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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Queen Victoria Seamen's Rest Ltd (QVSR) v Ward [2009] UKEAT 0465_08_2807 (28 July 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0465_08_2807.html Cite as: [2009] UKEAT 465_8_2807, [2009] UKEAT 0465_08_2807

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APPEARANCES

 

For the Appellant	MS YASMIN HUSSAIN (Representative) (Assisted by MR CAMPBELL) Queen Victoria Seamen's Rest (QVSR) 121-131 East India Dock road Poplar London E14 6DF
For the Respondent	MS JANE RUSSELL (of Counsel) Messrs McKeowns Solicitors 8 Parkway Porters Wood St Albans Hertfordshire AL3 6PA


 


SUMMARY

SEX DISCRIMINATION: Pregnancy and discrimination

The Employment Tribunal upheld complaint of continuing course of conduct amounting to discrimination on grounds of pregnancy. On appeal, the employers sought to argue that the Employment Tribunal had misapplied the statutory requirement that discrimination must be "on the ground of" pregnancy. The Employment Tribunal found to have correctly stated and correctly applied the law to the facts found and appeal dismissed.


 


THE HONOURABLE MRS JUSTICE COX

1. In the context of alleged discrimination in the workplace, the task required of Employment Tribunals to decide the reason why a claimant was treated as she was continues to give rise to difficulty. Causation, as Lord Nicholls observed, is a "slippery word" (Chief Constable of West Yorkshire v Khan [2001] ICR 1065).
2. This appeal concerns pregnancy discrimination, a form of inequality with which many still struggle, notwithstanding recent amendments to the legislation which seeks to address it.
3. The Respondent employers (QVSR) are appealing against a judgment of the Stratford Employment Tribunal, promulgated with reasons on 13 May 2008, upholding the Claimant's claim of unlawful discrimination on the ground of pregnancy, contrary to Section 3A of the Sex Discrimination Act 1975. The sole ground of appeal, others having been dismissed at an earlier hearing held under Rule 3(10) of the EAT Rules 2004, is that the Tribunal misconstrued or misapplied the statutory requirement that discrimination must be on the ground of pregnancy.
4. However, since the Tribunal's finding on that issue also underpinned their finding in the Claimant's favour on constructive dismissal, the EAT permitted an amendment to the Notice of Appeal, to enable consideration to be given to that issue in addition, as appropriate.
5. The hearing below took place over some 19 days, between January and April 2008. The Claimant appeared in person throughout. QVSR were represented by Ian Scott of counsel, who also settled the detailed grounds of appeal. There were eight witnesses and a large number of documents. It is clear from the judgment that there was substantial factual dispute. The reasoned judgment, which is extremely detailed, runs to 76 pages of closely typed text.
6. Before us the position as to representation was reversed. QVSR appeared in person, with Ms Hussain from the Human Resources Department presenting the appeal. The Claimant was represented by Ms Russell of counsel. Ms Hussain presented succinct submissions from a prepared statement, which summarised or clarified the points made in her skeleton argument. Many of her submissions addressed the facts, and the basis for QVSR's disagreement with the Tribunal's findings. We explained to Ms Hussain at the outset the limited nature of the EAT's jurisdiction. Helpfully, Ms Hussain made it clear that she wished in addition to rely on "the bedrock", as she put it, of Mr Scott's argument in the Amended Notice of Appeal, to which Ms Russell responded and upon which we have concentrated.

The Background

7. QVSR Limited is the last remaining maritime charity providing accommodation and support to seafarers in the East End of London. It currently houses more than 160 men, many of whom are elderly and retired. The Claimant described it in her evidence as "a unique and wonderful place", whose residents have various social and health needs. The residents also include a number of homeless referrals and short-stay visitors.
8. The premises are large and old, and there are problems arising from the tension between funding constraints and the need to maintain the premises and service the needs of its occupants.
9. The Claimant commenced employment with QVSR as Assistant Operations Manager on 4 January 2005, and she also took up the opportunity to rent a flat on the premises. This was an entirely separate contract, not linked to her contract of employment, although the Claimant was only able to access the tenancy because of her job.
10. The Tribunal found that the Claimant was employed because of her skills in dealing with particular forms of behaviour and chaotic lifestyles. QVSR believed that she could cascade these skills to the staff teams for whom she had responsibility. QVSR have approximately 50 employees, a number of whom are women of childbearing age.
11. In September 2005 the Claimant was informed that she had successfully completed her probationary period and the Chief Executive, Alexander Campbell, wrote thanking her for the contribution she had made to date. Positive comments were made on the action plan, as to the Claimant's contact and communication with residents and staff, and no difficulties were noted. The Claimant had developed a good working relationship with Mr Campbell during 2005. A new, permanent Operations Manager, Grace Ndiwe, was appointed and commenced work in January 2006.
12. In January 2006 the Claimant discovered that she was pregnant. She informed Human Resources formally of this fact on 26 January, although by then many at QVSR were already aware of her pregnancy.
13. The events that followed this discovery were the subject of considerable dispute below. It was not in dispute, however, that the Claimant submitted a grievance to the Board of Trustees about her treatment in March 2006 and ceased to attend work; that she subsequently complained about the failure to investigate her grievance properly; that she appealed against the finding on the basis of a failure to investigate; and that she then resigned on 4 July 2006, stating that she had done so because of what she considered to be her employer's intolerable behaviour towards her.
14. The Claimant issued her claim in the Employment Tribunal on 14 July 2006. Her grievance appeal was heard on 27 July, in her absence, and was dismissed.
15. The Claimant complained, so far as is relevant to this appeal, of constructive and unfair dismissal; automatically unfair dismissal, on the basis that the reason for her dismissal was pregnancy; and less favourable treatment on the ground of pregnancy.

The Issues and Summary of Tribunal's Decision

16. The issues to be determined at the hearing were clarified following a Case Management Discussion, and again at the commencement of the substantive hearing on 2 January 2008. The Claimant relied on a continuing course of conduct by QVSR between January and July 2006.
17. The Tribunal set out at paragraph 3 of their Reasons the alleged acts of pregnancy discrimination relied on by the Claimant as establishing a discriminatory course of conduct. These were as follows:

"Pregnancy Risk assessment/Health and Safety

a) Failure to provide rest facilities for the Claimant during pregnancy;

b) Failure to carry out a proper health and safety assessment after the Claimant was assaulted orally and physically in the workplace during pregnancy;

c) Providing the Claimant with an inappropriate work station;

d) Failure to carry out a proper pregnancy risk assessment.

Making unreasonable requests

e) Issuing of notice on the accommodation;

f) Barring the claimant from entering the building.

Attitude Change after disclosure of pregnancy

g) In her appraisal Alexander Campbell alleging her hormones were the reason for her tears (Mr Scott says this is not further and better particulars of a matter pleaded and was not the subject of a grievance in writing);

h) Ms Ndiwe/Alexander Campbell on 22 February 2006 delegating supervision to a junior member of staff (Cornell Morrison) and moving her to an unergonomic and unsuitable office space;

(i) Miss Ndiwe and Debbie Whitehead in January 206 taking disciplinary action against staff the claimant managed without consulting or informing the claimant.

