Pregnancy Risk Assessment – Enhanced Employer Obligations

Pregnancy risk assessment is a heightened workplace health-and-safety obligation imposed on employers because pregnancy can alter the risks associated with ordinary working conditions. In UK employment law, the obligation arises principally under the Management of Health and Safety at Work Regulations 1999 (MHSWR), especially Regulations 3, 16, 17 and 18, alongside the Equality Act 2010, particularly section 18 concerning pregnancy and maternity discrimination. The framework originates substantially from the EU Pregnant Workers Directive, although UK law now operates independently after Brexit.

1. What makes pregnancy risk assessment an “enhanced” obligation?

The employer already has a general duty to assess workplace risks. However, pregnancy can create additional or changing risks, meaning the employer may need to move from a generic workplace assessment to consideration of the individual employee's circumstances.

The HSE currently distinguishes between:

1. General risk assessment – risks to women of childbearing age, pregnant workers and new mothers must be considered.
2. Individual assessment – once the worker has notified the employer in writing that she is pregnant, has given birth within the previous six months, or is breastfeeding, the employer must consider her specific circumstances where the work presents relevant risks. 

This does not mean that every pregnant employee working in every job automatically requires identical protective measures. The legal assessment depends upon the nature of the work and the risks involved.

2. Statutory framework

Regulation 3 – General risk assessment

Regulation 3 MHSWR requires employers to make a suitable and sufficient assessment of health and safety risks arising from work.

This is the foundation upon which pregnancy-specific protection operates.

Regulation 16 – New and expectant mothers

Regulation 16 requires the assessment to take account of risks to a new or expectant mother or her baby where the work could create risks because of:

• working conditions;
• physical agents;
• biological agents;
• chemical agents;
• particular processes; and
• other circumstances identified within the regulatory framework.

The employer must therefore consider whether pregnancy changes the risk profile of the job.

Regulation 17 – Night work

Special protection exists where a doctor or midwife advises that night work may affect the health or safety of the pregnant worker or new mother.

This can require the employer to consider alternative working arrangements.

Regulation 18 – Notification

The statutory mechanism generally becomes particularly important when the employee has notified the employer in writing of her pregnancy, recent childbirth or breastfeeding status.

3. What should the employer actually assess?

A proper assessment should examine the actual work performed, rather than merely attaching a generic pregnancy checklist to the employee's personnel file.

Relevant factors can include:

Physical demands

• lifting and carrying;
• prolonged standing;
• prolonged sitting;
• repetitive movement;
• awkward postures;
• climbing;
• manual handling;
• balance and mobility.

HSE guidance specifically identifies prolonged sitting or standing, heavy lifting and workstation/postural problems as potential risks.

Working hours

The employer may need to consider:

• long shifts;
• excessive working hours;
• night work;
• insufficient rest periods;
• fatigue;
• irregular working patterns.

Workplace environment

Possible risks include:

• excessive heat or cold;
• noise;
• vibration;
• radiation;
• hazardous substances;
• biological agents;
• infectious materials.

Psychological and organisational risks

A modern assessment may also consider:

• work-related stress;
• excessive workload;
• inadequate breaks;
• particularly demanding working conditions;
• workplace violence or aggression.

The assessment must be sufficiently responsive to the employee's actual working environment rather than being purely administrative.

4. The hierarchy of employer duties

Where a significant pregnancy-related risk is identified, the employer should proceed through a hierarchy.

Stage 1 – Remove or control the risk

The first objective is to eliminate or adequately control the risk.

For example:

A pregnant warehouse employee is required to lift heavy packages. The employer could redesign the task, introduce mechanical assistance or reallocate heavy lifting.

Stage 2 – Alter working conditions or hours

If the risk cannot otherwise be adequately controlled, the employer should consider:

• changing duties;
• modifying working hours;
• changing shifts;
• reducing exposure;
• providing additional rest;
• changing the workstation.

Stage 3 – Suitable alternative work

If the risk remains, the employer should consider suitable alternative work on appropriate terms and conditions, including pay.

Stage 4 – Suspension

If the risk cannot reasonably be avoided and suitable alternative work is unavailable, an employee may have to be suspended on full pay for the period necessary to protect her and the baby. HSE and Acas guidance confirm this hierarchy.

