Appeal No. EAT/0136/03 SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 July 2003

Before
HIS HONOUR JUDGE PETER CLARK
MRS A GALLICO
MRS L TINSLEY

SUZANNE MARIE BUNNING	APPELLANT

G T BUNNING & SONS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS T GILL 
(of Counsel) 
Instructed By:
Messrs Archer & Archer Solicitors
Market Place
Ely
Cambridgeshire CB7 4QN	
For the Respondent	MR B COLLINS 
(of Counsel)
Instructed By:
Messrs Hood Vores & Allwood
The Priory
Church Street
Dereham
Norfolk NR19 1DW

JUDGE PETER CLARK:

1	This is an appeal by Ms Suzanne Bunning against a decision of the Norwich Employment Tribunal chaired by Ms J M Laidler dismissing her 5 separate complaints brought against her former employer, G C Bunning & Sons Ltd.  That decision was promulgated with extended reasons on 19 December 2002. 

2	The Respondent is a family business of agricultural engineers.  The Applicant is also a member of the Bunning family, her father John being one of the 3 directors of the company and her uncles Robin and David being the others.  She commenced employment with the Respondent as a welder in March 1999.  She was good at her job; being described by her foreman John Gill as the ‘best man’ in the workshop.  We take that to be a compliment. 

3	On 29 September 2001 the Appellant discovered that she was pregnant. She and her partner Tom Fletcher visited her parents the next day to share the news. Both were delighted, as her parents, and her father, as one of her bosses, suggested that she came to work with him in his workshops. The Appellant rejected that idea. 

4	On 1 October she attended work and spoke to her aunt, the office manager, Doreen Bunning.  The upshot was that the Appellant was suspended on full pay pending a risk assessment of her job being carried out in view of her pregnancy. 

5	Subsequently the Appellant told her father that she wished to be present at the risk assessment.  In the event she was not present when that was carried out by Mr Errington of MSM Safety Management Services, an outside firm regularly engaged by the Respondent to provide health and safety advice. Mr Gill, the foreman, with some 23 years service with the Respondent was, however, present, and the Tribunal accepted that he was well qualified to explain all aspects of the Appellant’s job to Mr Errington.

6	Mr Errington graded the Residual Risk rating in the Appellant’s welding job as ‘medium’.  He identified the following hazards:

•	‘Slipping / Tripping due to leads where welding operations take place
•	Moving plant and machinery during bending operations
•	Fume from welding operations
•	Manual handling
•	Noise’

7	Having received Mr Errington’s report the Respondent wrote to the Appellant on 10 October requiring her to return to normal duties on 15 October.  Checks would then be made at four weekly intervals.

8	The Appellant did not consider that Mr Errington’s risk assessment addressed the issue of her pregnancy as required by regulation 16 of the Management of Health and Safety at Work Regulations 1999 (“the Regulations”).  She wrote to Robin Bunning on 11 October challenging the Respondent’s position and raising specific areas which she claimed had not been dealt with in the report. 

9	Mr Errington told the Tribunal that in his report of October 2001 he identified a higher risk factor than he did in an earlier assessment carried out in September 2000 and that this was due to the Appellant’s pregnancy.  His evidence was accepted by the Tribunal in preference to the expert evidence adduced on behalf of the Appellant, Mrs Diana Manthorpe. 

10	Further discussions ensued and various possibilities including the Appellant leaving the employment with a cash payment were mooted.  One suggestion made by the Respondent was that she took a job in the stores. Mr Errington carried out a further risk assessment in relation to that job and according to the Respondent’s evidence concluded that it also presented a medium risk to the Appellant in her condition.  The Appellant disputed that evidence.  She claimed that she had received a letter from the Respondent which assessed the stores job as low risk.  However, she was unable to produce that letter at the hearing.  She could not find it; a point to which we shall return.  Her case, rejected by the Tribunal, was that she would not have gone to work in the stores had it been rated medium risk.  She did however do so on 5 November and the Tribunal found that she did so knowing the job had been rated medium risk as the Respondent’s witnesses, particularly Mr Errington, told them. 

11	On 20 November the Appellant, sadly, miscarried.  She had been unable to work from that date up until the time of the Tribunal’s hearing, which concluded in late 2002, having undergone surgery for an ovarian cyst in June 2002.  On 5 December 2001 she wrote a letter of resignation to the Respondent having earlier complained of their treatment of her, both as a family member and employee of the company. 

12	Turning to the Tribunal’s conclusions, based on that summary of the facts found we are not concerned in this appeal with 3 of her complaints, namely victimisation on Health and Safety grounds, an Equal Pay claim, nor an unauthorised deductions from wages claim.  Instead we shall focus on the 2 heads of the claim, the subject of the appeal that is unlawful direct sex discrimination and constructive unfair dismissal. 

13	As to those issues the Tribunal directed themselves in accordance with the EAT decision in Day v Pickles [1999] IRLR 217 (Lindsay P) and Hardman v Mallon [2002] IRLR 517 (His Honour Judge McMullen QC) and concluded that the Respondent was not in fundamental breach of the contract, hence her claim for constructive dismissal failed; nor did they discriminate against her on grounds of her sex, in particular on grounds of her pregnancy.

