Appeal No. EAT/1417/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR D J HODGKINS CB
MR P M SMITH

MISS L E ANGOVE	APPELLANT

BRY-KOL DEVELOPMENTS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	TESS GILL
(of Counsel)
Instructed by:
Messrs Bindman & Partners
Solicitors
275 Gray's Inn Road
London WC1X 8QF	
For the Respondent	MISS SARAH MOOR
(of Counsel)
Instructed by:
Messrs Grindleys
Solicitors
5/6 Brook Street
Stoke-on-Trent
ST4 1JN	

JUDGE PETER CLARK

1	This is an appeal by Miss Angove, the Applicant before the Shrewsbury Employment Tribunal sitting on 3 September 1999, against that Tribunal’s Decision, promulgated with Extended Reasons on 29 September, dismissing her complaints of unfair dismissal for an inadmissible reason (automatically unfair dismissal) contrary to section 99 of the Employment Rights Act 1996 and unlawful sex discrimination contrary to the Sex Discrimination Act 1975 brought against her former employer, the Respondent, Bry-Kol Developments Ltd.  They further purported to find that the Applicant had been unfairly dismissed contrary to section 98 of the Employment Rights Act (ordinary unfair dismissal) although it is common ground they had no jurisdiction to make that finding, the Applicant not having the minimum qualifying service for such a claim.  They made a nil compensation order pursuant to that finding.

The facts
2	We begin with the primary facts found by the Tribunal.  The Appellant commenced employment with the Respondent on 13 October 1997.  In October 1998 she informed the company that she was pregnant with her second child.  By 8 April 1999 she was thirty four weeks pregnant and shortly to go on maternity leave.  

3	By early April 1999 the Respondent found itself in severe financial difficulties.  The board resolved to make cuts.  Those cuts included the resignation of the Chairman, and thus saving of his salary; seeking to sub-let two of the three floor of the Burslem premises, which the Respondent occupied and redundancies.  At that time the Respondent employed about forty staff.  

4	It was decided that two jobs would go.  The receptionist’s job, then held by the Appellant, and that of the Accounts Clerk, a position held by an employee called Janet Ball.

5	On 8 April the Appellant and Janet Ball were called into an office by Lorraine Park, the Financial Controller, and without prior warning told that they were to be made redundant with immediate effect.  The Appellant was understandably extremely upset.  She was escorted from the premises, never to return.  

6	On 8 April the Appellant had, before these events, brought into work a completed MATB1 form relating to her impending maternity leave.  Ms Park did not accept it, due she says to the pressures of that day.  In the event the maternity pay to which the Appellant was entitled was not paid by the Respondent until the end of July 1999.  

7	What does not appear in the Tribunal’s reasons is the Appellant’s employment history with the Respondent.  However, we have the notes of evidence given at the Tribunal.

8	In a document annexed to her form ET1, which stood as her evidence-in-chief, as expanded orally, she said this.  She started with the Respondent as a receptionist/typist, which post she filled at Burslem until July 1998.  She then moved to a sister company at Chesterton, Newcastle under Lyme, called PHM/Promar Distribution Ltd, as Service Administrator.  She remained at Chesterton until 1 March 1999 when she moved back on to reception duties at Burslem on a full-time basis.  

9	She added that at that stage she was given a choice.  Stay with the Service Department on a part-time basis or return to Reception on a full-time basis.  She said she had no option because she needed full-time work for financial reasons, although she had heard mentioned within management that the Respondent did not really require a full-time receptionist any longer.

10	The significance of that account will appear later in this judgment.  We have set it out in full because, although the Tribunal made no express findings as to the Appellant’s employment history, we note that it was not challenged in cross-examination before the Tribunal and was, arguably at least, not contradicted in evidence by the Respondent’s sole witness, Ms Park.

The complaints
11	It is important to see how the Appellant’s case was put below.  She was there represented by Mrs Pearce, her mother; the Respondent was represented by a solicitor, Mrs Goodwin.

12	At the outset of the hearing, we see from the Chairman’s notes it was confirmed that the Appellant’s case on sex discrimination related to the non-payment of maternity pay until July 1999.  

13	As to the claim of automatically unfair dismissal under section 99 Employment Rights Act, there was an issue as to whether or not the Appellant’s receptionist post was indeed redundant.  She claimed that she had been replaced.  That contention was challenged by Ms Park and the Tribunal resolved that issue in favour of the Respondent.  They found that her post, like that of Janet Ball, was redundant, and that redundancy lay where it fell.  