Disciplinary action and grievance

j) Inordinate delay with regard to grievance timescale and failing to follow the grievance procedure. (Mr. Scott objects to the broad nature of the second half of this allegation. Mr Scott says this complaint should be limited to a complaint about timescale);

k) Threatening the Claimant with disciplinary action if she did not return to work prior to the hearing of her grievance appeal and saying it would be unauthorized absence and she would not be paid;

l) And forcing her to resign."

18. Other allegations referred to at paragraph 4, which we do not need to include here, were to be relied on only as part of the background and for the purposes of drawing inferences if appropriate.
19. The Claimant relied on the same acts for her unfair dismissal complaints, alleging that QVSR had failed to comply with their legal obligations and had breached the implied term of trust and confidence in her contract of employment.
20. In relation to the allegations at paragraphs 3(a) to (d) (pregnancy risk assessment) the Tribunal found all these, save (a), proved as acts of discrimination on the ground of pregnancy. They also found so proved the act of barring her from entering the hostel on a particular day in April 2006 (3(f)); the acts of moving her to an unergonomic and unsuitable office space (3(h)), and taking disciplinary action against staff without informing the Claimant (3(i)); and the acts alleged in relation to the grievance and disciplinary action at 3(j), (k) and (l).
21. They concluded that the Claimant had resigned in response to an ongoing course of conduct by QVSR; that she was constructively and unfairly dismissed; and that her dismissal was also automatically unfair because the reason for her dismissal was her pregnancy.

The Relevant Facts

22. The Tribunal's very detailed findings of fact are contained in paragraphs 11 to 98. We shall summarise only those facts which are relevant to this appeal, though they are themselves necessarily detailed.
23. Before January 2006 the Claimant had established a good working relationship with the Chief Executive and had successfully completed her probationary period. There is nothing to suggest that there were any difficulties in relation to any aspect of her work at QVSR.
24. On informing her employers formally of her pregnancy she also notified them, on 26 January, of various antenatal tests and medical concerns, and asked for a number of matters to be taken into consideration in relation to her working hours in the following week.
25. The Tribunal found that:

"The Respondent employs women of childbearing age but has no risk assessment in place which has taken this into account and identified what if any risks to the health and safety of pregnant women exist and what preventive and protective measures if any are required. On being notified in writing by the Claimant she was pregnant the Respondent did not immediately or at any time thereafter carry out a risk assessment with the Claimant to identify what preventive and protective measures might be required and having done so did not consider what if any alterations it might be reasonable to make to the Claimant's working conditions or hours. The Respondent is by its own admission in breach of Regulation 3 of the Management of Health and Safety at Work Regulations 1999. It seemed in the Tribunal it was unaware of any obligation under this regulation at all and certainly unaware of any specific requirement on it as an employer of women of childbearing age. The Respondent's failure to consider assess and identify risk under Regulation 3 was to the Claimant's detriment. This general risk assessment if carried out would have identified some risk of violence, and a potential risk from night working. It would have meant the Respondent was alert, on being notified in writing of the Claimant's pregnancy, of the need to immediately carry out a proper pregnancy related risk assessment with her to assess any risks and identify what if any measures to take to reduce or eliminate the risk.

…

This failure to carry out any assessment under Regulation 3, which all employers must do and as an employer of women of childbearing age to take any risk to them into account, was compounded by the Respondent's subsequent failure to immediately carry out a pregnancy risk assessment having been notified in writing of the pregnancy by the Claimant. Her letter confirming her pregnancy was not responded to immediately in that the Respondent failed to take any steps to carry out a pregnancy risk assessment with her. If the Claimant had not been pregnant this requirement would not have arisen. The failure was to her detriment and was less favourable treatment on grounds of pregnancy and sex discrimination."

26. The Respondents were found to be aware of the risk of violence in the workplace. Two particular residents had been abusive and aggressive towards the Claimant before she became pregnant and the police had become involved at one stage. Further incidents of abuse and aggression towards the Claimant occurred in March 2006. On 8 March the resident, Mr E, became physically aggressive and the Claimant was frightened and upset. The police were called to assist and the man was evicted. The Tribunal found that QVSR had not assessed the risk of violence or any other risk with the Claimant after they were informed of her pregnancy. Nor was this incident properly recorded, and no health and safety or pregnancy risk assessment took place with the claimant after it. The Tribunal found that:

"… the failure to carry out a Regulation 3 risk assessment and thereafter, on being notified of the Claimant's pregnancy in writing, a specific pregnancy risk assessment with her, pursuant to Regulations 16 and 18, were failures to act amounting to sex discrimination to her detriment on the ground of pregnancy."

27. The Tribunal found that Grace Ndiwe had had a supervision session with the Claimant on 31 January when, although she was well aware of and discussed the Claimant's pregnancy, no pregnancy risk assessment was carried out. This was the first and only formal supervision session between them and would have been the "perfect opportunity" for such an assessment, but Ms Ndiwe "did not see the need to carry one out at this time". The Tribunal found that neither she nor QVSR were aware of their responsibilities in this respect, or of the potentially serious consequences of failing to carry out an assessment. Ms Ndiwe accepted with hindsight that a risk assessment should have been carried out. A further supervision session was planned for March, but the Tribunal accepted the Claimant's evidence that it did not take place, rejecting Ms Ndiwe's evidence that it had.
28. On 18 January Ms Ndiwe had dealt with an incident involving the discipline of two night support workers, for whom the Claimant had line management responsibility. In her evidence Ms Ndiwe said she had done this "because the Claimant was pregnant" and that she had not told her about it for the same reason.
29. Ms Ndiwe's evidence was found to be "very inconsistent" as to when she knew of the Claimant's pregnancy and, in general, her evidence was described as "internally inconsistent and unreliable". The Tribunal rejected Ms Ndiwe's evidence that, at the meeting on 31 January, she discussed the Claimant's attitude to residents or her time-keeping, although it appears that questions had been raised about these matters. Ms Ndiwe had accused the Claimant of being late and was found to be unwilling to listen to her explanation or take her pregnancy into account. The Claimant was found to have been undermined at work by this conduct.
30. The Claimant's case was that these events all marked a change in attitude towards her after she became pregnant. The Tribunal found that the contrast between the support given to her before her pregnancy and the lack of support afterwards confirmed the existence of such a change in attitude. In the absence of an explanation unrelated to the Claimant's pregnancy the Tribunal considered that this was less favourable treatment of the Claimant on grounds of pregnancy and to her detriment.
31. After the meeting with Ms Ndiwe the Claimant had her annual appraisal with the Chief Executive on the 2 February. Her overall rating was a "2" in the scale of 1 to 5, signifying that improvement was needed in relation to all criteria upon which she was assessed. The overall comment was that she should work closely with Ms Ndiwe and view the next 12 months "as a challenge".
32. On 23 March 2006 the Claimant submitted a written grievance about this appraisal, to which we shall return later on. The details of her complaint in relation to the appraisal were that she had become tearful during the appraisal; had not been allowed to leave the room when she asked to do so; and was only allowed a comfort break when she persisted. The Claimant's evidence that she was upset and needed a comfort break was supported by Debbie Whitehead (Human Resources), who said that "if the Claimant had not got up to go out she would have stopped the meeting". The Tribunal found that the Claimant had been reduced to tears at this meeting, and that the Chief Executive suggested that her tears were likely to be related to her pregnancy. They considered his failure to allow her to take a comfort break was inconsiderate and unreasonable. No discrimination complaint had been made in respect of this particular incident, however, and no finding of discrimination was made.
33. After the meeting with Ms Ndiwe on 31 January, a workspace was set up for the Claimant in February, in Ms Ndiwe's office. The Tribunal found that:

"This workspace was not discussed with the Claimant and its suitability for someone of her stature and who was pregnant was not taken into consideration."

