O'Neil v Buckinghamshire County Council UKEAT/0020/09/JOJ

Appeal against decision by ET to reject claims of sex discrimination. Appeal dismissed.

The claimant was a teacher in a primary school, and for 2 years or so, was subject to internal monitoring due to failings in the way in which she fulfilled her duties and her behaviour towards other staff including the headteacher. Eventually, a disciplinary hearing was arranged, by which time the claimant was pregnant. The hearing was delayed because of the claimant being on maternity leave, and after the baby was born, the claimant submitted a grievance, including complaints about the disciplinary process and a failure to carry out a risk assessment on her and her unborn child, which was rejected. The claimant then resigned, claiming constructive dismissal and pregnancy related discrimination. The ET rejected the claim that a risk assessment should have been carried out, and the fact that it was not, amounted to sex discrimination, and further added that Section 3A of the Sex Discrimination Act should not support positive discrimination in the claimant's favour.

There were 7 grounds of appeal, amongst them: 1) that the ET erred in law by construing Section 3A of the SDA as not offering any form of special protection to pregnant workers; 2) the conclusion by the ET that there was no need for a risk assessment; and in the alternative 3) the issue of the Tribunal concluding that the respondent had not failed to carry out a risk assessment. The EAT largely agreed with the ET, quoting Madarassy v Nomura International Plc that there was no obligation to carry out a risk assessment and that in fact the claimant was not exposed to the risks detailed in the Directive/92/85/EEC.

________________________

Appeal No. UKEAT/0020/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal On 11 September 2009

Judgment handed down on 5 January 2010

Before HIS HONOUR JUDGE ANSELL MR C EDWARDS MRS J M MATTHIAS

MS L O'NEILL (APPELLANT)

BUCKINGHAMSHIRE COUNTY COUNCIL (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant MR HOWARD MORRISON (Representative)

For the Respondent MR RICHARD HIGNETT (of Counsel) Instructed by: Buckinghamshire County Council Legal Services County Hall Aylesbury Buckinghamshire  HP20 1UA

**SUMMARY *UNFAIR DISMISSAL *Constructive dismissal

*SEX DISCRIMINATION *Pregnancy and discrimination

Pregnant workers are not automatically entitled to a work assessment under Regulation 16 Management of Health and Safety at Work Regulations 1999 in the absence of evidence that the work involved a risk as to health and safety to the expectant mother.

HIS HONOUR JUDGE ANSELL Introduction 1. This is an appeal from a judgment of a Reading Employment Tribunal chaired by Employment Judge Lewis who heard this case in October 2008.  He gave reasons on 24 October.  The unanimous judgment of the Tribunal dismissed the claim for constructive unfair dismissal.  In relation to complaints of pregnancy related sex discrimination, the Tribunal firstly extended time under the just and equitable principle but then found that the Respondents did not discriminate on the grounds of sex or pregnancy.  The sex discrimination claim had related in particular to a failure to carry out a risk assessment following the Appellant informing the Respondents that she was pregnant.

2. Leave to appeal was initially given by HHJ McMullen QC on 20 January 2009 in relation to grounds concerning the sex discrimination claims.  Grounds in relation to the constructive dismissal were not allowed to proceed.  However, fresh grounds relating to constructive dismissal were in due course submitted and on 10 March Judge McMullen gave permission for those additional grounds to proceed to this full hearing.  Both before the Tribunal and before ourselves, the Appellant has been ably represented by her father Mr Morrison.

**The Facts **3. We take the background facts from the Tribunal's Decision.  The offence concerned the Holmer Green Junior School where the relevant staff were Head Teacher, Mrs Cox, the Deputy Head, Mrs Lawson, a teacher, Mrs Scragg, Chairman of Governors, Mr Baxter, and the former Chairman of Governors, Mr Burke.  The Appellant was a late entrant into the teaching profession having been born in 1966.  She was a self-funded science graduate who began her teaching career as a newly qualified teacher in September 2002, joining the school in April 2004.  The school divided each year group into two classes; each class having a class teacher working in partnership with the other class teacher.  In 2004/2005 the Appellant partnered Mrs Lawson who was then Deputy Head.  Mrs Lawson told the Tribunal that she found the Appellant the most difficult teacher she had ever partnered in her career of nearly 30 years.  The general problems which arose continued throughout the events the Tribunal were concerned with:  a failure to comply with requirements and procedures particularly in planning lessons, a failure to engage with colleagues and a response to guidance and criticism which ranged from truculent to aggressive.  A similar view was formed by Mrs Cox, the Head Teacher; and one particular form of the complaint were periods of refusing to speak to Mrs Cox or avoiding conversation with her.  Throughout the period Mrs Cox maintained handwritten notes of any matter in the school which concerned her.  The Appellant had, while employed, not accepted that the notes were genuine in the sense of being made in good faith on or about the dates appearing on them.  That contention was firmly rejected by the Tribunal.  In November 2004 the Appellant had performance targets drawn to her attention by Mrs Cox and thereafter there was a short period of improvement.

4. The following year the Claimant was working in partnership with Mrs Scragg who was a teacher whose style and preference was to work in strict compliance with documented procedures, which gave rise to tensions between her and the Appellant.  A particular source of tension was the preparation of the lesson plans, which had to be copied to the other partner teachers and the assistant for resources.  A recurrent theme within the case was that the Appellant failed to provide the following week's plans to deadline.  This caused great stress to Mrs Scragg.  In November 2005 Mrs Scragg told Mrs Cox she wished to resign quoting as one of her reasons for resignation that she found her workload increased as consequence of partnership working with the Appellant.  She reconsidered her decision and switched to part time.  This arrangement meant that arrangements had to be put in place for Mrs Scragg to receive the following week's lessons plans on her last day at school each week, which was a Wednesday.  By late January 2006 the shared understanding of the Head and Deputy Head was that the Appellant was a colleague who had teaching abilities but who was, in a range of other respects, troublesome to work with and to manage.

5. In the spring term 2006 the school experienced some disruption in the course of the term caused by building work and the Appellant had suggested that her classroom was disrupted for the whole term, but the Tribunal preferred Mrs Cox's evidence, which was that a few days' work took place in each classroom.  The Appellant's grandfather died unexpectedly on 27 January 2006.  On 3 February Mrs Scragg was in school on a Friday covering for the Appellant who was at her grandfather's funeral that day, and she together with Mrs Sturgeon took the opportunity to speak to Mrs Cox concerning the continuing difficulties they were having working with the Appellant, in particular in relation to the failure to plan lessons in advance.  The Tribunal rejected the Appellant's suggestion that the fact that the two colleagues spoke to Mrs Cox on the day of the funeral was indecent and offensive.  It happened that it was unusual for the two ladies to be in school at the same time.  On 6 February the Appellant returned to work and was spoken to by Mrs Cox about a conversation that she had with office staff the previous week when it was suggested she had used aggressive and sarcastic language.  There was also conversation in relation to the working relationship between the Appellant and Mrs Scragg.  Mrs Cox suggested that the Appellant apologise to the office staff and did not press other issues.  The Appellant made a reference to seeking trade union assistance.  Her father, Mr Morrison, at the Tribunal submitted that the Appellant was subsequently victimised for having raised a trade union issue at work, but this was not an issue that was pursued before the Tribunal.  On Mrs Scragg's return to work on 8 February a meeting took place between the Head, Deputy Head and the two teachers leading to an outcome strategy.  The Appellant had suggested that she was forced to sign against her will, but again the Tribunal rejected that contention.

