United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J P CHAMBERS (Solicitor) Messrs Chambers & Co Solicitors Stable House Heath Lane Chester Cheshire CH3 5SX
For the Respondent	MR J BENSON (One of Her Majesty's Counsel) Instructed by: Messrs J M Skinner & Co Solicitors 2 Mortimer Street Birkenhead CH41 5EU


 


SUMMARY

Sex Discrimination – Indirect

Maternity Rights and Parental Leave – Pregnancy

Health & Safety

Failure to carry out a risk assessment in respect of a pregnant employee under the Management of Health and Safety at Work Regulations 1999 is unlawful sex discrimination: Hardman v Mallon. A record of the findings of the assessment must be made but need not be given to the employee, if information about the risks is provided orally. Sending an employee home without duties, without dismissing her but on full pay, is in law suspension and meets the terms of Employment Rights Act 1996 s66.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about sex discrimination in the context of a claim by a pregnant employee for risk assessment and other remedies under health and safety legislation. The judgment represents the views of all three members. We will refer to Mrs Stevenson as the Claimant and JM Skinner and Co as the Respondent, or the firm.

Introduction

2. It us an appeal by the Claimant in those proceedings against a reserved judgment of an Employment Tribunal chaired by regional Employment Judge Reed sitting in Liverpool registered with reasons on 5 October 2007. The parties were represented respectively by Mr James Chambers, Solicitor and Mr John Benson QC. The Claimant claimed constructive unfair dismissal and sex discrimination in relation to risk assessment. The Respondent contended that it did not dismiss her and did not discriminate against her on the ground of her sex.
3. The Employment Tribunal dismissed both claims. The Claimant appeals. Directions sending one aspect of this appeal to a full hearing were given in Chambers by Elias P. He rejected under Rule 3 the Claimant's appeal on unfair dismissal. That ground is not pursued.

The legislation

4. The Management of Health and Safety at Work Regulations 1999 SI 1999/3242 provide in relevant part as follows:

"Risk assessment

3. (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; …

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 …

(3) Any assessment such as is referred to in paragraph (1) … shall be reviewed by the employer … if

(a) there is reason to suspect that it is no longer valid; or

(b) there has been a significant change in the matters to which it relates; and where as a result of any such review changes to an assessment are required, the employer … shall make them.

(6) Where the employer employs five or more employees, he shall record -

(a) the significant findings of the assessment; and

(b) any group of his employees identified by it as being especially at risk.

Information for employees

10. (1) Every employer shall provide his employees with comprehensible and relevant information on

(a) the risks to their health and safety identified by the assessment;

(b) the preventive and protective measures; …

16. (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…

the assessment required by regulation 3(1) shall also include an assessment of such risk.

(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 [Employment Rights Act 1996] suspend the employee from work for so long as is necessary to avoid such risk.

Notification by new or expectant mothers

18. (1) Nothing in paragraph (2) or (3) of regulation 16 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 …".

5. Those Regulations, amended twice since we decided Hardman v Mallon [2002] IRLR 516 at para 8, are made under the Health and Safety at Work Act 1974. After amendments introduced in 2006 to Regulation 22, employers face civil liability to employees for breach: section 47(2). Section 15(6) creates no criminal liability a result of breach of any regulation unless offences are specified.
6. As for sex discrimination, there is no dispute that the Employment Tribunal summarised the provisions unexceptionally:

"34. Under Section 1 of the Sex Discrimination Act 1975, a person discriminates unlawfully against a woman if on the ground of her sex he treats her less favourably that he treats or would treat a man.

35. Under Section 63A of the 1975 Act, if a claimant proves facts from which the Tribunal could conclude in the absence of an adequate explanation that a respondent has unlawfully discriminated, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit that act."

7. The Employment Tribunal did not cite the Regulations or sections 66-68 of the Employment Rights Act 1996 on maternity suspension which interlock with Regulation 16. These provide rights to be offered alternative work, and to be paid during suspension on maternity grounds.

The facts

8. The Claimant is 27, and is expecting her fourth child. She was engaged by the Respondent on 20 July 2006 as its Accounts Practice Manager. It is a solicitors' practice in Birkenhead, Merseyside, with two partners, Mr Skinner and Ms Anderson, and five employees in total, so it is not exempt by the small business exclusion in Regulation 3.
9. On 15 November 2006 the Claimant understood she was pregnant. She told Ms Anderson this on 20 November and her claim is this:

"9. … Thereafter, according to Mrs Stevenson, the attitude of her employers towards her changed. Although they had previously been perfectly cordial, they became unpleasant towards her in various ways. She alleged this was by reason of the fact that she was pregnant and that her maternity absence would cause difficulties for the Firm. She also alleged that there had been a failure to carry out a risk assessment for her which of itself would amount to unlawful discrimination."