No risk assessment relating to this or any other workstation ever occurred. The Tribunal found that:

"… this was a wholly inappropriate workstation for the Claimant. It was unsuitable for someone of her stature who was not pregnant and totally unsuitable for someone of her stature who was. The workstation was in a very small, cramped space, behind a door and as the Claimant says, it was clearly inappropriate for any work of any nature to take place at it over any period of time. Why the Respondent thought it appropriate to build the Claimant this workstation at this time is very hard to imagine. The Tribunal finds it is not surprising the Claimant perceived this as a hostile action. In building this workstation no consideration was given to the Claimant's stature or her pregnancy and no one asked for her views. The Respondent appears to be woefully ignorant about its obligations concerning work station assessments generally, never mind its specific obligation to the Claimant as a pregnant woman. A pregnancy risk assessment with her at the end of January would have identified a need to consider workstations and posture. A failure to do so resulted in the Respondent moving the Claimant to a wholly inappropriate work station to her detriment. The Claimant complained about it and suggested it might be the cause of pain in her arms and back. The Tribunal finds this was a continuation of the less favourable treatment of the Claimant on grounds of pregnancy, to her detriment, caused by the Respondent's failure comply with Regulations 3 and 16 of the Management of Health and Safety Regulations 1909 and was sex discrimination."

34. In late February 2006 Ms Ndiwe went on annual leave for two weeks, leaving a detailed memo as to the tasks which the Claimant had to deal with during her absence. Ms Ndiwe was aware that the Claimant was at this time suffering from morning sickness and mastalgia and would herself be absent for a part of those two weeks. The Claimant did not complain about this memo as an act of discrimination, but the Tribunal found that her progress with the tasks set was hindered by the equipment that she was expected to use in her new workstation in order to carry them out.
35. Ms Ndiwe described the task list as an attempt "to measure the Claimant's performance" while she was away, and said that when she returned the Claimant had "completed very little of anything" and that she was "unfocussed" and "busy being busy". The Tribunal considered that Ms Ndiwe was:

"… trying to impress the Tribunal by giving as negative as possible an impression of the Claimant and the work she had done in her absence. To this end, even work which had been achieved was barely acknowledged. Any possible contribution of other circumstances impeding progress was not admitted and any suggestion that she herself may have been responsible for, or contributed to, any misunderstanding was firmly denied."

36. The Claimant herself went on annual leave between 10 and 15 March. The incident of physical aggression involving Mr E had happened just before she went away. On her return, on 16 March, Ms Ndiwe raised complaints from other staff with her, but did not clarify what exactly the complaints were or name all those who had made them. Nor did she discuss with the Claimant the assault upon her by Mr E, and she "refused to rule out the Claimant's contribution" to this incident. The Tribunal found that Ms Ndiwe came across as "perhaps ruthless and entirely lacking in empathy". The failure to carry out a risk assessment after this particular incident was found to be "part of a continuing course of conduct by the Respondent amounting to sex discrimination on the ground of pregnancy" and to the Claimant's detriment.
37. At the conclusion of the meeting with Ms Ndiwe on 16 March the Claimant was told that she was going to set up a meeting with the complainants, although without specifying what was going to be raised at this meeting.
38. The Claimant attended this meeting on 20 March and found it to be very stressful. She regarded it as a wholly inappropriate way of handling the matter.
39. On 19 March the Claimant had handed in her own, draft pregnancy risk assessment, to which Ms Ndiwe responded in writing, although the Claimant never saw her response during the rest of her employment. The Tribunal observed at paragraph 56 that, had there been any doubt in their minds as to whether or not QVSR understood its responsibilities in relation to risk assessments, this was dispelled when they read Ms Ndiwe's response. They found that:

"It is quite clear from the document completed by Grace Ndiwe she was not using the form to carry out a pregnancy risk assessment but to assert her authority over the Claimant. While the Respondent has sought to tell the Tribunal it is the Respondent's policy for such an assessment to be carried out by the worker and line manager in unison it is quite clear Grace Ndiwe was having no regard to this at the time she filled in this form. It is also not clear why this document was not disclosed to the Claimant until preparation of the bundle. Debbie Whitehead clearly could have disclosed it to her in April when the Claimant requested a copy of the pregnancy risk assessment she had completed and any further risk assessment carried out by the Respondent. Instead she was told there was no further assessment as any further assessment would be for her and Grace Ndiwe to complete together. The Tribunal has found the Respondent's evidence on risk assessments unconvincing and internally inconsistent."

40. After the meeting on 20 March, the Claimant's evidence was that it became apparent to her that she should no longer regard the matters which had taken place since January as isolated incidents. On 23 March she submitted a formal, detailed grievance which, since it included complaints about the conduct of the Chief Executive himself, she sent to the Chairman of the Board of Trustees in accordance with paragraph 7.9 of the grievance procedure. The Chairman was the Reverend Kirby. In a letter sent to Debbie Whitehead and the Chief Executive on the same date the Claimant explained that she did not consider that it was safe for her to continue working at QVSR until the matter was resolved. She expressed the hope that the matter could be dealt with quickly, so that she was able to return to work in a safe, secure and productive working environment.
41. QVSR were found to have "immediately conceded to the Claimant being absent while her grievance was being dealt with". The Tribunal found it surprising that no attempt was made to set up a meeting with her to discuss the issues and see if any steps could be taken to reassure her.
42. The Claimant received a response from the Reverend Kirby expressing concern for her well-being and wishing her a speedy recovery, but stating that it was not appropriate for him to be involved and that he was passing her grievance back to Debbie Whitehead. The Claimant explained in her response why she had involved him at this stage and suggested that, once her grievance against the Chief Executive had been dealt with, he then could deal with her other grievances in accordance with the procedure.
43. On 2 April 2006 the Claimant was refused entry to QVSR premises. Without consulting her and without informing her Ms Ndiwe told staff in Reception not to allow her into the building. The Tribunal's findings in relation to this incident appear at paragraph 64. They are as follows:

"After a short period the Claimant was allowed to enter. The Claimant wished to access her flat and found it easier to do so by the main building entrance and using the lift than through the separate external entrance to the premises with stairs up to the flats. The Claimant complained about this and also said that Grace Ndiwe had divulged information about her grievance by letter dated Monday 3 April 2006. Debbie Whitehead replied to her by letter of 4 April. She told the Claimant staff had been advised that as the Claimant felt QVSR was not a safe and secure environment then it would be best for her not to be around the premises until those issues had been resolved. She said this was why she was prevented from entering. Debbie Whitehead apologised on behalf of Osie Asamoh the employee who denied her access. Debbie Whitehead went onto say that staff had expected she would prefer to use the external entrance. She then went on to say that as the Claimant was undergoing physiotherapy and was pregnant it was understandable she would wish to use the lift. She said that staff had been advised and there should be no recurrence. She sought further information about the allegation that Grace Ndiwe had divulged information and assured the Claimant of confidentiality. The Tribunal finds this situation would not have occurred but for the Claimant's pregnancy. The Claimant would not have been absent from work with the Respondent's consent if she had not been pregnant. While it might be perceived as no more than a total mishandling of a situation by the Respondent it was a continuation of the less favourable treatment of the Claimant on the ground of pregnancy by the Respondent, arising out of its failure to carry out a general risk assessment taking into account women of child bearing age and its failure to carry out a pregnancy risk assessment with the Claimant herself immediately being informed in writing of her pregnancy or at any time thereafter."

