NEW SOUTHERN RAILWAY LTD v MRS H QUINN [2005] UKEAT 0313_05_2811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0313_05_2811Case No Appeal No. UKEAT/0313/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
NEW SOUTHERN RAILWAY LTDAPPELLANTMRS H QUINNRESPONDENT
Before
His Honour Judge D SerotaLord Davies of CoityDate 28 November 2005
[1]APPEARANCES For the Appellant MR ANDREW SHORT (Of Counsel) Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TW For the Respondent MR DAVID MASSARELLA (Of Counsel) Messrs Morrish & Co Solicitors Oxford House Oxford Road Leeds LS1 3BE SUMMARY . HIS HONOUR JUDGE D SEROTA QC Introduction This is an appeal by the Respondent from a decision of the Employment Tribunal at Brighton (M G Kurrein Esq. Chairman), entered on to the Register on 14 April 2005 after a hearing that lasted some three days. There were extensive written submissions. The decision of the Employment Tribunal was as follows:(a) The Claimant was not suspended from work on maternity grounds within the meaning of section 66 of the Employment Rights Act 1996 ;(b) It dismissed the Claimant's claims under section 70(1) of the Employment Rights Act (reduction in remuneration by reason of suspension on maternity grounds);(c) It dismissed the Claimant's claim under section 70(6) of the Employment Rights Act (failure to offer alternative work before being suspended on maternity grounds; because the Claimant was not suspended from work on maternity grounds);(d) It held that the Respondent had discriminated against the Claimant on grounds of sex contrary to section 1(2)(a) and section 6 of the Sex Discrimination Act 1975 ;(e) The Respondent had subjected the Claimant to a detriment by reason of her pregnancy contrary to section 47C of the Employment Rights Act ;(f) It dismissed the Claimant's claims of victimization under section 4 of the Sex Discrimination Act ;(g) It found the Respondent had made unauthorized deductions from wages;(h) It found that the Respondent had unfairly dismissed the Claimant (constructive dismissal).[2]On 27 May 2005 HHJ Birtles referred the matter to a full hearing with the somewhat optimistic time estimate of one half day. The parties suggested that one day was more realistic. The case was in fact listed for a half day. Fortunately, there was nothing else in our list although submissions did not conclude until approximately 5.10 pm. We wish to express our gratitude to the EAT staff for enabling us to sit so late.[3]The case concerned the suspension from work of the Claimant from her post of Duty Station Manager purportedly on the grounds of pregnancy in December 2003. Before we set out the factual background it is helpful to see the statutory framework within which the facts need to be considered. This case concerns the interplay between legislation concerned with discrimination on the grounds of sex, and Health and Safety legislation insofar as it affects pregnant women. It is helpful to explain the hierarchy of this legislation. The Equality Legislation [as we shall describe it], is of course found in the Equal Treatment Directive which has been given effect to in the Sex Discrimination Act 1975 and related legislation. We are only concerned with the general principles of the Equality Legislation. The Health and Safety legislation starts with 2 European Directives; the Framework Directive [FD] [89/391/EEC] which broadly speaking lays down general duties in respect of the health and safety of workers, and the Pregnant Workers Directive [PWD] [92/85/EEC] which is concerned with health and safety issues relating to pregnant workers. The PWD has been given effect in the UK by the provisions of sections 66-70 of the Employment Rights Act 1996 [ERA] and the Management of Health and Safety at Work Regulations 1999 [MHSWR] [SI No 3242].[4]A suspension under the MHSWR is deemed a suspension under a "relevant requirement" within the meaning of section 66(2) of the Employment Rights Act (inserted by the Suspension from Work (On Maternity Grounds) Order of the MHSWR. Regulation 16 provides:
" Risk Assessment in Respect of New or Expectant Mothers (1) Where: (a) the persons working in an undertaking include women of childbearing age; (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…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, of 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 it is necessary to avoid such risk…"
[5]Section 66(1) of the ERA provides:
"(1) for the purposes of this Part an employee is suspended from work on maternity grounds if, in consequence of any relevant requirement or relevant recommendation, she is suspended from work by her employer on the ground that she is pregnant… (2) in subsection (1)-"relevant requirement" means a requirement imposed by or under a specified provision of an enactment or of an instrument made under an enactment "relevant recommendation" means a recommendation in a specified provision of a code of practice issued or approved under section 16 of the Health and Safety at Work Act 1974…"
[6]Section 67 of the ERA provides:
"Right to offer of alternative work (1) Where an employer has available suitable work for an employee, the employee has a right to be offered to be provided with the alternative work before being suspended from work on maternity grounds. (2) For alternative work to be suitable for an employee for the purposes of this section – (a) the work must be of a kind which is both suitable in relation to her and appropriate for her to do in the circumstances, and (b) the terms and conditions applicable to her for performing the work, if they differ from the corresponding terms and conditions applicable to her performing the work she normally performs under her contract of employment, must not be substantially less favourable to her then those corresponding terms and conditions."