6. That week NFER tests were taking place in the school and arrangements for those tests included a provision that a class teacher should never mark the tests done by her own class.  On 9 and 10 February Mrs Scragg told Mrs Cox that the Appellant had not followed procedures for marking the papers; she had marked her own class and also marked inaccurately.  Mrs Cox's notes indicated there was substance to these reports.

7. The following week, being half-term, the Appellant went on two weeks' sick leave.  Mrs Cox and Mrs Lawson prepared the classroom for a supply teacher and found the room in a completely unacceptable state.  Thereafter Mrs Cox's notes report frequent conversations with Mrs Scragg in this period and the Tribunal rejected that there was anything sinister in these conversations, but merely that there was understanding that Mrs Scragg should feel free to come to Mrs Cox.  Following a further incident in April Mrs Cox required the Appellant not only to produce her lesson plans on the Wednesday of the previous week but also to copy them to Mrs Cox.  This form of monitoring the Tribunal found clearly indicated that the Appellant could no longer be trusted by Mrs Cox to carry out instructions without weekly monitoring.  The Tribunal noted that even at the tribunal hearing some two years after the events the Appellant was manifesting anger and resentment at this arrangement, which she claimed had been imposed upon her for Mrs Scragg's convenience.  The Tribunal found these objections ill founded.

8. On 8 May the school began a week of optional SATS tests and again the Appellant did not follow marking procedures as had been explained by Mrs Lawson.  Contrary to practice she undertook a first marking of one of her own class tests and also failed to deliver marks for Mrs Scragg's class.  Mrs Lawson explained to the Claimant that she had broken procedure and thereby exposed herself to a risk of allegation of cheating.  The Appellant became distressed, either not hearing or not understanding the point, and believed she had been accused of actual cheating.  Later that day the Appellant went to speak to Mrs Scragg and accused her of making false and malicious reports about her behind her back.  The Tribunal accepted Mrs Scragg's account that the Appellant was aggressive and overbearing, and Mrs Scragg was generally frightened for her safety.  Following school, Mrs Scragg drove a short distance to Mrs Cox's home arriving in a state of visible distress to inform her as to what had happened.

9. Mrs Cox believed that these events required a formal response and sought advice from Mrs Dare, Human Resources Manager at Buckinghamshire County Council.  She advised that on the material given to her an investigation into potential disciplinary matters would be justified.  In view of the fact that the head teacher in this case might be a complainant or witness it was decided Mr Baxter, Vice Chair of Governors, would undertake the task.  At an early stage of the investigation the Appellant complained about the choice of Mr Baxter alleging that he was not authorised by the procedure and/or inappropriate on the grounds that he did not have classroom experience.  The Tribunal investigated these matters but considered that the appointment was suitable as it was a reasonable decision, and that he was an appropriate person to appoint.  The following day Mrs Cox handed the Appellant a document, which stated:

"As you have made it clear that you do not want to speak to me, I am writing to say that I am advising you and [Mrs Scragg] not to have any direct contact until the investigation is concluded."

10. The Tribunal found that this was significant in relation to the extreme personalisation of the Appellant's disagreements with Mrs Scragg and also a reflection of the Appellant's refusal to speak to a head teacher.

11. Thereafter Mr Baxter proceeded with his task and informed the Appellant of his frame of reference in the allegations under two broad hearings of harassment and a failure to obey any reasonable instruction.  Mr Baxter spoke to the relevant members of staff and also interviewed the Appellant in the presence of Mr Bunting, the Appellant's then NUT representative.  Generally the Tribunal approved of the manner in which the interview took place, though noting that Mr Bunting's stance in the meeting was confrontational.  The Tribunal noted that the Appellant denied all allegations against her.  Before the Tribunal it was contended that Mr Baxter had failed to make allowance for the Appellant's pregnancy but the Tribunal found that at the time Mr Baxter did not know of that pregnancy.  After the meeting Mr Baxter sent up to Mr Bunting the typed notes that had been taken by the secretary present.  The Tribunal noted that by his reply Mr Bunting indicated such a wide range of disagreement as to render any further discussion of the notes pointless.

12. On 13 June the Appellant informed Mrs Cox of her pregnancy.  This was the first time that anyone on behalf of the Respondent knew of it.  The following day she went on sick leave returning to work on 30 June and remaining at work until the end of term on 21 July.  The Tribunal noted that on 17 July Mrs Cox began to prepare a risk assessment in the standard form for the Appellant.  The Tribunal noted that Mrs Cox did not in general consider the risks attaching to pregnancy in the work of a teacher at the school and she drafted the form in default format indicating that she intended to complete it later in conjunction with the Appellant when there was an opportunity to do so.  She did not do so on the Appellant's return from sick leave on 30 June and before the end of term on 21 July.  The Tribunal accepted that the Appellant at that time was avoiding conversation with Mrs Cox as much as possible, and noting that the end of term was a busy time.  The Tribunal noted that Mrs Cox had formed the view that the appropriate time for the risk assessment would be later in the pregnancy after the immediate stress of the commencement of the disciplinary investigation had died down and on return to school in September.  In the event the Appellant was at work at school between 4 September and 19 September and then went off on sick leave.

13. Meanwhile on 7 July Mr Baxter had sent his report to Mr Burke, the Chair of Governors.  Mr Baxter had decided that there was a case to answer under both the heads of disciplinary action proposed.  Mr Burke agreed with that course and instructed Mr Baxter around 22 July, which was to be the first day of the school holidays, to arrange a disciplinary hearing.  Mr Baxter decided to delay notifying the Appellant there was to be a disciplinary hearing until 19 September, forming the view it would not be appropriate to send formal notification and the full report at the commencement of the school holidays, particularly as there was an unwritten practice of not contacting staff during those holidays.  The Tribunal in paragraph 10.10 supported the view that Mr Baxter had taken.

14. Thus on 19 September the Appellant was handed at work a letter from Mr Baxter informing her there would be a disciplinary hearing, enclosing two copies of the full report and annexes.  She went off sick the next day and did not return; her sick leave running into maternity leave, her baby daughter being born on 12 January 2007.  She did not return to work from maternity leave until 21 July 2007, this being the first day of the school holidays, which in practice meant she was due to return to work in September 2007.