This is important because an employer should not simply say:

“The job is dangerous, so you cannot work.”

The law expects the employer to explore less restrictive protective measures first.

5. The assessment should be individualised

A generic assessment may not be enough.

Two pregnant employees performing the same job might have different circumstances because of:

• different stages of pregnancy;
• medical advice;
• different pregnancy-related conditions;
• different physical capacities;
• different work locations;
• different shift patterns;
• different exposure to workplace hazards.

The HSE states that employers should discuss the worker's specific circumstances and review the assessment as pregnancy progresses or workplace conditions change.

Thus, the obligation is dynamic, not a “one-and-done” exercise.

6. Does the risk assessment have to be written?

This is an important legal complication.

The safest practical approach is yes—document it, even though the case law has recognised that the legal requirement does not necessarily demand a particular written document in every circumstance.

In Stevenson v J M Skinner & Co, the EAT accepted that an assessment could take the form of a process of consideration and meetings rather than necessarily being a formal standalone document.

However, from an employer's perspective, documentation is extremely important because it can establish:

• what risks were considered;
• when the assessment occurred;
• what the employee said;
• what medical advice was considered;
• what adjustments were offered;
• why particular measures were rejected;
• when the assessment was reviewed.

Consequently, a technically sufficient but undocumented assessment can create substantial litigation risk.

7. The employee does not have to manage the risk herself

One of the most important principles emerging from the case law is that the responsibility cannot simply be transferred to the pregnant employee.

An employer cannot reasonably argue:

“She knew the risks, so she could have taken more breaks.”

In Wharton v Harrington & Others, the Employment Tribunal emphasised that it was the employer's responsibility to review its working practices and consider the impact of risks on the pregnant employee and unborn child. The employee should not be left to manage workplace risks herself.

This illustrates the enhanced character of the obligation.

8. Interaction with pregnancy discrimination

Risk assessment is not merely a health-and-safety issue.

Under section 18 Equality Act 2010, a woman can be protected against unfavourable treatment because of pregnancy or because of illness suffered as a result of pregnancy during the protected period.

Therefore, a failure to conduct an appropriate assessment can potentially produce two overlapping legal consequences:

Health and safety liability

The employer may have breached MHSWR.

Pregnancy discrimination liability

The failure or resulting treatment may amount to unfavourable treatment because of pregnancy.

The precise discrimination analysis depends on the facts; failure to perform an assessment is not automatically discrimination in every conceivable case.

That distinction is important.

9. Key Case Laws

1. Hardman v Mallon t/a Orchard Lodge Nursing Home [2002] IRLR 516

This is an important early authority concerning pregnancy risk assessment.

The EAT treated failure to carry out the required pregnancy-related risk assessment as capable of constituting a detriment and therefore sex discrimination under the law then applicable.

Principle

The case demonstrates that health-and-safety obligations concerning pregnancy can have direct equality-law consequences.

It helped establish the important connection between:

failure to assess risk → detriment → pregnancy/sex discrimination.

Later cases have considered the effect of subsequent statutory changes and developments in pregnancy discrimination law.

2. Stevenson v J M Skinner & Co UKEAT/0584/07

This case concerned the form that a pregnancy risk assessment must take.

The EAT accepted that an assessment did not necessarily have to be contained in a formal written document. An assessment could arise through meetings and consideration of particular concerns, provided the statutory obligation was actually fulfilled.

Principle

The law focuses on substance rather than paperwork.

However, employers should still document the assessment because documentary evidence becomes extremely important if litigation later arises.

3. O'Neill v Buckinghamshire County Council UKEAT/0020/09/JOJ [2010]

The claimant was a teacher who became pregnant.

The EAT considered whether pregnancy automatically triggered a specific risk assessment.

It concluded that pregnancy alone did not mean that an individual assessment was automatically required regardless of the nature of the work. There needed to be relevant workplace risks of the kind contemplated by Regulation 16.

Principle

Pregnancy does not make every job inherently hazardous.

The employer must consider the actual work and whether it presents relevant risks.

This case is particularly important because it prevents the statutory obligation from being interpreted as an automatic requirement for identical assessments in every occupation.