44. The Reverend Kirby returned the Claimant's documentation to Debbie Whitehead and by letter of 5 April she informed the Claimant that she was now arranging for "an appropriate person to deal with this matter". The Claimant, and indeed the Tribunal, understood this to mean someone to deal formally with her grievance. On 6 April, however, Debbie Whitehead wrote again proposing an attempt, first, to try and resolve the matter internally and informally.
45. The Reverend Kirby replied on 7 April to the Claimant's letter of 2 April. He purported to deal with her concerns about the workstation, suggesting that she raise with the Chief Executive her concerns about the appraisal and advising her to liaise with Grace Ndiwe in respect of her other concerns. Since the main complaints were against Ms Ndiwe the Tribunal found his reasoning unclear and found that QVSR were confused about what they were doing within their procedures at this time.
46. The Claimant confirmed on 20 April that she wished to proceed formally, in accordance with her contract of employment and Section 7.9 of the procedure. She pointed out that informal attempts to resolve matters had already been made, and she asked for sight of her pregnancy risk assessment and any further assessment carried out by QVSR.
47. By letter of 26 April she expressed her concern and frustration as to the length of time that had passed since she had submitted her grievance, and about the length of time she had been absent from work as a result. She expressed a wish for it to be sorted out as soon as possible.
48. The Claimant was not sent the pregnancy risk assessment she had requested and the Claimant repeated her request by letter of 9 May, confirming that her grievance about the Chief Executive had not been addressed by the Reverend Kirby and expressing the hope that matters could now move forward.
49. On 10 May the Claimant was informed that one of the trustees, Ian Pattison, would hear her grievance against Mr Campbell, the Chief Executive. The Claimant understood, in accordance with the correspondence, that once this had been dealt with, then Mr Campbell could proceed to hear her other grievances. Her expectation was that there would be an investigation of her grievance and a meeting with her accordance with Section 7.6 of the procedure. She was invited to a meeting with Mr Pattison on 17 May 2006, but rather than a meeting on neutral ground, as she had requested, the venue for the meeting was QVSR premises.
50. At the meeting, contrary to her expectation, Mr Pattison said he was there to deal with all of her grievances. It appears that he had identified only three of the areas of concern dealt with in the Claimant's grievance. The Claimant herself had prepared only for those matters which related to Mr Campbell, but she nevertheless agreed to continue.
51. The notes of this hearing showed that the Claimant was clearly alleging that there had been a change in attitude towards her since she had become pregnant. She had referred to this on three occasions and to her pregnancy generally on eight separate occasions during the meeting.
52. On 22 May Mr Pattison met Mr Campbell. His note of that meeting made no mention of pregnancy. Mr Campbell was not shown a copy of the Claimant's grievance. Following this meeting Mr Pattison prepared an opinion. He did not speak to Grace Ndiwe at all. Nor did he seek any comments from the Claimant on what Mr Campbell had said. The Tribunal found that his opinion:

"extraordinarily … only mentions the word pregnancy in one paragraph and then not in reference to any specific complaint made by the Claimant. He simply expressed the view that 'no discrimination exists against pregnant staff …'"

53. He referred in his summary to personality clashes between the Claimant and both Mr Campbell and Ms Ndiwe, although the Tribunal noted that Mr Pattison had had no contact with Grace Ndiwe himself. He also concluded that the Claimant's feelings of hurt and mistrust had arisen because of incidents involving violence occurring in 2005, although the Claimant had made no complaint about that. He proposed a discussion between the Claimant, Mr Campbell and Ms Ndiwe, to be chaired by an independent person, to see whether the situation was "retrievable". The Tribunal found it to be:

"… entirely unclear why Mr Pattison wholly failed to address the Claimant's allegation made on three occasions that the Respondent's attitude towards her had changed after she announced her pregnancy. Mr Pattison makes no reference at all to the incident with Mr E, where the Claimant as a pregnant woman was in fact assaulted. There was no investigation into the Claimant's grievance and what was proposed as a solution by Mr Pattison was not pursued by the Respondent."

54. The Claimant was sent a copy of this opinion on 7 June. On 9 June Debbie Whitehead wrote informing her that essentially, Mr Pattison having investigated her claims, her grievance had not been made out. She was advised as to her right of appeal.
55. The Claimant responded to Mr Pattison's opinion seeking clarification, which the Tribunal found to be unsurprising. They found as follows:

"He quite simply failed to address the Claimant's allegations of less favourable treatment since becoming pregnant and a change in attitude towards her. The Claimant spelt this out clearly as what she was alleging at the grievance hearing, this is apparent from the minutes. Mr Pattison simply does not address the Claimant's pregnancy in his opinion at all and has not considered any impact her pregnancy may have had upon events as they unfolded in her workplace at all."

56. From his response on 18 June the Tribunal found it to be clear that he did not consider it to be his role to conduct an investigation. He thought he was handling an appeal, and he gave no explanation for the delay in his response to the grievance. From what Mr Campbell had told him he did not believe there to be any pregnancy discrimination. He did not discuss the deteriorating situation since the Claimant's pregnancy with Mr Campbell at all. He did not discuss issues relating to the workstation or to the Claimant's appraisal. He did not ask about pregnancy risk assessments.
57. The Claimant wrote to Debbie Whitehead informing her that her grounds for appeal were that her grievance had not been thoroughly investigated. She said that she would advise her more fully as to those grounds when Mr Pattison had answered her request for clarification. She emphasised that she was becoming increasingly distressed by the management of her grievance.
58. Debbie Whitehead wrote back to her on 21 June, stating that she would take the points she had made as her grounds of appeal. However, she said that a decision had now been made on her grievance and the Claimant was therefore required to return to work on Monday 26 June at 9am, reporting to Grace Ndiwe.
59. The Claimant sent further grounds of appeal by letter of 22 June. She did not attend for work on 26 June. Debbie Whitehead wrote on that day, stating that if she failed to return to work immediately her absence would be treated as unauthorised and she would not be paid. She was also told that her failure to return "may also result in disciplinary action being taken against you".
60. By this time, as the Tribunal found, the Claimant was seven months pregnant. Her grievance had not been investigated, her central allegations had not been put to anyone and an opinion had been delivered which was "without any foundation". There was no suggestion made for a meeting chaired by an independent person, to facilitate the Claimant's return to work, as Mr Pattison had suggested. This, as the Tribunal observed:

"… would at least have brought the parties together and may have facilitated a proper risk assessment and enabled them to establish what part or parts of the Claimant's role she could or could not continue to do as this stage in her pregnancy and carry out."

