Appeal No. EAT/394/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 15 January 1996

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MS S R CORBY

	DR D GRIEVES CBE

MISS M TAKPI	APPELLANT

JACQUES MATHIOT WINES PLC	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS C COX
(Representative)
Southwark Law Centre
Hanover Park House
14-16 Hanover Park
Peckham
London
SE15 5HS

For the Respondents	NO APPEARANCE OR
REPRESENTATION ON BEHALF OF THE RESPONDENTS

	MR JUSTICE TUCKER:   This is an appeal by an employee, Miss M.Takpi from a decision of the Industrial Tribunal held at London South, as long ago as 8 June 1990.  On that occasion the Tribunal unanimously decided that the application should be dismissed.

	The reason for the delay is that the Tribunal appear to have found that the Appellant had been dismissed on the grounds of her pregnancy.  There is no doubt that, at the time of the Tribunal's decision, the interpretation of the law which was then being placed upon these cases by Industrial Tribunals and Employment Appeal Tribunals and indeed, by the Court of Appeal and by the House of Lords, was that in cases such as this there was no redress.

	Therefore, we make it plain at the outset that we do not criticise the Industrial Tribunal for the decision which they reached at that time.  The reason for the delay concerns the well known case of Webb - v - EMO Air Cargo (UK) Ltd, which has been before the courts and before the House of Lords on more than one occasion.  It was first considered by the House of Lords in November 1992. (See 1993 IRLR page 27).  The House of Lords referred the matter to the European Court of Justice asking that court to consider whether it is discrimination on the grounds of sex contrary to EEC Equal Treatment Directive 76/207 for an employer to dismiss a female employee:   

"(a) whom he engaged for the specific purpose of replacing (after training) another female employee during the latter's forthcoming maternity leave,

(b)  when, very shortly after appointment, the employer discovers that the appellant herself will be absent on maternity leave during the maternity leave of the other employee, and the employer dismisses her because he needs the job- holder to be at work during that period,

(c)  had the employer known of the pregnancy of the appellant at the date of appointment, she would not have been appointed, and

(d)  the employer would similarly have dismissed a male employee engaged for this purpose who required leave of absence at the relevant time for medical or other reasons?"

	The decision of the European Court of Justice was as follows that:

"Article 2(1) read with Article 5(1) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, precludes dismissal of an employee who is recruited for an unlimited term with a view, initially, to replacing another employee during the latter's maternity leave and who cannot do so because, shortly after her recruitment, she is herself found to be pregnant."
[See 1994 IRLR 482]

	The House of Lords subsequently considered that ruling.  See [1995] IRLR 645.  Lord Keith, who had given the leading opinion on the earlier occasion, gave the leading opinion on this occasion too and set out the decision of the European Court, to which we have already referred, and considered its impact upon the domestic law.

	At paragraph 11 of the decision, page 647 of the report, Lord Keith said this:

"The ruling of the European Court proceeds on an interpretation of the broad principles dealt with in Articles 2.1 and 5.1 of the Directive to which I have referred.  Sections 1(1)(a) and 5(3) of the Act of 1975 set out a more precise test of unlawful discrimination and the problem is how to fit the terms of that test into the ruling.

It seems to me, that the only way of doing so is to hold that in a case where a woman is engaged for an indefinite period the fact that the reason why she will be temporarily unavailable for work at a time when, to her knowledge, her services will be particularly required, is pregnancy is a circumstance relevant to her case being a circumstance which could not be present of the hypothetical man.  It does not necessarily follow that pregnancy would be a relevant circumstance in the situation where the woman is denied employment for a fixed period in the future, during the whole of which her pregnancy would make her unavailable for work.  Nor in the situation where after engagement for such a period the discovery of her pregnancy leads to cancellation of the engagement."

	That is therefore now the law which we must apply.  But what were the circumstances, as found by the Industrial Tribunal, in the present case?  They found that the Appellant, Miss Takpi had been formerly employed by the Respondents, who are Jacques Mathiot Wines Plc, now in liquidation.  

