Brocklebank v Silveira

Brocklebank v Silveira, EAT, 11 January 2006

Miss Silveira, a Portuguese national, came to the UK under an arrangement with Seek Personnel Ltd, an employment agency jointly owned and managed by Mrs Brocklebank and Mr Machado. Seek Personnel arranged employment for Silveira at a chicken factory. Silveira disclosed on her pre-employment forms that she was pregnant and the prospective employer requested that Seek Personnel should complete a risk assessment sheet. No such assessment was completed, so Silveira brought a tribunal complaint of unlawful sex discrimination. She claimed that she had been prevented from obtaining employment as a result of sex discrimination by Seek Personnel.

The law Section 15(b) of the Sex Discrimination Act 1975 provides that it is unlawful for an employment agency to discriminate against a woman by refusing or deliberately omitting to provide any of its services. In this case, it was claimed that it was the agency and its manager/owners’ deliberate omission to provide the risk assess-ment required by the prospective employer, which amounted to unlawful sex discrimination.

The tribunal held that the undertaking of a first-level risk assessment was one of the services to be provided by Seek Personnel, and that it had deliberately omitted to do so, contrary to section 15 of the Sex Discrimination Act 1975. Accordingly, Silveira’s complaint of unlawful sex discrimination was upheld and Brocklebank and Machado were ordered to pay compensation. Brocklebank appealed.

The appeal was dismissed. The Employment Appeal Tribunal found that the tribunal’s approach to the law and its application was correct and adequately set out in its decision.

This is one of a number of recent cases reminding organisations of their obligations to carry out risk assessments for pregnant staff. The Management of Health and Safety at Work Regulations 1999 create obligations for employers towards pregnant staff. The Health and Safety Executive has guidance on health and safety issues for new and expectant mothers.

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