Appeal No.	 EAT/369/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 November 1998

Before
 THE HONOURABLE MR JUSTICE LINDSAY
MRS E HART
MR J C SHRIGLEY

MRS S DAY	APPELLANT

T PICKLES FARMS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR K UNDERWOOD
(Solicitor)
Messrs Underwoods
Solicitors
1 Holywell Hill
St. Albans
Hertfordshire  AL1 1ER	
For the Respondent	MR S LEWINSKI
(of Counsel)
Messrs Brabner Holden Banks Wilson
Solicitors
7-8 Chapel Street
Preston
Lancashire PR1 8AN	

	MR JUSTICE LINDSAY:	We have before us an appeal by Mrs Shelley Day in the matter Day -v- T Pickles Farms Limited; it is an appeal against the decision of the Industrial Tribunal at Manchester under the Chairmanship of Mr Lay.  There was hearing on 6 January 1998 and the decision was promulgated on 12 January 1998 and the decision is as follows:

“The  unanimous decision of the Tribunal is that
(i)	the Applicant was not dismissed by the Respondent; and
(ii)	the Respondent unlawfully discriminated against the Applicant, contrary to the provisions of the Sex Discrimination Act 1975.  The issue of Remedy will be dealt with on Friday, 30 January 1998 at 10.00am.”

and the remedy hearing did take place and a relatively small award was made. 

	So far as concerns constructive dismissal, that is heading (i), - that the Applicant was not dismissed by the Respondent - Mrs Day appeals against that and, so far as concerns the sex discrimination side of things, the small award in Mrs Day’s favour - which was connected with the failure to pay hourly rates for her attendance at the ante natal clinic - was a decision in her favour and there is no appeal against that by her law at all and no cross appeal by the employers.  So that stands, but she did lose a larger claim for failure of the employer to pay statutory sick pay and that is appealed against and that is a live part of the case.

	It is necessary to give something of the background to the matter.  The Respondent company, which appeared before us by Mr Lewinski, operates sandwich shops, amongst other undertakings, and Mrs Day was a counter assistant at a sandwich shop and cooked chicken amongst other foods, was sold and it was roasted on the premises in an oven.  There was cooking twice a day.  Mrs Day joined the employment in January 1996.  In 1996 she had had two children but she had recently had a miscarriage.  She became pregnant again in late 1996 and, perhaps because of the miscarriage, it was a pregnancy she was especially concerned about.  She had severe morning sickness.  She told her manager at the shop that she was pregnant.  The constant and unavoidable smell of food made her feel nauseous whilst at work, indeed it became so bad that she consulted her doctor and he certified her unfit for work and she gave a doctor’s certificate to her employer.  She left work on 29 November 1996 and never returned thereafter.  It may well be that the doctor’s certificate - I think it probably was the case - was supplied to the employer after she had, in fact, left on 29 November, but she remained in telephone contact with her employer and she did not indicate that she wished to return to work and she continued to supply doctor’s certificate at intervals.

	The Industrial Tribunal, referring to in this paragraph to Barbara Mitchell, who was, in effect, her manager at the local shop said this:

“The applicant, we find, as Barbara Mitchell told us, complained that it was the whole process of being exposed to the smell of food, of chickens cooking and of handling food in its preparation which made her feel ill and that she would not be able to come back to work.”

	She received statutory sick pay until 19 April 1997 and that, of course, was paid for by the employer.  The employer’s computer suggested to him that statutory sick pay did not need to be paid after the 19 April and the employer consulted two separate Government Agencies who indicated to the employer that her entitlement to statutory sick pay had indeed ended.

	After 2 June 1997, she wrote a letter to the employer saying that the DSS had told her that she should have been paid statutory sick pay right down to the 2 June 1997 and she asked why it had not been paid.  That letter did not mention that she regarded her contract of employment as terminated.  Indeed, it suggested that employment had continued at least until 2 June 1997.  On 5 June 1997 she wrote again to the employer again in terms which could be taken to suggest that the employment was still continuing.

	On 4 July 1997, she signed her IT1 complaint and it mentions that the employer should have carried out a risk assessment.  The Industrial Tribunal fully understood that failure to carry out a risk assessment was one of  the chief features that she relied upon in asserting constructive dismissal.