[7]Detailed regulations are to be found in the MHSWR; we will come to these shortly. We will need to refer to other statutory materials later when we come to consider the parties' submissions.[8]We note that broadly speaking if work poses a risk to a pregnant woman or her unborn child(a) the risk must be assessed,(b) risks should be "avoided" if possible by appropriate measures including the alteration of working conditions or hours of work,(c) only if risks cannot be avoided or it is unreasonable to alter working conditions can the employer go on to suspend the employee,(d) before an employer suspends an employee he must offer suitable alternative work, if available, on terms that are substantially not less favourable than her existing terms of employment. Background[9]We now turn to consider the chronological and factual background to these proceedings. On 17 April 2000 the Claimant began to work for the Respondent as a Station Manager Support Clerk, known colloquially as a PA. On 18 June 2003 she applied for the post of personal assistant to the Retail Manager. The Employment Tribunal considered the selection and interview process was badly handled and was unfair to the Claimant. On 28 June 2003 the Claimant submitted a grievance in respect of the Respondent's failure to consider her for the post of personal assistant. This grievance was upheld on 10 July 2003 and on 29 July 2003 she was, as a result of her grievance having been upheld, interviewed for the post but was unsuccessful. On 4 August 2003 the Respondent was told by the Claimant that it wished to see her career progress. A post of Duty Station Manager became vacant and the Claimant applied for the post. On 10 September 2003 at a meeting with the Respondent she was offered the vacant Duty Station Manager post with a three-month trial period. On 15 September 2003 the trial period commenced. The terms of her appointment were that her salary would be increased to £19,500 per annum. If, at the end of three months, she did not wish to continue she would be returned to her previous post. If the Respondent was dissatisfied the same would apply. However, if she made reasonable progress she would be appointed to the post on a permanent basis. The Claimant undertook various courses and on 12 November 2003 was told by the Station Manager at Brighton, Mr Chapman, that he intended to speak to the Retail Manager South, Mr Hayden, to ensure the Claimant was appointed to the post full-time. At this point in time she had two courses to undertake that were required to be completed before her appointment could become final.[10]On 18 November 2003 the Claimant was ill and her period of sickness lasted until 5 December. During this time the Claimant discovered she had fallen pregnant. On 28 November 2003 she informed the Respondent that she had fallen pregnant but asked that this information should be kept confidential. In fact the information was disclosed. This caused considerable embarrassment and distress to the Claimant.[11]On 5 December 2003 the Claimant returned to work. It was agreed that she should work on permanent middle shifts until the worst of her morning sickness was over and after that a risk assessment would be carried out. On 11 December 2003 the Claimant met Mr Oke, the Respondent's Safety Strategy Manager. Mr Oke carried out an assessment both in relation to her post as Deputy Station Manager and her substantive post as PA. He then produced a report and a supplementary risk assessment for the post of Duty Station Manager at Brighton. He also produced a supplementary risk assessment for the post of Station Manager Support Clerk, (PA) the Claimant's existing permanent position. These were sent to Mr Chapman who passed them on to Mr Leister. Mr Leister was to replace Mr Chapman as the Station Manager at Brighton.[12]The effect of Mr Oke's reports was that there were various possible areas of concern which could be addressed by alterations to the Claimant's working conditions or hours. The following are among the relevant contents of the reports:(a) the reports should be supplied to the Claimant and discussed with her and kept under review and that there should be liaison between the Respondent's management and the Claimant;(b) Mr Oke went through various tasks undertaken by the Claimant, considered the risks and how they could be avoided;(c) in relation to the post of Duty Station Manager, Mr Oke identified a number of risks that were high but could be reduced by various measures from high or medium risk to low risk. However, there were still a number of "low risks" in a number of aspects of the Claimant's work, including the fact that she was required to stand while working and would be exposed possibly to extreme heat or cold and the risk of slipping or falling on wet or slippery platforms;(d) Mr Oke also identified the risk of verbal or physical abuse. He appreciated this could cause an increase in stress levels leading to high blood pressure. Mr Oke suggested various ways in which this particular risk could be reduced to low. Mr Oke anticipated that the Claimant would be able to continue in her post as Duty Station Manager. He only completed the risk assessments in draft. They were never finalized nor were they signed off by either Mr Oke or Mr Chapman. They were never discussed with the Respondent's occupational health adviser. The Employment Tribunal found Mr Chapman had not at the time understood the risk assessments.[13]The three month period for the Claimant's trial period as Duty Station Manager ended on 14 December 2003. At about this time Mr Chapman, Mr Leister and the Respondent's Senior Area Personnel Manager, discussed the risk assessments. They made no notes of their discussions (nor did they refer to them in their witness statements). The Employment Tribunal found:
"36 …Both Mr Leister and Mr Grant were of the view that the risk to the Claimant was too high. It appears that neither Mr Grant, Mr Leister nor Mr Chapman had ever dealt with the situation of a pregnant Duty Manager in the past. Mr Grant, who has 25 years experience within HR and the railway industry has never before heard of a pregnancy-related suspension or transfer."
There was no discussion in relation to the issues raised by the draft risk assessments with Mr Oke, the Claimant or anyone else.[14]On 23 December 2003 the Claimant was called to a meeting with Mr Chapman, Mr Grant and Mr Leister. She had a sense of foreboding. The Employment Tribunal found that her sense of foreboding was entirely justified as a decision was taken that she should no longer carry out the duties of Duty Station Manager and would be returned to her post as PA. It was only at that stage that she was handed a copy of the risk assessments. The Employment Tribunal found that Mr Grant and Mr Leister said words to the effect of, "They would be unable to forgive themselves" if anything happened to the Claimant's baby. This caused further distress to the Claimant as she considered this to be emotional blackmail and implied she was not sufficiently concerned for the welfare of her child. She was in considerable distress and taken home by her husband and it was only when she returned home that she was able to consider the risk assessments.[15]The Employment Tribunal then had this to say. (We set out their findings in full because of their importance to this appeal.) "42 Having heard all the Respondent's witnesses in this case, we are of the view that the people that took this decision had no real regard to the Risk Assessments, or the HSWR, at all. 43 Mr Chapman was the outgoing manager. Although, technically, it was his decision as the then manager, it is clear that he thought that Mr Leister, as the incoming manager, should have significant input into the decision. Mr Grant appears to have had little or no input. He may have expressed a view, but that was all. 44 The reality of the situation was that the Claimant's situation made her something of a problem for the Managers. She was unable to carry out all of the duties of a Duty Manager because her sickness, which was pregnancy-related, had prevented her completing the Safety Foundation Course. The controls recommended by Mr Oke might further continue the period during which she could not carry out safety critical functions. It might also require other Duty Managers to take additional early or late shifts and/or on-call duties. It is clear that there had been grumblings when she was appointed to permanent middle duties. Those controls may also have required the Station Manager to engage additional staff, at additional cost, to cover other duties that the Claimant might be unable to do at one or another stages of her pregnancy."[16]The Employment Tribunal also concluded that Mr Leister and Mr Chapman had:
"An extremely paternalistic and patronizing attitude towards the Claimant and her condition."
Mr Leister was found to have said that the Claimant's job was not one he would wish "his wife to be involved in" and he went so far as to ask what the Claimant's husband's view of the situation was. Mr Chapman said that the bottom line was "that he was not prepared to expose the Claimant to even a low risk of assault because it might have potentially catastrophic consequences".[17]We also set out paragraphs 46 and 47 and 102 of the decision of the Employment Tribunal:
"46 In reality, these managers jumped to the conclusion that the Claimant could not continue in her position because of their personal feelings, and attached to it a label of health and safety concern. They did not carry out a proper or reasonable analysis of the risk assessment at any time. 47 The concern that was at the forefront of their minds was that of a physical assault. The Respondent led no evidence whatsoever as to the likelihood of a Duty Manager being assaulted. The only evidence of that was from Mr Leister, who had been assaulted twice in a period of 13 years. 102 It was plain to us that the Respondent's managers did not even understand the draft risk assessments, let alone the HSWR. She was removed from her post because of the patronising and paternalistic attitudes of those managers, rather than in consequence of an appropriate analysis of the draft risk assessments and the Regulations. We thought that much of the evidence given by those managers was based on an after-the-event consideration of the decision in an attempt to justify it objectively. We were unanimous in the view that no such objectivity was applied at the time."