15. Returning to the decision to conduct a disciplinary hearing; the letter on 19 September 2006 informed the Appellant that the hearing would be before the staff dismissal committee consisting of Mr Burke and two other governors.  The letter also advised the Appellant the allegation against her was one of misconduct rather than gross misconduct, thus the committee would have no power to dismiss her.  The Tribunal criticised the Respondent as employers in respect of the lack of clarity and reassurance that this information would have provided.  There was criticism that the panel consisted of three governors and did not include a member or members with classroom experience, but again the Tribunal rejected this complaint repeating as they had done earlier the importance of the role of lay governors.  Following further correspondence between Mr Baxter and Mr Bunting in the autumn 2006 the school readily agreed to postpone the hearing in light of Appellant's illness and then the light of maternity, and arrangements were put into abeyance for some time.  On 19 March 2007 the Appellant submitted a grievance to Mr Burke identifying eight headings of complaint, which fell into three broad categories; complaints about the conduct of the disciplinary investigation, a general complaint that these events had taken place at a time of illness and pregnancy, and a discrete complaint of failure to carry out a risk assessment.  The grievance was rejected by Mr Burke in writing on 16 April.  His reply clarified that the outcome of the disciplinary hearing could not involve dismissal and that also any complaints that she had about the disciplinary process were matters that she was free to raise in her defence at the disciplinary hearing.  He also referred to Mrs Cox having recorded detailed notes.  He advised her of her right of appeal, which she exercised by letter on 23 April and also made a request for copies of the notes under the Data Protection Act.

16. There was a suggestion before the Tribunal that having rejected the grievance appeal Mr Burke had disqualified himself from hearing a misconduct case, but the Tribunal having considered the matter particularly that Mr Burke had expressed no view on the merits of any disciplinary allegations, which were outstanding, he had not disqualified himself.  Although the grievance appeal was passed to a senior advisor, it appears that no immediate action was taken upon it.  On 7 June the Appellant instructed solicitors who wrote a further grievance on her behalf.  Mrs Dare decided that in view of a number of simultaneous strands in this case; disciplinary grievance, return from maternity leave, and documentation request, that the disciplinary hearing would proceed on the Appellant's return to work and to the extent that the grievance related to the conduct of the disciplinary, these could be raised within that hearing.  If any grievance matters remained to be resolved they could be dealt with separately after the disciplinary hearing.  Again the Tribunal found this to be an entirely rational managerial approach.  The Appellant made a formal application to the Information Commissioner and the Respondent on 15 July under the Data Protection Act and understood that she should receive a response within 40 days of the July request.  That process was delayed by the limited availability of Mrs Cox and others over the school holiday period.  A full reply with copies of Mrs Cox's redacted notes was eventually sent on 24 September.  Meanwhile at the end of the 40-day Data Protection disclosure period on 30 August the Appellant resigned; her letter referring to constructive dismissal, to the range of issues which were dealt with by the Tribunal including a complaint that Mrs Cox had committed a clear and substantial contravention of the Data Protection Act.  Mr Morrison in closing submissions summarised the reasons for resigning:

"Facing an imminent disciplinary hearing, and about to return to a heavy workload, as a new mother with a new baby the lack of provision of my personnel record, and of Mrs Cox's detailed notes, if they existed, meant that I stood very little chance of defending myself."

17. As far as the issue of constructive dismissal was concerned, at a CMD on 3 January a list of factual issues was prepared including alleged breaches said to have occurred between January 2006 and 30 August 2007.  Also the issue of whether the resignation was in response to a fundamental breach, whether the Appellant responded to any breach promptly, or was there any issue of her waiving a breach and affirming the contract?  In relation to pregnancy related discrimination, issues were agreed before the Tribunal; namely firstly whether there was a failure to carry out a risk assessment on the Claimant in June/July/September 2006 and March 2007, and also whether there was a failure to take action to reduce the risk to the Claimant and her unborn child by failing to do or consider those matters that had been set out in paragraph 6(a) to 6(g) of the ET1 relating to the alleged unlawful sex discrimination.

Ground of Appeal 1 18. We turn now to the Grounds of Appeal. (1) "The Tribunal erred in law by construing section 3A Sex Discrimination Act 1975 as not offering any form of special protection to pregnant workers."  

"3A Discrimination on the ground of pregnancy or maternity leave

(1)  In any circumstances relevant for the purposes of a provision to which this subsection 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…; 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 …. (c) (2)  In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if, on the ground that section 72(1) of the Employment Rights Act 1996 (compulsory maternity leave) has to be complied with in respect of the woman, he treats her less favourably…

(3)  For the purposes of subsection (1) -

(a) in relation to a woman, a protected period begins each time she becomes pregnant, and the protected period associated with any particular pregnancy of hers ends in accordance with the following rules -

(i) if she is entitled to ordinary but not additional maternity leave in connection with the pregnancy, the protected period ends at the end of her period of ordinary maternity leave connected with the pregnancy or, if earlier, when she returns to work after the end of her pregnancy;

(ii) if she is entitled to ordinary and additional maternity leave in connection with the pregnancy, the protected period ends at the end of her period of additional maternity leave connected with the pregnancy or, if earlier, when she returns to work after the end of her pregnancy;

(iii) if she is not entitled to ordinary maternity leave in respect of the pregnancy, the protected period ends at the end of the 2 weeks beginning with the end of the pregnancy;

(b)      where a person's treatment of a woman is on grounds of illness suffered by the woman as a consequence of a pregnancy of hers, that treatment is to be taken to be on the ground of the pregnancy;

(c)         a "statutory right to maternity leave" means a right conferred by section 71(1) or 73(1) of the Employment Rights Act 1996 (ordinary and additional maternity leave)."

Before passing to the specific issue of risk assessment, Mr Morrison submitted that the Tribunal were in error in failing to construe section 3A as providing a regime of positive discrimination.  The Tribunal's conclusions in relation to discrimination and risk assessment were set out in paragraphs 24 to 27 of the decision as follows:

"24.  We turn now to the Claimant's complaint of pregnancy related discrimination, brought under Section 3A of the Sex Discrimination Act 1975.  It was a curiosity of this hearing that although the Claimant and Mr Morrison referred repeatedly to the stress which the Claimant experienced during her pregnancy, the conduct of the case before us referred to discrimination matters very little, and where it did, it repeatedly drew on a model which the law does not support.  Mr Morrison repeatedly put to us and to witnesses propositions predicated on the assumption that special adjustment should have been made in favour of the Claimant because of her pregnancy.  It was for example a recurrent theme that once it was known that the Claimant was pregnant (after 13 June 2006) the disciplinary procedure should have been stopped.

