MRS J B HARDMAN v MISS M MALLON T/A ORCHARD LODGE NURSING HOME [2002] UKEAT 0360_01_2503

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0360_01_2503Case No Appeal No. EAT/0360/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J B HARDMANAPPELLANTMISS M MALLON T/A ORCHARD LODGE NURSING HOMERESPONDENT
Before
His Honour Judge J McMullenDate 25 March 2002
[1]APPEARANCES For the Appellant MS TESS GILL (of Counsel) Equal Opportunities Commission Arndale House Arndale Centre Manchester M4 3EQ For the Respondent MISS M MALLON (The Respondent in person) HIS HONOUR JUDGE J MCMULLEN QC This case is about sex discrimination and maternity rights. It is an appeal by the Applicant in those proceedings against a reserved decision of an Employment Tribunal, Chairman, Mr D Reed, sitting at Liverpool on 5 December 2000, promulgated with Extended Reasons on 30 January 2001. The Applicant and the Respondent appeared in person. The Applicant claimed sex discrimination and breach of the Employment Rights Act 1996 , Sections 67 and 70, that is, a failure to offer alternative employment to a women suspended on maternity grounds, including a claim that there had been a failure to carry out a risk assessment. The issues before the Tribunal therefore revolved around the Sex Discrimination Act and the Employment Rights Act .[2]The Tribunal decided that the Respondent did not discriminate against the Applicant contrary to the Sex Discrimination Act 1975 but it upheld her case under Sections 67 and 70. The case was adjourned for a remedy hearing to assess compensation. We understand that remedy hearing has now taken place and the Applicant has been awarded by the Tribunal the sum of £2,362 which include all her economic losses stemming from the breach of the Employment Rights Act . What is yet to be determined is the issue relating to sex discrimination.[3]The Respondent runs a home for old and frail ladies (she told us today) with a staff of 16 looking after 18, all aged over the age of 80. The Applicant was employed by the Respondent in July 1999. In November 1999 she informed the Respondent that she was pregnant. Throughout February 2000 she was on non-pregnancy related sick leave and returned on 28 February. On 5 March she attended the Respondent's office to discuss the need for a risk assessment. She was offered by a cleaner's job. The Applicant wrote on 7 March refusing the cleaner's job as being less favourable than her existing job as a care assistant. The Applicant again wrote claiming the right under the Employment Rights Act to suspension on full pay. A week later there was a further discussion between the Applicant and the Respondent in which certification was sought and, on 4 April, provided, indicating that the Applicant should refrain from heavy lifting. As is well known, care of elderly frail residents or patients does involve lifting. A meeting took place following that certification. The Respondent repeated her offer of a cleaning job but did not specify the hours or pay. The Applicant was dissatisfied and presented her Originating Application.[4]It is not clear to us when the relationship ended but it had certainly come to an end by the time of the remedy hearing in this case. The Tribunal decided partly in favour of the Applicant and partly against her. The statutory framework against which this appeal is heard includes matters of domestic and European law. The Tribunal directed itself by reference to the relevant domestic law, that is, the Employment Rights Act 1996 , certain parts of the Sex Discrimination Act 1975 , the Management of Health and Safety Regulations 1999 and the leading authority Day v Pickles [1999] IRLR 217 EAT which is cited in its Extended Reasons, but not followed.[5]Ms Gill, has presented a carefully argued skeleton argument on behalf of her client who is assisted by the Equal Opportunities Commission and we are very grateful to her for setting out the arguments fairly, bearing in mind that the Respondent appears before us today in person. As Ms Gill engagingly put it, the Tribunal did not look very far in the Sex Discrimination Act when considering what leeway is given for what is loosely described as positive discrimination in respect of workers who require particular protection, including pregnant workers. The Tribunal concluded that the Management Regulations require a risk assessment but none was made. There was thus a breach. The Applicant suffered no detriment under the Sex Discrimination Act as she was not treated less favourably than a man or, indeed, than a non pregnant woman. No offer was made by the Respondent, pursuant to the Employment Rights Act 1996 , sections 67 and 70, of suitable alternative employment, or to pay her. In those circumstances, the decision was partly in the Applicant's favour.[6]In practical terms therefore, this case now survives as indicating an important question of law relating to the application and interplay of the domestic and European Union measures on employment protection and health and safety. Again, in practical terms, the sole issue which arises if the Applicant succeeds is her claim for compensation for injury to feelings.[7]The Applicant submitted that the Employment Tribunal had erred in law in its application of the domestic legislation. It is therefore necessary first to turn to the Sex Discrimination Act 1975 which provides in relevant part as follows:
"1 Sex discrimination against women (1) A person discriminates against a woman if any circumstances relevant for the purposes of any provision of this Act if – (a) on the ground of her sex he treats her less favourably than he treats or would treat a man, …. 2 Sex discrimination against men (1) Section 1, and the provisions of Parts II and III relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite. (2) In the application of subsection (1) no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth. 5 Interpretation (3) A comparison of the cases of persons of different sex ….under section 1(1) …. must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. 6 Discrimination against applicants and employees (2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her – … (b) by dismissing her, or subjecting her to any other detriment. 51 Acts done for purposes of protection of women (1) Nothing in the following provisions, namely – (a) Part II …. shall render unlawful any act done by a person in relation to a woman if – (i) it was necessary for that person to do it in order to comply with a requirement of an existing statutory provision concerning the protection of women, or (ii) it was necessary for that person to do it in order to comply with a requirement of a relevant statutory provision (within the meaning of Part I of the Health and Safety at Work etc Act 1974) and it was done by that person for the purpose of the protection of the woman in question (or of any class of women that included that woman)."
[8]The Management of Health and Safety Regulations deal with the protection of workers and the carrying out of risk assessments. The relevant Regulations provide: "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; 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 …" "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 …. 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 …, the assessment required by regulations 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." 18 Notification by new or expectant mothers (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, has given birth within the previous six months, or is breastfeeding. 22 Exclusion of civil liability (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 to in regulation 16(1) to an employee; or ... No issues arise about notification in this case. It is accepted by the Tribunal that the requisite notice was given. Regulation 22 excludes civil liability but applies civil liability in a case to which Regulation 16 applies and thus to the situation in our case.[9]Regulation 16 is the implementation in the United Kingdom of the Pregnant Workers Directive 92/85/EEC of 19 October 1992. The preamble provides in relevant part as follows:
"Whereas Article 15 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work provides that particularly sensitive risk groups must be protected against the dangers which specifically affect them; Whereas pregnant workers, workers who have been recently given birth or who are breastfeeding must be considered a specific risk group in many respects, and measures must be taken with regard to their safety and health; Whereas the protection of the safety and health of pregnant workers, workers who have recently given birth or workers who are breastfeeding should not treat women on the labour market unfavourably nor work to the detriment of directives concerning equal treatment for men and women; Whereas some types of activities may pose a specific risk, for pregnant workers, workers who have recently given birth or workers who are breastfeeding, of exposure to dangerous agents, processes or working conditions; whereas such risks musts therefore be assessed and the result of such assessment communicated to female workers and/or their representatives; Whereas, further, should the result of this assessment reveal the existence of a risk to the safety or health of the female worker, provision must be made for such workers to be protected; Whereas pregnant workers and workers who are breastfeeding must not engage in activities which has been assessed as revealing a risk of exposure, jeopardising safety and health, to certain particularly dangerous agents or working conditions…"
[10]The descriptions set out in the Directive in Articles 4.1, 5.1, 5.2 and 5.3 indicate the kind of measures which are to be implemented in each of the Member States and offer a guide to construction of our domestic legislation, in this case the Sex Discrimination Act 1975 . It is apparent from Articles 4 and 5 that there is to be a risk assessment and action taken thereupon. Article 12 provides:
"Members States shall introduce into their national legal systems such measures as are necessary to enable all workers who should themselves [be] wronged by failure to comply with the obligations arising from this Directive to pursue their claims by judicial process …."