10. The Tribunal resolved a number of disputes about the way in which the Claimant had been treated in the context of her pregnancy. It rejected the Claimant's evidence as not credible, accepting the Respondent's evidence as more likely and more realistic.
11. Thus it was that the Tribunal was able to find that there had been meetings on 21 and 23 November, 1 and 15 December 2006 when specific attention was given by the partners of the firm to the concerns of the Claimant relating to her pregnancy. This was an unusual pregnancy as her history demonstrated that there might be risks to her. So it was important to her, as she put it, in fairness to the firm, that she tell the Respondent what her concerns were and that they understood what risks there were in the work that she did. Two were specifically identified. The firm occupies a number of floors. These are the same as in her house, there are three. She can go up and down the stairs in her own house but she was concerned that she should not be running up and down the stairs in the office. Secondly, she was involved in lifting boxes and was concerned that she should not do that during the course of her pregnancy.
12. The Tribunal resolved a number of disputes about those meetings. The disputes were starkly presented: the Claimant indicating that certain meetings never took place; minutes of the meetings were forgeries. These were resolved against her, and in relation to unfair dismissal, it made strong findings about the Claimant's credibility.
13. The Claimant had further discussions with the Respondent on 2 January 2007. On 29 January she suffered an injury at work, when because of dizziness she fell down the stairs. She received treatment which put her arm in a sling caused neuropraxia and some sort of lesion to her fingers resulting in loss of ability to feel. Nevertheless, she wanted to go to work and she presented a one-line certificate from her locum GP indicating that she was fit. Mr Skinner made his own assessment and decided that as she presented to him she was not fit for work in his firm. He was concerned that employing a pregnant employee who suffered dizziness, fell and had the manifestations of the fall should not continue to be employed and in the meantime should be relieved of her duties.
14. He wrote a letter, which the Tribunal criticised, and which in hindsight we are sure he regrets because it indicates confusion in relation to the employment status of the Claimant. He said that she was neither dismissed nor suspended. It will be for us to determine what the actual legal effect of that was. The Claimant was worried about the effect of that change in the relationship upon her entitlement to maternity pay, and in due course she resigned claiming constructive unfair dismissal as a result of a series of mistreatment which constituted unlawful sex discrimination.
15. The Tribunal dismissed the claim of constructive unfair dismissal holding that she resigned and was not forced to do so, and it dismissed the claims of sex discrimination. It approached the two-stage test and resolved the issues in the following way:

"61. In relation to all the matters referred to above and in the light of our factual conclusions, we did not consider that the claimant had proved facts from which we could conclude that unlawful discrimination had occurred. However, we considered that in respect of the removal of Mrs Stevenson's password, such that she did not access the Firm's office computer, we were obliged to look to the Firm for an explanation for the behaviour. We considered that such an explanation had been given. The Firm had security concerns and were previously unaware of the access available to Mrs Stevenson. We concluded therefore that there had been no unlawful discrimination in that regard."

16. That therefore determined the outcome of the sex discrimination claims.

The Claimant's case

17. Mr Chambers has put forward a lengthy Notice of Appeal, which has been the subject of very detailed criticism by Mr Benson as misrepresenting the findings of the Tribunal. To some extent we agree, in that Mr Benson has demonstrated, without response from Mr Chambers, that there is, to put it mildly, exaggeration in the depiction of the evidence before the Employment Tribunal.
18. Mr Chambers accepts that while some of the points he made were perversity points but essentially he was arguing points of law on the construction of the Regulations. The Respondent made no risk assessment, nor communicated a record of it, and in due course excluded the Claimant from the workplace contrary to respectively Regulations 3, 10 and 16 of the Regulations. Since they involve issues relating to pregnancy they are sex discrimination (see Hardman v Mallon) and therefore they constitute, if upheld, breaches of the Sex Discrimination Act 1975.
19. There was considerable criticism of the way in which the partners had conducted the meetings and the outcome of them, it now being accepted that these meetings took place.
20. It was further contended that it was wrong in law for Mr Skinner to make his own assessment of the Claimant's condition contrary to the judgment in Merseyrail Electrics 2002 Ltd v N Taylor UKEAT/0162/07: HHJ Peter Clark and Members.
21. Mr Chambers contended that the outcome of the letter addressed to the Claimant where Mr Skinner had said she was neither dismissed nor suspended was a breach of Regulation 16. If she was unable to work there was an obligation on him to suspend her and therefore to attract the provisions of the Employment Rights Act 1996 s67.

