HIS HONOUR JUDGE McMULLEN QC
Introduction
1.
This case is about unfair dismissal and sex discrimination in the
context of rights in respect of pregnancy and maternity leave. This is the
Judgment of the court, to which all members appointed by statute for their
diverse specialist experience have contributed. We make this point for two
reasons. First, throughout his address to us, Mr Knill, solicitor for the Respondent,
the employer in this case, referred to the reasons of the Judge, meaning the
reasons of the three-person Employment Tribunal. Despite many reminders to
him, he continued to isolate the Judge from the tripartite decision-making of
the Employment Tribunal, and that is generally unpromising when making
submissions to our own Tribunal which is a majority specialist lay Tribunal.
2.
Secondly, Mr Knill made two assertions without evidence, but by an
invocation of what we should generally understand to be the position in
employment generally, and in society. The first is that, generally speaking,
it is sometimes the case that women who are on maternity leave do not return to
work, and secondly, that it is widely acknowledged that the problems facing
small employers are increased when employees go on and come back from maternity
leave.
3.
We say at once, in respect of the first assertion, that is not the
impression currently we have by looking at the profile of women at work. Of
course a woman on maternity leave makes her decision about whether to go back
and circumstances change, but it is the impression of the lay members here,
including a legislator, that more and more women in the relevant age group are
employed, and that would indicate that they are taking advantage of their right
and come back after maternity leave has expired.
4.
As to the second assertion, we do accept that small employers face
greater challenges in coping with the absence of, let us say, a key worker. We
fully understand Mr Knill making the point, as he is a solicitor, providing
specialist services to members of the motor trade, many of whom run small
garages.
So we do accept his assertion that it is frequently put forward that
there are challenges for smaller employees in meeting their obligations under
the statute. However, the obligations under the law apply to the big and the
small employer, and in the context it should be noted that this is a relatively
small employer of 13 people, losing, for the period of maternity leave, as
it would put it, its key worker.
The appeal
5.
It is an appeal by the Respondent in those proceedings, against a reserved
Judgment of an Employment Tribunal, chaired by Employment Judge Dean, sitting
over three days at Birmingham, and registered with reasons on
13 April 2010. The Claimant was represented by Working Families and
the Respondent by its leading light, Mr Lynch, the Managing Director of the
Respondent company.
6.
Today, Mr Knill appears for Mr Lynch, and Ms Amanda Hart, of counsel,
appears for the Claimant. The Claimant claimed unfair dismissal and direct sex
discrimination arising out of the treatment she received following her
maternity leave. The Respondent contended that there was no discrimination,
and the reasons for the actions which Mr Lynch took were in no way whatsoever
affected by the Claimant’s pregnancy and subsequent maternity leave.
The issues
7.
The issues were defined by the Employment Tribunal in paragraphs 2 and 3
of its Judgment. The Tribunal began by considering whether there would be
findings on ordinary unfair dismissal under section 98(4) of the Employment
Rights Act, and pregnancy-related dismissal under section 99, which is
automatically unfair. It further considered whether there was discrimination
directly in relation to pregnancy and maternity, contrary to section 3A(1)(b)of
the Sex Discrimination Act 1975.
8.
In the course of its definition of the issue, the Tribunal said the
Claimant has to prove that she has been dismissed for a reason that was automatically
unfair. With respect, that places too high a burden on the Claimant, as Miss
Hart accepts. It is not a ground of appeal for of course the Claimant, as will
be clear, had no difficulty in meeting that test, but it seems to us, following
Kuzel v Roche Products Ltd [2008] IRLR 530 that
what a Claimant has to do in a case where she is asserting a competing reason,
here pregnancy or maternity-related, is to produce some evidence, but the
burden is still on the employer to show what the reason for dismissal was.
Nevertheless, despite that misdirection, nothing turns up on it.
9.
The Tribunal decided in favour of the Claimant on, effectively both
limbs, which is a finding under section 99 and a finding under section 3A
of the 1975 Act. It awarded the Claimant the sum of £24,723.36. The
Respondent appeals. Directions sending only one part of this appeal to a full hearing
were given at a preliminary hearing, presided over by Judge Hand QC.
The legislation
10.
