Pregnant Workers: Don't Forget the Risk Assessment

Employers who employ female employees of childbearing age should be aware that they have particular obligations to carry out risk assessments in relation to them. Failure to carry out these obligations will mean that there is a breach of the Management of Health and Safety at Work Regulations 1999.

A recent decision of the Employment Appeals Tribunal (Hardman -v- Mallon [2002] IRLR 517) has indicated that employers may face additional penalties if the failure is in relation to a pregnant employee.

The Employment Appeals Tribunal has decided that the particular protection given to pregnant women in terms of the Sex Discrimination Act extends to the working conditions of those women and these working conditions include risk assessments. This means that no comparison is necessary with either a non-pregnant woman or a man, so employers can't avoid a finding of sex discrimination simply because they haven't carried out a risk assessment in relation to them either.

If there has been a failure to carry out a risk assessment on a pregnant women, that will automatically mean that she has been discriminated against because of her pregnancy - and that means a clear case of sex discrimination.

What penalties are likely if a finding of sex discrimination is made?

Employees will be able to re-coup reasonable financial losses that arise as a direct consequence of the sex discrimination. They will also be able to claim compensation for injury to feelings in appropriate cases, for example, where they have been caused distress or worry. The Court of Appeal, just prior to New Year, issued new guidance on appropriate levels of compensation for injury to feelings in sex discrimination claims.

This guidance indicated that the lowest level of awards, appropriate for a one-off act of discrimination, should be in the banding £500 to £5,000; anything lower than that fails to recognise the seriousness of the issue.

The message is clear. Inform and train managers about the need to carry out risk assessments, and implement a system so that they are carried out, particularly in relation to pregnant women. Or pay the price.
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