MS C PAGE v GALA LEISURE & OTHERS [2001] UKEAT 1398_99_2601

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1398_99_2601

Case No Appeal No. EAT/1398/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS C PAGEAPPELLANT

GALA LEISURE & OTHERSRESPONDENT

Before

Mr Justice Lindsay

Date 26 January 2001

[1]APPEARANCES For the Appellant THE APPELLANT NEITHER BEING PRESENT NOR REPRESENTED For the Respondents MR T KIBLING (of Counsel) Richard Hutchinson & Co 36 The Ropewalk Nottingham NG1 5DW MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of full hearing the appeal of Ms Cindy Page in the matter Page v Gala Leisure Ltd, Mr Ken Turner and Mrs Margaret Freeman . At earlier stages Ms Page had been represented by or through the good offices of the Gravesham Citizens Advice Bureau in Gravesend but no one has appeared today for Ms Page and Mr Kibling, who appears for all three respondents, understands that the position was intended to be that no one should appear for her, in the sense that it is not that no one appears because there has been some late inability to attend or illness or anything of that nature and so we have to go ahead without anything being said on behalf of the appellant. The appeal involves a close look at the Management of Health and Safety at Work Regulations 1992 They have been replaced from 29th December 1999 by the current Regulations in 1999 SI 3242 but it is the 1992 Regulations that were applicable at the times material to the appeal.

[2]On 1st May 1999 Ms Page lodged an IT1. She had been employed, she claimed, only from 1st March 1999 to 16th April 1999, just 1½ months. That closing date, 16th April 1999, was a Friday. She claimed sexual discrimination and constructive unfair dismissal related to her pregnancy. She had been employed for general bar and restaurant work. She had, she said, disclosed to her employer that she was pregnant only on 29th March 1999, which was a Monday. No mention was made in her IT1 of her working in an unacceptably smoke-laden atmosphere. I mention that simply because at some later points that seemed to have been asserted.

[3]On 17th May 1999 there was an IT3 from Gala Leisure, which denied Ms Page's claims. On 28th and 29th May 1999 Mr Ken Turner, her manager, and Mrs Margaret Freeman, her assistant manager, put in IT3s in the same terms as that of the company. It is not entirely clear to me that they had been intended to be respondents, but they, at any rate, put in IT3s.

[4]On 12th July 1999 there was a directions hearing before the Chairman, Mr D E de Saxe. On 16th July 1999 the Order growing out of that directions hearing was sent to the parties. The important paragraph for immediate purposes was paragraph (2):

"It is recorded that the Respondents did not complete a risk assessment in respect of the Applicant."

The reasons on the following page said, at paragraph 2:

"It is recorded that the Respondents gave as the reason for not having completed a risk assessment on the Applicant that they only knew that she was pregnant in the last two weeks of her employment. That is why no completed risk assessment can be disclosed. All other documents on which the Respondents intend to rely at the hearing have been disclosed."

It would seem from that, according to her employer, that Ms Page had told her employer of the pregnancy on or after 2nd April 1999, which was a Friday, she having been aware of the pregnancy from Monday of the same week.

[5]On 24th September 1999 there was a hearing before the Employment Tribunal – not before Mr de Saxe as Chairman, but Mr T N May and two lay members. On 15th October 1999 that decision was sent to the parties. It was unanimous and it was:

"a) The Applicant did not suffer any detriment by means of sexual discrimination. b) The Applicant was not entitled to terminate her contract without notice by reason of the Respondents conduct. c) That Kenneth Turner and Margaret Freeman were not guilty of discrimination against the Applicant. d) By reason of the above decisions the Tribunal find that the Applicant's application is dismissed."

[6]On 24th October 1999 a Notice of Appeal was received by the Employment Appeal Tribunal on behalf of Ms Page and it raises only three points and they are of a relatively technical nature. The first point is this:

"… The Tribunal considered a 'safe Manual Handling' to be a risk assessment in compliance with regulation 13A. We submit that this is not a decision a reasonable Tribunal could make."

We will be coming on to Regulation 13A. That is the first of the three points. The second is this:

"At a hearing for directions held at the Employment Tribunal, Ashford on 12th July 1999. It was recorded at paragraph (2) 'It is recorded that the Respondents did not complete a risk assessment in respect of the applicant'. We would therefore submit that it is perverse for the full Tribunal to reach a decision contrary to the respondent's admission at the first Tribunal."