  1.  We do not see Section 3A as providing a regime of positive discrimination, of the type implicit in these submissions, and all arguments based on that assumption fail.  There was in any event absolutely no evidence to support the proposition that the Claimant's pregnancy counted as a factor against her in any respect in the disciplinary process.  On the contrary, as Mr Hignett rightly pointed out, at each stage in the disciplinary process where postponements were rendered necessary by her pregnancy, they were readily granted.
  1.  The preceding two paragraphs reflect a difficulty of logic, which undermined much of the case of discrimination.  The events in question in this case began long before the Claimant was pregnant; and had she not resigned, they would have continued after the end of the protected period.  They were, in part, suspended during the protected period.  Those simple facts capture the difficulty which the Claimant had of attributed cause for her difficulties to her pregnancy.  We find that there is no respect in which she has demonstrated such cause to us.

27.   Mr Morrison submitted that the failure to complete a risk assessment constituted sex discrimination as such, and he referred to Hardman v Mallon [2002] IRLR 516 and the note and the summary in the head note of the case as authority for the proposition, 'A failure to carry out a risk assessment in respect of a pregnant woman, as required by the Regulations is sex discrimination.'  We disagree for two reasons:

27.1  Regulation 16 of the Management of Health & Safety at Work Regulations 1999 applies to 'work ... of a kind which could involve risk from any processes or working conditions, or physical, chemical or biological agents;' (Regulation 16(1)(b)); but reference to risk 'from any infectious or contagious disease' is to a level of risk 'in addition to the level to which a new or expectant mother may be expected to be exposed outside the workplace' (Regulation 16(4)).  Drawing those words together, we do not find that the Regulations apply to the work of the Claimant.

27.2 We have in any event found that we do not consider that there was a failure on the part of the Respondent to conduct a risk assessment, in the circumstances set out at 10.11 above."

19. Mr Morrison firstly took us to the framework Directive 89/391/EEC, which sets out general obligations to encourage improvements in the safety and health of workers at work, and Article 5 provides that, "The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work".  He then referred to the Pregnant Workers Directive (PWD 92/85/EEC).  By Article 2 a pregnant worker was defined as a pregnant worker who informs her employer of her condition in accordance with national legislation and/or national practice.  Article 4 then set out the provisions concerning risk assessment in the following terms:

"Assessment and information 1.  For all activities liable to involve a specific risk of exposure to the agents, processes or working conditions of which a non-exhaustive list is given in Annex I, the employer shall assess the nature, degree and duration of exposure, in the undertaking and/or establishment concerned, of workers within the meaning of Article 2, either directly or by way of the protective and preventive services referred to in Article 7 of Directive 89/391/EEC, in order to:

  1. Without prejudice to Article 10 of Directive 89/391/EEC, workers within the meaning of Article 2 and workers likely to be in one of the situations referred to in Article 2 in the undertaking and/or establishment concerned and/or their representatives shall be informed of the results of the assessment referred to in paragraph 1 and of all measures to be taken concerning health and safety at work."

20. Article 5 set out the action further to the result of the assessment:

"Action further to the results of the assessment

  1. Without prejudice to Article 6 of Directive 89/391/EEC, if the results of the assessment referred to in Article 4 (1) reveal a risk to the safety or health or an effect on the pregnancy or breastfeeding of a worker within the meaning of Article 2, the employer shall take the necessary measures to ensure that, by temporarily adjusting the working conditions and/or the working hours of the worker concerned, the exposure of that worker to such risks is avoided.
  1. If the adjustment of her working conditions and/or working hours is not technically and/or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the employer shall take the necessary measures to move the worker concerned to another job.
  1. If moving her to another job is not technically and/or objectively feasible or cannot reasonably be required on duly substantiated grounds, the worker concerned shall be granted leave in accordance with national legislation and/or national practice for the whole of the period necessary to protect her safety or health.
  1. The provisions of this Article shall apply mutatis mutandis to the case where a worker pursuing an activity which is forbidden pursuant to Article 6 becomes pregnant or starts breastfeeding and informs her employer thereof."

21. Article 6 sets out the cases in which exposure is prohibited.

*"Cases in which exposure is prohibited *In addition to the general provisions concerning the protection of workers, in particular those relating to time limit values for occupational exposure –

1. pregnant workers within the meaning of Article 2(a) may under no circumstances be obliged to perform duties for which the assessment has revealed a risk of exposure, which would jeopardize safety or health, to the agents and working conditions listed in Annex II, Section A:

2. workers who are breastfeeding, within the meaning of Article 2(c), may under no circumstances be obliged to perform duties for which the assessment has revealed a risk of exposure, which would jeopardize safety or health, to the agents and working conditions listed in Annex II, Section B."

Those Articles have to be read in connection with Annex I and Annex II B(A).

"ANNEX 1 NON EXHAUSTIVE LIST OF AGENTS, PROCESSES AND WORKING CONDITIONS (referred to in Article 4(1)

A. AGENTS 1.  Physical agents where these are regarded as agents causing foetal lesions and/or likely to disrupt placental attachment, and in particular –

(a) shocks, vibration or movement; (b) handling of loads entailing risks, particularly of a dorsolumbar nature; (c) noise; (d) ionising radiation; (e) non-ionising radiation; (f) extremes of cold or heat; (g) movements and postures, travelling – either inside or outside the establishment – mental and physical fatigue and other physical burdens connected with the activity of the worker within the meaning of Article 2 of the Directive

2.  Biological agents Biological agents of risk groups 2, 3 and 3 within the meaning of Article 2(d) numbers 2, 3 and 4 of Directive 90/679/EEC, in so far as it is known that these agents or the therapeutic measures necessitated by such agents endanger the health of pregnant women and the unborn child and in so far as they do not yet appear in Annex II.

3.  Chemical agents The following chemical agents in so far as it is known that they endanger the health of pregnant women and the unborn child and in so far as they do not yet appear in Annex II – (a) substances labelled R 40, R 45, R 46, and R 47 under Directive 67/548/EEC in so far as they not yet appear in Annex II; (b) chemical agents in Annex I to Directive 90/394/EEC, (c) mercury and mercury derivatives; (d) antimiotic drugs; (e) carbon monoxide; (f) chemical agents of known and dangerous percutaneous absorption.

B. PROCESSES Industrial processes listed in Annex I to Directive 90/394/EEC.

C. WORKING CONDITIONS Underground mining work.

ANNEX II NON-EXHAUSTIVE LIST OF AGENTS AND WORKING CONDITIONS (referred to in Article 6)

B. WORKERS WHO ARE BREASTFEEDING WITHIN THE MEANING OF ARTICLE 2(C)

  1. Agents

(a) Chemical agents Lead and lead derivatives in so far as these agents are capable of being absorbed by the human organism."