	She left them in September 1988 and returned to full-time education.  She obtained a degree.  She kept in touch with the Respondents' Manager, Mr Michael Beecheno and, in due course, she became re-employed by the Respondents.  She returned to work with them as a personal assistant to Mr Beecheno on 24 July 1989.  

	About three weeks after she re-started the Appellant discovered that she was pregnant.  She immediately informed Mr Beecheno of the fact.  Her expected date of confinement was 8 April 1990.  Mr Beecheno was not best pleased.  Indeed, he asked her if she intended to keep the baby or if she was contemplating an abortion, but the Appellant said that she was keeping the baby.  She continued to do her work.  

	There were no complaints about her work but in due course she was dismissed while on sick leave for another reason.  She received a notice dated 3 November 1989, the first sentence of which read:  "I must advise you that your employment has been terminated with immediate effect".  No reason was given for that.

	In a document annexed to their Notice of Appearance the Respondents suggest that the Appellant's work was of such a poor quality that a decision was taken to terminate her employment.  It was denied that the Appellant was discriminated against under the Sex Discrimination Act 1975.

	It is clear to us that this Appellant was employed for an indefinite period, but was she dismissed by reason of her pregnancy?  We would have been greatly assisted in the matter had there been a clear finding by the Tribunal to that effect, but unhappily there was not.  Having set out the facts as we have already described them the Tribunal then said this at paragraph 7 of their decision:

"7   Miss Takpi never received any criticism of her work whilst she was there for the three months in the Summer of 1989.  It is submitted on her behalf that this is not the true reason for her dismissal and certainly we find there is nothing to suggest from the evidence we have heard that her work was faulty.  She was given no warnings ..." 

	Now unfortunately, because no doubt of the Respondents insolvency, they did not appear before the Industrial Tribunal and neither they nor the Liquidator have appeared before us. So we have not had any contrary argument, and neither did the Tribunal.  But it is clear from the paragraph to which we have referred that the Tribunal were finding that there was nothing to suggest from the evidence before them, which would justify a dismissal on the ground of bad quality of work.  They returned to the matter of the reason for the dismissal in paragraph 9 of their decision.  They said this:

"The onus is upon the applicant throughout to satisfy this tribunal on the balance of probabilities that there has been discrimination and that discrimination is due to her sex.  In this case although it may well be that a factor causing her dismissal was her pregnancy because Mr Beecheno wanted Miss Takpi to replace somebody who was going to be away having a baby, there is no evidence from which we can draw the inference that if a man had been in a comparaative position he would not have been treated in the same way."

	We regret to have to say that that is a very imprecise finding, but we conclude that what the Tribunal are finding is:

(a)  that this Appellant was not dismissed on the ground of bad quality of her work but that

(b)  the real reason for her dismissal was her pregnancy.  

	We reach that conclusion because we can see no other reason for the Tribunal having referred to the comparative position of a man.  They referred to that question because as the law was then interpreted, Tribunals had to struggle with the concept of a male comparator in situations such as these; a comparison which the European Court and the House of Lords have now recognised was inappropriate.  Therefore, we conclude that the finding was that this lady was dismissed on the grounds of pregnancy.  That being so, it seems to us that the matter is now governed by the recent decision of the House of Lords in Webb v EMO Cargo No.2 as reflecting what the law is in the light of the European Court's ruling.  Fortunately, this matter was covered by a Notice of Appeal which was in time.  It is dated 24 July 1990, since when there has been an amended Notice of Appeal covering the point.

	Therefore in the circumstances of this case, although great delay has occurred, the delay is explicable and we see no obstacle to entertaining this appeal and in dealing with it.  In the light of the law, as now enunciated, it seems to us that there was a breach of the Sex Discrimination Act in dismissing this Appellant on the grounds of her pregnancy.

	Accordingly we find that the Tribunal, although rightly interpreting the law as it stood at the time, were wrong as the law now is, in dismissing her application.  We allow this appeal.  We accede to the Appellant's application and we remit the matter to the Industrial Tribunal for consideration of compensation.  We invite the Regional Chairman to consider the matter, and to appoint a differently constituted Tribunal if need be, for that purpose.