[18]On about 5 January 2004 when the Claimant returned to work her salary reverted to that she had received as a PA (then £16,085 per year). It is important to note despite the reduction in salary, she continued to work or receive benefits under the contract from 23 December 2003 until a date in June 2004.[19]On 4 March 2004 she presented her first Originating Application. She alleged she had suffered a detriment by reason of her pregnancy because of a reduction in her salary, the failure to offer her alternative employment on terms not substantially less favourable, contrary to section 67 of the ERA and she asserted that she had received less favourable treatment by reason of her sex. A hearing was fixed for 11 June 2004.[20]On 10 March 2004 there is a memorandum from Mr Leister to Mr Allan confirming that he had been successful in a request for a transfer to Brighton as Duty Manager on a secondment basis. Mr Allan's transfer had in fact been authorised on 1 st December 2003. There was an issue as to whether that transfer was by way of secondment as the Respondent alleged, or was permanent as the Employment Tribunal found. The doubts of the Employment Tribunal were not so much as to the date of the memorandum but the fact that it appeared to be giving a misleading impression as to whether the transfer was permanent or on secondment. The Employment Tribunal was suspicious of the provenance of that memorandum and concluded that it had been manufactured after the event in order to try and exculpate the Respondent from failing to keep its promise that the Claimant's post would only be filled on a seconded basis during her absence on maternity leave.[21]On 13 April 2004 the Claimant again fell sick and indeed never returned to work. On 10 May 2004 she began her annual leave and on 1 June 2004 she began her maternity leave.[22]On 10 June 2004 (that is the date before the Tribunal hearing) the Respondent for the first time confirmed that the Claimant would be paid at the rate of £19,500 pro rata and would return to the post of Duty Manager after her maternity leave on secondment.[23]On 11 June 2004 the hearing was treated as a Directions Case Management meeting. The Respondent repeated the offer of 10 June 2004. The Claimant expressly reserved her position as to whether she might resign, or treat her resignation as a constructive dismissal.[24]On 24 June 2004 the Claimant gave four weeks notice and presented her second Originating Application in which she claimed that she had been constructively dismissed and that unlawful deductions had been made from her salary. The Decision of the Employment Tribunal[25]The Employment Tribunal carefully and thoroughly investigated the factual issues. We have already referred to various passages in which the Employment Tribunal found that the decision to suspend the Claimant was taken without regard to the risk assessment but by reason of the personal feelings of certain managers to which the Respondent attached a health and safety label. The Employment Tribunal (at paragraph 48) held that the risk of assault was not a risk that arose directly from the Claimant's condition; see paragraph 16 of the MHSWR. The Employment Tribunal also found (paragraph 49(g)) that if the control measures of ensuring that conflict avoidance training was given and other staff were on duty (as recommended by Mr Oke) the risk was low. The Employment Tribunal found that no consideration appeared to have been given to providing that training for the Claimant and there was no evidence that it was not available to her. The evidence in fact was that almost all of the Respondent's "front line" staff were given such training and the Claimant had extensive experience in dealing with angry customers both as a Duty Manager and as a clerk.[26]The Employment Tribunal also accepted the Claimant's evidence that Duty Managers always had a radio and mobile telephone with them and there was always a Station Team Leader on duty in the control point who was available to assist Duty Managers. Further, there were designated customer care staff and permanent security staff at Brighton station which was manned 24 hours a day.[27]The Employment Tribunal (see paragraph 51) also found that the risk ratings of the Claimant's substantive post of PA were identical to those for her temporary role as a Duty Manager. If she was unable to do the Duty Manager's job because a "low" risk existed then the same surely, submitted the Claimant, should have applied to the PA post to which she was returned.[28]The Employment Tribunal then concluded, as we have already noted that the memorandum of 10 March 2004 was manufactured after the event in the sense we have mentioned. It went on to find that certain notes made by the Claimant were not wholly spontaneous but had been created as a result of advice from her solicitors and trade unions. The Claimant had given evidence that she was ostracized within the office; this was rejected by the Employment Tribunal.[29]The Employment Tribunal went on to set out the law in some considerable detail and set out the rival constructions of Regulation 16 of the MHSWR. The Claimant's case was that the word "avoid" in its context included "reduce a risk to a low risk" or "to reduce the risk as far as possible to an acceptably low risk". The Respondent on the other hand submitted that "avoid" implies an absolute obligation to avoid the risk altogether save in so far as the risk might be characterized as de minimis.

(c) :

" We accept that the Directive is in terms that are unqualified by reference to concepts such as reasonableness or practicability. However, we are of the unanimous view that it does not, as a consequence, impose an "absolute" obligation in the sense contended for by the Respondent. The fact that an obligation is unqualified does not mean that it can only be complied with by meeting an absolute standard. Each case has to be considered on its own facts and circumstances."