4. Bunning v GT Bunning & Sons Ltd [2005] EWCA Civ 983

This is one of the leading pregnancy-risk cases.

The claimant worked in welding and became pregnant. Her employer carried out a general risk assessment and concluded that the job was not sufficiently high-risk.

Following pregnancy-related harm, the adequacy of the employer's approach was challenged.

The Court of Appeal upheld the finding that requiring the claimant to return to the previous job or another medium-risk job amounted to a detriment and discrimination under the legislation applicable at the time.

Principle

A generic conclusion that a workplace is “safe” does not necessarily satisfy the employer's obligation.

The employer must genuinely consider the particular pregnancy-related risks.

5. Indigo Design Build and Management Ltd v Martinez UKEAT/0020/14/DM

This case is particularly significant because it illustrates the limits of treating a failure to assess as automatically constituting pregnancy discrimination.

An Employment Tribunal had concluded that failure to carry out a specific pregnancy risk assessment amounted to unfavourable treatment.

The EAT overturned that approach.

Principle

A breach of the health-and-safety regulations and pregnancy discrimination under section 18 are related but not legally identical questions.

The tribunal must properly analyse:

• whether there was unfavourable treatment;
• whether it was because of pregnancy;
• whether the statutory conditions for an individual risk assessment existed.

This prevents the proposition that every regulatory breach automatically equals discrimination.

6. Onigbanjo v London Borough of Croydon, Case No. 2301468/2016

The Employment Tribunal found, among other matters, that failure to conduct a pregnancy-specific risk assessment contributed to a successful pregnancy-discrimination claim.

Principle

Where the circumstances actually require an individual pregnancy risk assessment, failure to perform it can constitute unfavourable treatment because of pregnancy.

The case therefore demonstrates the practical litigation risk created by failing to translate general health-and-safety obligations into individual protection.

7. Wharton v Harrington & Others, Case No. 2603135/2019

This case provides a particularly useful statement concerning responsibility for managing pregnancy risks.

The Tribunal concluded that the respondents were obliged to conduct a specific risk assessment and that their failure amounted to unfavourable treatment because of pregnancy.

Crucially, the Tribunal rejected the argument that the employee could simply manage the risks herself by taking additional breaks or relying on her own awareness of the risks.

Principle

The employer must actively assess and control the risk.

The employee should not be expected to devise her own informal safety system.

8. Gibbins v Cardiff University Health Board, Case No. 1602976/2023

This recent Employment Tribunal decision is significant because it revisited the relationship between risk assessment and pregnancy discrimination.

The Tribunal considered the argument that the failure to carry out a pregnancy risk assessment could have a particular adverse impact on pregnant workers.

Principle

The case illustrates the continuing judicial recognition that pregnancy-specific risk assessment is an important protective mechanism and that its absence can have equality-law implications.

However, the precise legal route to liability must still be established on the facts rather than assumed automatically.

10. Comparison of the major cases

11. Enhanced obligation during progression of pregnancy

A particularly important point is that one assessment at the beginning of pregnancy may become inadequate later.

The employee's circumstances can change because:

• mobility may decrease;
• lifting may become more difficult;
• balance may change;
• fatigue may increase;
• prolonged standing may become more difficult;
• workstation ergonomics may become problematic;
• medical advice may change.

HSE guidance expressly recommends reviewing the assessment as pregnancy progresses and whenever workplace conditions change.

Therefore:

Risk assessment is a continuing process, not a single administrative event.

12. Medical advice

The employer should take relevant medical advice seriously.

For example, if a doctor or midwife advises that:

• night work is unsafe;
• particular physical activity should be restricted;
• a pregnancy-related medical condition affects work;
• certain workplace exposure should be avoided,

the employer should consider whether working conditions, hours or duties need modification.

The HSE expressly identifies medical advice as relevant to adjustments in working conditions and hours.

13. Common employer mistakes

Mistake 1: “We already have a generic risk assessment.”

A generic assessment may be insufficient where the individual's pregnancy creates additional risks.

Mistake 2: “She looks perfectly healthy.”

The assessment must examine work-related risk, not the employer's visual impression of the employee.

Mistake 3: “She can take breaks whenever she wants.”