61. The Claimant now perceived herself to be under threat of possible disciplinary action and was told that she would not be paid if she failed to return to work. The Tribunal found that she was now "in despair". By letter of 4 July 2006 she resigned.
62. Paragraph 94 of the reasons reads as follows:

"The Tribunal finds the Claimant resigned in response to an ongoing course of conduct by the Respondent starting with its failure to conduct a general risk assessment taking into account women of child bearing age as it is required to do and then failing to carry out a risk assessment with the Claimant after having been notified in writing of her pregnancy on 26 January. Thereafter the Respondent's continuing failure to carry out a risk assessment resulted in a continuing course of conduct which was pregnancy related discrimination to the Claimant's detriment culminating with the failure to investigate her grievance and an insistence she return to work when her grievance had not been investigated. This conduct by the Respondent was in breach of the implied term of trust and confidence and the Claimant was entitled to resign in response to it. The Claimant was dismissed. She resigned in response to a continuing act of sex discrimination which was pregnancy related and her dismissal was sex discrimination."

63. An appeal hearing was set up to take place on 14 July at QVSR premises. The Claimant did not attend. The hearing was rescheduled for 27 July and proceeded in her absence. Two Trustees heard the appeal and they restricted themselves to addressing the three areas considered by Mr Pattison. They did not address the essential appeal point, that there had been no investigation of her grievance. Nor was the suitability of her workstation addressed. No reference was made to the fact that the Claimant was pregnant at the time of the incident involving Mr E or to any pregnancy risk assessment in relation to this or to her work space. Overall, they did not find any of the grievances raised to be substantiated, although they concluded that there were occasions when the Claimant could have been treated "less brusquely and with a more sympathetic approach".
64. The Tribunal found as follows:

"The clear allegation made by the Claimant that conduct towards her had changed once she announced her pregnancy in January was not considered. Indeed, the only reference to pregnancy in the grievance appeal relates to the rest area. The appeal hearing did not investigate her grievance either. Like the original grievance meeting it was conducted without reference to the Respondent's obligations under the Management of Health and Safety at Work Regulations which are considered in the Code of Practice and guidance and in numerous publications available on the Health and Safety Executive website and easily available."

The Tribunal's Conclusions

65. After referring to the Parties' submissions, the Tribunal directed themselves as to the relevant statutory provisions. There is no dispute that these legal directions were correct. In fact, the Tribunal had already referred to the relevant legal principles in relation to the claim for pregnancy discrimination when outlining the issues raised at the start of their reasoned judgment (see paragraph 2). At paragraph 112 they repeated these principles, noting that:

"112 Since the introduction of Section 3A into the Sex Discrimination Act in contravention of European case law a Claimant has had to have a comparator. This requirement was removed on 6 April 2008 following the decision in the High Court in R(Equal Opportunities Commission) v Secretary of State for Trade and Industry 2007 ICR 1234 QBD. The need for a comparator was recognised as impermissible and contrary to the decisions of the European Court in Webb v EMO Air Cargo Ltd 1994 ICR 77 and Gillespie and others v Northern Health and Social Services Board 1996 IRLR 214. The Tribunal has proceeded on the basis no comparator is required alternatively it has used a hypothetical non pregnant woman as a comparator."

66. There is no need for us to refer in this judgment to the detailed statutory provisions and guidance relating to pregnancy risk assessments; or to the statutory principles and case law relating to unfair dismissal and automatically unfair dismissal, all of which were correctly set out in the Tribunal's judgment.
67. In their conclusions the Tribunal reconsidered all their earlier findings on the evidence, having regard to these legal directions.
68. They held, first, that none of the acts relied on by the Claimant was out of time, having found facts which showed a continuing course of conduct towards the Claimant.
69. In relation to the alleged acts of pregnancy discrimination set out at paragraph 3 the Tribunal concluded as follows.

Allegations 3(a) – (d): Pregnancy Risk Assessment

"Pregnancy Risk assessment/Health and Safety

a) Failure to provide rest facilities for the Claimant during pregnancy

b) Failure to carry out a proper health and safety assessment after the claimant was assaulted orally and physically in the workplace during pregnancy

c) Providing the Claimant with an inappropriate work station

d) Failure to carry out a proper pregnancy risk assessment.

The Tribunal has considered these matters together. The facts the Tribunal has found show the Respondent employs women of childbearing age but has no risk assessment in place which has taken this into account and identified what if any risks to the health and safety of pregnant women exist and what preventive and protective measure if any are required. On being notified in writing by the Clamant she was pregnant the Respondent did not immediately or at any time thereafter carry out a risk assessment with the Claimant to identify what preventive and protective measures might be required and having done so did not consider what if any alterations it might be reasonable to make to the Claimant's working conditions or hours or to her work station. The Respondent is by its own admission in breach of Regulation 3 of the Management of Health and Safety at Work Regulations 1999. The Respondent's failure to consider assess and identify risk under Regulation 3 and 16 was to the Claimant's detriment. This general risk assessment if carried out would have identified some risk of violence and a potential risk from night working. The Respondent failed to identify any risk to staff from working at QVSR through a risk assessment. This failure to carry out any assessment under Regulation 3 and 16, which all employers must do and as an employer of women of child bearing age to take any risk to them into account, was compounded by the Respondent's subsequent failure to immediately carry out a pregnancy risk assessment having been notified in writing of the pregnancy by the Claimant as it is required to do pursuant to Regulations 18 and 16. The Respondent still did not carry out a risk assessment after the Claimant was assaulted at work by Mr E. If the Claimant had not been pregnant the requirement for a specific risk assessment would not have arisen. The failure to carry out a risk assessment and a pregnancy risk assessment was to her detriment and was less favourable treatment on the ground of her pregnancy and was sex discrimination. Had the Respondent complied with its general duties under the Management of Health and Safety at Work Regulations and considered the code of practice and guidance to it the Respondent would have identified its responsibilities. The Tribunal has gone on to find facts which show the Respondent was not compliant with its obligations related to the Health and Safety (Display Screen Equipment) Regulations 1992 and no work station assessment had been carried out with her in respect of either of the two workstations she used prior to February 2006. The Tribunal has further found the workstation arranged for her by Grace Ndiwe was wholly inappropriate for someone of her stature who was not pregnant and totally unsuitable for someone of her stature who was pregnant. The facts found by the Tribunal show the Respondent appears to be woefully ignorant about its obligations concerning work station assessments generally never mind its specific obligation to carry out a pregnancy risk assessment with the Claimant immediately it had been notified in writing of her pregnancy. A pregnancy risk assessment with her at the end of January would have identified a need to consider workstations and posture. A failure to do so resulted in the Respondent moving the Claimant to a wholly inappropriate work station to her detriment. The Claimant complained about it and suggested it might be the cause of pain in her arms and back. The Tribunal finds this was a continuation of the less favourable treatment of the Claimant on ground of pregnancy to her detriment caused by the Respondent's failure to comply with Regulations 3 and 16 of the Management of Health and Safety Regulations 1999 and was sex discrimination."

