Day v Pickles Farms Ltd [1999] IRLR 217
If an employer fails to comply with his health and safety obligations towards a pregnant employee under the Management of Health and Safety at Work Regulations 1992, then does the employee have a remedy under the Sex Discrimination Act 1975?
This is the important question posed, but unfortunately not answered, by the Employment Appeal Tribunal in their recent decision concering Day v Pickles Farms Ltd (10 November 1998).
Mrs Day became pregnant not long after starting work as a counter assistant with T. Pickles Farms Ltd in one of their sandwich shops. Chicken was cooked and roasted in the shop, and when she became pregnant the smell gave her such severe morning sickness that she could not continue working. She was signed off sick by her GP, and eventually she simply did not go back to work after the birth of her child.
The Tribunal who originally heard the case found against Mrs Day in relation to her claims for constructive dismissal, sex discrimination and payment for outstanding SSP. One of the main arguments before them had been that the company's failure to carry out any risk assessment, pursuant to the 1992 Regulations, amounted to a breach of contract and sex discrimination.
On appeal, the Employment Appeal Tribunal upheld the finding that there had been no constructive dismissal, but remitted the question of whether there had been a breach of the 1992 Regulations, and if so whether that amounted to a breach of the Sex Discrimination Act.
Clause 13 of the 1992 Regulations provides that "Where (a) the persons working in an undertaking include women of child-bearing age; and (b) the work is of a kind which could involve risk...to the health and safety of a new or expectant mother..." then a suitable and sufficient assessment of those risks shall be carried out by the employer.
The evidence of the Company in this case was that no such risk assessment had been carried out. If such an assessment had been carried out then, it might have led to the installation of a ventilation system reducing the smells so allowing Mrs Day to continue working. Therefore in these circumstances was the failure to carry out an assessment a detriment to Mrs Day within the meaning of Section 6 of the Sex Discrimination Act?
The difficulty that Mrs Day faced was that the 1992 Regulations do not impose civil liability, so a breach by an employer does not in itself entitle an employee to claim compensation. If the employee sustains personal injury, then the failure to carry out an assessment will be relevant in any personal injury compensation claim. Likewise, if she is dismissed then she has remedies under the Employment Rights Act 1996 and the Sex Discrimination Act. No equivalent remedy appears to exist for an employee who only suffers detriment as a result of a failure to carry out an assessment.
This has been touched on in the case of Iske v P & O Ferries 1997 IRLR 401. Here it was held that the employer's failure to provide alternative work to a woman suspended from her work, was due to the fact of the woman's pregnancy and therefore direct discrimination.
But it is much harder to see how a failure to carry out a risk assessment could be due to the fact of pregnancy itself. At the end of the day, it may be that a straightforward approach has to be taken to cases of this sort. Perhaps the issue should be whether the employers would have complied with their legal obligations had they related to male employees as opposed to pregnant women.
Certainly the obligation to carry out risk assessments for all women of child-bearing age is not a widely acknowledged duty, and it may be possible to prove discriminatory treatment in this way. This will however be harder in a case such as Mrs Day's where the employer apparently carried out no risk assessments at all.
What remains to be seen is how effect will be given to the Pregnant Workers Directive 92/85, which supplements the 1992 Regulations. Article 4 of the Directive requires employers to carry out risk assessments for pregnant women, and Article 12 requires member states to introduce measures to enable workers to pursue their rights by judicial process.
Even if Mrs Day succeeds with her claim when the case is remitted, one wonders whether pursuing a remedy in these circumstances under the provisions of the Sex Discrimination Act on the grounds of comparatively worse treatment can be sufficient implementation of Article 12.