22. Those provisions were given effect in the United Kingdom by virtue of the Management of Health and Safety at Work Regulations 1999 regulation 16.

"16  Risk assessment in respect of new or expectant mothers

(1) Where -

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

(2) Where, in the case of an individual employee, the taking of any other action the employer is required to take under the relevant statutory provisions would not avoid the risk referred to in paragraph (1) the employer shall, if it is reasonable to do so, and would avoid such risks, alter her working conditions or hours of work.

(3) If it is not reasonable to alter the working conditions or hours of work, or if it would not avoid such risk, the employer shall, subject to section 67 of the 1996 Act suspend the employee from work for so long as is necessary to avoid such risk.

(4) In paragraphs (1) to (3) references to risk, in relation to risk from any infectious or contagious disease, are references to a level of risk at work which is in addition to the level to which a new or expectant mother may be expected to be exposed outside the workplace."

23. Mr Morrison then took us to the EAT Decision of Hardman v Mallon t/a Orchard Lodge Nursing Home [2002] IRLR 516 a decision of HHJ McMullen QC.  The head note of that case reads that:

"A failure to carry out a risk assessment in respect of a pregnant woman as required by the Management of Health and Safety Regulations is sex discrimination.  Carrying out a risk assessment is one way in which a woman's biological condition during and after pregnancy is given special protection."

The employee had been employed as an assistant in a care home for old and frail ladies.  The Tribunal found that care of elderly or frail residents or patients could involve lifting.   Judge McMullen, in reversing the Tribunal Decision that the failure to carry out a risk assessment was not sex discrimination, reviewed the relevant domestic and European measures and concluded in paragraphs 14 and 15 as follows:

"14.  In our judgment the proper approach is to construe those statutes by reference to the Equal Treatment Directive and to the Pregnant Workers Directive.  It is not necessary for the treatment by the Respondent of the Applicant to be compared with the Respondent's treatment of a comparable male employee, or a non pregnant female employee – see Webb v EMO Air Cargo (UK) Ltd (No 2) [1995] IRLR 645.  In the context of the dismissal of a pregnant employee on the grounds of her pregnancy the House of Lords, applying the judgment of the European Court of Justice on a reference by the House, found that pregnancy was a relevant circumstance within the meaning of Section 5(3), with the consequence that no comparison with a male employee was necessary.  Thus, if the basis of the treatment is pregnancy, it is unlawful, irrespective of the Respondent's comparable treatment of men, or for that matter, non-pregnant women.  Application of the Webb principle was provided in Brown v Rentokil Limited [1998] ICR 790 and Pederson [1999] IRLR 55.  The former is a dismissal case; the latter is a case of disparate treatment of, on the one hand illness, and on the other, pregnancy.

15.   The proper approach in the construction of applicable treatment is to consider not just dismissal but working conditions.  We hold that the scope of the judgment of the European Court in Pedersen, albeit directed at dismissal, is wide enough to include working conditions and to require consideration of the special protection which is to be given to women during and after pregnancy – see paragraphs 14 to 22 of the judgment.  As the Court puts it, the protection of a woman's biological condition during and after pregnancy indicates a special relationship which has to be protected.  One way in which it is protected is by carrying out a risk assessment pursuant to the Management Regulations.  Failure to do so impacts disparately on pregnant workers.  It is, of course, a duty on all employers to carry out a risk assessment but in respect of a pregnant worker a failure to carry out such a risk assessment, in our judgment, is discrimination.  It is the application of the same rule in different situations having an unfavourable impact on a particularly protected worker, here, a pregnant worker.  Thus, direct application of the second part of the European Court's judgment to the answer to the first question in paragraphs 30 and 31 indicates discrimination."

24. Mr Morrison submitted that these specific health and safety requirements should lead to a conclusion that section 3A should support positive discrimination in a more general form relating to possible adjustments in the Appellant's favour.  Certainly before the Tribunal his central contention was that the disciplinary allegations against her should have been dropped and the disciplinary proceedings abandoned in their entirety once it was known that she was pregnant.

25. Mr Hignett on behalf of the Respondents submitted that Mr Morrison's particular complaint relating to paragraph 25 of their judgment was the Tribunal's response in relation to the suggestion that pregnancy could conceivably require a total abandonment of disciplinary proceedings.  He submitted that in general terms it is a consistent theme of the authorities in this area that pregnancy is not an exceptional state of affairs and that the SDA 1975 does not provide for a regime similar to one contained in the reasonable adjustments provision of the Disability Discrimination Act.  He submitted that there are areas such as redundancy, time off and health and safety where the law has imposed particular provisions, and indeed in this particular decision the Respondent's contention that the protection offered to pregnant workers might require disciplinary proceedings to be postponed appear to have been accepted by the Tribunal.

26. We agree with this contention and agree that the Tribunal were quite right in holding that the particular thrust of the Appellant's case with regard to special exceptions and exemptions that she contended should be made in view of a pregnancy sought to apply a model of law, which the SDA 1975 does not support.

**Ground of Appeal 2 *27. "The Tribunal decided there was no need for an individual risk assessment." * As can be seen from paragraph 27 of the Tribunal's Decision, which we have set out above, the Tribunal rejected the proposition that there was a failure to carry out a risk assessment on the basis that the regulations did not apply to the Appellant's work.  The Tribunal's Decision at paragraph 27.1 somewhat surprisingly referred to infectious or contagious diseases but we were informed at the hearing that this was because before the Tribunal Mr Morrison had suggested that the regulations were engaged because the Appellant's work exposed her to stress and also to an extra risk of coughs and colds.

28. Mr Morrison accepted that insofar as the decision in Hardman v Mallon might be construed as setting out a general principle that all pregnant women in work were entitled to the benefit of risk assessment, even though on the facts of the Hardman case the employee in question was involved in the potential lifting of elderly patients, that decision must now be considered in the light of the Court of Appeal's decision in Madarassy v Nomura International Plc [2007] IRLR 246.  That case concerned a senior banker who when becoming pregnant claimed that there should have been a risk assessment in relation to the comfort of Mrs Madarassy sitting before a computer and to the risks of radiation from a computer.  The Employment Tribunal's decision that there should be a risk assessment was rejected on appeal by the EAT.  Nelson J giving the decision of the court dealt with the matter at paragraphs 216 to 221.

"216.  The Tribunal found that the work Ms Madarassy undertook was of a kind which 'could involve risk in relation to physical working conditions in relation to the comfort of an employee sitting before a computer or radiation from the computer.  Ms Madarassy's evidence is not disputed by the Respondent.'  (Paragraph 261).  Ms Madarassy had told the Tribunal that she was 'in pain most of the time as a result of sitting in front of the computer for long periods of time and as a result of overwork.'  (Paragraph 260).  The Tribunal concluded on the basis of this finding that a risk assessment as required by the regulations should have been carried out, and as it was not, Ms Madarassy was less favourably treated.  'Whether or not there was a risk to her is not the issue before the Tribunal.'  (Paragraph 262).