70. Referring to the concerns raised by the Claimant as to the risks posed by some residents, and to the incident involving Mr E, they held that:

"No one asked the Claimant if she needed any support or counselling after this incident. More pertinently the Respondent as an employer of women of childbearing age took no account of the incident. It has no risk assessment in place which has taken this into account and identified what if any risks to the health and safety of pregnant women exist and what preventive and protective measures if any are required. As previously found it is by its own admission in breach of Regulation 3 of the Management of Health and Safety at Work Regulations 1999. This general risk assessment if carried out would have identified some risk of violence, and a potential risk from night working. It would have meant the Respondent was alert, on being notified in writing of the Claimant's pregnancy, of the need to immediately carry out a proper pregnancy related risk assessment with her to assess any risks and identify what, if any, measures to take to reduce or eliminate the risk. Her letter confirming her pregnancy was not responded to immediately in that the Respondent failed to take any steps to carry out a pregnancy risk assessment with her. The Tribunal has found the failure to carry out a Regulation 3 risk assessment and thereafter on being notified of the Claimant's pregnancy in writing a specific pregnancy risk assessment with her pursuant to Regulations 16 and 18 were failures to act amounting to sex discrimination to her detriment on the ground of pregnancy. The facts found show the Respondent in breach of its obligations did nothing even after this assault by way of a pregnancy/health and safety risk assessment and the Tribunal finds its failure to do so is a continuation of the treatment on the ground of pregnancy to her detriment and was sex discrimination."

71. On the evidence they heard they were not satisfied as to the Claimant's complaint, at (a), about the absence of suitable rest facilities.

Allegations 3(e) – (f): Making Unreasonable Requests

72. The first of these was found not to be less favourable treatment on the grounds of pregnancy. In relation to (f) the Tribunal found:

"f) The facts the Tribunal has found show the Claimant would not have been barred from entering the building if she had not been pregnant. This is because she would not have been absent from work with the Respondent's consent if she had not been pregnant. The Tribunal finds the Respondent would not have suspended on full pay a non pregnant woman in the same and not materially different relevant circumstances. From the other facts the Tribunal has found it could conclude in the absence of a reasonable explanation in no sense on grounds of sex this was less favourable treatment of the Claimant because she was pregnant. The Tribunal looks to the Respondent for an explanation. The explanation of the Respondent is itself tainted by discrimination. Staff had been advised not to let her in because she felt QVSR was not a safe and secure environment. Tribunal finds this was more than a mere mishandling of a situation by the Respondent. It only happened because she was pregnant. This was a continuation of the less favourable treatment on the ground of pregnancy to her detriment and was sex discrimination resulting from the failure by the Respondent to carry out a general risk assessment taking into account women of child bearing age and its failure to carry out a pregnancy risk assessment with the Claimant herself immediately on being informed in writing of her pregnancy."

Allegations 3(g), (h) and (i): Attitude Change

73. The facts found did not support a finding that Mr Campbell had referred expressly to the Claimant's hormones at the appraisal meeting. As to (h) they found as follows:

"The Tribunal has found facts which support a finding there was a change in attitude towards the Claimant after she was pregnant. Some of those facts are that until January 2006 the Claimant and Alexander Campbell had a good working relationship and had worked closely together in introducing new ways of working at the Respondent which were required of them. It was a period of transition and in the absence of a permanent operations manager it was a close supportive working relationship; that Grace Ndiwe as a new manager was trying to assert her authority over the Claimant and with Alexander Campbell. The appointment of Grace Ndiwe coincided with the Claimant informing the Respondent of her pregnancy; the Respondent's failure to comply with its obligations related to risk assessments and by doing so failed to support her at work. Up to that time it had supported her."

74. They referred in detail to the other facts found, which we have already set out above, and which they held supported the finding of a change in attitude after she was pregnant. They concluded:

"The Tribunal has found facts from which it could conclude in the absence of an explanation in no sense on grounds of pregnancy there was a change in attitude towards the Claimant after she became pregnant which was less favourable treatment to her detriment because the Claimant was pregnant. The Tribunal has looked to the Respondent for an explanation for its change in attitude towards the Claimant. The Respondent says it was a personality clash, it says it was because Grace Ndiwe got a job the Claimant wanted. The facts the Tribunal has found do not support this. The Tribunal has found facts which show the Claimant wanted to work closely with Grace Ndiwe and was looking forward to this. She had worked closely with Alexander Campbell. It has found no evidence of a personality clash with him. It has found a failure to comply with legal obligations related to women of child bearing age and to the Claimant specifically. It has further found the Respondent failed to investigate the Claimant's grievance raising concerns about her pregnancy. In the absence of an explanation in no sense on ground of sex (pregnancy) the Tribunal finds there was a change in attitude towards the Claimant after she became pregnant which was pregnancy related sex discrimination. The specific allegations the Claimant relies on are being moved to an unergonomic work station and giving some of her responsibilities to Cornell Morrison. The Tribunal has found the Respondent's decision to move the Claimant to the workstation it did in February 2006 was part of a continuing act of less favourable treatment on the ground of pregnancy and sex discrimination arising out of the Respondent's failure to carry out its general and specific obligations under the Management of Health and Safety at Work Regulations 1999. It was also consciously or unconsciously less favourable treatment of the Claimant through Grace Ndiwe's omission to take her pregnancy into account."

75. On balance, the Tribunal accepted QVSR's explanation that the removal of some of her duties was to allow her to carry out the work on the new policies and procedures, and in relation to this aspect therefore there was no discrimination. As to paragraph 3(i), they held:

"The facts found by the Tribunal show Grace Ndiwe gave an informal warning to two members of the support team who reported to the Claimant without consulting her leaving her to find out from others and thereby undermining her. Grace Ndiwe agreed she had done this and said in the Tribunal she did it because the Claimant was pregnant. The Tribunal has found other facts from which it could conclude in the absence of a reasonable explanation in no sense on the ground of pregnancy this was less favourable treatment of the Claimant on the ground of pregnancy. Some of those facts are the Respondent's failure to support the Claimant after she became pregnant whereas previously she had enjoyed a supportive working relationship. This is demonstrated by for example Grace Ndiwe's seeking to assert her authority over the Claimant and with Alexander Campbell; Grace Ndiwe's taking her to task for being late without listening/refusing to listen to her explanation; the failure to carry out a pregnancy risk assessment on being notified in writing of her pregnancy; moving her to an unergonomic work station; Grace Ndiwe's failure to have regard to any stress the Claimant may have been under on 16 and 20 March; after she issued her grievance Alexander Campbell describing her as difficult. The Tribunal has looked to the Respondent for an explanation in no sense on the ground of pregnancy. The Respondent does not have one. Grace Ndiwe said she did this because the Claimant was pregnant. Without a pregnancy risk assessment and without any consultation with the Claimant the Tribunal finds this was less favourable treatment of the Claimant on the ground of pregnancy and it was to her detriment. She was undermined by it and learned about it from other staff. The Tribunal has been shown no evidence of any involvement of Debbie Whitehead in this action."

Allegations 3(j), (k) and (l): Disciplinary Action and Grievance

76. With regard to (j) the Tribunal held that there was no inordinate delay in dealing with the Claimant's grievance, but considered that there was considerable confusion as to how to progress it. The facts showed that QVSR had failed to follow the procedure in relation to their conduct of her grievance.
77. Having repeated the essential facts arising in relation to these allegations they described them as:

"… facts from which it could conclude in the absence of an adequate explanation in no sense on the ground of pregnancy this was less favourable treatment of the Claimant on the ground of pregnancy. The Tribunal has considered a non pregnant woman in the same or not materially different relevant circumstances. The Tribunal finds there is a difference in treatment. The Respondent has not sought to show us it is its normal practice not to investigate a grievance. The Respondent has no explanation. Consciously or subconsciously Ina Pattison ignored the complaints the Claimant was making and in doing so treated her less favourably on the ground of pregnancy to her detriment. The Claimant submitted her grievance following the Respondent's failure to comply with its obligations under the Management of Health and Safety Regulations starting with its failure to conduct a general risk assessment taking into account women of child bearing age as it is required to do and then failing to carry out a pregnancy risk assessment with the Claimant after having been notified in writing of her pregnancy on 26 January and still failing to do so after she was assaulted at work by Mr E.