[30]On the basis of its construction of the word "avoid" the Employment Tribunal concluded that the Claimant was not suspended from work "in consequence of any relevant requirement" (see section 66(1) of the ERA .[31]The Employment Tribunal, as we have already noted found that the Respondent's managers did not understand the draft risk assessments let alone the MHSWR and that the Claimant was removed from her post because of the patronizing and paternalistic attitude of those managers rather than in consequence of an appropriate analysis of the draft risk assessments and the regulations. Even had such an appropriate analysis been undertaken the Employment Tribunal considered, having regard to its construction of the Regulations, that the MHSWR did not require the Claimant to be removed from her role as a duty manager because the risks Mr Oke had identified could be "avoided" by taking the steps recommended by him. Further, the clear implication of his analysis of the risks was that the Claimant could continue in her former role. The Employment Tribunal (paragraph 104) also concluded that even if some of those risks could not be "avoided" it would have been reasonable for the Respondent to make adjustments to the role of Duty Manager to allow the Claimant to continue in that position. Many such "adjustments" had been made in the past or were in place in relation to shift working, call out duties and safety critical work. The Employment Tribunal held it would have required little effort or imagination and caused little real difficulty to have made any other adjustments that might have been thought necessary following a proper analysis.[32]In the circumstances the Employment Tribunal concluded that the Claimant was not suspended from work on maternity grounds within the meaning of section 66 of the ERA and that her claim under section 70(1) of the ERA must fail because she had not been suspended on maternity grounds. Further, her claim under section 70(6) (right to be offered to be provided with alternative work before being suspended from work on maternity grounds) must fail again because she had not been suspended on maternity grounds.[33]The Employment Tribunal concluded (paragraph 108) that this was a straightforward case of discrimination on the grounds of sex; the Claimant was removed from her role as a Duty Manager and suffered a consequent salary reduction because she was pregnant. These were detriments and the Respondent could not make out the statutory defence under s.51 SDA. The Respondent, in particular could not discharge the burden of showing that it was "necessary" to treat the Claimant as the Respondent did, in order to comply with Regulation 16 of the MHSWR. It was not necessary to demote the Claimant or reduce her salary in order to comply with the MHSWR.[34]The Employment Tribunal (paragraphs 113 to 117) had no doubt that the Claimant was demoted and had her salary reduced because she was pregnant; she suffered a detriment within the meaning of s.47C ERA and the Respondent was unable to justify its actions, for the same reason it was unable to justify its actions of discrimination on the ground of sex.[35]The Employment Tribunal went on to dismiss the Claimant's claims that she had been victimized. It then found on the facts she had suffered unlawful deductions within the meaning of section 13 ERA . But for her pregnancy, the Employment Tribunal held, the Claimant would have been confirmed in the position of Duty Manager at the rate of £23,000 per annum by no later than 31 January 2004. This is an important point because there was no appeal against the part of the decision relating to unlawful deductions.[36]The Employment Tribunal then went on to consider the claims of constructive dismissal. It directed itself correctly by reference to Western Excavating v Sharp [1978] 1Q 761 and Lewis v Motorworld [1986] ICR 157. The Employment Tribunal was satisfied there had been a fundamental breach of the Claimant's contract of employment by reason of her demotion and reduction of salary, which was such as was likely to destroy or seriously damage the relationship of trust and confidence. In addition, there was breach of an express term; she had the right to be confirmed in post and given a pay rise whereas she was in fact demoted and her salary reduced. The Employment Tribunal concluded this was a fundamental breach of that express term and was repudiatory of the contract of employment.[37]The Employment Tribunal (paragraph 125) accepted that the Claimant had resigned as a result of those breaches. It found that the contract had not been affirmed and also that she had not waived any breach. It will be recalled that she had in fact continued working from 23 December 2003 and had then accepted pay and holiday pay both for the time she was working and the time she was off sick. She did not purport to resign until 22 June 2004. In the circumstances it was submitted on behalf of the Respondent she had waived any breach or affirmed the contract. The Employment Tribunal rejected those submissions and said:
"127 We were satisfied that delay, of itself, does not amount to an affirmation or waiver. It may, however, be evidence from which affirmation or waiver may be implied. 128 In this case there was a delay of some six months. We were concerned at the length of the delay. There were a number of reasons for it. One of these was the fact of the Claimant's condition. She expected to have the right to maternity pay, maternity leave and to return to her job from such leave. If she resigned she would lose all those rights and the future would be, at best, uncertain. Even if she were to find another job her maternity rights would have been much diminished. Another factor was her absence through illness and on holiday and maternity leave. Taking into account those reasons, even though the Claimant continued to accept the payments to which she was entitled, we do not consider the delay was such that it could be inferred from it the Claimant had a affirmed the contract or waived the breach. 129 In fact she had made it clear, by commencing her original claim on 4 March 2004 that she had not waived the breach. Far from it. She was by her application making it as clear as possible that she was not waiving it. She was, in effect, working under protest and seeking the remedy of the breaches she complained of. 130 Having considered the reasons for the Claimant's delay and the steps she took during it we concluded the Claimant had neither affirmed the contract nor waived the Respondent's breaches of it."
[38]The Employment Tribunal concluded that the Claimant had been constructively dismissed.[39]We have noted that the Employment Tribunal found there to have been unlawful deductions and there has been no appeal against that part of its decision. The Employment Tribunal did not find specifically that the Claimant was entitled to treat the contract as discharged by reason of the wrongful deductions from her pay which were repeated on a monthly basis. During the course of the hearing it became apparent that we were concerned at the decision of the Employment Tribunal so far as concerned affirmation and the Claimant applied to amend its Notice of Appeal and rely on a Respondent's notice to the effect that each successive wrongful deduction was capable of amounting to a repudiatory breach and the Claimant was entitled to treat each deduction as such. As appears later in this Judgment we allowed the amendment and have upheld the decision on the amended ground. Grounds of Appeal – Respondent's Submissions[40]There are three principal grounds of appeal. They may be summarized as follows:(1) The Employment Tribunal made a fundamental error in misconstruing the phrase "avoid the risk" in regulation 16 MHSWR;(2) The Employment Tribunal was bound on the facts it found to have concluded that there was an affirmation by the Claimant of her contract of employment or a waiver of her right to treat the contract as discharged by reason of her demotion and reduction in salary;(3) The Employment Tribunal was wrong to find that Mr Leister had manufactured the memorandum of 10 March 2004 because that was never put to him.[41]The first Ground of Appeal, as we have noted is that the Employment Tribunal misconstrued the phrase "avoid the risk" as meaning "reduce to a low risk". The Respondent submits that "avoid" means in regulation 16 of the MHSWR "eliminate to all but de minimis".[42]Mr Short, who appeared on behalf of the Respondent, also criticized the Employment Tribunal's conclusion at paragraph 48 that the risk of assault was not a risk arising directly from the Claimant's condition because workers, both male or female would be equally at risk and female workers would be at risk whether pregnant or not. It is the consequences of the risk that change rather than the risk. Mr Short submitted that the Employment Tribunal had failed to consider that risk of assault included risk to the unborn child.[43]His principal submissions, however, amounted to a most elaborate argument on the purpose and construction of Regulation 16 of MSHWR. He started from the proposition that "avoid" means "get rid of" and not "reduce" and drew our attention to the definition to that effect in the shorter Oxford dictionary. He submitted that this obligation derived from a European Community obligation which was an unqualified obligation as opposed to the more usual English legislative approach which frequently adopts the concept of something being "reasonably practicable"; in this regard he drew our attention to the decision in English v North Lanarkshire Council [1999] Scots CS29 at page 7. He submitted that the obligation to avoid risk was "a clear example of an unqualified obligation". In further support of his submissions Mr Short drew our attention to the Framework directive 89/391/EEC (FD). This directive imposed general obligations on employers in relation to matters of health and safety. Article 6 provides as follows:
"Article 6 General obligations on employers 1. Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means. The employer shall be alert to the need to adjust these measures to take account of changing circumstances and aim to improve existing situations. 2. The employer shall implement the measures referred to in the first subparagraph of paragraph 1 on the basis of the following general principles of prevention: (a) avoiding risks; (b) evaluating the risks which cannot be avoided: (c) combating the risks at source; (d)adapting the work to the individual, especially as regards the design of work places, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health. (e) adapting to technical progress; (f) replacing the dangerous by the non-dangerous or the less dangerous; (g) developing a coherent overall prevention policy which covers technology, organization of work, working conditions, social relationships and the influence of factors related to the working environment; (h) giving collective protective measures priority over individual protective measures; (i) giving appropriate instructions of the workers."