That may not discharge the employer's statutory responsibility.

Mistake 4: “The employee knows her own limits.”

Employee awareness does not replace employer risk management.

Mistake 5: “One assessment is enough.”

Pregnancy-related risks can change throughout pregnancy.

Mistake 6: “We don't need to document anything.”

Although case law recognises that the assessment need not necessarily be a formal written document, lack of documentation creates substantial evidential problems.

Mistake 7: “We will simply send her home.”

Suspension is generally a later-stage protective measure, after considering whether risks can be controlled or alternative work provided.

14. Practical employer compliance model

A legally robust employer should follow this sequence:

Step 1: Maintain a general workplace risk assessment.

Step 2: Identify risks relevant to women of childbearing age and new/expectant mothers.

Step 3: When pregnancy is notified in writing, promptly initiate an individual assessment where the regulatory conditions are engaged.

Step 4: Meet with the employee and understand her actual duties.

Step 5: Consider relevant medical advice.

Step 6: Identify physical, chemical, biological, ergonomic, environmental and organisational risks.

Step 7: Remove or control those risks.

Step 8: If necessary, modify duties, hours or working conditions.

Step 9: If risks cannot be controlled, consider suitable alternative work.

Step 10: If no safe alternative exists, consider suspension on full pay where the statutory requirements apply.

Step 11: Review the assessment as pregnancy progresses.

Step 12: Keep clear records of the reasoning and measures adopted.

15. Relationship with Equality Act 2010

The strongest legal protection comes from reading the health-and-safety rules together with the Equality Act.

A pregnant worker may potentially have claims involving:

• pregnancy discrimination;
• maternity discrimination;
• discriminatory dismissal;
• detrimental treatment;
• failure to make appropriate workplace changes where legally required;
• health-and-safety breaches.

Section 18 is particularly important because pregnancy discrimination has its own statutory framework and does not simply operate like ordinary direct discrimination.

The employer therefore needs to ask two separate questions:

First: Did we comply with the health-and-safety regulations?

and

Second: Did our treatment of the pregnant employee amount to unlawful unfavourable treatment because of pregnancy?

The answer to one does not automatically determine the other, as demonstrated by Indigo Design v Martinez.

16. Legal significance of “enhanced obligations”

The phrase enhanced obligation can therefore be understood in five ways:

1. Enhanced identification

The employer must consider risks specifically associated with pregnancy and new motherhood.

2. Enhanced individualisation

The employer may need to move beyond a generic workplace assessment to an assessment of the particular worker.

3. Enhanced protection

Where a significant risk exists, the employer must take active measures to remove or control it.

4. Enhanced monitoring

The assessment should be reconsidered when pregnancy progresses or circumstances change.

5. Enhanced equality protection

Failure to deal appropriately with pregnancy-related risks can potentially expose the employer not only to health-and-safety consequences but also to pregnancy discrimination claims.

Conclusion

The central principle is that pregnancy does not automatically make a workplace unsafe, but it changes the employer's legal responsibility to identify whether ordinary working conditions have become unsafe for that particular worker or her unborn child.

The employer must therefore move beyond a “tick-box” approach. A proper assessment should consider the employee's actual duties, workplace conditions, stage of pregnancy, relevant medical advice and changing circumstances. Where a risk exists, the employer should first remove or control it, then consider modified hours or conditions, alternative work, and ultimately paid suspension where the statutory conditions require it.

The case law also establishes an important qualification: failure to conduct a risk assessment is not invariably, by itself, pregnancy discrimination. Cases such as O'Neill and Indigo Design demonstrate the need to examine the statutory conditions and the factual connection between the employer's conduct and pregnancy. Conversely, Bunning, Onigbanjo, Wharton and related authorities show how seriously tribunals can treat a failure to protect pregnant workers where a specific risk assessment was required.

Exam/research proposition:

The enhanced pregnancy risk-assessment duty is a preventive, individualised and continuing obligation. Its purpose is not merely to document workplace hazards but to require the employer actively to identify, control and, where necessary, eliminate risks arising from pregnancy. A failure to do so may simultaneously create health-and-safety exposure and, depending on the facts, liability under the pregnancy-discrimination provisions of the Equality Act 2010.