Bunning v GT Bunning and Sons Ltd.

This is an application by Miss Suzanne Marie Bunning for permission to appeal against a decision of the Employment Appeal Tribunal (EAT) (Lord Johnston, Mrs. McArthur and Mr Welch) dated 12 November 2004. The EAT dismissed Miss Bunning’s appeal against a decision of the Employment Tribunal (ET) sitting at Shrewsbury promulgated on 19 November 2003. By its decision, the ET had decided unanimously that Miss Bunning had resigned from her employment, and not been unfairly constructively dismissed by her employer, GT Bunning & Sons Limited (the Respondent) as Miss Bunning had claimed. However, the ET also unanimously found that the Respondent had discriminated against Miss Bunning on the grounds of her pregnancy. It adjourned the question of remedy to a date to be fixed.

On 28 January 2005, Miss Bunning’s application for permission to appeal was argued with both courtesy and force by her partner, Mr. Tom Fletcher. As Mr. Fletcher produced a certain amount of material, largely authorities, some of which I had not examined, I took the unusual course of reserving my decision, and putting my reasons for it into writing. This I now do. I have come to the conclusion that permission to appeal should be granted, and in an attempt to assist the full court, which will hear the appeal, I will set out my reasons.

There is no cross-appeal by the Respondent against the finding of discrimination, and accordingly the principal point, which arises on this application, relates to the question of constructive dismissal.

The case has an unfortunate procedural history, because the events with which I am concerned took place in the latter part of 2001, more than three years ago. The reason Miss Bunning’s claim remains outstanding is that the first ET on 19 December 2002, dismissed it in its entirety. Miss Bunning appealed to the EAT which allowed her appeal on 1 July 2003, and remitted the claim to a differently constituted ET for re-hearing. The current permission application thus derives from the re-hearing by the second ET, and the dismissal of Miss Bunning’s appeal by the EAT from that decision. The EAT also refused Miss Bunning permission to appeal.

Miss Bunning was employed as a welder / fitter by the Respondent, which is a family company of which her father and her two uncles are the directors. The Respondent’s business is largely that of the manufacture of agricultural machinery. Miss Bunning was the first and only woman to be employed by the Respondent in its workshop as a welder fitter.

The relevant history for present purposes begins on 30 September 2001 when Miss Bunning informed her father that she was pregnant, and that she felt it was no longer safe for her to work in the workshop. On the following day, Miss Bunning gave the same information to her aunt, who is the company secretary. That notification brought into operation Regulation 16 of the Management of Health and Safety at Work Regulations 1999 (the Regulations), which constitute the continuing domestic implementation of EC Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work.

A Mr. Errington, on the Respondent’s behalf, carried out what the ET found to be an inadequate assessment of the risk faced by Miss Bunning’s continued employment in the workshop. In a letter written to Miss Bunning on 10 October 2001, and in reliance on this defective assessment, the Respondent asserted that there was no question of Miss Bunning being suspended as a result of her pregnancy (see Regulation 16(3)), and that she should report for work in the workshop as normal on 15 October.

The ET commented on the Respondent’s behaviour in this regard: -

The ET found, however, that this is not what had happened. By a letter dated 2 November 2001, the Respondent offered Miss Bunning a job in its stores. This followed a risk assessment, also undertaken by Mr. Errington, on 1 November 2001. Once again, this risk assessment was found by the ET to be inadequate. However, on 5 November 2001, Miss Bunning went to work in the stores, and was employed there until she miscarried on 20 November 2001.

On 27 November 2001, Miss Bunning wrote a long letter to the Respondent, which was signed by both herself and Mr. Fletcher. The letter complains about the Respondent’s treatment of Miss Bunning following her announcement of her pregnancy, in particular the inadequacy of the risk assessment and the Respondent’s insistence that she continue to work in the workshop. The letter requests a meeting with the directors, without prejudice; to highlight areas of concern regarding the Respondent’s handling of the pregnancy. The letter seeks a meeting no later than 20 December and asks for a response by 3 December. The letter also makes it clear that Miss Bunning wished to return to work when her health had recovered, but asks that this should be in the New Year. Miss Bunning invites the Respondent to allocate her absence to Educational Paid Leave.

The Respondent replied in a letter dated 4 December, and signed by all three directors. It declined the suggestion of a meeting, defended its conduct and noted that Miss Bunning intended to return to work when she was able. It declined, however, to agree to educational paid leave, and asked for medical certificates.

The Respondent’s letter of 4 December crossed with Miss Bunning’s letter of 5 December to the Respondent, which contains her resignation. The relevant paragraph reads: -

The Respondent accepted Miss Bunning’s resignation, and her employment came to an end. She issued her form IT1 on 14 December 2001, asserting that the respondent’s failure to respond to her letter represented the final event in the breakdown of trust and confidence, which had taken place between herself and the Respondent. She alleged (inter alia) that she had been constructively dismissed, and that her dismissal was unfair.