Thus, the enactment of the Employment Rights Act Sections 66 to 70 implements the provisions relating to protection of pregnant workers. The Management Regulations include references to the European requirement of risk assessment.[11]The Tribunal addressed itself to the construction of the leading authority which is Day v Pickles – see above – but held as follows:
"With the greatest respect to the Employment Appeal Tribunal, that does not, it appears to us, follow from the wording of the 1975 Act."
In other words the case supports the contention that:
"… if we were to conclude that the failure to carry out an assessment resulted in a detriment to Mrs Hardman, that would amount to unlawful discrimination."
The analysis by the Tribunal of the Day case fails to apply the clear judgment of Mr Justice Lindsay P. at paragraphs 28 and 29, indicating that a failure to carry out a risk assessment pursuant to the predecessor of the 1999 Regulations could be a detriment. We consider that the Tribunal was bound by that judgment and ought to have applied it.[12]The Tribunal did not expressly find a detriment in this case but such is exigible, in our judgment, from paragraph 27 of the Extended Reasons:
"Our view is that there were risks posed by this work. We are supported in this conclusion by the evidence of the Respondent herself. She told us that her employers were in the habit of helping out pregnant employees and reducing the lifting work that they had to do. This seems to us to be a demonstration and acknowledgement of the fact that there were elements of that work that posed a potential risk to either the mother or the unborn child."
This, we take it, is a finding, (albeit focused on the second part of the claim) that there was a detriment to the Applicant in carrying out lifting work in the occupation in which she was engaged while pregnant.[13]It is submitted on behalf of the Applicant that the Tribunal paid no attention to critical aspects of the Sex Discrimination Act . In particular, the Tribunal engaged in an analysis of what is known in the academic and practitioner publications, as the 'hypothetical male'. The Tribunal said this of the Sex Discrimination Act :
"Section 6 … provides that it is unlawful for an employer to discriminate against an employee by subjecting her to a detriment. However, it is clearly the case that the employer must "discriminate" which is defined in section 1 of the Act as treating an employee less favourably than he treats or would treat a man (on the ground of her sex). Here, [the Respondent] had not treated [the Applicant] in any way differently from the way in which she would have treated a man (or indeed a woman who was not pregnant). She would not have (and indeed had not) produced risk assessments in respect of any of her employees. What, it appeared to us, we were being asked to do was to widen the definition of discrimination to encompass a failure of an employee to treat a woman more favourably than a man. It was candidly conceded on behalf of the Applicant that this would amount to positive discrimination. Not only is positive discrimination (except in very limited circumstances) frowned upon, the wording of section 1 is simply not capable of such an interpretation. It follows from this that we conclude that the failure of [the Respondent] to undertake an assessment does not amount to an unlawful act of discrimination."
Ms Gill points out the unfairness of using the words 'a candid concession' in respect of an Applicant unrepresented as she was, and indicates the very narrow focus of the Employment Tribunal in looking at the limited circumstances in which positive discrimination is frowned upon. As is clear from the citation from the statute we have given above, special treatment is required to be considered and comes within Section 2(2), and consideration of the relevant circumstances under Section 5(3). Further, there is specific provision in Section 51 for special measures, none of which appears to have been at the forefront of the Tribunal's mind when it made that judgment. One, of course, bears in mind that neither party was represented.[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.[16]It appears to us that the Tribunal has committed an error of law in its approach to the application of the Sex Discrimination Act . It failed to construe it so as to give effect to the Pregnant Workers Directive and it failed to apply the Management Regulations to the allegation of sex discrimination the Applicant was making. In those circumstances the appeal is allowed.[17]We recognise that there is a lot of public money involved in this proceeding. We will remit it to the same Employment Tribunal for this now small aspect of the case to be resolved. That involves public expense, if the EOC is to represent the Applicant at the hearing and Ms Mallon is going to have to take another day away from her work in order to attend. We do not know what the value of the injury to feelings claim is, but if there is anything we can do to encourage the parties to resolve it today, let us know.