  1.  The Respondent submits that there is no evidence upon which the Employment Tribunal could base a finding that the work could involve risk.  There was no evidence in relation to either comfort or radiation.  Lack of comfort itself is not a risk to health and safety and even if there was pain there is no evidence of risk.  Ms Madarassy was not asserting risk, she was simply saying that there should be an assessment.  The Tribunal could not assume there was radiation or that it causes a risk of miscarriage.  There had to be evidence to establish this and there was none.
  1.  Mr Clarke on behalf of the Appellant submitted that the test was whether the work 'could' involve risk.  An inference could be drawn.  Pain from sitting in a chair for a long time when linked to pregnancy was just enough.
  1.  We are satisfied that there is no obligation to carry out a risk assessment in respect of new or expectant mothers unless the work is of a kind which 'Could involve risk, by reason of her condition, to the health and safety of a new or expectant mother, or to that of her baby, from any processes or working conditions or physical, biological or chemical agents…'  (Regulation 16(b)).
  1.  Even though the assessment required by regulation 3(1) should also include an assessment of such risk, there must in our view be some evidence that the work is of a kind which could involve risk to the health or safety of a new or expectant mother or her baby.  There was no evidence before the Tribunal that there was or might be radiation or that radiation from a computer created any risk to the health or safety or either Ms Madarassy or her baby.  The only evidence relating to risk to health from sitting in front of a computer was Ms Madarassy's evidence that she experienced pain when sitting in front of a computer for a long period of time and as a result of overwork.  There was in our view therefore no evidence as to risk from radiation and we are unclear as to the evidence upon which the Tribunal was basing its finding that there was risk to the comfort of an employee sitting before a computer.  Has the Tribunal equated pain with discomfort and discomfort with risk, and if so upon what basis?
  1.  We do not consider that the Tribunal has given adequate reasons for its finding that the complaint under paragraph 1.12 of failure to carry out a health and safety risk assessment succeeded."

On a further appeal to the Court of Appeal Mummery LJ said this at paragraphs 133 to 138:

"133.  Ms Madarassy's case was that proof of some risk was not required before the 1999 Regulations imposed an obligation on Nomura to undertake a risk assessment.  The purpose of the assessment was to determine whether such a risk exists in relation to the vulnerable category of workers.  It was not for the pregnant worker to identify a risk.  It was the function of the risk assessment to do that.  Failure to carry out the protective step of an assessment required by Regulation 16 was sex or pregnancy discrimination and was a "detriment" within section 6(2)(b) of the 1975 Act.  The decision of the Employment Appeal Tribunal in Hardman v. Mallon t/a Orchard Lodge Nursing Home [2002] IRLR 516 at paragraphs 14-15 was cited on the disparate impact on pregnant workers of a failure to carry out a risk assessment under the 1999 Regulations and the automatic unlawful discrimination which occurs in such a case.  In that case there was direct medical evidence that the employee's work, as a care assistant in a nursing home for the elderly, could involve heavy lifting, which posed a risk to her or her baby's health and safety.

  1.  If, contrary to her submission that it was not necessary to identify a potential risk, it was necessary to do so, it was submitted that there was such evidence of risk in the form of Ms Madarassy's unchallenged evidence as to radiation exposure and the findings of the employment tribunal (paragraphs 260-261).
  1.  Nomura contended that its obligation as employer did not arise unless 3 conditions are satisfied by the evidential material before the employment tribunal.  The work must be of a kind (a) which could involve risk, (b) by reason of her condition, (c) to the health and safety of a new or expectant mother, or to that of her baby.
  1.  As to the employment tribunal's conclusion  (in paragraph 261) that Nomura's obligation arose in relation to the comfort of Ms Madarassy sitting before a computer and to radiation from a computer, Nomura submitted that there was no evidence, expert or otherwise apart from some general statements made by Ms Madarassy herself about pain and discomfort, as to her working conditions or as to discomfort and radiation in particular.  The tribunal had reached a conclusion without evidence to support it.  It had confused discomfort with risk to health and safety.  In particular, it had not found that radiation from the computer could involve risk to health or safety nor was there any evidence of detriment to Ms Madarassy on which a complaint of discrimination could be founded.
  1.  Mr Allen responded that it was sufficient to establish a possible risk and that Ms Madarassy suffered detriment in not getting the benefit of a risk assessment.
  1.  On this point I agree with the Employment Appeal Tribunal (paragraphs 216-221) that the employment tribunal erred in law.  It did not make an express finding of a risk to health and safety arising from exposure to radiation emitted from the computer; nor was there evidence before it on which it could make such a finding.  A finding that the work involved potential risk to health and safety was necessary before there was an obligation on Nomura under Regulation 16 to carry out a risk assessment."

29. Mr Morrison submitted that the Appellant's work did involve a potential risk to health and safety which should have been identified by the Tribunal.  Firstly he referred to the fact that the school did commence a risk assessment form, which identified a number of categories of risk to a teacher, although they had been marked by the Head Mistress all at the lowest level.  In particular there was a hazard headed "Stress", which could cause harm in the category of anxiety and increased blood pressure, and he referred to the fact that the Appellant's medical certificates presented in June 2006 referred to stress.  He also referred to the grievance filed in March 2007 which specifically referred to the failure to carry out a risk assessment.

30. In response Mr Hignett argued that Madarassy made it clear that there was no general obligation to carry out a risk assessment on pregnant employees with the result that failure to carry out such a risk assessment was discrimination per se, and he contended that whilst it may be prudent for employers to carry out risk assessment for all pregnant workers, it was clear from the language of the Directive and the UK Regulations that we have set out above that the obligation to carry out a risk assessment of a pregnant worker would only be triggered in certain circumstances.  He suggests therefore that the following preconditions would have to be met.  (a) that the employee notifies the employer that she is pregnant in writing (clearly satisfied in this case), (b) the work is of a kind which could involve a risk of harm or danger to the health and safety of a new expectant mother or to that of her baby, (c) the risk arises from either processes or working conditions or physical biological chemical agents in the workplace at the time specified in a non-exhaustive list at Annexes I and II of Directive 92/85/EEC.  We agree with that analysis.

