O'Neill v. Buckinghamshire County Council

Pregnancy discrimination law does not create a general regime of positive discrimination or require employers to abandon disciplinary or other management procedures because an employee is pregnant.

Under regulation 16 of the Management of Health and Safety at Work Regulations 1999, an individual risk assessment is required only where the work is of a kind that could involve a risk, by reason of pregnancy, to the health or safety of the worker or her baby. Some evidential basis for such a risk is necessary. A failure to assess is not, by itself, discrimination where the regulatory obligation has not been triggered.

The appellant was a teacher employed by the respondent local authority. Following longstanding difficulties concerning performance, working relationships and compliance with school procedures, disciplinary proceedings were commenced.

After informing the respondent of her pregnancy, the appellant complained that the employer should have stopped or adjusted the disciplinary process and carried out an individual health and safety risk assessment. She later resigned and claimed constructive unfair dismissal and pregnancy-related sex discrimination.

The Reading Employment Tribunal extended time for the discrimination claim but dismissed both claims. The appeal concerned the proper scope of pregnancy protection, the trigger and performance of the risk-assessment obligation, detriment, evidential approach, constructive dismissal and the final-straw doctrine.

1. Appeal dismissed. The Employment Appeal Tribunal upheld the unanimous decision dismissing the claims for constructive unfair dismissal and pregnancy-related sex discrimination.
2. Section 3A of the Sex Discrimination Act 1975 does not establish a general positive-discrimination or reasonable-adjustment regime for pregnant workers. Pregnancy may require particular statutory protections in defined areas, but it did not require the respondent to abandon disciplinary proceedings or make the broad exemptions sought by the appellant.
3. Regulation 16 of the Management of Health and Safety at Work Regulations 1999 is conditional. The work must be of a kind which could involve a risk, by reason of the worker’s condition, to her health or safety or that of her baby, arising from relevant processes, working conditions or physical, biological or chemical agents. Evidence of such a potential risk is required. The appellant’s work as a primary-school teacher did not, on the findings made, satisfy that threshold. Disciplinary proceedings were not a working condition or process of the type contemplated by the Regulations.
4. On the alternative issue, the Tribunal was entitled to find that a risk assessment had been carried out. The Regulations did not require a meeting with the employee before the assessment obligation was satisfied, although the Tribunal’s reasons concerning delay would not have been acceptable if a meeting had been legally required.
5. Where the obligation to assess is established and the employer fails to comply, the EAT considered, following Hardman v Mallon, that proof of separate detriment is unnecessary. That issue did not affect the result because no obligation or breach was established.
6. The Tribunal’s credibility assessment did not impose an incorrect legal test or introduce an unpleaded discrimination case. The constructive-dismissal claim had to be determined by reference to the alleged contractual breaches identified at the preliminary hearing.
7. The Tribunal correctly applied the contractual trust-and-confidence test. Earlier events could, in principle, contribute to a later final straw, but the appellant’s informed decision to return to work after those events was relevant to whether they had caused her resignation. The Tribunal found no fundamental breach and concluded that she resigned to avoid the consequences of returning to work and facing the disciplinary process.

• Reading Employment Tribunal: The Tribunal extended time for the pregnancy-related discrimination claim but dismissed the claims for constructive unfair dismissal and sex discrimination.
• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s decision was upheld.