MRS C BROCKLEBANK v MISS M A SILVEIRA [2006] UKEAT 0571_05_1101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0571_05_1101Case No Appeal No. UKEAT/0571/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS C BROCKLEBANKAPPELLANTMISS M A SILVEIRARESPONDENT
Before
Mr Recorder LubaDate 11 January 2006
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY Sex Discrimination: Pregnancy & Discrimination Sex Discrimination by employment agency contrary to s15(1)(b) of the Sex Discrimination Act 1975 in not making initial risk assessment in relation to a pregnant prospective employee. Good decision by Employment Tribunal, on liability and quantum. No error of law disclosed in Notice of Appeal or Skeleton by manager of employment agency (who did not attend the preliminary hearing and) and whom the Tribunal had found liable. MR RECORDER LUBA QC This is an appeal in a case about sex discrimination. The Employment Tribunal found that it was proper to award to Miss Silveira, the Claimant before it, compensation for sex discrimination against her by the two owners and managers of a recruitment or employment agency. They were respectively:(1) Mrs Brocklebank who was ordered by the Tribunal to pay £750 compensation plus £49.50 interest, totalling £799.50 in respect of her discrimination against the Claimant;(2) Mr Machado who was ordered to pay a sum of £250 plus interest, coming in total to £266.50. It is Mrs Brocklebank who brings an appeal to this Employment Appeal Tribunal against that finding and award by the Lincoln Employment Tribunal.[2]In order to understand the nature of the appeal before us, it is necessary to say something briefly about the background facts of the case. Miss Silveira is a Portuguese national. She was brought from Portugal to the United Kingdom on the basis of an arrangement made by Seek Personnel Ltd, a recruitment or employment agency. The nature of the arrangement was that Seek Personnel would provide or supply to Miss Silveira accommodation in the UK (and her air fare to come to this country) and that, once here, she would be found employment with an employer by Seek Personnel. On the basis of that arrangement, Miss Silveira travelled to the United Kingdom, was supplied with accommodation and initial arrangements were made to place her with an employer – in fact, a local chicken factory operated by Messrs Padleys. As a part of the procedure for arranging that placement or employment, Ms Silveira completed forms for Seek Personnel on which she indicated, among other matters, that she was pregnant. That information was conveyed to the Padley's company and on 30 April 2004, Padleys informed Seek Personnel Ltd that there would be a need for a risk assessment sheet to be completed by Seek before the actual placement in employment of Miss Silveira could be taken further.[3]The Tribunal's decision (at paragraph 6.2) reproduces the following relevant text from the e-mail of that date:
"Before Maria Silveira is allowed to work at Padley's, I will need to see her risk assessment sheet that has been completed by yourselves"
. No such risk assessment sheet was completed by Seek Personnel Ltd or by its two primary operatives, the directors and joint owners, Mrs Brocklebank and Mr Machado. It was in those circumstances that by an application received on 29 June 2004, Miss Silveira applied to the Employment Tribunal for compensation for sex discrimination arising from the fact that she had not been assisted by the employment agency in obtaining employment by reason of their sex discrimination against her. The Relevant Law[4]Discrimination on grounds of sex is, of course, regulated by the Sex Discrimination Act 1975 . By s15 of that Act, it is provided that:
" (1) It is unlawful for an employment agency to discriminate against a woman- (a) …. (b) by refusing or deliberately omitting to provide any of its services"
. The Tribunal's Decision[5]The Tribunal were invited by Miss Silveira to find that there had been unlawful discrimination against her by the employment agency and its managers and owners through deliberate omission to provide the risk assessment which the prospective employer required. As a matter of construction of that section, it is unlawful discrimination to fail to provide a risk assessment where firstly, that risk assessment is required by a pregnant women and secondly, it is not provided in circumstances which amount to sex discrimination for the purposes of the 1975 Act. That much is clear from the previous decision of this Employment Appeal Tribunal in Hardman v Mallon [2002] IRLR 516 . That decision is faithfully recorded and applied by the Employment Tribunal at paragraph 7.5 of its extended reasons. The Tribunal plainly find, and on the facts as we have briefly summarised them (and as they are set out at more length by the Tribunal itself) it cannot seriously be disputed that no risk assessment was conducted by the employment agency and that that led to a detriment to the pregnant woman in that she was not provided with the opportunity of employment which she would otherwise have received.