Appeal No.	 EAT/78/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 March 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MRS R A VICKERS

MRS R M BECK	APPELLANT

MORGAN HOPE INDUSTRIES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT	

	JUDGE PETER CLARK:		On 24th June 1998 the appellant, Mrs Beck, presented a complaint to the Liverpool Employment Tribunal alleging sex discrimination against her employer, Morgan Hope Industries Ltd. It seems that shortly thereafter she tendered her resignation, so that when the matter came before the Employment Tribunal on 16th October 1998 that tribunal considered her complaints both of sex discrimination and constructive unfair dismissal.

	The respondent company commenced business in April 1992. It started in the founder, Mr Fisher’s back garden and since then has grown dramatically.

	The appellant was first employed in April 1996. She shared general office duties with another employee, Ms Green. They shared, in particular, the job of book-keeping and accounts.

	On 16th June 1997 the appellant began a period of maternity leave. In that month the respondent recruited Mrs Nicki Clarke, initially to cover for the appellant. With the expansion of business Mrs Clarke became a full-time employee, specifically to look after the book-keeping and accounts which had not been done satisfactorily under the previous job-share arrangement involving the appellant and Ms Green.

	Due to Mr Fisher’s regular absences from the office he gave Mrs Clarke overall responsibility for the running of the office.

	The appellant’s child was born on 11th July 1997. She then suffered a period of post-natal depression. She finally returned to work in February 1998.

	It was her case that she was subjected to a detriment in that following her return she was redeployed to less congenial work and was isolated. The tribunal considered that case and the evidence adduced before it on both sides and they rejected it. They found that she was not subjected to a detriment, nor were the respondents in breach of contract in the duties allocated to her following her return to work after maternity leave. The complaints were dismissed by a decision with extended reasons promulgated on 20th November 1998.

	Against that decision the appellant now appeals. Below she was represented by a Citizens Advice Bureau worker, Mr Worthington. In this appeal she is represented by Sefton Employment Rights Unit. This is a preliminary hearing held to determine whether the appeal raises any arguable point of law to go to a full hearing. Her new representative has indicated that she will not be represented at this hearing and, indeed, there is no appearance. Accordingly, and in the absence of a written skeleton argument, we have considered the grounds of appeal in a Notice dated 23rd December 1998.

	There are essentially two grounds. The first is that the tribunal reached a perverse decision given certain evidence which, it is said, was unchallenged and which was before the tribunal and those evidential matters are set out at paragraph 6.1 of the Notice of Appeal. 

	It seems to us that the Employment Tribunal considered the evidence before it and reached certain findings of fact with which we cannot interfere. This first ground of appeal is essentially a challenge to those findings of fact. That is not permissible.

	The second ground of appeal relates to the hypothetical question as to whether or not the appellant would have taken on the role eventually adopted by Mrs Clarke had she not been absent on maternity leave and thereafter during her period of illness caused by the birth.

	It is frankly conceded in the Notice of Appeal that the appellant did not make a submission to that effect at the hearing before the Employment Tribunal. The Court of Appeal has recently re-affirmed the long-established principle that we cannot entertain new points, save in certain circumstances where the matter goes to jurisdiction, and that is not this case, for the first time on appeal. See Jones v Burdett Coutts School [1998] IRLR 521. In these circumstances, we are unable to entertain this further ground of appeal. 

	Accordingly, the appeal must be dismissed.