14	Central to both conclusions was the Tribunal’s finding that the Respondent was not in breach of Regulation 16 of the Regulations.  It is perhaps significant that in referring to regulation 16 at paragraph 55 of their reasons the Tribunal set out only regulation 16 (1).  Regulation 16 provides, in full:

16	Risk assessment in respect of new or expectant mothers
(1)	Where – 
(a)	the persons working in an undertaking include women of a 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.
(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 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 67 of the 1996 Act suspend the employee from work for so long as is necessary to avoid such a risk. 
(4)	In paragraphs (1) to (3) references to risk, in relation to risk from any infectious or contagious disease, are references to a level of risk at work which is in addition to the level to which a new or expectant mother may be expected to be exposed outside the workplace. 

15	It is common ground between counsel before us that in carrying out the general risk assessment required by Regulation 3, Regulation 16 provides that a specific assessment will be carried out in relation to women of child bearing age.  The obligations under regulation 16 (2) only bite in the circumstances set out in regulation 18 (2), that is where the woman has notified her employer that she is pregnant. 

16	Central to Mr Gill’s amended grounds of appeal on both relevant heads of claim is the proposition that the Tribunal fell into error in its approach to Regulation 16; in particular, they did not consider the requirement under Regulation 16 (2) as to the consequences of the risk assessment to the pregnant employee. That failure permeated their conclusions (a) that the Respondent was not in fundamental breach of contract and (b) had not discriminated against the Appellant on grounds of her sex, in that she had suffered no detriment. 

17	Mr Collins, who represented the Respondent below, concedes that there was a breach of regulation 16 (2) and that the Appellant was required to return to work initially in her old job and then in the stores in jobs which had been rated a medium risk; that such breach was capable of amounting to a detriment for the purposes of the Sex Discrimination Act 1971 and that such breach was also capable of amounting to a fundamental breach of the contract for the purposes of the constructive dismissal claim, although neither of those results is accepted. 

18	It is not our practice (see Practice Direction, 9 December 2002, paragraph 15 (3) to allow appeals against reasoned Employment Tribunal decisions by consent without enquiry into the reasons for such agreement between the parties.  However, having heard both Ms Gill and Mr Collins, and having earlier had the advantage of reading their written skeleton arguments and the Tribunal’s decision and extended reasons, we have concluded that the Tribunal’s failure to consider the effect of regulation 16 (2) fatally undermines their conclusions on both relevant heads of the claim, as conceded by Mr Collins and that error of law requires us to allow the appeal and set aside the Tribunal’s finding on both sex discrimination and the constructive unfair dismissal claims. 

19	The principle issue between the parties is whether those heads of claim should be remitted to the same or a different Employment Tribunal.

20	Ms Gill raises further grounds of appeal. First, that the Tribunal dealt incorrectly with the guidance contained in the Code of Practice issued pursuant to section 16 (1) of the Health and Safety at Work act 1974 (Extended Reasons paragraph 71) and secondly that the Tribunal failed to give adequate reasons for rejecting wholesale the expert evidence of Mrs Manthorpe called on behalf of the Appellant (Extended Reasons paragraph 23). 

21	We do not find it necessary to adjudicate on those specific grounds of appeal, having concluded, based on Mr Collins concessions, that the appeal must be allowed in respect of the sex discrimination and constructive dismissal claims.  However, we make these observations.  First, counsel have been unable to take us to any provisions in the 1974 Act or the Regulations or elsewhere requiring the Tribunal to take into account any breach of the provision of the Code; compare, for example the Sex Discrimination Act 1975 section 56A (10) in respect of the Equal Opportunities Commission Codes and equivalent provisions in the Race Relations Act 1976 section 47 (10) and the Disability Discrimination Act 1995 sections 3 (3) and 53 (4) and (6).

22	We think that may properly be described as a lacuna and Tribunals would be well advised to treat this Code in the same way as those issued under the discrimination statutes which we have mentioned.  Secondly, whilst the way in which this Tribunal dealt with the expert evidence may have given rise to a Meek argument based on the Court of Appeal decision in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, the point is moot in circumstances where the Appellant intends to arrange an expert inspection of the workplace before this case is reheard below.  Such inspection did not take place prior to the original Tribunal hearing.

23	The real point, we think, is the perception if this case is remitted to the same Tribunal for a rehearing.  That Tribunal, as it was required to do, expressed strong views on the credibility of the witnesses and as to the correct result in this case.  Despite the undesirability of a rehearing of evidence, which took some four days of evidence and argument, we have concluded that the appearance of fairness requires a rehearing on these two issues before a fresh Tribunal.

24	Finally, we return to a point touched on earlier in this judgment: the factual issue as to whether Mr Errington assessed the risk to the Appellant, as a pregnant worker, of the stores job as low or medium.  Ms Gill has applied before us to adduce fresh evidence on appeal, namely the faxed letter, from the Respondent to the Appellant of 1 November 2001, referred to at paragraph 29 of the Tribunal’s reasons which in a witness statement we are told, was discovered in pieces at the bottom of a packing case when the Appellant was about to move house after the Tribunal hearing.

25	In light of our decision as to the disposal of this appeal again it is strictly unnecessary for us to rule on that application; its admission in evidence will be a matter for the new Tribunal on remission.  We can presently see no reason for its exclusion.