[44]Mr Short submits that the term "avoid" in the FD must mean "get rid of". In his submission the Directive's language is unqualified and the Pregnant Workers' Directive (92/85/EEC) (PWD) which gave rise to the obligations in section 66 to 70 of the ERA and the MHSWR is similarly unqualified; he drew our attention to Articles 1, 5 and 6 of the FD:
"Article 1 Object 1. The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work. 2. To that end it contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of the said principles. 3. This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work. EMPLOYERS' OBLIGATIONS Article 5 General provision 1. The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work."
We have already set out our Article 6.[45]We do note, however, in passing that Article 3 defines the term "prevention" as:
"(d) …all the steps or measures taken or planned at all stages of work in the undertaking to prevent or reduce (our underlining) occupational risks"
. Mr Short then goes on to submit that the same unqualified term "avoiding risk" is referred to in the MHSWR. He drew our attention to Regulation 19 which specifically provides that in relation to young persons a risk is required to be reduced "to the lowest level that is reasonably practicable". Mr Short submitted that it would, therefore, have been open to the Legislature to qualify the term "avoiding risk", had it wished to do so, by providing that it was to be reduced "as far as reasonably practicable". This had not been done and therefore the obligation to avoid the risk was unqualified.[46]Mr Short recognized that there might be some tension between health and safety legislation and anti-discrimination legislation. However, that did not dilute the obligation to avoid risk in the sense of eliminating it. Mr Short also submitted that the same concept of avoiding risk appeared in the provisions that govern the employer's obligations to alter working conditions and working hours (Articles 5 (1)(n) and (5)(2) of the PWD and Regulations 16(2) MHSWR as well as the provisions that govern suspension (Article 5(3) PWD, Regulation and 16(3) MHSWR. He submits:
"Any dilution of the meaning of these expressions designed to limit the circumstances in which a pregnant woman can be suspended will similarly dilute the employer's obligation to alter working conditions to keep the woman at work without risk."
[47]Mr Short recognizes that the Equal Treatment directive is made subject to the PWD. Insofar as there is any tension between the two directives the provisions of the PWD must take precedence. The provisions of the PWD and the MHSWR should not be given a restrictive meaning and reduce the protection afforded to pregnant women in order to limit the perceived discriminatory impact in a particular case, he submits. He criticized the Employment Tribunal's construction as being wrong because it focused on the magnitude of the risk rather than the seriousness of the risk and could, therefore, be subjectively applied by employers. If the Employment Tribunal's construction were right it would restrict protection to "low risk" and there would, therefore, be no obligation on the part of an employer to alter working conditions or suspend a pregnant employee in the case of a low risk of catastrophic harm. He accepted that there would be anomalies if the "strict" construction he advocated were to be correct but there would be anomalies if one accepted the alternative construction. The construction that should be adopted should be that which gives the greatest protection to pregnant women. He went on to submit that the Employment Tribunal misdirected itself in failing to ask if the risk of verbal abuse or assault was a particular risk for pregnant women. Had the Employment Tribunal done so it was bound to find, submitted Mr Short that the Respondent was entitled to suspend the Claimant for the purposes of section 66 of the ERA so the Claimant was not entitled to claim unlawful deductions under section 13 or pregnancy related detriment under section 47C. The provisions of sections 66 to 70 of the ERA constituted an exhaustive code and if the Respondent was entitled to suspend the Claimant those claims could not be made.[48]Mr Short submitted in relation to the issue of "risk" that the Employment Tribunal was bound to have regard to the potential impact on the unborn child; anything such as an assault that might affect the pregnancy constituted a "risk" and the Employment Tribunal ignored the potential consequences of assault on the pregnancy. The Employment Tribunal's reasoning is unsatisfactory.[49]Before we turn to consider the Respondent's submissions on this aspect of the case we are simply not satisfied that this interesting point of construction arises on the findings by the Employment Tribunal, although it did deal with the point. We are satisfied that the Employment Tribunal found that the Claimant had not been suspended for health and safety reasons. We have already set out the Employment Tribunal's conclusions at paragraphs 42, 44, 45, 46 and 102. We shall not repeat those findings. The Employment Tribunal concluded that the managers who suspended her had jumped to the conclusion the Claimant could not continue in her position because of their personal feelings and had simply attached to that conclusion a label of health and safety concern. That it seems to us is sufficient to deal with this Ground of Appeal. We shall, however, return later in this Judgment to consider Mr Short's submissions on the construction of the MHSWR in case we are wrong as to this.[50]We now turn to deal with the second Ground of Appeal that relates to constructive dismissal. Mr Short submitted, and we are minded to agree, that the principles relating to affirmation by an employee where there has been a repudiatory breach of the employment contract, are not controversial. They may be summarized as follows:(i) Where there has been a repudiatory breach of the contract of employment the innocent party can choose whether to affirm the contract or accept the breach and treat the contract as discharged;(ii) Once the contract has been affirmed the right to treat it as repudiated has gone;(iii) Delay in itself does not constitute affirmation but may be evidence of implied affirmation;(iv) If the innocent party calls upon the employer to perform, that will normally be taken to be an affirmation because it would be conduct consistent only with the continuance of the contract.(v) The right to accept a repudiatory breach is not lost if the innocent party performs a contract for a limited time while reserving the right to accept the repudiation or only continues with the contract while affording the guilty party the opportunity to remedy the breach. We would add that any breach of the implied term of maintaining trust and confidence is regarded as repudiatory.[51]These principles apart from that relating to the duty of trust and confidence appear from the well known decision in W E Cox Toner (International) Limited v Crook [1981] IRLR 443 at paragraph 13.[52]The Employment Tribunal in the present case concentrated on the Claimant's private and undisclosed motivation and reasons for delay rather than focusing on her conduct. The test is objective but the matters identified by the Employment Tribunal at paragraph 128 – her reasons for not resigning (the desire to avoid loosing maternity pay, the right to maternity leave, and her right to return) are consistent with affirmation rather than acceptance of a repudiatory breach. Mr Short submitted that the Employment Tribunal's approach was to ask whether the Claimant had acted reasonably; that was not the appropriate test. The Employment Tribunal should have considered specifically whether the Claimant had affirmed the contract by calling for payment at her pre-suspension rate and seeking reinstatement. By pressing for performance of the contract in accordance with its terms in the future, the Claimant, it was submitted unequivocally asserted that she intended to continue with the contract. Her conduct was, therefore, wholly consistent with affirmation. Mr Short pointed out, and we are minded to agree with this submission which was not controversial, that the form of waiver with which the Employment Tribunal was concerned was not waiver of a right to claim damages but waiver of the right to treat a breach of contract as a repudiatory breach. It is by no means clear, we consider, that the Employment Tribunal had this distinction in mind.