SEX DISCRIMINATION

New Southern Railway Ltd v Quinn

EAT: Judge Serota QC, Lord Davies of Coity and Ms N Sutcliffe: 28 November 2005

The claimant was employed by the respondent employer as a station manager support clerk, but was offered the higher paid position of duty station manager, subject to a three-month trial period. Towards the end of the trial period she became pregnant and was absent from work due to sickness. On her return to work, a risk assessment was carried out in respect of her duties which identified high risks faced by the claimant as a duty station manager, but suggested ways in which alterations to her working conditions or hours could reduce the risk to medium or low and anticipated that she could continue in that post. At the end of the trial period the employer decided, without consulting the claimant or the risk assessor, that the risk was too high for the claimant to continue as a duty station manager and she was suspended from that post and returned to her post as a support clerk. The claimant presented a complaint to an employment tribunal, pursuant to section 70 of the Employment Rights Act 1996, alleging that she had suffered detriment by reason of her pregnancy, contrary to sections 68 and 67, namely a reduction in salary and a failure to offer her alternative employment on terms not substantially less favourable. She also complained that she had been treated less favourably on the ground of her sex. The claimant continued to work for four months, when she became sick, and two months later she resigned and made the further complaints that she had been constructively dismissed unfairly and that unlawful deductions had been made from her salary.

The employment tribunal found that the decision to suspend the claimant had been taken, not with regard to the risk assessment or the Management of Health and Safety at Work Regulations 1999, but by reason of the personal feelings of the employer's managers to which it attached a health and safety label; and that, therefore, the claimant had not been suspended from work on maternity grounds within the meaning of section 66 of the 1996 Act. Accordingly, it dismissed the complaints under section 70. But the tribunal found that it had not been necessary for the employer to demote the claimant, or reduce her salary, in order to avoid risks to her in compliance with regulation 16 of the Regulations, and concluded that the employer had thereby discriminated against the claimant on grounds of sex, contrary to the Sex Discrimination Act 1975; had subjected her to a detriment by reason of her pregnancy contrary to section 47C of the 1996 Act; had made unauthorised deductions from her wages; and had unfairly dismissed her.

The employer appealed.

The Employment Appeal Tribunal held:
(1) Under regulation 16 of the Management of Health and Safety at Work Regulations 1999, where work posed a risk to a pregnant woman or her unborn child, the risk had to be assessed and, only if it could not be avoided or it was unreasonable to alter working conditions, could the employer suspend the employee. The tribunal had found that the claimant had been suspended, not on health and safety grounds, but due to the personal feelings of the managers, and that the employer had failed to discharge the burden on it of showing that its treatment of the claimant was for health and safety reasons. Further, the employer had failed to show that 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 risks to the claimant, the tribunal having found that adjustments were possible but that the employer had unreasonably failed to make them or to consider implementing the recommendations in the risk assessment.

(2) Though the claimant had continued to act in accordance with her contract of employment for some six months after the employer was in breach of the implied term of trust and confidence by demoting her, and had thereby probably waived her right to treat it as discharged by reason of that breach, the employer had continued from month to month to make unlawful deductions, which constituted a continuing breach of contract entitling the claimant to treat her contract as repudiated at the time of her resignation.
Per curiam. "Avoid" in regulation 16 of the 1999 Regulations cannot mean eliminate in entirety but means reduce to its lowest acceptable level. As the implementation of 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 principle of proportionality requires that the greater the discriminatory act, the greater the necessity must be.

The appeal was dismissed.

Appearances: Andrew Short (Kennedys) for the employer; David Massarella (Morrish & Co, Leeds) for the claimant.