AGE CONCERN NEWCASTLE UPON TYNE v MRS S BRADY [2009] UKEAT 0187_09_2310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0187_09_2310Case No Appeal No. UKEAT/0187/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
AGE CONCERN NEWCASTLE UPON TYNEAPPELLANTMRS S BRADYRESPONDENT
Before
His Honour Judge Peter Clark Mr K EdmondsonDate 23 October 2009
[1]APPEARANCES For the Appellant MR M D WINTHROP Solicitor of: Short Richardson & Forth LLP 4 Mosley Street Newcastle upon Tyne NE1 1DE For the Respondent MR E WILLIAMS (of Counsel) Instructed by: Newcastle Law Centre First Floor 1 Charlotte Square Newcastle upon Tyne NE1 4XF SUMMARY PRACTICE & PROCEDURE: BIAS, MISCONDUCT AND PROCEDURAL IRREGULARITY Chapman v Simon [1994] IRLR 124 (CA). Did the Employment Tribunal decide the case in favour of Claimant on a basis not advanced by Claimant? Answer; no. Appeal dismissed. Context: pregnancy discrimination. Observations on Management of Health and Safety at Work Regulations 1999 , Regulations 13, 16 and 18. HIS HONOUR JUDGE PETER CLARK Introduction This case has been proceeding in the Newcastle upon Tyne Employment Tribunal. The parties are Mrs Brady, Claimant and Age Concern Newcastle upon Tyne, Respondent. This is an appeal by the Respondent against the Reserved Judgment of a Tribunal chaired by Employment Judge Hudson, promulgated with reasons on 17 November 2008, upholding Mrs Brady's claim of "Sex (pregnancy) Discrimination".[2]The issue is whether that finding was based on a claim not advanced by the Claimant, the claim which was advanced having been rejected by the Tribunal, see Chapman v Simon [1994] IRLR 124 (CA). The Facts[3]The Respondent is a separate entity, being part of the national charity Age Concern. Its objective is to provide care assistance to people who are disabled, either by age, infirmity or otherwise. The Claimant commenced her employment with the Respondent as a care worker on 30 November 2003. Her duties included assisting people in need of care assistance. Those duties included the manual handling of clients, for example, helping them to move from a chair to a wheelchair or from a wheelchair to a commode or toilet. She worked a minimum 20 hours per week, averaging some 23 hours per week.[4]In late June 2007 she discovered that she was pregnant. On 1 July she attended hospital because she was bleeding. She telephoned her line manager, Ms Short, to say that she would be unable to come in to work due to her hospital appointment. She also told Ms Short that she was pregnant. She did not then put that fact in writing. Ms Short passed on that information to the senior manager, Mrs Ross, the following day and she, with the assistance of Ms Short, but without consulting the Claimant, prepared a pregnant worker risk assessment (RA) dated 9 July 2007. That RA rated the risk from manual handling as "medium" and recommended:
"Expectant mother is not to take out clients in the wheelchair ……... Review the client group the individual works with ……... If individual works an extra shift, she is to be allocated clients with minimum needs."
[5]A copy of that RA was sent to the Claimant by post on 11 July. She filed it away, having glanced at it. Mrs Ross had intended that its content be discussed with the Claimant at her annual appraisal, initially arranged for July and then August 2007. The Claimant was unable to attend on the dates set, but finally attended an appraisal meeting on 7 September, with Mrs Cooke, in the absence of Ms Short.[6]The Claimant had experienced some discomfort when assisting a client, Mr H, on 12 August but did not report that incident to management. She did however tell Mrs Cooke, on 7 September, that her back was beginning to ache as she lifted another client, Mr M. The RA was not discussed at that meeting and the Tribunal found that there was no evidence that Mrs Cooke had seen it, although it had been circulated in the office for supervisors to see and had then been filed.[7]Mrs Cooke reported back to Mrs Ross that everything so far as the Claimant was concerned was okay for now, but that one service user, Mr M, might be a problem in the future. In mid September the Claimant and Ms Short spoke about a wheelchair user, Mrs M, whom the Claimant had previously taken shopping on Fridays. In August the Claimant told Mrs M that she could no longer do so because she was pregnant and Mrs M was too heavy for her. The conversation ended with Ms Short telling the Claimant that Mrs M would have to be taken off her rota on Fridays.