[53]Mr Short went on to submit that the Claimant never worked under protest and the Respondent had remedied the breach two weeks before her resignation letter and six weeks before the termination of the contract of employment. This was something not considered by the Employment Tribunal.[54]We now turn to consider the submissions in relation to Ground Three. The thrust of Mr Short's submission is that the Employment Tribunal found that Mr Leister had manufactured the memorandum of 10 March 2004 but this was never put to him. It was unacceptable for the Employment Tribunal to make a finding such as that in those circumstances; he drew our attention to the decision in Doherty v British Midland UK/EAT/0684/04. He went on to suggest that although this was a relatively narrow finding it went on to infect the other findings of fact made by the Employment Tribunal. Claimant's Submissions – Ground 1[55]We now turn to consider the Claimant's submissions and we start with Ground One. The first submissions made by Mr Massarella were to the effect that the Respondent's submissions as to the construction of Regulation 16 of the MHSWR were not relevant because the Employment Tribunal had found that the Claimant was not suspended for any Health and Safety reason. We have already indicated that our view is in accordance with that submission. In this regard we repeat that there is no appeal against any finding of fact made by the Employment Tribunal.[56]Mr Massarella also went on to make elaborate submissions as to the construction of the relevant directives, statutes and regulations. Before we consider those submissions, Mr Massarella submitted that whatever construction one placed on the relevant statutory materials the Respondent had failed to discharge the burden cast upon it in any event of showing that it was required to suspend the Claimant for health and safety reasons.[57]The first stage was clearly the making of an appropriate assessment. It was accepted that it was proper for the Respondent to delegate the assessment to Mr Oke. Even were the Employment Tribunal to have been wrong as to whether the risk of assault arose directly from the pregnant worker's condition such finding was irrelevant in any event because the Employment Tribunal's doubts did not lead it to exclude from consideration all relevant risks which in fact it considered at paragraphs 49(a-k). Mr Massarella submitted that the Respondent was required to show that any risk to the Claimant could not be avoided by altering working conditions or hours. The thrust of Mr Oke's report was that the Claimant could carry out her duties with a low risk if appropriate control measures were taken. Mr Massarella noted that there was no medical evidence; the managers who took the decision had no qualifications and, their attitude was described as extremely patronising and paternalistic by the Employment Tribunal (see paragraph 45). The Respondent failed to put forward any evidence designed to show that the risk could not be avoided and did not even call Mr Oke. The Respondent could not properly criticize the Employment Tribunal for failing to consider the seriousness and magnitude (likelihood) of risk as it led no evidence on either point. Because the category of risk under scrutiny ('verbal or physical assault') was so wide there was a risk of making stereotyped assumptions; therefore it was necessary for evidence to be advanced.[58]Mr Massarella's alternative submission was that the Respondent was bound to show it would not be reasonable on "duly substantiated" grounds to alter the Claimant's working conditions or hours of work so as to avoid the "risk". In support of this submission he referred us to Regulation 16(2) and (3) of the MHSWR and Article 5(2) of the PWD. The Employment Tribunal had found that adjustments were possible but the Respondent unreasonably failed to make them and indeed found that no consideration was given by the Respondent to implementing the adjustments recommended by Mr Oke. It was possible to alter the shift pattern and hours of work, and to involve other members of staff in covering some of the Claimant's duties, restricting her "on-call" work.[59]The correct approach was as follows, having undertaken an assessment:(i) the Respondent was required to alter the hours and conditions of work if reasonable and feasible to do so; see Regulations 16:2 MHSWR - if this could not be done;(ii) the Respondent was obliged to transfer the Claimant to suitable alternative work on the same terms; see section 67 ERA -if no such work was available;(iii) the Respondent might suspend the Claimant temporarily on full pay; see Regulations 16:MHSWR but this step was only permissible if the job could not be adapted; (Section 66(3)(a) and (b) of the ERA defines suspension as including a case where the employee continues to work but not doing the work she normally did before the 'suspension'). Mr Massarella reminded us of the decision of the European Court of Justice in Pfeiffer v Deutsches Rotes Kreutz [2005] IRLR 137 which required a national court to construe domestic legislation in the light of the purpose and wording of a European Community measure. Further, it was for the Respondent to justify its grounds for suspending the Claimant by cogent evidence and it could not rely upon a "reasonable band of responses" approach; see Hardy v Hanson and Lax [2005] EWCA 846. If the Respondents had wanted to establish reasons the burden was on them yet no evidence was adduced in relation to the risk. The only evidence was that of Mr Leister who said he had been assaulted twice in thirteen years but there was no evidence as to when or in what circumstances. Further there was no evidence as to the gravity of the risk. This could only be assessed on the basis of expert health and safety evidence or medical evidence. All the Respondent did in this case was to rely upon a general suggestion that pregnant women were vulnerable.[60]Further, it was submitted that the Respondent must also show there were no available adjustments that could have been made. It adduced no evidence and made no submissions in this regard. The Employment Tribunal went through all of the controls that might be needed to be put in place to reduce all risks to "low"; see paragraph 49 and it concluded at paragraph 104 that even if some of those risks could not be "avoided" it would have been reasonable for the Respondents to make adjustments to the role of duty manager to allow the Claimant to continue in that position. Many such adjustments had been made in the past or were already in place in relation to shift working, call-out duties and safety critical work. The Employment Tribunal was satisfied it would have required little effort or imagination and caused little real difficulty to have made any other adjustments that might have been thought necessary following a proper analysis. We have already drawn attention to what the Employment Tribunal found at paragraph 49(g).[61]In this regard it is significant to note, submitted Mr Massarella, that the managers had rejected Mr Oke's control measures as inadequate but had never returned to him nor consulted the Claimant.[62]Even were he wrong as to the foregoing, Mr Massarella submitted the Respondents were bound to show it would not be technically or objectively feasible to alter the Claimant's working conditions or hours of work so as to avoid the risk. They had adduced insufficient evidence. The Respondents had only put forward the suggestion that adjustments were not objectively or technically feasible because they might incur extra costs to arrange cover for the Claimant and other duty managers might be unhappy if this caused them extra work or inconvenience; see paragraph 44 of the decision of the Employment Tribunal.[63]We now turn to consider the Claimant's submissions in relation to the construction of Regulation 16 of MHSWR. Mr Massarella submitted to us that the Respondent concentrated on the wording rather than the purpose of the Regulation whereas in the context of European Community legislation construction was always purposive. He relied upon the preamble to the Pregnant Workers Directive (PWD):
"Whereas the protection of the safety and health of pregnant workers…should not treat women on the labour market unfavourably nor work to the detriment of Directives concerning equal treatment for men and women."