[6]The questions for the Tribunal were accordingly whether, for the purposes of s15(1)(b), the "services" there referred to included the carrying out of a risk assessment and whether, if so, there had been a "deliberate omission" by the Respondents to the application in that respect. The Tribunal not only correctly addressed themselves to those questions, but plainly answered them. In paragraph 7.6 of the extended reasons they make a clear finding that the undertaking of a first level risk assessment was one of the services to be provided by the employment agency. They further find that the Respondents to the sex discrimination claim had omitted to provide that service. At paragraph 7.11 of their extended reasons the Tribunal properly addressed themselves to the question of whether there had been a "refusal" or "deliberate omission". The Tribunal was not satisfied that there was a "refusal" to provide the risk assessment but rather there had been a "deliberate omission". The Tribunal put it in this way: "The second limb, of deliberately omitting to provide that service is not the same as intentionally not providing it or not doing so through malice or bad faith (which were not present here). However, there was here a deliberate, in the sense of conscious, omitting to provide that service. That is a clear finding by the Tribunal arising from their earlier recitation of the facts and their findings as to them. It is on the basis of those findings, and those directions as to the law, that the Tribunal found that the requirements of the statute were satisfied. This Appeal[7]Mrs Brocklebank is the only one of the Respondents to the original application to pursue an appeal before us. She has settled in person, and plainly without legal assistance, the terms of a Notice of Appeal and the "grounds" of appeal on which she would wish to rely. Further, she has provided a two page document headed "Skeleton Argument" helpfully seeking to articulate, in her own words, how those grounds of appeal should be understood. We have also had, as a result of a direction given by a Judge at this Tribunal, the benefit of the Miss Silveira's written submission on those documents. As is apparent from the terms of that written submission, Miss Silveira has had some difficulty in understanding what precisely is the error of law alleged by the present Appellant in relation to the decision below. That is a difficulty which we have shared. However, we must, doing our best, seek to extract from the material put before us the grounds or propositions of law upon which the Appellant seeks to rely in order to determine whether there is anything in them that may amount to an error of law.[8]Firstly, it appears, taking together the document headed "Appeal" and the document headed "Skeleton Argument", that Mrs Brocklebank makes some criticism of the Tribunal in relation to particular parts of the evidence which was before the Tribunal but which do not appear to have been recounted or dealt with in the Tribunal's decision. We take this to be an assertion that the Tribunal's written statement of reasons is an inadequate discharge of the Tribunal's responsibility to give clear and cogent reasons for dealing with the case as it did. In our assessment, it is not possible to describe there as having been any error of law or shortcoming in the quality, or content, of the Tribunal's decision nor in its treatment of the evidence which it received. It is tolerably plain, to any reader of that document, precisely why the claim before the Tribunal succeeded and on what grounds and on what basis the Tribunal dealt with the evidence it had received.[9]Secondly, it may be deduced from the documents before us that Mrs Brocklebank would wish to contend that the Tribunal had made an error of law because it allowed the claim even though it had not found any intention by the Respondents to the claim to deliberately discriminate on the grounds of sex against Miss Silveira. That, too, is an argument that has no potential of success. It is necessary to demonstrate that there is at least an arguable error of law by an Employment Tribunal. It is no part of our law that, in the treatment of a pregnant woman, it must be shown that an employment agency deliberately intended to discriminate on the grounds of sex. The correct position in law, and in the application of it, is amply set out in the Tribunal's decision.[10]The third proposition which may properly be extracted from the submissions before us in the Appeal and in the Skeleton Argument, is that the Tribunal erred in law in finding that there had been a "deliberate" omission by the present Appellant to carry out a risk assessment. In our judgment, there is nothing in that point either. First, it is plain that the Tribunal found, and in our judgment correctly found, that it was the employment agency's responsibility rather than that of Padleys to carry out the initial risk assessment and that the agency had been so informed. Secondly, the Tribunal correctly found that there had been an "omission" to make such an assessment. The only potentially arguable issue would have been as to whether, in all the circumstances, the omission in question was a "deliberate" omission by Mrs Brocklebank and those otherwise responsible for the operation of Seek Personnel Ltd. It is quite plain that the Tribunal, having heard all of the evidence and the submissions before it, reached a conclusion on that point which is explicit and which is adverse to Mrs Brocklebank. We see no error of law in that approach or conclusion.[11]In all those circumstances, it not being apparent from the appeal as settled, or from the Skeleton Argument, that there is any ground which has any prospect of successfully demonstrating any error of law by the Employment Tribunal, we must necessarily dismiss this appeal. Accordingly, Mrs Brocklebank's appeal is hereby dismissed.[12]As an end-note, we should record that the matter had been listed for a Preliminary Hearing before us on the basis that Mrs Brocklebank would attend to pursue her appeal in person but, by letter dated 5 January 2006, she explained that she would not attend in order to spare the expense of travel and to avoid a loss of earnings which she cannot otherwise afford. That concludes our judgment.