[8]On 12 October the Claimant was signed off work by her general practitioner for two weeks with "back pain and stress" and on 26 October for another four weeks for "anxiety and stress". In any event she did not return to work before starting her maternity leave on 1 February 2008. Her baby was born on 8 February.[9]Meanwhile, on 12 October the Claimant contacted the Health and Safety Executive (HSE) who wrote to the Respondent on the same day recording that, "an Age Concern employee (the Claimant) had made representations that no risk assessment had been made to take into consideration her change of status (presumably pregnancy) and her concerns that she was still being asked to carry out her normal duties including manual handling of clients, which may be detrimental to her unborn child's health".[10]In their reply, dated 16 October, the Respondent enclosed a copy of the Claimant's risk assessment and stated that it had found a potential problem with two clients but she would not have to work with them. That was presumably a reference to Mrs M and Mr M.[11]On 2 November the Claimant wrote a letter of grievance to the Respondent. She complained that the Respondent had known of her pregnancy since July, that she had raised a concern at her appraisal, on 7 September, that lifting caused her back to be sore but she had continued thereafter to be required to carry out heavy lifting as before. She contended that she knew nothing about the July RA and had not been given an opportunity to contribute to it.[12]That followed a letter from her midwife, Ms Lowe, to the Respondent, dated 1 November pointing out that the Claimant was now 26 weeks pregnant and suffering increased back pain. She asked that the Claimant be allocated duties which did not involve heavy lifting. Ms Pearson, the Respondent's Chief Executive, invited the Claimant to a grievance meeting by a letter dated 8 November and on 12 November replied to Ms Lowe, referring to the Claimant's RA and asserting that, "none of our care workers carry out lifting tasks." We acknowledge the technical distinction which may be drawn between manual handling and lifting.[13]The Claimant declined to attend a grievance meeting on two dates in November on health grounds. During her sick leave she received statutory sick pay until 20 January 2008. She then took paid holiday for two weeks before commencing her paid maternity leave on 1 February. The Claim[14]The Claimant lodged a complaint form ET1 on 8 February 2008. She was then and has throughout the Employment Tribunal process, been represented by Mr Frank McElduff of the Newcastle Law Centre, who now instructs Mr Williams of counsel to conduct her case on appeal.[15]The particulars of claim annexed to the form ET1, after reciting the facts alleged, contended, at paragraph (xxx), so far as is material, that an adequate risk assessment was not carried out; she continued:
"Had an adequate risk assessment been carried out I would not have been expected to carry out some of the tasks that I was performing as part of my duties."
[16]At a case management discussion (CMD) held before Employment Judge Warren on 23 April 2008, at which Mr McElduff appeared for the Claimant and Mr Winthrop for the Respondent, the issue in the case was formulated in this way:
"Whether the respondent directly discriminated against the claimant contrary to S. 1(1)(a) and S.3A(1)(a) and S.6(2) (b). Sex Discrimination Act 1975 (SDA). By failing to carry out a risk assessment either adequately or at all in respect of the claimant pursuant of the Management of Health and Safety at Work Regulations 1999 Reg 3, 16 and 18, as a result of which the claimant became unwell and not able to attend work and as a consequence receiving only sick pay as opposed to full pay (Claimant claims that she was still rostered to deal with at least two clients who were too heavy to lift in view of her pregnancy."
[17]At the substantive hearing before

Judge Hudson's Tribunal, Mr McElduff put the Claimant's case in this way in his skeleton argument:

"(4) It is alleged that the Respondent carried out no or an insufficient and unsuitable risk assessment in contravention of Regulation 3(1) and Regulation 16(1) of the Management of Health and Safety Regulations 1999 after it became aware of the Claimant's pregnancy demonstrated by her having to carry out duties which were unsuitable and dangerous given her pregnancy. (5) It is alleged that as a result of the Respondent's failure to carry out a risk assessment or an adequate risk assessment and their subsequent denial the Claimant suffered a detriment in which she suffered initially from back pain and subsequently stress and anxiety and was unable to continue working from 12 October 2007 until the commencement of her maternity leave."
