Veitch Penny LLP - Exeter | Crediton, Devon

Case

Bunning v GT Bunning and Sons Ltd

Employment Appeal Tribunal - (01 July 2003)

Issues

(1) Sex Discrimination
(2) Pregnancy
(3) Health & Safety Requirements

Facts

Suzanne Bunning was employed by the Respondant Company as a Welder in March 1999. The Company was a family business of Agricultural Engineers.

In September 2001 Ms Bunning discovered that she was pregnant. She was suspended on full pay by her employer so that they could undertake a risk assessment of her job in light of her condition. Her work was graded as a “medium” risk and Ms Bunning was requested to return to work.

However Ms Bunning did not consider that the risk assessment had properly addressed the issue of her pregnancy as required by Regulation 16 of the Management of Health and Safety at Work Regulations 1999. She wrote to her employer to challenge the position. As a consequence the Company suggested that she take a job in the stores. A further risk assessment in respect of that position was carried out. It concluded that it also presented a “medium” risk to her. Ms Bunning returned to the new position in November 2001, but suffered a miscarriage and remained off work until she resigned in December 2001. Consequently she had been unable to work from that date until the date of the original Tribunals Hearing in late 2002 having undergone surgery for an ovarian cyst in June 2002.

Ms Bunning made a complaint to the Employment Tribunal of unlawful direct sex discrimination and constructive unfair dismissal. The Tribunal found that her employer had not been in fundamental breach of her Contract of Employment and in addition it had not discriminated against her on grounds of her sex, specifically her pregnancy. As a result Ms Bunning’s complaints were dismissed.

She appealed against the decision submitting that the original Tribunal had been incorrect in its approach to Regulation 16. She argued that the Tribunal had failed to consider the consequences of the risk assessment to her as a pregnant employee under Regulation 16(2). As a result, that failure had affected its decision that the company had not been in fundamental breach of Contract and that she had not been discriminated against on the grounds of her sex as she had suffered no detriment.

Decision

The Employment Appeal Tribunal allowed Ms Bunning’s appeal.

It concluded that there had indeed been a breach of Regulation 16(2) of the 1999 Regulations as Ms Bunning had been required to return to work initially as a Welder and then in the stores which had both been rated as being a “medium” risk. This breach was sufficient to amount to a detriment for the purposes of the Sex Discrimination Act 1971. In addition it was also capable of amounting to a fundamental breach of Contract under the head of constructive unfair dismissal. The failure on the Tribunal’s part to consider the effect of Regulation 16(2) had undermined its judgment with respect to both parts of Ms Bunning’s claim and constituted an error of law.

The Tribunals decision would accordingly be set aside in respect of its decisions on both the Sex Discrimination and constructive unfair dismissal claims. The matter would be remitted to a fresh Tribunal for re-hearing.

Comments

This case highlights the importance of ensuring that an effective and accurate risk assessment is undertaken, in line with the Health and Safety Regulations.