That is the second point. The third is this:

"Further we would argue that the matter of the completion of the risk assessment was Res Judicata and therefore the Tribunal should not have made a further ruling."

[7]It is necessary to look at some of the Regulations and Rules before going further.

(a) of the Employment Rights Act 1996 says:

"An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if- (a) the reason or, if more than one, the principal reason for the dismissal is that she is pregnant or any other reason connected with her pregnancy."

Section 94(1) says:

"An employee has the right not to be unfairly dismissed by his employer."

Section 108(1) says:

"Section 94 does not apply to the dismissal of an employee unless he has been continually employed for a period of not less than one year ending with the effective date of termination."

But subsection (3) says:

"Subsection (1) does not apply if- … (b) subsection (1) of section 99 (read with subsection (2) of that section) or subsection (3) of that section applies."

Accordingly a route out of the bar, otherwise an impediment to Ms Page's claim for unfair dismissal that she would otherwise suffer because she had only been employed for 1½ months, would be if she could show that her dismissal was, principally at least, by reason of her pregnancy or some reason connected with the pregnancy. Moreover, under the provisions, if she could show that, her dismissal would automatically, as it is said, be regarded as unfair, so that it was important for her to try and connect her dismissal with pregnancy. That was one part of the case. Another part of the case concerned Health and Safety Regulations. So far as they are concerned, we need to look at the Management of Health and Safety at Work Regulations 1992 , regulation 3(1) to start with:

"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 while they are at work; and (b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking, for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997."

Subparagraph (3) says:

"Any assessment such as is referred to in paragraph (1) or (2) shall be reviewed by the employer or self-employed person who made it 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 or self-employed person concerned shall make them."

Subparagraph (4) says:

"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."

Regulation 4 says:

"(1) Every employer shall make and give effect to such arrangements as are appropriate, having regard to the nature of his activities and the size of his undertaking, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures. (2) Where the employer employs five or more employees, he shall record the arrangements referred to in paragraph (1)."

I do not think it is necessary to read Regulation 12(1) and (2) but we have them in mind and Regulation 13A we do need to refer to:

"(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, be reason of her condition to the health and safety of a new or expectant mother, or 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 mothers and workers who have recently given birth or are breastfeeding, the assessment required by regulation 2(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 46 of the 1978 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."

Then in 13C:

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

In 13C(2) there are provisions such that the employer need not maintain action taken in relation to an employee in particular cases and they are identified. Regulation 15 says:

"(1) Breach of a duty imposed by these Regulations shall not confer a right of action in any civil proceedings. (2) Paragraph (1) shall not apply to any duty imposed by these Regulations on an employer- (a) to the extent that it relates to risk referred in regulation 13A(1) to an employee; …"

[8]That shows that there are two levels or types of risk assessment or consideration that may be material where an undertaking employs women of childbearing age. First of all there is the general duty to assess risk under Regulation 3(1) taken together with 13A(1). If the case is - looking at the operations, processes and so on of the employer - that 13A(1)(b) fits, then the need for this general type of assessment arises not by reason of any particular pregnancy being notified to the employer but simply by reason of his employing one or more women of childbearing age in the undertaking – see Regulation 13A(1)(a). We see no reason why the word 'processes' in 13A(1)(b) should exclude operations such as the repeated shifting or lifting of object of a weight of a kind such as might be material to the health and safety of a pregnant woman. As Ms Page's duties included the moving of shopping on behalf of the employer from the nearby Tesco's Store to the employer's premises and as she complained (and it is not said without justification) that upon her pregnancy the shifting of the shopping was becoming too heavy for her, we think it right to proceed on the basis that 13A(1)(b) was satisfied on the facts of this case. Accordingly, there should have been a general Regulation 3-cum-13A(1) risk assessment. There is no reason to suppose that Ms Page's reaction to the weight of the shopping was untypical of the reaction of pregnant women generally and, indeed, a fortiori , that it was not untypical of the reaction of women more heavily pregnant than Ms Page was, because it would seem likely and we can only say likely, that her complaint was made in the relatively early stages of pregnancy. Accordingly, unless, as is highly improbable, it was only when she entered the employ of this undertaking that for the first time the undertaking employed one or more women of childbearing age, the position should have been that under 13A(1)(b), that condition being satisfied, the Regulation 3 cum 13A(1) risk assessment should have been done before Ms Page joined the company and certainly as she joined the company. That risk assessment which should have taken place would either have identified measures needed to be taken under "the relevant statutory provisions" or not.