The Respondent's case

22. On behalf of the Respondent it is submitted by Mr Benson QC that the attack on the Tribunal's judgment is essentially one of perversity. That is a difficult submission for Mr Chambers to make in the light of the rejection of the appeal against the constructive unfair dismissal since the findings about credibility and the findings of fact are entangled; nevertheless discrete points could be made in relation to the Regulations.
23. It was submitted that this case is entirely fact-sensitive, redolent with findings about the credibility of the parties and demonstrated, for example, by the findings upon what the Tribunal had heard and including their demeanour.
24. It was submitted that although the Management Regulations had been put by both advocates before the Employment Tribunal and there was no mention of them, implicitly the Tribunal must have had them in mind. The Employment Tribunal was referred to Hardman v Mallon, and, engagingly we are told, Employment Judge Reed recollected that he had given the judgment on behalf of the Employment Tribunal in that case which I had overturned. So the Employment Tribunal had in mind the Regulations either directly or through that case being put in front of it.
25. It is contended that the Tribunal has correctly made findings under the Sex Discrimination Act that sufficient material was not there which could enable the Tribunal to move from stage 1 to stage 2 of the burden of proof, with the exception of the one distinction in paragraph 61 relating to the password. On that, the Claimant did not pass stage 2, the Respondent's explanation for it being accepted.
26. It is contended that an employer is entitled to go behind a sick note in limited circumstances. Merseyrail does not apply to this case, for here, uniquely, was a situation where the employer was not seeking to disadvantage the employee, for example by not paying her, or by shutting her out of the case. In Teinaz v London Borough of Wandsworth [2002] IRLR 721 CA, upon which Merseyrail is based, a case was dismissed because the Claimant did not attend, yet he was supported by a doctor's certificate which said he was unfit to attend the Tribunal hearing. In this case, there was medical evidence before Mr Skinner which would support his going behind the one-line certificate of the locum GP. By reference to paragraph 16 of the judgment of Judge Peter Clark in Merseyrail there was material which would support Mr Skinner's view to distance himself from the locum's opinion: it was the presentation of the Claimant herself with the injuries which she had plainly suffered plus her own account of the medical advice she had been given relating to the difficulties in her own pregnancy.
27. Further, it is submitted as a matter of law that an employer who does not dismiss an employee and continues to pay them but relieves them of duties and the obligation to attend work is suspending the employee; no other explanation or definition can apply. And although Mr Skinner was criticised by the Employment Tribunal for the way in which he presented this matter, the finding is that he did not indicate to the Claimant that she would not be paid and the only legal outcome is that she was in fact suspended. Mr Chambers made no response to that legal submission.

The legal principles

28. Legal principles to be applied in this case emerge from the authorities which we have cited. It is not in dispute that the Management Regulations, in so far as they deal with a pregnant employee, set up a potential case of sex discrimination if they are breached (see Hardman v Mallon).
29. It is generally impermissible for an employer to go behind a medical certificate unless there is other material available to the employer which would justify such a departure (see Merseyrail) and the judgment which followed that, although which apparently did not refer to it, of HHJ Burke QC and Members in Stagecoach Southeast London and Kent Bus Co Ltd v Kumizi UKEAT/0131/07.
30. Where an allegation of perversity is raised, the threshold to be crossed is very high (see Yeboah v Crofton [2002] IRLR 634 (CA): a threshold thought to be raised even higher by the judgment of the Court of Appeal in Klusova v London Borough of Hounslow [2007] EWCA Civ 1127 CA.