…

The Tribunal has found other facts from which it could conclude this failure to follow the grievance procedure by failing to investigate the grievance on appeal was a continuing act of less favourable treatment of the Claimant on the ground of pregnancy. The Tribunal finds this is a continuation of the same less favourable treatment. The Tribunal has looked to the Respondent for an explanation. It has not heard one. While the Appeal Panel made welcome recommendations related to a review of policies including the dignity at work policy and the grievance procedure and any policy on safety and security of staff it made no recommendation related to any policy on pregnancy. In the absence of an adequate explanation in no sense on grounds of pregnancy the Tribunal finds this was less favourable treatment of the Claimant on the ground of pregnancy. By failing to recognise its responsibilities towards women of child bearing age and its specific obligation to the Claimant once she notified them in writing of her pregnancy this formed part of a continuing course of conduct amounting to sex discrimination on the ground of pregnancy."

78. Allegations (k) and (l) were considered together. After referring once again to the essential facts the Tribunal said:

"The facts the Tribunal has found show the Claimant resigned in response to an ongoing course of conduct by the Respondent starting with its failure to conduct a general risk assessment taking into account women of child bearing age as it is required to do and then failing to carry out a pregnancy risk assessment with the Claimant after having been notified in writing of her pregnancy on 26 January. Thereafter the Respondent's continuing failure to carry out a risk assessment resulted in a continuing course of conduct which was pregnancy related discrimination to the Claimant's detriment culminating with the failure to investigate her grievance and an insistence she return to work when her grievance had not been investigated. This conduct by the Respondent was in breach of the implied term of trust and confidence and the Claimant was entitled to resign in response to it. The Claimant was dismissed. She resigned in response to a continuing act of sex discrimination which was pregnancy related and her dismissal was sex discrimination."

The Appeal

79. The essence of the argument at Ground B of the Notice of Appeal is that, in considering whether there was here discrimination on the ground of pregnancy, the Tribunal wrongly applied a causative test, instead of the "reason why" test established as correct in the authorities. It is submitted that the Tribunal erred, either by applying an express "but for" test of causation, or by relying implicitly on its earlier findings that QVSR had failed in their responsibilities to carry out risk assessments. Effectively, the tribunal applied the test that "but for" these failures, the subsequent acts of discrimination would not have occurred. If they had asked themselves the reason why the treatment afforded to the Claimant had occurred, they would have found that the reason was not the Claimant's pregnancy.
80. At paragraphs 22 to 30 of the Notice of Appeal, counsel referred to various complaints which were upheld by the Tribunal, and submitted that each provided an example of the erroneous test applied.
81. In response, although Ms Russell concedes that in the course of an extremely long judgment, the Tribunal on one or two isolated occasions used incorrect language in describing the legal test, she submits that it is nevertheless clear from reading their conclusions, and indeed the judgment as a whole, that the Tribunal in fact understood the legal test correctly and applied it correctly to the facts found. Their reasoning, she submits, is free from error and the decision should stand.

Our Conclusions

82. Section 3 A(1) of the Sex Discrimination Act 1975 provides:

"(1) In any circumstances relevant for the purposes of a provision to which this section applies, a person discriminates against a woman if -

(a) at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably than he would treat her had she not been pregnant: or

(b) on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably than he would treat her if she were neither exercising nor seeking to exercise and had neither exercised nor sought to exercise, such a right."

By Section 6(2):

"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her –

…

(b) by dismissing her or subjecting her to any other detriment."

83. As the Tribunal correctly stated, the suggestion that Section 3A required a comparator was soon put to rest in R(EOC) v Secretary for State for Trade and Industry [2007] ICR 1234, where the need for a comparator was recognised as being contrary to European law and to the decisions of the European Court of Justice in Webb v EMO Air Cargo Limited [1994] ICR 77 and Gillespie and Others v Northern Health and Social Services Board [1996] IRLR 214. It was agreed between the parties in the present case that there was no need for this Claimant to rely on any comparator in complaining of discrimination on the ground of pregnancy. The Tribunal referred to this expressly.
84. The "reason why" test, postulated by Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572, dealing with discrimination on racial grounds, was expressed thus:

"… in every case it is necessary to enquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances."

85. Considering the question of subconscious motivation and recognising that people, being human beings, do not always recognise their own prejudices, Lord Nicholls added the following:

"An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did … Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination …"

86. The test has most recently been referred to by the Court of Appeal, in the context of harassment on grounds of sexual orientation, in English v Thomas Sanderson Blinds Limited [2009] IRLR 207, where Sedley LJ said at paragraph 40:

"I particularly question the view that the word 'grounds' imports more than is postulated by Lord Nicholls' question in Nagaragjan: why did the other employees harass the claimant? It is not necessary to demand a logician's or a lawyer's answer by looking for motive or purpose or cause and effect. If the harassment was based on his sexual orientation, whether real or imagined, the question 'Why?' is answered."