	Looking at paragraph 16 of the reasons of the Tribunal they say this:

“16.	So far as the constructive dismissal is concerned, the Applicant says that the conduct of which she complains is, as a last straw, the failure to pay the statutory sick pay after 19 April or thereabouts, and the previous breaches on the part of the employer, those being:-
(i)	The failure to allow her time off for ante-clinics with full pay; and
(ii)	The failure to carry out a risk assessment (with which we will deal in more detail later) and, as a consequence, the failure to suspend her on full pay on medical grounds for the remaining duration of her pregnancy, the consequence of which was that she lost the full pay which she would have had under suspension and, as a result, was unable to pay the proper contributions and so lost her entitlement to statutory maternity pay during the period of her confinement.
She says all those matters, and the fact that she felt abandoned by her employer, amounted to conduct which was repudiatory of the employer’s obligations to her under the contract of employment.”

	The Industrial Tribunal then gave themselves directions on the subject of constructive dismissal, directions which seem to us to have been impeccable and they hold there to have been no termination of the contract of employment.  What they say about that is in their paragraph 19 where they say:

“The Applicant took no step whatsoever as between her and the employer to terminate this contract of employment with or without notice.  She made no communication to the employer, even when she wrote him two letters in early June 1997, stating that her contract was seen by her to have been at an end.  Even if that was in her mind, that is not enough.  The contract must be terminated by unequivocal communication of that fact and telephoning the Employment Department in an attempt to register as unemployed does not amount, in our view, to communication to the employer of the termination of a contract of employment.  Further, the reason for it was not to terminate the employment but, rather, a desperate effort to obtain benefits.”

	That being the case, as far as we understand the matter and so far as constructive dismissal is concerned, it matters not whether or not the Industrial Tribunal’s assessment of the failure to carry out a risk assessment was flawed or was not flawed for, even if it was flawed, there was still no “unequivocal communication” and it was for the want of an unequivocal communication that the constructive dismissal case failed.  Mrs Day had not made it plain that she was accepting some form of repudiation on the part of the employer.

	Quite what amounts to a case of constructive dismissal is largely, although not wholly, a matter of evidence and fact rather than of law.  The Industrial Tribunal heard witnesses and saw them and had the issue presented to them and it can not be said, in our view, that their conclusion was outside the band of what a reasonable Tribunal properly instructing itself could have concluded.  Accordingly, so far as concerns unfair dismissal and, in turn, of course, constructive dismissal, which was part of that, we would dismiss the appeal.  

	Turning to the  other part of the case again, the risk assessment provisions are relied upon by Mrs Day.  Here, though, unlike the case as it was on the constructive dismissal part of her allegations, it is not possible to say that whether or not the Industrial Tribunal got its view  of risk assessment right then nonetheless, for some extraneous reason, their decision was correct.  Here the view of the Industrial Tribunal as to risk assessment was at the very centre of the case on sexual discrimination, and so we have to look at what the regulations provide.

	We turn to the management of Health and Safety at Work Regulations 1992, Regulation 3,:

“Risk Assessment
(1)	Every employer shall make a suitable and sufficient assessment of -
(a)	the risks to the health and safety of his employees to which they are exposed whilst they are at work; and
(b)	the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,
for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.”

	So the requirement in Reg. 3 is to look at risks to which employees are exposed (and not to which they could be or might be, but are exposed).  The assessment has not necessarily got to be with a view to annihilating the risk but merely to finding out what needs to be done to comply with the “relevant statutory provisions”.  It does not seem that those are in terms defined, and there is no particular trigger event to require the risk assessment; it arises simply out of the fact of employment, even of a single employee.  That is the starting point, but then one looks more particularly at 13A(1), and that says this:-

“(1)	Where-
	(a)	the persons working in an undertaking include women of child-bearing age; and
	(b)	the work is of a kind which could involve risk, by reason of her condition, to the health and safety of a new or expectant mother, or to that of her baby, from any processes or working conditions, or physical, biological or chemical agents, including those specified in Annexes I and II of Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding,
the assessment required by regulation 3(1) shall also include an assessment of such risk.”

	So there is a particular trigger event to require this special kind of risk assessment namely, the employment of women of child-bearing age.  The language is slightly different from 3(1) in the sense that it talks about work of a kind which could involve risk rather than the earlier language which I cited, though its perhaps debatable whether that adds anything of real substance.