Avoidance of risk to pregnant workers has its origin in Article 5 of the PWD where the phrase 'avoid the risk' is to be found. We will shortly set out this Article but note that Article 4 of the PWD lays down a requirement of a risk assessment in [ inter alia ] cases where working conditions might pose risk to the health and safety of a pregnant worker. The Article refers to Article 6 of the FD which we have already set out. "Article 5 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. 2 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. 3 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. 4 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."[64]Article 5 refers back to the scheme set out in Article 6 in the Framework Directive. Mr Massarella submitted that Article 6(2) of the Framework Directive sets out a hierarchy of measures.(a) the primary aim should be to avoid risks 6(2)(a)(b);(b) unavoidable risks should be combated at source if possible 6(2)(c);(c) unavoidable risks should be "evaluated" 6(2)(b);(d) with a view to reducing their effect on health 6(2)(d) These provisions are all consistent, submitted Mr Massarella when taken together with Article 6(3) as providing for a reduction rather than removal of risks. Further, the PWD itself draws a distinction between what Mr Massarella suggested might be termed "ordinary risks" which were the subject of Article 5 and "extraordinary risks" the subject of Article 6. There is an absolute prohibition on exposure to such risks which are listed in Annex (ii) section A of the PWD.[65]In support of his submission that the term "avoid" in Regulation 16 of the MHSWR should not be given the absolute construction contended for by the Respondent, he drew attention to the guidance issued by the Health and Safety Executive in "New Expectant Mothers at Work – A Guide for Employers". The introduction to this includes the following:
"Pregnancy should not be equated with ill-health. It should be regarded as part of every day life and its health and safety implications can be adequately addressed by normal health and safety management procedures."
[66]Paragraph 11 is headed "Avoid the Risk":
"As a general rule you should in all cases consider removing the hazard or seek to prevent to exposure to the risk. Where this is not feasible the risk should be controlled."
[67]The construction relied upon by the Claimant is reflected in guidance issued by the Department of Trade and Industry which accompanies the maternity suspension provisions: "Avoiding the Risk When employers have identified a significant risk that could damage the health or safety of a new or expectant mother, they need to decide what action to take. Some risks, for example from chemicals, already covered by specific health and safety regulations. In those cases employers should follow the requirements of those regulations. Generally, employers should try to remove the hazard or prevent exposure to the risk. If that is not possible the employer should take steps to reduce or remove the effect of the risk, for instance by providing aids to help with manual handling duties." (Our italics).[68]It was further submitted to us that it was necessary to construe health and safety provisions contained in the PWD and the MHSWR so as not to undermine provisions relating to equal treatment. We have already referred to the preamble of the PWD in this regard. The construction contended for by the Respondents would in effect lead to discrimination against pregnant women by treating them in a less favourable way than would be necessary in order to provide them with adequate protection. The legislation which is designed to help pregnant women should not be used to work against them and the principle of equality should be regarded as highly relevant in the construction of Regulation 16. Ground Two – Constructive Dismissal – Claimant's Submissions[69]Mr Massarella sought to uphold the decision of the Employment Tribunal in this regard. He drew attention to the fact that the Employment Tribunal found that there had been not only a breach of the implied term of trust and confidence but also the removal of the Claimant from her role and reduction in her pay was itself a repudiatory breach of her contract of employment.[70]It was apparent, however, to Mr Massarella that Mr Short's submissions on the question of affirmation were powerful. He did seek to persuade us that the Employment Tribunal's findings (paragraphs 128 and 129) should not be disturbed. He sought to persuade us we should not be unduly technical and that the law did not require the injured party to "snap" at a repudiatory breach. The fact remained, however that the Claimant had continued to act in accordance with her contract of employment for some six months after her suspension. For some of that time she had carried out her original duties as a personal assistant and thereafter taken advantage of her contractual rights in relation to maternity.[71]Mr Massarella, however, drew our attention to Cantor Fitzgerald v Callaghan [1999] IRLR 234 in which the Court of Appeal made clear that any reduction in an employee's agreed pay will amount to a repudiatory breach of contract. That breach is to be regarded as continuing in respect of every wrongful deduction week by week or month by month as the case may be; see Reid v Camphill Engravers [1990] IRLR 268 (EAT).[72]It seemed to us on the findings of the Employment Tribunal against which there was no appeal that there had clearly been a continuing breach of contract. Mr Massarella therefore applied to amend his Respondent's Notice to enable him to argue that the decision in this regard of the Employment Tribunal should be upheld on the basis that the Claimant's letter of resignation was in response to the continuing breach (which might also amount to continuing discriminatory conduct; see Barclays Bank v Kapur [1991] ICR 208 (HL)). Mr Short opposed the application to amend. He maintained that there was a once and for all breach in December 2003 which amounted to a demotion and that his submissions on affirmation still stood.[73]We decided to allow the amendment having regard to the principles set out by the Employment Tribunal in Khudados v Leggatt (UKEAT/0026/04). In our opinion by allowing the amendment we were enabling ourselves to deal with the appeal justly and fairly. There was no prejudice caused to the Respondent by allowing the amendment because the basic facts were found by the Employment Tribunal and were not subject to appeal. Ground Three – Respondent's Submissions – Memorandum 10 March 2004[74]Mr Massarella submitted that the finding relating to the memorandum was at best marginal. The Employment Tribunal did not find that it had been fabricated as such in the sense that it was backdated. It was put in cross examination to Mr Leister that he was "backtracking" and the finding of the Employment Tribunal is consistent with Mr Leister deciding in this memorandum to suggest that Mr Allen was now to be treated as having been seconded when there had been no previous reference to this. Further it was unrealistic to expect the Employment Tribunal to put every witness on notice as to all the findings the Employment Tribunal might make. The finding by the Employment Tribunal in paragraph 59 flowed from its findings at paragraphs 52 to 58. Conclusions Ground One[75]We have already set out our finding in relation