31. Mr Hignett further submitted that as to the kind of work the Appellant was employed as a primary school teacher; at the Tribunal hearing there was much discussion about what if any risks of harm or danger it was contended by her were associated with this type of work.  Mr Morrison's submissions related to the stressful nature of the work in general terms, but beyond this he was unable to identify any other risks of harm or danger associated with work as a primary school teacher at the school.  We therefore agree with Mr Hignett that in the circumstances, in the absence of the stress point, there was no material before the Tribunal which it could have concluded that the kind of work carried out by the Appellant involved a risk of harm or danger to her as a pregnant worker as defined by the Directive and Regulations.  Insofar as it is argued that the disciplinary proceedings amounted to a working condition which was capable of triggering the obligation to carry out a risk assessment, we agree with Mr Hignett's submissions that firstly this argument was not advanced before the Tribunal, and secondly we do not agree that an individual facing disciplinary proceedings would amount to a working condition or process of the type envisaged by the Regulations.

Ground 3 32. "The Tribunal decided that the Respondents had not failed to carry out a risk assessment." As will be seen from paragraph 27.2 above, the Tribunal determined in the alternative that even if there was an obligation to carry out a risk assessment, there was no failure on the Respondent's part, citing the circumstances in paragraph 10.11 of the judgment, which again we have referred to above.  That paragraph firstly determined that Mrs Cox had drafted the assessment in default format although had not completed it in conjunction with the Appellant, and secondly gave reasons why the form had not been completed either at the end of the summer term or the beginning of the autumn term.

33. Mr Morrison argued that although the Regulation 16 did not require the risk assessment to be prepared in conjunction with the employee, the process could not be regarded as completed without obtaining the employee's input into the assessment, and indeed that appears to have been recognised by Mrs Cox.  As to the findings in relation to the delay in a meeting between Mrs Cox and the Appellant, Mr Morrison criticises the Tribunal's findings firstly in relation to the implication that the Respondents were somehow relieved of their obligation because of the problems in relation to communication between Mrs Cox and the Appellant.  Indeed he suggests that there was evidence before the Tribunal that Mrs Cox had met the Appellant on or about 20 July for her annual appraisal.  He argued that the Code of Practice paragraph 96 advised that the risk assessment triggered by the worker notifying her employer of the pregnancy should be carried out immediately after the employer was notified.  He argued that any significant delay could create a period when risks might not be avoided.

34. In response, Mr Hignett in dealing with the suggestion that the risk assessment process could not be regarded as completed without obtaining the Appellant's input referred us to Stevenson v Skinner UKEAT/0584/07/DA where HHJ McMullen giving the judgment of the EAT said this at paragraph 35:

"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.

  1.  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.
  1.  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."

35. Mr Hignett reminded us that whilst in Article 4(2) of the Pregnant Workers Directive there was a requirement to inform a pregnant worker of the results of the risk assessment and similarly under Regulation 10(1) the employer had to provide the employee with comprehensive and relevant information on the risks to their health and safety identified by the assessment, there was nothing in either the Directive or the Regulations to indicate that a meeting with the employee concerned was required before the obligation to carry out a risk assessment was satisfied.  It seems to us therefore that the Tribunal were correct in their alternative view that a risk assessment had been carried out notwithstanding that a meeting had not taken place.

36. If we are wrong on this aspect and that a meeting is required, we cannot agree with the Tribunal's views that the reason for delay given by Mrs Cox was in any way acceptable, and that therefore taken by itself the delays would amount to a failure.

37. On this area Mr Morrison also argues that the existence of an assessment form within the school should have led the Tribunal to come to the conclusion that the work of a pregnant teacher did involve some or all of the risks set out in the schedule.  We cannot agree.  Madarassy makes it clear that for the Tribunal to be able to conclude that there was a failure to carry out an assessment there had to be some evidence that the work at the school was of a kind, which could involve risk to the health or safety of a new or expectant mother or her baby, and there were no findings to that effect in this decision.

Ground of Appeal 4 38.* "The Tribunal did not make a finding as to whether the Appellant suffered detriment during her protected period." It is clear that the Tribunal did not consider whether if there was a failure to carry out an individual risk assessment any detriment was suffered.  Mr Hignett suggests that the Madarassy decision requires three elements; firstly that it must be shown that the employer was under an obligation to carry out a risk assessment, secondly that there was a failure, and thirdly that there was resulting detriment from that failure.  The Tribunal in answering the first two elements in the negative did not go on to consider the third element.  On a basis of the Hardman case we do not believe that a proof of detriment is necessary.  Indeed Mummery LJ, in referring to the EAT Decision in Hardman in paragraph 133 of Madarassy*, spoke of the "automatic unlawful discrimination, which occurs in such a case".  Certainly HHJ McMullen's decision would appear to support the contention that if obligation and failure is established, discrimination results.

Ground of Appeal 5 39. "Having failed to recognise the legal footing of a discrimination case the Tribunal dismissed the entirety of the Appellant's evidence of both claims; in doing so it erred in law by (1) subsuming a case not pleaded without giving notice it was doing so, (2) it exceeding its jurisdiction, (3) applying the wrong burden of proof." In paragraphs 11 to 13 of the Tribunal's Decision the Tribunal set out what they term the Tribunal's approach in dealing with the assessment of the evidence.

"11.  This was a case in which the Tribunal could not avoid the task of comparing two sets of evidence and deciding which side it preferred.  We have preferred the evidence on behalf of the Respondent.  In doing so, we stress that the greater number of witnesses on behalf of the Respondent and the professional representation for the Respondent were not factors.

  1.  In rejecting the Claimant's case, we had to consider the underlying tendency of her claim.  It was that Mrs Cox, in her 35th year of teaching, and Mrs Lawson in her 27th year of teaching, knowingly and in good faith conspired with Mrs Scragg to undermine the Claimant from her post, doing so in school time and with use of school resource, and for no reason or motive which was sensibly to put to us.  The Claimant never addressed the logical problem that the difficulties which she complained of long preceded her pregnancy, and, for that matter, any reference to trade union assistance.  Furthermore, accepting the Claimant's case would require us to find with the Claimant that Mrs Cox created false documents; and that the three teacher witnesses deceived school governors and the County.  We found all three teacher witnesses to be witnesses of truth, committed to the education service and to their own professionalism.
  1.  To the extent furthermore that the Claimant alleged that Mr Baxter and Mr Burke were complicit in this process, we reject that allegation.  They were school governors out of a sense of duty and public service, and to assist the development of education for the sake of children.  We could find no basis for suggesting that they would be so neglectful of their duties and responsibilities, and of the welfare of children, as to collude with the teacher witnesses in any wrong-doing."