	It is not entirely clear what the “undertaking” is in 13A(1)(a); whether, on the facts before us, it is the whole of the employer’s undertaking (which employs some 100 people and includes things like farms) or whether one looks at simply to the limited area in which Mrs Day worked, namely, a relatively small shop.  However, even assuming that it is only the shop, one still gets to a position in which, if there are women of child-bearing age there, then the assessment should have taken place.  We are not told of how many women worked in the shop.  We do know that Mrs Mitchell and another lady, Mrs Paynter worked there but we do not know whether they were of child bearing age or not.  The act does say “women”, but presumably, under ordinary principles, the plural would include this singular and so that even the employment of a single woman of child bearing age would suffice to trigger the need for an assessment that took into account 13A(1) as well as Regulation 3(1).  So, given that Mrs Day began work there in January 1996, at the very latest, if not earlier, the employer should have carried out an assessment under Regulation 3(1) coupled with 13A(1) at the start of Mrs Day’s employment in January 1996.

	At this stage, looking at 3(1) and 13A(1), the risk assessment so far as concerns new and expectant mothers would seem to be looking at them generally.  It is still a Regulation 3(1) type of assessment that is needed, but one having regard to the employment of women of child bearing age.

	At that stage it seems to us that the employer, looking generally, cannot be expected to have in mind the most particular kind of conditions or objections or disabilities that some women might suffer from, for example, being nauseous at handling fish or hard boiled eggs or something really very much applicable only to the particular individual.

	At that stage 13A(1) - cum - 3(1) is looking at assessment in relation to women of child bearing age in a general way.  However, it is quite clear that the employer here never conducted any such Regulation 13A(1) - cum - Regulation 3(1) risk assessment at all.  Indeed, he did not even carry out, as it would seem, the Regulation 3 kind of risk assessment.  We have the Chairman’s notes of evidence and of what Mr Pickle had quite candidly said in his evidence, namely:-

“I didn’t do a formal risk assessment.  Mentally you do it.  We don’t think there is any risk.  I wouldn’t know what a formal risk assessment is.  I am not aware of the statutory regulations.”

	It is difficult to be critical of Mr Pickles on that subject without knowing quite what publicity is given to the Regulations in relation to comparatively small undertakings such as the employer here, but, at the joinder of Mrs Day at the latest, namely in January 1996, there should have been a Regulation 13A(1) risk assessment and so we now turn to move to wonder what it would have disclosed.  There is no evidence of that.  A possible complaint was that the heat of the ovens which roasted the chicken might have been a condition which a 13A(1) assessment would have disclosed.  Did the ovens offend any regulations?  Was it recognised they gave out too much heat?  Could it readily be dealt with, for example, by better ventilation?  Who knows? It was not, as it seems to us, a question that was gone into.  Another complaint which it was possible that an assessment might have disclosed was a practical inability to sit down whilst at work.  Would a risk assessment have thrown that up as a situation which caused a risk of some kind and as a matter which readily could be avoided?

	We have looked at the Council Directive 92/85 and its annex and it is quite plain from the annex that extremes of cold and heat, for example, and matters of movement and posture, are matters that regard is to be had to - see Annex 1, Paragraph A(1)(f) and (g).  We thus have it in mind that if the employer had done as is required by Regulation 13(1)(A) coupled with Regulation 3(1) and had conducted a risk assessment, then the working conditions, by the time that Mrs Day was pregnant in October or November 1996, might have been changed.  Even if there had been no strict duty upon the employer, having conducted the risk assessment, to take steps there and then to alleviate the conditions indicated, there was at least a prospect that as a good employer it would have acted in a way to obviate the risks that the risk assessment had disclosed.

	Further, the regulations do not stop at that general 13A(1) level, they move on because 13A(2) and (3) says this:

“(2)		Where, in the case of an individual employee, the taking of any other action the employer is required to take under the relevant statutory provisions would not be avoid the risk referred to in paragraph (1) the employer shall, if it is reasonable to do so and would avoid such risks, alter her working conditions or hours of work.
(3)		If it is not reasonable to alter the working conditions or hours of work, or if it would not avoid such risk, the employer shall, subject to section 46 of the 1978 Act, suspend the employer from work for so long as is necessary to avoid such risk.”

	So by the time one is looking at sub (2) and sub (3), the employer is not looking at risk generally but is looking to the case of the particular employee.  One would therefore expect there needs to be some trigger event to bring into existence the need to act as (2) and (3) suggests and that trigger event is found in 13C(1):-

“Nothing in paragraph (2) or (3) of regulation 13A shall require the employer to take any action in relation to an employee until she has notified the employer in writing that she is pregnant, has given birth within the previous six months, or is breastfeeding.”

	There is a 13C(2) but that does not arise on the facts in which we are interested.  That is the background of regulation, let us go now to the decision.