[18]That submission reflected the Claimant's evidence in her witness statement. In response, Mr Winthrop submitted in his written argument that the claim failed because the Respondent was not in breach of Regulation 16 of the 1999 regulations as interpreted in the context of pregnancy discrimination by HHJ McMullen QC in Hardman v Mallon [2002] IRLR 517 EAT later approved by Maurice Kay LJ in Bunning v GT Bunning and Sons Limited [2005] EWCA Civ 983 paragraph 23.[19]Further, the Tribunal requested additional written submissions from the parties, between the Tribunal hearing on 3 July 2008 and their final determination of the case. In response, by a letter dated 22 August, Mr McElduff refers specifically to Regulation 16(2) and (3) and the need for written notification under Regulation 18. Thus it seems to us the battle lines were clearly drawn as between the parties. A material question was whether or not the Respondent was in breach of Regulation 16. We note that in Hardman it was found that although proper notification was given by the employee, no RA was carried out by the employer. The 1999 Regulations[20]The Tribunal, at paragraph 4.1 of their reasons, set out the relevant provisions, namely Regulations 3(1), 16 and 18. In summary, for present purposes, once an employee notifies her employer in writing that she is pregnant (Regulation 18) and her work is of a kind that involves risk to her health and safety as an expectant mother, the employer must carry out an assessment of the risk and if reasonable to do so, alter her working conditions. If that is unreasonable he shall suspend her from work (Regulation 16 read with Regulation 3(1)). The Tribunal Decision[21]Having found the facts and summarised the law, the Tribunal express their conclusions on pregnancy discrimination at paragraph 5.1 to 5.7. They found, at paragraph 5.1, that the RA dated 9 July 2007 was adequate in identifying and assessing the risks specific to the Claimant. What follows by way of reasoning is not entirely clear to us, however we draw from this reasoning the following conclusions;(a) that there was no unlawful discrimination prior to 12 November 2007 but(b) unlawful discrimination took place after 12 November.[22]We should recite paragraphs 5.5 and 5.7 of the reasons. At 5.5 the Tribunal say:
"On 2 November 2007, the Claimant clearly notified the Respondent in writing that she was pregnant. After this notification, satisfactory for the requirements of Regulation 18, the Claimant was entitled to be offered alternative work e.g. visits which involved light work such as making tea for clients etc, or if this were not possible, alternatively suspension, pursuant to Regulation 16(2) and (3). No such offers were made. The Tribunal concluded that this also showed that the Claimant had on the grounds of her pregnancy, been less favourably treated."
And at 5.7:
"However, the Tribunal concluded that the Respondent had not disproved the pregnancy ground in respect of detriment suffered by the Claimant after 12 November 2007. Once the Claimant notified the Respondent in writing by letter of 2 November 2007, that she was pregnant, the obligations in Regulation 16(2) and 16(3) came into play, but she was not, for example, sent a letter offering her an amended roster of light work. The fact that she was on sick leave was not an impediment to this. The Tribunal accepted that by letter of 8 November 2007 the Claimant was invited to a grievance meeting, at which such adjustment could have been discussed, had it taken place. On 1 November the midwife had written to the Respondent asking it specifically to "…assess her working duties so that she is no longer required to carry out any lifting tasks."
Ms Pearson's letter of 12 November 2007 did not address this point properly, nor was the obligation under Regulation 16(2) fulfilled. This was a specific request to consider the Claimant's duties, and the failure to do so was on the ground of the Claimant's pregnancy." The Appeal[23]Mr Winthrop submits that the issue of pregnancy discrimination related only to the period up to 12 October 2007 when the claim of sick leave commenced. It was impermissible for the Tribunal to make a finding of unlawful discrimination after 12 November. The principle in Chapman v Simon is engaged. Having rejected the Claimant's pleaded case it was simply not open to the Tribunal to uphold the complaint on some different basis not advanced before it.[24]We have earlier set out the way in which the claim was put and the Tribunal's findings of fact in some detail in order to explain our short response to that submission. As Mr Williams contends, it is clear that the Claimant's case was being advanced on the back of a breach or breaches of Regulation 16 of the 1999 Regulations. That emerges particularly from the formulation of the issue at Employment Judge Warren's CMD and is repeated in Mr McElduff's letter, by way of further submissions requested by the Tribunal dated 22 August 2008. It was a claim of automatic unlawful discrimination, as Mummery LJ described it, by reference to Hardman , in Madarassy v Nomura [2007] ICR 867 , 891C at paragraph 133.[25]It therefore follows that because Regulation 16 could not be engaged until written notification was given under Regulation 18, on the Tribunal's findings of fact on 2 November 2007 the claim must necessarily have post-dated 12 October 2007. Indeed, it is equally clear to us that the discrimination complained of was alleged to continue until the Claimant commenced her maternity leave on 1 February 2008.[26]For this reason, the appeal fails. The Claimant did not limit her complaint of discrimination to a period ending on 12 October 2007; further, we see no inconsistency between the Tribunal's finding of no discrimination, prior to 12 November and discrimination after that date. The two periods, pre and post 12 November, reflect the different legal regimes in force. The Claimant's task was more difficult before she was able to invoke Regulation 16 and that explains the different findings by the Tribunal.[27]Finally, although not strictly advanced as a ground of appeal, we agree with Mr Williams that the Tribunal was right to say, at paragraph 5.7, that the fact that the Claimant was continuously on sick leave after 12 October, did not affect the breaches of Regulations 16(2) and 16(3) as found. Conclusion[28]This appeal fails and is dismissed.