Bunning v G T Bunning & Sons Ltd

The Court of Appeal dismissed the appellant's challenge to findings of an Employment Tribunal and the Employment Appeal Tribunal that the respondent had discriminated against the appellant by failing to carry out adequate risk assessments under the Management of Health and Safety at Work Regulations 1999 (in particular Regulation 16) in relation to her pregnancy, but that she was not constructively dismissed. The tribunal applied the established contractual test for constructive dismissal (Western Excavating (ECC) Ltd v Sharpe) and required a causal link between employer breach and resignation. Although the employer breached its duties under the Regulations, the appellant accepted alternative work in the stores and thereby waived or affirmed the earlier breaches; nothing in the subsequent short period in the stores or the delayed reply to a post-miscarriage letter amounted either alone or as a "last straw" to a fundamental breach justifying immediate resignation.

This is an appeal from an Employment Appeal Tribunal decision upholding an Employment Tribunal's findings. The appellant worked for the respondent family company as a welder/fitter, discovered she was pregnant in late September 2001 and raised concerns about the safety of her workplace. The employer obtained two cursory risk assessments from a health and safety consultant and initially sought her return to the workshop, later offering her redeployment to work in the stores. She miscarried on 20 November 2001 and after correspondence sought a meeting and a response; receiving no substantive reply within the requested time, she resigned on 5 December 2001 and pursued claims of pregnancy discrimination and unfair (constructive) dismissal.

The procedural history was: an initial Employment Tribunal hearing in Norwich (2002) which found against the appellant; an Employment Appeal Tribunal success on 1 July 2003 directing a rehearing; a second Employment Tribunal (Shrewsbury, August 2003; reserved decision 19 November 2003) found discrimination under the Management of Health and Safety at Work Regulations 1999 but rejected constructive dismissal; the Employment Appeal Tribunal (reserved judgment 12 November 2004) dismissed the appellant's appeal; permission to appeal to this Court was given on 10 February 2005.

The issues for the court were (i) whether the employer's risk assessments and related conduct amounted to discrimination by detriment connected to pregnancy under the Regulations and (ii) whether the appellant was constructively dismissed, applying the contractual test and the requirement of causation between breach and resignation. The Court of Appeal's reasoning: the Employment Tribunal was entitled to find that the risk assessments were inadequate and that detriments flowed from failure to comply with Regulation 16, so the discrimination finding stands and any compensatory issues are for the remedies hearing; on unfair dismissal the tribunal permissibly found a fundamental breach around early October but that the appellant accepted redeployment to the stores and did not complain about that post so she waived or affirmed the earlier breach; the subsequent failure to reply within the requested time did not amount to a further fundamental breach or a last straw justifying resignation. The Court therefore dismissed the appeal and remitted outstanding remedial issues to the Employment Tribunal, recommending a directions hearing and encouraging negotiation or mediation.

Appeal dismissed. The Court held that the Employment Tribunal lawfully found breaches of the Management of Health and Safety at Work Regulations 1999 amounting to pregnancy-related detriment but correctly rejected the constructive dismissal claim because the appellant accepted alternative work in the stores and thereby waived or affirmed earlier breaches; the delayed reply after the miscarriage did not constitute a further fundamental breach or a "last straw" sufficient to justify resignation.

First-instance Employment Tribunal (Norwich, 2002) found against the appellant. Employment Appeal Tribunal allowed an appeal on 1 July 2003 and ordered a rehearing. Second Employment Tribunal (Shrewsbury, August 2003; reserved decision 19 November 2003) found pregnancy discrimination but rejected constructive dismissal and adjourned remedy. Employment Appeal Tribunal (reserved judgment 12 November 2004) dismissed the appellant's appeal (EAT/0193/04/DM). Permission to appeal to the Court of Appeal granted by Wall LJ on 10 February 2005. Court of Appeal judgment: [2005] EWCA Civ 983.