	At paragraph 23, the Industrial Tribunal said:-

“Regulation 13A(1) applies the moment an employer has a pregnant employee and it continues as an obligation throughout the pregnancy, whether or not he has been given written notice of it.”

	However, consistently with that the Industrial Tribunal cannot have realised that the general assessment of Regulation 3(1) and 13A(1) should have been made before Mrs Day became pregnant.  The Industrial Tribunal, consistent with that view of the law, cannot have contemplated that the fact there had been no earlier assessment might have represented a detriment which she had suffered.  That passage that suggests that Regulation 13A(1) applies the moment an employer has a pregnant employee is, and Mr Lewinski accepts this, wrong in law.  The Tribunal gave themselves a misdirection.  Can we tell that that misdirection did not prejudice the outcome of the case?  That is a much more difficult point.  We are not suggesting that the conclusion that the Industrial Tribunal came to was necessarily wrong on sex discrimination.  We cannot be sure whether an earlier assessment would have made any difference, but we do say that the approach of the Industrial Tribunal did involve a misdirection of law and we go on to say, that we cannot be sure that that did not prejudice her case.

	Mr Lewinski has some argument that need to be considered fully on the facts, but he also has arguments on the law.  He points out that the regulations that require an assessment to be done, do not in terms require anything thereafter to be done unless and until there is a pregnancy.  Until there is a pregnancy he says, the assessment need not be acted upon.  We are dubious about that as a broad proposition. It is a matter that, so far as applicable to a particular case, needs to be considered in the light of the facts of the particular case; it is in the nature of pregnancy  that quite often it is experienced without being known of for a while and if, the moment there is a pregnancy, the assessment has to be acted upon and yet the start of the pregnancy is unknown, the only way in which the necessary steps could be taken in order to begin as the pregnancy begins is to have anticipated the matter by acting on the risk assessment earlier.

	Mr Underwood, for the Appellant, Mrs Day, also draws attention to the requirement of Article 4(2) under which persons are to be told the effect of the risk assessment.  Another argument that Mr Lewinski deploys is that the Appellant was not prevented from working by anything that an assessment would have disclosed; it was the smell and the handling of food that brought on the nausea and which drove her from attending at the premises.  But, again, it is very much a matter that requires an examination on the facts of the particular case.  If, for example, a risk assessment in January had disclosed that the ovens did provide too much heat and that a mode of coping with that was better ventilation, well, who is to say that the smell of food would not have been lessened and the risk of nausea reduced? In the circumstances, we do not feel that we can say that the failure to carry out a 13A(1) assessment earlier did not prejudice Mrs Day’s position; we can not be sure that the misdirection that the Industrial Tribunal gave themselves on the law did not prejudice Mrs Day’s case.  In the circumstances, we set aside paragraph (ii) of the Industrial Tribunal’s decision, the sex discrimination point, so far as it concerns some aspects.  We do not set it aside so far as it related to the attendance at the ante-natal clinic - that stands -, and we do not set it aside so far as it declined an award on the grounds of failure to pay sick pay.  The reason there that emerged from the evidence was referred to in paragraph 30 of the Industrial Tribunal’s decision when they said:

“30.	We are satisfied as to the respondent’s explanation with regard to the statutory sick pay and we find that it is not proper or reasonable to draw the inference that the reason for the cessation of statutory sick pay was on grounds of the applicant’s sex, as discrimination is defined in section 1 of the 1975 Act.”

	That aspect we leave standing, but we do say it is right that the Industrial Tribunal should reopen or open the question of how far, if at all, Mrs Day was subjected to other detriment - that is to say detriment apart from the ante-natal point and the statutory sick pay point - by reason of the employers failure to have carried out a risk assessment under Regulation 3(1) coupled with 13A(1) earlier than October or November 1996.  Also it will be proper to reopen the question of whether she suffered some form of detriment by reason of the employer’s failure, if there was such a failure, to consider what steps were needed under regulation 13A(2), if 13A(2) had been duly triggered, and, equally, by reason of the employer’s failure, if such it was, to consider possible suspension of Mrs Day under 13A(3), if 13A(3) had been properly triggered, and also to look again at the question of whether 13C(1) notification had been given.  

