Appeal No.	 EAT/122/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 April 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MISS C HOLROYD
MR N D WILLIS

PETER BLACK TOILETRIES & COSMETICS	APPELLANTS

MISS L JARVIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR J COPPEL
(of Counsel)
Messrs Middletons
Solicitors
2 Fore Street
Trowbridge
Wiltshire
BA14 8HX	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether there is an arguable point of law raised by the employers, Peter Black Toiletries & Cosmetics Ltd, against a unanimous decision of an Industrial Tribunal held at Bristol on 10 October and 8 November 1996, which held that the Applicant, Miss Jarvis, was unfairly dismissed.

	Before turning to the appeal we should say something about the facts underlying the decision of the Industrial Tribunal.  

	Miss Lynda Jarvis, the Applicant, commenced her employment on 19 May 1994 in a senior position as quality manager.  She was given a new job title in March 1995.  She had a salary increase in June 1995, but in August 1995 a problem arose between her and the Company.  A meeting took place.  She was offered £7,500 as a financial package to leave the Company and was told that alternatively, on her return to work, she would face disciplinary action because of the alleged breakdown in the working relationship as a result of her actions, which the Tribunal had previously described.  She, having rejected the £7,500, did enquire how this was calculated because she was hoping to receive her maternity pay:  by this date, she knew that she was pregnant and had so informed her employers.

	The Applicant then submitted a sick note on 29 August 1995 for 28 days and there was a response by the employers on 4 September.  In that letter the employers made the point that they wished to establish the seriousness and length of her absence since, if she commenced maternity leave on 29 December, her illness could run into that period and they requested access to a medical report from her doctor.  She replied, saying that she was prepared to see the Company doctor at a mutually convenient time and place.  They then replied, confirming the appointment with the Company doctor and also said that enquiries as to the existence of suitable alternative vacancies were under way.  She saw the company doctor on 17 October 1995.  He confirmed that she was suffering from stress and mild depression which would, at the present, not allow her to work properly and therefore, reasonably prevented her from returning to her job.  He was unable to say the likely date of her being able to return to work, but canvassed the possibility of her returning to a less demanding and responsible post than that which she currently held.  In addition, he was of the view that she could return to her existing role, if she was provided with more support by her employers and, importantly, he was of the view that he did not think that her pregnancy had anything to do with her current medical report.

	After receiving that report, the employers wanted to have another meeting with her to consider the possibility of reorganising her post or alternative employment.  However, no suitable vacancy was located.  After further correspondence a meeting was arranged for 1 November 1995, which was subsequently moved to 6 November in order to review the position.

	The conclusion of the meeting was that the Applicant indicated that she would contact her general practitioner about returning to work and would hope to return within a few days.  After consulting her doctor the employee was advised to be off work until the expiry of the current certificate, which was some 28 days from 24 October 1995, and thereafter her GP would review the situation.

	This meant that she would not be returning until 20 November.  She informed the employers by telephone of this fact and that prompted a letter from the employers dated 7 November 1995, expressing their disappointment that she was not returning to work immediately and saying that they were “at a loss to understand what is now preventing you from returning to work”.  In that letter they said, and I quote:

“I have therefore written to your Doctor for a medical report and have enclosed the form that you signed in order that we can have a final opinion on your ability to return promptly to your current position.”

	And indeed, by fax, of the following day, that is, 8 November, they sent a letter to her general practitioner requesting a report.

	However, on the same day as that fax was sent there was a meeting of the directors of the Company at which her future employment was considered.  After being told by the personnel officer of the current position, the directors decided that she should be dismissed and a letter of dismissal was drafted dated 9 November 1995, which was handed to the employee at a meeting of the same date.  That letter said that she had been away from her post since 31 July 1995, a period of almost 15 weeks, and that the continuing absence and uncertainty of its duration was a situation which the Company was no longer able to support.  The Company’s decision to terminate the employment was by reason of absence through ill-health, according to that letter, but the dismissal was to take effect immediately, with payment in lieu of contractual notice entitlement, which was for a period from 1 November to 9 December.

	The Applicant had said in her IT 1, which was presented to the Industrial Tribunal, that the real reason for her dismissal was an inadmissible reason, namely pregnancy or a reason connected therewith and that such dismissal was accordingly automatically unfair.  Section 99(1)(a) of the Employment Rights Act 1996 provides that:

“(1)  An employee who is dismissed shall be regarded for the purposes of this Part [of the Act] as unfairly dismissed if -
(a)  the reason (or, if more than one, the principal reason) for the dismissal is that she is pregnant or any other reason connected with her pregnancy.”

	It was, as I have already indicated, the employer’s case that her dismissal had nothing whatever to do with her pregnancy.  At paragraph 1 of their decision, the Industrial Tribunal noted the difference as to the reason for the dismissal in this way:

“1  ...Miss Jarvis’s case is that this was a dismissal which was automatically unfair because she was pregnant or it was a reason connected with her pregnancy.  The respondents say that they dismissed the applicant not for that reason but because of her ill-health unconnected with the pregnancy. ...”

	That was the issue which fell for determination by the Industrial Tribunal.  In paragraphs 16 and 17 they correctly direct themselves as to the statute and as to the approach which they should take under the statute.