[9]In respect of that general type of assessment the Employment Tribunal had before it a document - "The Safe Manual Handling" document. They explained its contents, they said:

"7 The Applicant commenced employment on the 1 March 1999, and underwent an induction, during the terms of her employment were explained. She was also taken through a 'Safe Manual Handling' staff pack dated January 1999, which explained in detail how safe handling should be undertaken, in particular the Manual provides: ( "

If you think the load to be moved is beyond your abilities, you must get help from a colleague". ( "Remember get help or use mechanical aids provided if you have any doubt about moving the object yourself!!" ( "Determine whether the load is within your capabilities" ( "Always take into consideration … personal capacity" The Applicant signed this to confirm that she had received a copy of the Manual, and had read and understood the same. That acknowledgement was dated 16 March 1999." As to that document the tribunal held in paragraph 30:

"The Tribunal have considered the provision of the Management of Health and Safety at Work Regulations 1992 and the Tribunal have considered the Safe Manual Handling document. The Tribunal find that in the light of the nature of the Applicant's employment this document represented the risk assessment carried out by the Respondents in accordance with the duty falling upon them under the above Regulations in respect of women of child bearing age."

It is notable that the reference there in respect of women of childbearing age indicates that this was the general type of risk assessment that was in mind. It is a conclusion that is, perhaps, a little surprising, but, absent of sight of the document concerned and a full picture of the nature of the company's operations, we are certainly not in a position to say that no Employment Tribunal could reasonably have concluded as this one did. That, accordingly, disposes of the first ground of appeal, which therefore fails.

[10]So much also for the first and general level of risk assessment. But there is a more particular level of assessment or consideration and other action that can become necessary. The second level or type of consideration arises when an employee gives notice of her pregnancy to the employer in writing or has given birth within the previous six months or is breastfeeding. Until then, the employer is not required to take action – see Regulation 13C(1) - of the particular kind described in the Regulations. Merely the giving of notice of pregnancy etc. does not oblige the employer to take action under 13A(2) or (3) but he is not obliged to take action unless such notice has been given. Under this second level the employer needs to consider, in relation to the particular individual who has given the notice, whether, even if the relevant statutory provisions were complied with, risk of the kind described in 13A(1)(b) would still not be avoided. If that is the case, the employer, if it is reasonable to do so and would avoid such risks, can then alter that individual's working conditions or hours – see 13A(2) – but if doing so would not avoid such risks or would not be reasonable, then the employer would have to suspend that individual under 13A(3). For completeness, if the employer takes steps under 13A(2) or (3) there may well be or will be a point where he is no longer obliged to maintain such steps – see 13C(2). It is in the light of that reminder that there are two kinds of assessment or consideration, one general and one particular or individual, that one has to find the meaning of the recording at the directions hearing that:

"It is recorded that the Respondents did not complete a risk assessment in respect of the Applicant."

And that:

"It is recorded that the Respondents gave as a reason for not having completed the risk assessment on the Applicant that they only knew that she was pregnant in the last two weeks of her employment. …"

That is plainly a reference to it being accepted by the respondents that there had no completed assessment or consideration of the particular or individual kind. That is quite plain from the references to the risk assessment being "on the applicant" or "in respect of" the applicant. The point about there being no formal notice of pregnancy also only applies to that kind of case. Thus understood, there was nothing about the order of 16th July 1999 at the directions hearing which precluded an examination by the Employment Tribunal at the full hearing of whether or not there had been a general assessment "in accordance with the duty falling upon them under the above Regulations in respect of women of childbearing age". That, therefore, disposes of the second ground of appeal, which therefore fails.

[11]As whether it was res judicata that there was no completed risk assessment, it was only the individual or particular level of consideration which could be regarded as already adjudicated upon as not having been completed. There was nothing that precluded the Employment Tribunal from arriving at the view which they did as to the general type of assessment made under regulation 3(1) cum 13A. Moreover, we would add as, indeed, Mr Kibling does, that there is no indication or hint that the point as to res judicata was taken at the full hearing. That, therefore, disposes of the third ground of appeal.

[12]Mr Kibling was well-armed to address us more generally that the decision arrived at was far from perverse but Ms Page has not attended to raise any argument and we see no ground for going beyond the particular and technical grounds taken in the Notice of Appeal. We do not by that mean to suggest that there was no answer on more general points that could possibly have been raised, but, limiting ourselves to the points that were raised, we see no error of law in the tribunal's decision and, having dealt with all the grounds raised, we must dismiss the appeal.