to this Ground. The interesting arguments as to statutory construction do not arise because of the findings by the Employment Tribunal that the Claimant was not suspended for health and safety reasons. We have already dealt with this point. Were we to be wrong about this the Respondents had also failed to show that the risk could not be avoided by altering the working conditions or hours of work of Ms Quinn; nor have they shown that it would have been unreasonable on "duly substantiated grounds" to alter her working conditions or hours of work or that it would not be technically or objectively feasible to alter her working conditions or hours of work so as to avoid the risk. In this regard we accept the submissions of Mr Massarella. There is a fundamental flaw in the Respondents' case because the same risks that were identified by Mr Oke applied just as much to her post as personal assistant as to the post of duty manager from which she had been suspended. We have referred to the procedure that an employer must follow before a suspension of a pregnant employee on health and safety grounds can be justified, at paragraph 8 of this decision. We have also accepted the submission of Mr Massarella that we set out at paragraph 58. The burden was throughout on the Respondents to justify the suspension, and we accept that they needed to do so by appropriate evidence, both as to the gravity of the risk and also as to their inability to avoid the risk by what we would describe as appropriate adjustments to her hours and conditions of work. Expert Health and Safety or Medical evidence is generally desirable in cases such as these but we are not minded to say that it is always necessary for such evidence to be called. However, in this case there was virtually no evidence at all as to the risk of assault. The Respondents clearly failed to consider or implement appropriate adjustments, and failed to adduce any evidence to justify their stance that it would not be technically or objectively feasible to 'avoid' the risk by altering the Claimant's working conditions or hours. They failed to consult Mr Oke and the Employment Tribunal found that the controls he recommended were not implemented because the Respondents might incur extra costs were they to arrange cover for the Claimant and because other duty managers might be unhappy if arranging cover for the Claimant caused them extra work or inconvenience or required them to work additional early or late shifts or undertake additional 'on-call' duties. They certainly did not prove that appropriate adjustments were not feasible.[76]Were it necessary for us to consider issues of construction we prefer the submissions of Mr Massarella. In our opinion Mr Massarella is correct in submitting that a purposive construction must be given to regulation 16. It is clear from the legislative background we have set out that the PWD must be seen in the context of what we would refer to as the Equality Legislation, and indeed the PWD itself makes clear in its preamble that the protection afforded to pregnant women, "…should not treat women on the labour market unfavourably nor work to the detriment of Directives concerning equal treatment for men and women." and we are fortified in this by the guidance issued by the Health and Safety Executive and the Department of Trade and Industry. The term "avoid" cannot mean eliminate in entirety but means reduced to its lowest acceptable level. We were particularly impressed with an examination of Articles 5 and 6 of the PWD. If "avoid" were to be given the meaning contended for by the Respondents there would be no need for there to be the specific absolute obligation in relation to the specific risks listed in Annex ii section A of the PWD. We also have regard to Article 3(d) of the FD which in our opinion clearly uses the term "prevention" as including reduction of risk.[77]In our opinion, as the implementation of the MHSWR Regulation 16 involves a restriction on the right of a woman to carry out her ordinary job, there must be a balancing exercise. It is necessary for the employer to show that it is necessary for health and safety reasons in effect to discriminate. The principal of proportionality requires that the greater the discriminatory act, the greater the necessity must be. This again suggests to us that it is not the complete avoidance of all risks that is required by the regulation. As we put to Mr Short during the course of submissions, were his submission to be correct because of a remote risk of assault, employers would be required to suspend pregnant would from their posts as teachers, station staff, and many other jobs with utilities and public service companies having dealings with the public. That cannot be, in our opinion, the intention of the legislation. In the instant case, it would not only have required the Respondents to suspend the Claimant from her post as duty manager, but also from the post to which she would return, as a PA. We are not able, therefore, to accept the Respondents' limited and absolute construction of the Regulation and we are satisfied that the Employment Tribunal's construction was correct. The Respondents' construction would have the precise effect the preamble to the PWD states it should not have. Ground Two[78]The Respondents are probably correct in the submission that, on the findings made by the Employment Tribunal, it was difficult to see how the Claimant could not have affirmed the contract and waived her right to treat it as discharged by reason of the events of November 2003. However, we do not regard the breach as being a once and for all breach by reason of demotion. As the Employment Tribunal found (and there has no been appeal against this finding) the Respondents continued from month to month right up until the last minute to make unlawful deductions. This constituted a continuing breach of contract which continued and for that reason alone the Claimant was certainly entitled to treat her contract of employment as having been repudiated in June 2004. Her letter of 24 June specifically refers to the failure to pay her salary in full. We do not need to consider whether or not there was a continuation of other discriminatory conduct on the grounds of sex. In those circumstances on the facts as found by the Employment Tribunal, there could be no question but the Claimant accepted a repudiatory breach of contract without there being any waiver of her right to do so or affirmation of the contract. Even if the reasoning of the Employment Tribunal in this regard was wrong it would have been bound on the basis of its findings of fact to have held that the Claimant was entitled to treat the contract of employment as having been repudiated by reason of the continued failures to pay her salary at the correct level. This would in addition have been a continued breach of the implied term of trust and confidence and the Claimant was entitled therefore to treat her contract of employment as having been repudiated as she did. Ground Three[79]In this regard, we accept the Claimant's submissions. Even were we to be wrong in this regard, the point is marginal at most and would not affect the other findings of the Employment Tribunal.[80]In the circumstances, the appeal must be dismissed.[81]We would wish to express our gratitude to both Mr Short and Mr Massarella for their helpful submissions and Skeleton Arguments.