14	In his notes of evidence the Chairman briefly summarises the closing submissions of the representatives.  On the question of the reason for dismissal Mrs Goodwin argued that the reason was not connected with the Appellant’s pregnancy, it was redundancy.  Mrs Pearce contended that the reason why the Appellant was moved back to reception from Chesterton was because it was general knowledge that reception was “shaky”; the Appellant was selected for dismissal because she was shortly to go on maternity leave and the Respondent, as the Tribunal subsequently found, were hopelessly ignorant of maternity rights.  They assumed that they could do what they did.  Mrs Pearce further argued, unsuccessfully as it turned out, that the receptionist post was not in fact redundant. 

The Tribunal Decision
15	On the two principal issues with which we are concerned (we omit reference to the Tribunal’s impermissible finding of ordinary unfair dismissal) the Tribunal concluded:

(1) that the sex discrimination claim failed on the maternity pay point identified at the start of the hearing and repeated by the Tribunal at paragraph 11 of their Reasons.  
(2) That the automatically unfair dismissal claim failed because, for the purposes of section 99(1)(a) Employment Rights Act as it was then enacted, that is before the Employment Relations Act 1999 amendment, the reason (or principal reason) for dismissal was not that she was pregnant or any other reason connected with her pregnancy, it was redundancy.

The Appeal
16	We have the advantage of very experienced Counsel in the field appearing before us; that benefit was not afforded to the Employment Tribunal.  In these circumstances we must exercise extreme care in ensuring that we do not entertain new points which were not taken below, but could have been, save in exceptional circumstances, see Jones v Governing Body of Burdett Coutts School [1998] IRLR 521.

17	At a preliminary hearing held in this case on 25 February 2000 before a division presided over by Mr Justice Lindsay, at which the Appellant was again represented by Mrs Pearce, the appeal was permitted to proceed to this full hearing on three points, identified by the President in his judgment given on that occasion.  They were:

(1) The Tribunal appears to have concluded that the existence of a redundancy situation was mutually incompatible with a finding of “automatic” unfair dismissal for pregnancy.
(2) A dismissal on the ground of pregnancy is a dismissal on the grounds of sex.  The Tribunal failed to take account of the Appellant’s submission that the claim of sex discrimination related to her dismissal on grounds of pregnancy.  
(3) The pregnancy of the Appellant was therefore a causative factor notwithstanding that the need to make redundancies was also a causative factor. 

18	Additionally, having referred to passages from the forms ET1 and ET3 relating to the Appellant’s employment history with the Respondent, the President added this, at paragraph 10 of the judgment:
“10	  So it may thus have been that there was no hidden motive behind the transfer to Reception but that, in any event, Miss Angove could have avoided it by electing to work part time in the Service Department.  If, on the evidence, that had proved the case, then Miss Angove’s present criticism, which supposes a hidden motive in the transfer to Reception, may be devoid of content and the Tribunal would, in such a case, not be properly criticisable for not dealing with it more fully than it did.  That is simply an example of an issue that cannot yet be resolved, one way or another, without us knowing more about what was said and done at the hearing.”

In these circumstances the Chairman’s notes of evidence were sought and obtained and are now before us.

19	Based on the notes of evidence, Ms Gill, in addition to developing the three specific points in the appeal identified at the preliminary hearing, contends that the Tribunal erred in law in making no findings as to the Appellant’s employment history and in particular, whether in the judgment of the Tribunal the Appellant was offered the return to full-time reception duties, as an alternative to remaining as a Service Administrator part-time, with a view to selecting her for redundancy shortly thereafter, she then being about to go on what the Respondent believed was irrecoverable paid maternity leave.  It may be described as a Meek point, coupled with the Court of Appeal’s dictum in Chapman v Simon [1994] IRLR 124, that the Tribunal should make careful findings of primary fact in discrimination cases.  As so often happens where a case is closely and ably argued as this one has been, the real issues crystallise further.  It seems to us that we need to determine two questions.  

20	First, did the Tribunal fail to deal with the argument raised below that the Appellant’s transfer back to the receptionist’s post on 1 March 1999 was motivated by the future possibility that that post would soon be surplus to requirements with the added financial advantage that the Respondent would thereby lose an employee about to embark on maternity leave?