Mr Morrison argued that the Tribunal in these paragraphs had introduced an element of negative discrimination into the Appellant's case, suggesting that a complaint was that the staff had conspired to undermine her and treat her less favourably because she was pregnant rather than the claim that she asserted, which apart from the issue of risk assessment, offered a list of actions which she contended the Respondents should have taken in order to accommodate her particular needs.  He argued that the Appellant had not placed her case on the basis that the Respondent's attitude was caused because of her pregnancy and/or the fact that she had availed herself of the statutory right to maternity leave.  In response Mr Hignett submitted that the paragraphs complained of were the Tribunal's general reasons and their approach to the issue of credibility where there was a clear conflict on the history between the parties.  The Appellant's case was one of less favourable treatment because of her pregnancy, although framed in positive terms and referring to actions the Appellant contended the Respondents ought to have taken in view of the fact that she was pregnant.  Thus the case as argued was that the failure to make certain exceptions and exemptions on her behalf amounted to as less favourable treatment and thus the case required the Tribunal to consider the reason why the Appellant was treated as she was.

40. We agree with these submissions.  Although paragraph 24 did not set out in detail the seven actions which the Appellant contended should have been taken, the clear emphasis of her case was that the disciplinary investigation should have been ended because of her pregnancy and/or the illness late in that pregnancy.  The other suggestions involved for example a prompt investigation of her grievances.  The Tribunal early on in their decision gave their reasons why the Respondents thought it appropriate to delay matters and the Tribunal found that the employer's approach was quite acceptable.  The paragraphs of which Mr Morrison complained, (particularly paragraph 12), in our view are no more than the Tribunal examining the issue of credibility in setting out its reasons why it preferred the evidence of the Respondent's witnesses as opposed to the Appellant.  Given that there was a substantial dispute of fact in this case, we do not read paragraph 12 as a legal approach of the Tribunal either to the complaint of discrimination or constructive dismissal.  We do not read that paragraph as a consideration of motive in the context of determining whether that had been unlawful discrimination, but only in the context of examining which party's evidence should be preferred.

Ground of Appeal 6 41. "The Tribunal did not apply the correct legal test to the Respondent's actions *and admissions in considering the Appellant's constructive dismissal claim." The Tribunal's conclusions on constructive dismissal were set out in paragraph 17 onwards, having referred to the well-known authority of Western Excavating (EEC) Ltd v Sharp [1978] IRLR 27 and Malek v BCCI* [1997] IRLR 462.  Having reminded themselves of the issues concerning the Appellant's conduct and performance, and the way that it was managed in relation both by Mrs Cox and then Mr Baxter and Mr Burke, and having found some criticism in the fact that the Appellant's case was due to be heard by the "Dismissals Committee" and that it was not until seven months after referral to that panel that she was told in writing that her employment was not at risk, the Tribunal reached their conclusion in paragraphs 20 to 23 as follows:

"20.  Drawing the above matters together, we do not consider that the Claimant has demonstrated that the Respondent without cause engaged at any point or in the slightest respect in action likely or calculated to destroy or seriously damage the relationship of trust and confidence between employer and employee.  We find that its actions were not of that nature, but were legitimate actions of management.  Furthermore, we find that the Respondent acted at all times with reasonable and proper cause, and that the slight matters upon which we have expressed criticism or concern are not matters which we consider to be breaches of contract, and certainly not matters going to the heart of the relationship such as to amount to a fundamental breach.

  1.  The Claimant submitted that she resigned in response to these matters.  Mr Morrison's summary of the final straw is set out at 10.25 above.  Mr Hignett submitted that as the Claimant had given notice of her intention to return to work on 22 June 2007, nothing before then can have destroyed her trust and confidence in her employer; and that she resigned later to avoid the disciplinary proceedings.  We find the first half of this submission compelling, and one which the Claimant was unable to answer satisfactorily in cross-examination.  We find that events before 22 June 2007 cannot in logic have led to the Claimant's resignation, because she exercised informed choice to return to work after they had taken place.
  1.  We do not find that the Claimant resigned because, as she said, the denial of documents requested under the Data Protection Act had denied her a fair trial at the disciplinary hearing.  First, the documents had not been denied, and, as the Claimant well knew, there were likely to be delays in dealing with a school management issue during school holidays; secondly, the Claimant had, by then, seen that every reasonable procedural accommodation which she had asked for in the disciplinary procedure had been granted; she had also had the advice of the NUT.  The disciplinary hearing was far from imminent, and there remained time and opportunity to prepare for it.  The Claimant had no reasonable basis for believing that she would be compelled to go through the hearing without access to potentially significant documents.  In our judgment, the Claimant realised in the summer of 2007 that she had exercise her right to gain maximum financial benefit during her maternity leave, but that she would immediately have to return to a full work load, leaving a new baby at home, to work with colleagues with whom working relationships had deteriorated badly, and facing a disciplinary hearing.  We find that she resigned so as to avoid everything that would follow from her return to work.
  1.  The Claimant has, in our judgment, failed to make good any of the elements of a claim of constructive dismissal.  It follows that her complaint of constructive dismissal fails and is dismissed."

42. Mr Morrison contended that the Tribunal failed to consider the impact of the employer's actions and admissions on trust and confidence against the then treatment to which he claims the Appellant was entitled during her protected period.  We do not agree that was the correct approach.  The constructive dismissal claim was based on specific breaches as defined at the PHR and in relation to the pregnancy issue there were three possible issues.  Firstly the Respondent's handling of the health and safety assessment risk assessment of the Claimant as a pregnant woman.  Those matters were dealt with in paragraphs 10 and 11 of the Decision that we have already outlined.  Secondly the treatment of the Appellant is the result of her ill health and/or pregnancy.  Again they were dealt with in the history that we have outlined culminating in the Respondents readily agreeing to postpone the disciplinary hearing.  Thirdly delaying holding the grievance appeal hearing, which eventually was determined to take place once the disciplinary hearing had been concluded.  Those were the issues that had been raised at the preliminary hearing and we are satisfied were dealt with by the Tribunal.  Mr Morrison in his submissions has sought to raise other failures arising from the pregnancy but they were not issues before the Tribunal.

Ground of Appeal 7 43. Finally Mr Morrison submitted that the Tribunal applied the wrong legal test to the final straw doctrine in suggesting that the events before 22 June cannot in logic have lead to the Appellant's resignation because she exercised informed choice to return to work after they had taken place.  He suggests that this negates the principle in Lewis v Motorworld Garages Ltd [1985] IRLR 465 and that even if an employee had not resigned in response to previous breaches a Tribunal could be entitled to add such breaches to other actions, which taken together may cumulatively amount to a breach of implied obligation of trust or confidence.  We do not read paragraph 21 in this way.  Clearly the earlier events would not prevent them being used together with whatever event amounted to the final straw.  All that the Tribunal were saying was that as at 22 June the Appellant was not saying that trust and confidence had broken down, rather that she wanted to return to work.  We find no error in that approach.

Conclusion 44. Therefore, for the reasons that we have indicated, this appeal is dismissed.

Published: 05/01/2010 13:47

Sign up for free email alerts

Email address
First name
Last name
Receive daily
Receive weekly
I agree to this site's terms and conditions

message