87. It is correct that the Tribunal's findings, as to QVSR's failure to conduct appropriate risk assessments, could be said to permeate the whole of this lengthy decision. That, however, in our judgment, is a reflection of the fact that these failures came first in the chronology of events with which they were dealing, and were therefore first in the extensive list of allegations to be determined at paragraph 3.
88. This was also a case in which the Claimant was alleging a continuing course of conduct, which commenced with her employer's failure to assess the risks to which their pregnant employee might be subject, and to seek to address them.
89. These failures were considered by the Tribunal to be the first in line in the series of events which then followed; but we reject the suggestion that they were themselves found to be causative of those later incidents. That much is clear from the Tribunal's detailed findings as to the other acts complained about, including the act of barring her from the premises, and the acts which were held to indicate a change of attitude towards her or which related to the conduct of her grievance.
90. It is also clear to us that, throughout their reasoning, this Tribunal had well in mind the legal test required under Section 3A, which they refer to both at paragraph 2 and then again at paragraph 112 of their reasons.
91. In relation to allegation 3(f), QVSR submit that the Tribunal erred in applying a "but for" test, at paragraphs 64 and 122(f), in linking the matter to the Claimant's pregnancy; and in concluding that it was a continuous act resulting from their failure to carry out a risk assessment. Had the correct test been applied, "the reason why" would have been identified as the Claimant's expressed belief that the work environment was not a safe one for her. Further, it is said that the Tribunal erred in coming to this conclusion through carrying out a comparison with a non-pregnant woman. There was no evidence before the Tribunal as to how the Respondents would have treated a non-pregnant woman. Further, such a comparison was contrary to the evidence and the Tribunal's findings that the Claimant was not suspended.
92. There is however no finding at paragraph 64, or elsewhere, that the Claimant herself ever expressed a belief that the work environment was unsafe for her. Rather the finding is that someone else advised the staff as to what they said was the Claimant's belief. The Tribunal found as a fact that the Claimant wanted to gain access to the building via the main entrance because she wanted to use the lift; and that effectively the staff had been instructed to prevent her from entering. Debbie Whitehead had stated that it was understandable, given her pregnancy, that the Claimant would wish to use the lift. It was thus common ground that the Claimant would need to use the lift because she was pregnant.
93. At paragraph 122(f) the Tribunal conclude that the Claimant would not have been barred from entering the building if she had not been pregnant, because she would not have been absent from work with her employer's consent if she had not been pregnant. The staff had been advised not to let her in because (as they had been told) the Claimant felt the premises did not provide her with a safe and secure environment. This was held to be more than a mere mishandling of the situation.
94. It is correct that the Tribunal also state, curiously given the clear understanding that there was no legal requirement for a comparator, that a non-pregnant woman would not have been suspended in the same circumstances. It is also correct that, at paragraph 64, they had stated that the situation would not have occurred but for the Claimant's pregnancy.
95. However, we agree with Ms Russell that, in their overall analysis, the Tribunal correctly identified at paragraph 122(f) that the reason why she was treated in this way was "because she was pregnant". The use of the words "but for" in paragraph 64 was unfortunate, but we note that these words appeared at the earlier, fact finding stage and do not reappear at the crucial time of analysis and decision-making. We are not persuaded that there was in fact any error in the Tribunal's approach at that, crucial stage.
96. In relation to allegation 3(h) and the move to an inappropriate workstation, QVSR's counsel makes a similar submission in the Notice of Appeal. Had the proper test been applied, it is said, the reasons for the Claimant's treatment would have been identified as Grace Ndiwe's wish for the Claimant to work closely with her to produce new policies and procedures; or the fact that Ms Ndiwe was trying to assert her authority (see paragraphs 29 and 52).
97. We reject these submissions. Firstly, the reference in paragraph 29 to policies and procedures is in relation to evidence given by Ms Ndiwe, which the Tribunal rejected as being internally inconsistent and unreliable. Secondly, there is no finding that the reason for the Claimant's move was in fact due to the need for her to work on the production of new policies and procedures. Thirdly, whilst it is clear from paragraph 29 that the Tribunal did find that M Ndiwe was trying to assert her authority at the time of the move, their clear finding at paragraph 122(h) was that this assertion supported their conclusions as to a change in attitude towards the Claimant after she was pregnant. At paragraph 122(i) they refer to this assertion of authority as demonstrating the Respondent's failure to support the Claimant after she became pregnant, whereas she had previously enjoyed a supportive relationship.
98. The Tribunal also found expressly, at paragraph 122(h), that the decision to move the Claimant to an unergonomic workstation was part of a continuing act of less favourable treatment on the ground of pregnancy. The connection between Ms Ndiwe asserting her authority and moving the Claimant to the workstation was, therefore, found to be pregnancy.
99. Whilst the Tribunal do refer to the possibility of unconscious discrimination, through Ms Ndiwe's failure to take her pregnancy into account, this in our view reflects no more than the point made in the observations of Lord Nicholls in Nagarajan. There is a clear explanation as to how they arrived at this conclusion in respect of the Claimant's move to the workstation. We reject the suggestion at paragraph 29 of the Notice of Appeal that this finding was inadequately explained.
100. In relation to paragraph 3(i) it is said in the Notice of Appeal that the Tribunal erred in applying a causal test. We do not agree. At paragraph 122(i) the Tribunal found that Ms Ndiwe had herself stated in evidence that she had acted in this way because the Claimant was pregnant. We consider that the Tribunal were entitled to conclude, as they do expressly, that this was less favourable treatment on the ground of pregnancy.
101. There is a further allegation of perversity in relation to this finding, which is said not accurately to reflect the evidence that Ms Ndiwe gave. No request for notes of evidence has been pursued, however, for this appeal, and no agreed note is before us. We therefore reject the suggestion that this was a perverse finding.
102. In relation to allegation 3(j), it is submitted that the Tribunal's findings as to the handling of the Claimant's grievance, and of her appeal, indicated the erroneous application of a causal test. The reasons for Mr Pattison's approach are said, on the evidence, to be his confusion as to procedure and his failure to understand the role required of him.
103. It is correct that, at paragraph 122(j), the Tribunal found that QVSR failed to follow the procedure, and in particular failed properly to investigate her grievance. Failures were identified on the part of both the Reverend Kirby and Mr Pattison. In particular, Mr Pattison was found to have failed wholly to engage with the Claimant's fundamental complaint that her treatment was because of her pregnancy, and that her employer's attitude had changed after her pregnancy.
104. The Tribunal also state that they considered "a non-pregnant woman" and found there to be a difference in treatment; and we agree that the use of a comparator in this way was unnecessary. However, at this point in the judgment, the Tribunal seem to us to be considering essentially the question why all this had happened. Posing the question "was this normal?" in relation to the failure to investigate the grievance, they find that QVSR did not seek to show that it was normal practice not to investigate the grievance. No explanation having been offered, the Tribunal therefore concluded that Mr Pattison consciously or subconsciously had ignored the Claimant's central complaints. In doing so he had treated her less favourably on the ground of pregnancy. The failure to investigate the grievance on appeal was found to be a continuation of the same, less favourable treatment. This was a finding which we consider was open to the Tribunal on all the evidence that they heard.
105. In relation to paragraphs 3(k) and (l), the Tribunal are said to have erred in the same way, in finding that the Respondent's failure to carry out the risk assessments under the regulations resulted in a continuing course of conduct which was pregnancy related discrimination (see paragraphs 94 and 122(k) and (l).
106. This, for the reasons we have already given, is in our view a misreading of the Tribunal's reasoning. The Claimant, who perceived herself to be under threat of disciplinary action and was found to be in despair at this point was held to have resigned in response to an ongoing course of conduct which was described at paragraph 122(k) and (l). The failure to carry out the necessary risk assessments did not result in the course of conduct identified, but, rather, constituted the commencement of that course of conduct, which culminated in the failure to investigate her grievance and the threat that disciplinary action would follow if she did not return to work. This was a course of conduct which was clearly found by the Tribunal to be on the ground of this Claimant's pregnancy.
107. The references, on two, separate occasions, to a non-pregnant woman comparator and the use, in their findings of fact, of the term "but for" on one occasion reflect, in our view, an unfortunate lapse into previously familiar terminology in the course of an extremely lengthy decision. In our judgment, however, these references do not undermine the overall analysis and reasoning, which we consider to be clear and legally correct.
108. There is in our view no merit in the suggestion, at paragraph 30 of the Notice of Appeal, that the Tribunal erred in failing to give effect to their conclusions that other background matters referred to by the Claimant did not support her claims. The Tribunal's findings in this case were arrived at on the basis of the allegations relied upon and the evidence given in relation to them. Their conclusion that this Claimant was discriminated against on the ground of pregnancy in the ways identified is, in our judgment, unimpeachable.
109. It follows that we dismiss the sole ground of appeal in this case, namely ground B. Further, since we are upholding the Tribunal's determination in relation to pregnancy discrimination, we reject the further amended ground, at paragraph 31 of the Notice, that the decision as to constructive unfair dismissal is undermined.
110. For these reasons this appeal must be dismissed.