21	Ms Moor submits that on a fair reading of the Tribunal’s reasons, although the point is not addressed directly in terms, it is possible to discern a finding by the Tribunal that they rejected it.  

22	She relies particularly on the findings at paragraph 6 of the Reasons, based on Ms Parks’ evidence, that it was not until after the March trading figures were completed that the Respondent took immediate action to declare the two redundancies, including that of the Appellant, as part of the necessary cost cutting exercise.  It follows that as at 1 March the motivation imputed to the Respondent by the Appellant could not stand.

23	We found that submission superficially attractive, but in our judgment that is simply not enough.  The Tribunal were entitled to find that no decision as to redundancy was made before April, but the Appellant’s case was more subtle than that.  It was that the deterioration in the trading position of the Respondent month by month in early 1999 gave rise to thoughts of future cost-cutting if matters did not improve.  It is that question, which survives the Tribunal’s findings as to the Respondent’s final decision making action, which is material and is not addressed by the Tribunal.  In our judgment the Tribunal was required to deal expressly with the motivation behind the transfer on 1 March.  It is not enough simply to find that the Appellant was redundant on 8 April if the relevant chain of events leading to her redundancy was principally led by the facts of her pregnancy and imminent maternity leave.  In this respect we conclude that the Tribunal fell into error.  Their decision fails to provide any or sufficient reasoning on this critical point raised before them, see Flannery v Halifax Estate Agencies Ltd [2000] IRLR 377, 381G - 382C, per Henry LJ.  

24	In these circumstances it is common ground between Counsel that the matter must be remitted to a fresh Employment Tribunal for rehearing.  That gives rise to the second question.  Should the case on remission be limited to this factual question and its effect; plainly it should, but does that mean only its effect on the section 99 Employment Rights Act complaint or is the question of sex discrimination under the Sex Discrimination Act also to be considered?  

25	We have invited submissions from Counsel as to the practical differences, if any, between these two causes of action.  Based on those submissions we have formed the view that there are essential differences as to both causation and remedy.

26	On causation, whereas it is sufficient for the Appellant in a complaint under the Sex Discrimination Act to show that pregnancy is an effective cause, or an important or significant cause of the dismissal see O’Neill v St Thomas More School [1997] ICR 33, 43 E - H, per Mr  Justice Mummery; Nagarajan v London Regional Transport [1999] ICR 877, 892 F - H, per Lord Steyn; for the purposes of section 99 Employment Rights Act she must show that the reason or principal reason for dismissal was pregnancy or a connected reason; a higher burden in our view. 

27	As to remedy, whilst there is a degree of overlap, the remedy for automatically unfair dismissal (unlimited as to amount) includes a basic award and the remedies of reinstatement or re-engagement, and the remedy under the Sex Discrimination Act includes compensation for injury to feelings and for personal injury, those remedies not being found respectively in the alternative cause of action.  

28	In these circumstances Ms Gill urges us to remit the matter on this point both under section 99 Employment Rights Act and the Sex Discrimination Act.  We have no doubt that the facts averred by the Appellant, if made out, are capable of founding both heads of complaint.  

29	Ms Moor resists our remitting the case under the Sex Discrimination Act.  She submits that at the hearing below the Appellant’s representatives limited the sex discrimination claim to the late payment of maternity benefit.  She failed on that point and that is the end of the sex discrimination claim.  The inexperience of the Appellant’s representative below is no answer.  She should not be allowed a second bite at that particular cherry (we paraphrase).

30	In our view that would be an unrealistic approach to take.  We have not allowed a new point to be taken on appeal, cf Jones.  Rather, we have found that the Employment Tribunal failed to deal with a material point which plainly was taken.  Since the point goes to both automatically unfair dismissal and sex discrimination that is the basis on which a fresh Tribunal rehearing the case should approach the matter. 

31	For this purpose we make it clear that the parties are not limited to recalling the witnesses who gave evidence on the last occasion.  It may be, for example, that since the focus now is on the circumstances leading to the Appellant’s transfer back to receptionist duties on 1 March 1999 the Respondent may wish to call evidence as to (a) the reasons for that decision and (b) the Respondent’s state of mind, through its board, as to the possible need for future redundancies and where those redundancies might fall as at 1 March.  That will be a matter for them.

32	In these circumstances we shall allow this appeal and remit the case for rehearing by a fresh Tribunal on the issue earlier circumscribed.  Needless to say the question of “ordinary” unfair dismissal does not arise in this case.