HOME FARM TRUST LTD v MRS G A NNACHI [2007] UKEAT 0400_07_2510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0400_07_2510Case No Appeal No. UKEAT/0400/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HOME FARM TRUST LTDAPPELLANTMRS G A NNACHIRESPONDENT
Before
His Honour Judge Richardson Mrs R Chapman Mr R LyonsDate 25 October 2007
[1]APPEARANCES For the Appellant MR JONATHAN COHEN Messrs Withy King Solicitors James Street West Green Park Bath BA1 2BT For the Respondent No appearance or representations by or on behalf of the Respondent SUMMARY Management of Health and Safety at Work – risk assessment. The Tribunal was correct to find that the Appellant had not always had a risk assessment for the purposes of reg 3(1) and 16(1) of the Management of Health and Safety at Work Regulations 1999 . The Tribunal was correct to find that such an assessment was required. HIS HONOUR JUDGE RICHARDSON This appeal raises a short point concerning compliance with regulation 3(1) and regulation 16(1) of the Management of Health and Safety at Work Regulations 1999 . These Regulations so far as material provide as follows:
"3 Risk assessment (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. (6) Where the employer employs five or more employees, he shall record- (a) the significant findings of the assessment; and (b) any group of his employees identified by it as being especially at risk. 16 Risk assessment in respect of new or expectant mothers (1) Where- (a) the persons working in an undertaking include women of childe-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 Annexes I and II of Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, the assessment required by regulation 3(1) shall also include an assessment of such risk."
[2]It is established law that failure to comply with these provisions may amount to sex discrimination against a pregnant woman; see Hardman v Mallon [2002] IRLR 516 . By its judgment dated 31 May 2007 an Employment Tribunal sitting at Bedford held that Home Farm Trust ("HFT") unlawfully discriminated against Mrs Grazyna Nnachi on this basis for a short period in May 2005. Mrs Nnachi had many other complaints which were dismissed.[3]Mrs Nnachi was employed by HFT as a care support worker with effect from 19 September 2005. On 9 May 2005 she informed HFT that she was pregnant. On 22 May 2005 a risk assessment meeting took place. The Tribunal found that the delay between 9 and 22 May was due to a member of management being absent for a number of days. However, the Tribunal noted that no reason was given why another employee could not have undertaken the assessment.[4]The Tribunal concluded:
"We are not persuaded that a risk assessment was made by the Respondent as required by regulation 3(1) and 16(1) of the Management of Health and Safety Work Regulations 1999. The Claimant worked in an environment where there was an inherent risk from physical aggression from the Respondent's clients, lifting and carrying, smells, and some stressful situations. The absence of a risk assessment before 22 May 2006 and the delay between the time the Respondent manager formally became aware of her pregnancy on 9 May 2006, or was on notice, albeit gained through the grapevine on 5 May 2006, meant that there was a failure to carry out the risk assessment. When carried out however, we are persuaded that the risk assessment was suitable and sufficient."
[5]The risk assessment meeting on 22 May 2005 used a three page form which HFT kept for this purpose entitled "risk assessment for expectant or new mother". The first page contained boxes to be completed with the date and time of the assessment identifying the manager and employee concerned, the reason for the risk assessment (in this case pregnancy) and other health considerations. The second page contained a list of 16 risks and their possible effects. The third page contained 16 boxes, one corresponding to each identified risk.[6]At the meeting on 22 May some of the sixteen risks were found not to be applicable in Mrs Nnachi's case. Against the balance there were entries on the third page. A two page memorandum was also prepared giving further details of what was discussed at the meeting and HFT's conclusions as to whether there was or might be a risk and if so what action, if any, to take.[7]The Tribunal's conclusion that the risk assessment was completed on 22 May is hardly a surprising one. It was implicit in HFT's own ET3 form stating grounds of resistance that the risk assessment took place on 22 May. By its Notice of Appeal however HFT's primary argument is that it always had a sufficient risk assessment and that the Tribunal failed to consider it. The document attached to the Notice of Appeal which Mr Cohen today says was that sufficient risk assessment was the second page of the three page form to which we have referred. That document is, he submits, on its own a sufficient risk assessment for the purposes of regulation 16.[8]This to our mind is an argument without any merit at all. The second page to which we have referred is not a risk assessment in itself. Rather it is a list of topics identifying potential risks which need to be assessed. On 22 May it was the tool which enabled the assessment specific to Mrs Nnachi's work to be undertaken. It is however, not in itself a risk assessment.[9]It is true that pursuant to regulation 3(1) and 16(1) an employer should not wait until an employee is pregnant before making an assessment of the risks by reason of her condition to a new and expectant mother. An employer should have such an assessment in place for each undertaking where the person's work include women of child bearing age; see regulations 16(1) and Day v Pickles Farms Ltd [1999] IRLR 217 at paragraph 16. If there are usually women of child bearing age working in the undertaking one might expect the assessment to be part of the wider assessment required by regulation 3(1), or an addendum to it. This indeed seems to be what rule 16(1) anticipates.[10]Be that as it may, to our mind it is simply not arguable that the second page of the document on its own amounted to an assessment. Some indication of what is expected in a risk assessment is apparent from regulation 3(6). Where, as was the case with HFT, an employer has five or more employees there should be a recording of the significant findings of the assessment. There are no findings in the second page; as we have said, it is a list of potential risks which require to be assessed but it is not an assessment of those risks. If the risks had been assessed some of them would have been marked as not existing. Others would have been marked as existing and some assessment would have been made of their potency in the particular undertakings concerned. The second page on its own does not meet the requirements of regulation 3(1) and 16(1).[11]We have no doubt that this is the view which the Tribunal took. Although it is hardly apparent from HFT's response form that there was an argument that a generic risk assessment already existed it seems that this may have been a submission at the hearing below. At that hearing the Tribunal plainly had in mind the document to which we have referred (although the representative of HFT gave it an incorrect page number). When it reached the conclusion, set out in paragraph 32, that there was no risk assessment we are quite satisfied that it did not ignore that document and that the document required no more treatment than the Tribunal gave it in its reasons.[12]That is the primary way in which the appeal is put. But it is also said that the Tribunal failed to consider whether Mrs Nnachi's work was of a kind which could involve risk by reason of her condition, that is to say as an expectant mother. It is true that this precise issue is not identified in the Tribunal's reasons. That to our mind is likely to be because it was never denied in HFT's response that a risk assessment was required when Mrs Nnachi became pregnant, nor was it listed as an issue for the Tribunal. The question for the Tribunal was whether the assessment was suitable and sufficient (see paragraph 2.1(b) of the reasons) and whether there was undue delay in complying with "the obligation" (paragraph 2.1(a) of the reasons). However, even if the point had been a live one, to our mind there would have been only one answer to it. The assessment itself showed that Mrs Nnachi was working in conditions which could by reason of her pregnancy pose a risk to her or her baby. Although some of the risks were set at a minimum, risks which the Tribunal found from physical aggression, lifting, carrying and stressful situations are all ones which may involve risk by reason of her condition to the health and safety of a new or expectant mother or to that of her baby. If this was an issue for the Tribunal at all the Tribunal's findings are more than sufficient to deal with it.[13]For those reasons the appeal will be dismissed.