	That question of 13C(1) notification really amounts to a separate point although, of course, there is an inter-dependency between the various points in this case.  The position was that Mrs Day had told her manager that she was pregnant, she had given sick notes to the employer.  She could not remember what the sick note said, but the Industrial Tribunal had evidence before them that she was suffering severely from morning sickness.  She was going, as they knew, to an ante-natal clinic.  The Industrial Tribunal had evidence from which they held that her morning sickness had become so bad that she had been certified by her doctor as unfit to work by reason of nausea.  Common sense, it seems to us, suggests that the nature of the certificate that was handed to the employer, against that background, must surely have indicated either that she was pregnant or that she was suffering from a condition consistent only with pregnancy or at the very least, that she was suffering from a condition that was more probably than not an indication of pregnancy.

	There are a number of cases in which an Industrial Tribunal is told not to take a technical view of the burden of proof and of it switching from one side to another.  If the Industrial Tribunal had simply asked themselves, given the facts that I have just recited, and given that the employer had been given by Mrs Day her a series of doctor’s certificates, whether they amounted to a notification to the employer in writing that she was pregnant, it is hard to see how they could have concluded other than that it did amount to such a notice.  That question, in fact, they never actually asked themselves, because instead of that they looked at the matter in terms of burden of proof, they said that:

“She had not given written notice of her pregnancy to the employer, and we have no evidence upon which we can find that she had and that the burden of proof is upon her in that respect.”

	If, technically, it was right to look at the matter not as a simple matter of fact but in terms of a more technical view of burden of proof, then it seems to us that in point of law, given the background I have just mentioned, that the burden must by then have passed to the employer.  After all, he was the was recipient of the certificates.  In the circumstances it was for him to show that the certificates did not amount to an indication of pregnancy.  There seems to be some degree of confusion about the medical certificates, because it seems that the Industrial Tribunal was told that they could not be found and perhaps had been lost.  However, they have in fact since been found by the Employer.  There are seven notes in all, of which two say Hyperemesis gravidarum, one says pregnancy problems and the other merely say Hyperemesis.  As the word “gravidarum” suggests, the condition can only be one that relates to pregnancy.  If the Industrial Tribunal had not looked at the matter simply as a matter of burden of proof but rather had simply had asked themselves on the facts what had been proved to them, it is difficult to see how they could have concluded other than that written notification of pregnancy had been given.  	Mr Lewinski invites us to take a strict view, but, however strict a view is taken, it seems to us that the Industrial Tribunal, had it looked at the issue not as a matter of burden of proof but as a matter of the common-sense assessment of facts, could not have concluded other than that written notice had been given or, at any rate, technically looking at it as matter of burden, that the burden had switched to the employer to show that that was not the case.

	We have amongst our papers, Black’s medical dictionary that gives a definition of Hyperemesis gravidarum and it makes it quite plain that it relates and it relates only to a condition of pregnancy.  In the circumstances, we think it right that the Industrial Tribunal should examine afresh, whether Regulation 13C notification had indeed been given.  This is not a case where the Industrial Tribunal has been showing any bias or delay or is such that for any other reason it could not be expected to consider the matters afresh entirely properly.  It was dealing with difficult regulations.  It may save costs if we remit the matter to the same Industrial Tribunal in the sense that they will already be familiar with the background and will not need to have it proved afresh.

	So, in the out-turn, we leave the Industrial Tribunal’s decision as it is on constructive dismissal; we leave it as it is on the ante-natal attendance point and on the failure to pay statutory sick pay, but we remit the matter to the same Industrial Tribunal for them to consider matters in the light of the view we have expressed on Regulation 3(1) - cum - Regulation 13A(1) risk assessment as being a thing that should have been conducted not later than January 1996.  They are to ask themselves, in the light of that view of the law, whether Mrs Day was subjected to a detriment by reason of the employer’s failure to carry out that form of assessment.  We set aside the Industrial Tribunal’s decision that the burden was still on Mrs Day as to proof of written notification under 13C(1) and instead invite them to look at the matter unaffected by their previous decision and more broadly than upon an examination of burden of proof and to move on, if they feel that 13C(1) notice had been given, to see whether the failure to act under 13A(2) or (3), if there was such a failure, had caused some detriment to Mrs Day within the provisions of the Sex Discrimination Act. 

	At the resumed hearing, the Industrial Tribunal is to be able to entertain fresh evidence on the questions before it.  It would be prudent that questions as to the evidence should be a matter of prior direction, if not agreed between the parties, and the fresh evidence will plainly now have to include the doctor’s notes which the Tribunal had earlier understood had been lost or mislaid.  In the limited way we have indicated, we set aside the decision and remit to the same Tribunal as before.