronising attitude” rather than for any real health and safety reasons. It was the employer’s responsibility to justify Mrs Quinn’s suspension by providing evidence of the gravity of the risk and the impossibility of avoiding it by making appropriate adjustments to her hours and conditions of work. It had done none of these things.
New Southern Railway Ltd v Quinn [2006] IRLR 266