The ET said it was plain that Miss Bunning “made her decision to resign based on factors that could not have justified her in doing so”. It said: -

The ET accepted Miss Bunning’s evidence that her principal reasons for resigning were her conclusion that the Respondent was not taking her seriously, and the way in which it had treated her over health and safety issues after the announcement of her pregnancy, but was “not persuaded” that Miss Bunning was justified in resigning when she did for those reasons. In paragraph 57 of its reasons, it concluded: -

The EAT adopted the ET’s reasoning and concluded that the ET had been “entitled to conclude, not least in the issue of credibility, there was no causal connection between the resignation and the breaches of contract such as to form a repudiatory breach on the part of the employer entitling the employee to resign”.

Mr. Fletcher, in his skeleton argument, launches a root and branch attack on these conclusions. For the purpose of this judgment it is, I think, necessary only to summarise the argument, as I understood it. In essence, he says, the respondent owed Miss Bunning a duty to provide her with a safe working environment: it was manifestly in breach of its duty under Regulation 16 to carry out proper assessments in relation to Miss Bunning’s employment both in the workshop and the stores. The fact that Miss Bunning returned to work consequent upon an inadequate assessment of the risk to her in the stores did not relieve the Respondent of its duty either to provide her with a safe working environment or to make a proper assessment of risk, and her return could not therefore constitute a waiver of her rights. The Respondent’s conduct in failing to provide her with a safe working environment and in causing inadequate assessments of risk to be undertaken went to the root of the duty of trust and confidence, and entitled her to resign. The fact that the respondent did not reply within the reasonable time-frame asked by Miss Bunning was not, as the ET appeared to think, a breach which, of itself, justified Miss Bunning in resigning, but it was the final straw: - see the recent decision of this court in Omilaju v Waltham Forest London Borough Council [2004] EWCA Civ 1493: [2005] 1 All ER 75.

Mr. Fletcher also suggested that even if the Respondent’s letter had been received before Miss Bunning’s letter of resignation she would still have been entitled to resign because (a) the letter adhered to and justified the inadequate risk assessments; and (b) refused a meeting. It thus anticipated a return to work without any of the clear breaches of the implied term of trust and confidence being addressed.

Mr. Fletcher also argued that no consideration had been given by the ET or the EAT to Regulation 16(3), which requires an employer to suspend an employee if the risk cannot be avoided by altering working condition or hours of work. He argued that the risk of Miss Bunning working in the stores had manifestly not been properly addressed. Had there been a proper assessment, she should have been suspended until it had. Mr. Fletcher argued that that burden of proof was on the respondent to show that it had taken reasonable steps to prevent, avoid, or adequately control the risk to Miss Bunning, not on Miss Bunning to show that it had not.

I do not know if this (or the other arguments advanced by Mr. Fletcher) will succeed before the full court. In my judgment, however, paragraph 57 of the ET’s reasons is open to attack along the lines indicated by Mr. Fletcher, and it also seems to me to be arguable that the Respondent’s conduct in relation to the Regulations constituted a fundamental breach of the implied term of trust and confidence sufficient to entitle Miss Bunning to terminate her contract of employment.

Mr. Fletcher also made the point that the case raised issues of general importance in relation to the employment of pregnant women, which should be considered by the Court of Appeal.

I made it clear to Mr. Fletcher that in this court costs almost invariably follow the event, so that if Miss Bunning fails, it is likely she will have to pay the Respondent’s costs. Mr. Fletcher told me he was well aware of this.

I therefore give permission to appeal. I do not propose to limit the scope of Miss Bunning’s appeal. I confess, however, that I did not altogether follow Mr. Fletcher’s argument on discrimination, in relation to which, of course, the ET found in Miss Bunning’s favour. I therefore direct that not less than 21 days prior to the date which will be fixed for the hearing of this appeal, Mr. Fletcher must file a short (not more than two page) document explaining the nature of his complaint about the ET’s finding on discrimination, and the relief which he seeks in relation to it.

I direct that the appeal be heard by a three judge court, at least one of whom should have had EAT experience. That court may include a High Court Judge, if that judge has EAT experience. I estimate that the case will last one day.

As a footnote, I add that, as a judge who formerly sat in the Family Division, I was naturally pleased to see that Miss Bunning’s miscarriage on 20 November 2001 had not prevented her subsequently giving birth to the obviously healthy child whom I allowed to remain with Miss Bunning in court whilst Mr. Fletcher made his submissions. I suggest, however, that Mr. Fletcher and Miss Bunning make baby-sitting arrangements for the date when the case comes before the full court, as the child’s presence may well prove a distraction.