Discussion and conclusions

31. With those principles in mind, we prefer and accept the submissions made by Mr Benson and will dismiss the appeal. We accept that the judgment by the Employment Tribunal on unfair dismissal is inextricably linked to its findings in relation to sex discrimination for they do involve a criticism of the Claimant for the way in which she presented her evidence. The findings against her are quite damning in relation to credibility. Those issues, of course, are pre-eminently ones of fact for the Employment Tribunal to determine and they do involve consideration of the four meetings where the Claimant's condition was discussed in 2006, together with the subsequent discussion in 2007.
32. The Employment Tribunal did not cite the Management Regulations. An Employment Tribunal which does not cite the relevant law is not in itself committing an error of law provided the conclusion which it reaches is in accordance with the law. Yet a Tribunal which does not cite the relevant law is at risk of making an error.
33. We are satisfied that the Tribunal was introduced to the Management Regulations by both advocates but, as Mr Chambers said, no detailed submissions were made upon them. Nevertheless, we conclude that the allegation of sex discrimination emerging via the Management Regulations was correctly dismissed by the Employment Tribunal.
34. The first issue relates to whether or not there was a risk assessment. The Tribunal held there was. It is important to understand what a risk assessment is. We are not given any definition in the Regulations apart from the generic description in Regulation 1(2) that "an assessment means the assessment made or changed by him in accordance with Regulation 3". Risk is exposure to some sort of harm or danger. Assessment as used in the Regulations is an empirical evaluation of when that risk is likely to occur and what the consequences of it will be on, for example an employee in the employer's business. The assessment is one of judgment, evaluation and examination of all of the circumstances. There is no requirement under the Regulations that the assessment must be in writing. It is a thought process. It is best conducted with the employee herself when the assessment is in relation to an individual pregnant employee so that any particular difficulties which she may encounter can be addressed specifically.
35. We hold that there was a risk assessment. There were tripartite meetings of Mr Skinner, Ms Anderson and the Claimant. The Claimant was concerned to put before her employers the risks which she was advised she may be subject to, and the two risks in the workplace were identified. At the meetings those risks were assessed and steps were taken to ensure that the Claimant would not be exposed to them. Heavy boxes would not be lifted, others were briefed to do that; and she was not required to run up and down the stairs all the time. So, with those two specific matters catered for we are satisfied not only that a risk assessment was made but also that a record was made of its significant findings in accordance with Regulation 3.
36. It is odd that once parties have gone through a risk assessment, the employer is not obliged to hand over the results. The employer is required to record the findings of the assessment but is not under an obligation to hand it over (see Regulation 3(6)). Information about those findings must be given and that information can be given orally for there is no obligation under Regulation 10(1) as to what form it must take. In our judgment, a meeting with the employee where assessments are made and at which agreement is reached on the relevant risks, discharges the obligation on the employer. It did here.
37. Further, as a matter of fact, a risk assessment was recorded in writing and vouchsafed to the Claimant. It had been undertaken in 2006 in respect of another pregnant employee. It was said to be in respect of all pregnant employees. It contains what might be described as generic risks and an assessment of them and it was adapted by oral communications during the meetings to deal with the Claimant's specific needs. Thus we hold no breach of Regulations 3 and 10 occurred and thus no breach of the Sex Discrimination Act.
38. The Claimant correctly notified the Respondent pursuant to Regulation 18 on 14 December 2006 and so of course Regulation 16 was triggered, so the risk assessment under Regulation 3 must include risks in respect of pregnant employees. The purpose of the meetings was to discuss the kind of risk involved by reason of the Claimant's condition. It was the only matter discussed. The headline for the documents and the substance of the meetings are her pregnancy and the risks she ran. Thus we hold there was no breach of Regulation 16(1).and thus no breach of the Sex Discrimination Act
39. What is contended as a separate ground is that, according to Regulation 16(3), if it was not reasonable after her fall to alter the conditions of work, the Respondent should have suspended her. In the light of the submission made by Mr Benson, which we hold to be correct, the Claimant was suspended in this case. Mr Chambers did not contend that there was no suspension. He argued that there was uncertainty about the pay. But that does not matter because the issue here is suspension, and as a matter of fact suspension was effected in a way which did not breach the regime set up in s66 of the Employment Rights Act. The Claimant was paid, she was not dismissed; she would have continued to be employed had she not terminated the relationship herself. In those circumstances, the finding by the Tribunal in its paragraph 61 (above), covers all three of those grounds.
40. The only discrete issue identified following the suspension was her computer password. Here the Tribunal accepted the explanation given by the Respondent. It being for the Employment Tribunal to determine issues such as justification and there being no direct challenge to the facts, we see no error by the Employment Tribunal when it accepted the reason given by Mr Skinner for taking away the password. Thus the Claimant passed through stage 1 on only one of the claims which she made and the Tribunal correctly dismissed it at stage 2.
41. We thank Mr Chambers and Mr Benson for the succinct way in which they put their respective arguments. We noted that attempts were made at an earlier stage to try and resolve this appeal. We hope now that the Stevensons may enjoy the happiness of their children and their expected child without distraction by this unfortunate affair. We dismiss the appeal.