	In paragraphs 18 and 19 the Tribunal said:

“18  On the facts of the present case and applying the test as laid down in Section 99 the Tribunal is satisfied that the dismissal of the applicant was for a reason connected with her pregnancy.  At the time of her dismissal the applicant was pregnant and this was a fact known to the respondents.  The respondents were clearly unhappy at the prospect of the applicant continuing in their employment and it is abundantly clear that they considered the employment of the applicant to be ‘untenable’ to use their own words from August and that a disciplinary hearing (or performance management review as it has been called) was to be held as soon as the applicant returned to her employment.  It is also clear that the respondents were unwilling to consider a financial package in excess of £7,500.00 in August and that the respondents wished to terminate the employment of the applicant as soon as and as cheaply as possible.  In answering the question:  why was the decision to terminate the applicant’s employment made on 8 November on the same day when the personnel manager had written to the applicant’s general practitioner requesting a medical report which had not, in fact, been received?  The answer that can be the only proper inference is because the directors did not wish to allow the situation to develop into the applicant being in receipt of maternity pay and being on maternity leave until the Spring of 1996.  The Tribunal finds that the principal reason for the dismissal of the applicant on 8 November was a reason connected with her pregnancy, namely that she would shortly be entitled to receive maternity pay had she continued to be employed by the respondents.  It should be noted that the respondents did not call any evidence from the directors who made the decision to dismiss although evidence was called from Mrs Smart, the personnel manager, who was present at that meeting and advised the directors.  It is a matter of speculation why the directors or any of them were not called to give evidence at the Tribunal but the fact is there was absence of evidence from this source.
19  The unanimous decision of the Tribunal is that the applicant was unfairly dismissed for a reason connected with her pregnancy and that this is a case in which it is necessary for a remedy hearing to be arranged unless the parties are able to come to terms of settlement themselves.  Any other matters, ancillary or arising from the decision of this Tribunal, will be considered at the remedy hearing.”

	It is clear therefore, from these two paragraphs firstly, that the Tribunal did not accept as truthful the reasons which the employer advanced for the reason for the dismissal.  Secondly, the Tribunal was critical of the evidence which the employers adduced as to the reason.  They noted that the persons who were responsible for taking the decision did not give evidence to the Industrial Tribunal.  The reason why the Tribunal did not believe the employers was because, having decided that they should seek a report from her general practitioner, the Tribunal thought it was inconceivable that the employers would have dismissed her for reasons of ill-health, unconnected with pregnancy, by taking the decision to dismiss on the very day that they had invited the report and before, of course, they had received it.

	The Industrial Tribunal, having thought about it, were of the view that the proper inference to draw in those circumstances was that the Applicant was correct in her belief that the reason for her dismissal was a reason connected with her pregnancy.

	Mr Coppel, on behalf of the employers, says that there are two arguable points of law which he puts in this way.  He says that firstly, the Tribunal have failed to ask why the employee was dismissed and not why the employee was dismissed on 8 November.  He says that those are distinct questions and gives examples of how a Tribunal can mislead itself if it fails to ask the right question.  Secondly, he says, that it was never put to the employer’s witnesses that they were trying to get rid of her because they did not want to make her payments of maternity pay, and nor, if that had been the reason for the dismissal, would it, in law, have been a good reason for having decided to get rid of her because they would have been liable to make those payments even when they dismissed her as they did.  And he says, therefore, that the employers were not given “a fair crack of the whip” at the Industrial Tribunal.

	We have to say that we regard both those arguments as unarguable.  It seems to us that reading paragraphs 18 and 19 in a sensible and non-technical way, it is quite obvious what the process of reasoning was.  The idea that the Tribunal have taken their “eye off the ball” and have failed to ask themselves the very question which was at issue in these proceedings seems to us to be inherently implausible.  Furthermore, if one looks carefully at paragraph 18, their process of reasoning is manifestly clear.  They find that the dismissal was for a reason connected with pregnancy.  They then seek to set out their thinking process.  Part of their thinking process was that the employer’s case was simply incredible.

	In those circumstances the Tribunal were faced with an incredible reason for a dismissal advanced by an employer.  It would have been within their experience that many employers do, in fact, wish to dismiss people who are pregnant for all sorts of reasons and hence the need for the statutory protection of such a class of woman.  

	In those circumstances it seems to us that the reasoning process of this Industrial Tribunal cannot be faulted and it is absurd to suggest that they have confused the very question which they had to answer.  They are quite clear that the real reason for the dismissal was because of the complications that are caused to an employer by having to respect the rights of a pregnant employee.  

	As to the second complaint that natural justice was not done, that seems to us to be a non-starter.  During the course of the hearing the employers and the employee would have been advancing their respective accounts of the reasons why the dismissal had taken place.  In fact, the employers, as I have noted, did not call the most direct evidence that they must have had available as to what the reason was for the dismissal.  

	It seems to us that the inference which the Tribunal drew was not a matter that required to be put to the employer’s witnesses.  It was the very issue which they had to decide and which everybody was aware was being confronted at that hearing.  

	The employers cannot now complain and say that they did not know what was in the Tribunal’s mind.  It must have been obvious to everyone concerned what the case was about and in those circumstances, there is no arguable point of law raised by Mr Coppel, on behalf of the employers.

	There being no arguable point of law the appeal will be dismissed.