The relevant provisions of the legislation are as follow:
“3A Discrimination on the ground of pregnancy or maternity leave
(1) In any
circumstances relevant for the purposes of a provision to which this subsection
applies, a person discriminates against a woman if -
(a) at a time in a protected period,
and on the ground of the woman’s pregnancy, the person treats her less
favourably…; or
(b) on the ground that the woman is
exercising or seeking to exercise, or has exercised or sought to exercise, a
statutory right to maternity leave, the person treats her less favourably…”
11.
For the purposes of unfair dismissal, section 99 of the Employment
Rights Act provides as follows:
“99(1) An employee who is dismissed shall be regarded for the
purposes of this Part as unfairly dismissed if _
(a) the reason or principal reason
for the dismissal is of a prescribed kind
[…]
(3) A reason or set of circumstances prescribed under this
section must relate to -
(a) pregnancy, childbirth or
maternity,
(b) … maternity leave.”
12.
It will be noted that ordinary unfair dismissal provided by section 98
is, by section 98(6), subject to section 99. In other words, ordinary unfair
dismissal considerations - fairness, justification and so on - do not arise
where there has been a finding of automatic unfair dismissal for family reasons
under section 99.
13.
The Tribunal directed itself by reference to authorities relevant to
ordinary unfair dismissal British Home Stores Ltd v Burchell
[1978] IRLR 379 EAT, for example, but since the finding was under section 99,
and sex discrimination, that does not matter.
The facts
14.
The Respondent is a small garage with a shop. The Claimant was at the
time 28, having three children aged 13, 7 years and 17 months. The
Claimant enjoyed a good relationship with the Respondent. She was employed as
a Forecourt Manager, having been promoted from her original employment in
August 2003, and she covered the shop from 09.00 to 15.15 every day, and
occasionally filled in for other employees when they were out.
15.
The Claimant told Mr Lynch in March 2008 that she was pregnant. As
a result of that, Mr Lynch made a number of comments at various stages. As
soon as he was told of the Claimant’s pregnancy, he regarded that as “dropping
him in it”, and he made comments about the inability of a woman to run a family
and a job. These indicated the frustration of Mr Lynch that the Claimant was
going to be away on maternity leave and he was not happy about it. While the
Claimant was still employed, and prior to the maternity leave, it came to Mr
Lynch’s notice that one of her co-workers, a good friend of hers, was
associated with drug dealing. Mr Lynch contended that the Claimant knew about
that and yet did nothing. There was a risk, he thought, of the association
with illegal activity at the premises.
16.
However, neither in November 2008, when this arose, nor at any
stage up until April 2009 was the matter ventilated. The Claimant was
projecting to come back to work on 5 May 2009. To that end, three
meetings were conducted between Mr Lynch and herself, during which Mr Lynch sought
to persuade her that, in the light of what had occurred at the business, one employee
leaving and another person taking over various parts of the job, the Claimant’s
hours should be changed from 13.00 to 18.00, because that would suit the
business.
17.
During the course of these discussions, Mr Lynch’s impatience, or
perhaps lack of understanding, became clear in a number of comments he made.
At the same time as Mr Lynch wrote to the Claimant about the arrangements for
her coming back to work on 5 May, he also uttered a letter indicating the first
step of a disciplinary procedure, to do with the perception by Mr Lynch that
the Claimant had not disclosed that she knew about this colleague’s husband’s
drug dealing. She refuted those matters on her first day at work. The
Claimant was dismissed, and her appeal, also before Mr Lynch, was dismissed.
18.
The Tribunal approached the decision-making first on the basis of Igen v Wong
[2005] IRLR 258 CA, which deals with the burden of proof, and came to the firm
conclusion that the burden of proof shifted to Mr Lynch in the light of the
comments which he had made, and the chronology, that is the timing of the
return to work and the introduction of stale disciplinary proceedings.
19.
Mr Lynch failed to discharge it. The Tribunal found that the reason Mr
Lynch sought to change the terms and conditions was not, as he put it, the
change in the circumstances of the business, but was on the grounds of her
maternity. But for the Claimant’s maternity leave, Mr Lynch would not have
sought to vary her terms and conditions and would have found alternative
means.
20.
Secondly, the introduction of the disciplinary matter was not to do with
the original concern of Mr Lynch, but was again to do with her maternity. His
two explanations were found to be not persuasive, and incredible, and so the
Claimant’s claim was made out.
21.
The Tribunal went to remedy. There is no issue as to the financial
losses of some £12,000, but in respect of injury to feelings the Tribunal awarded
£12,000. The Claimant had suffered depression, as noted by her General
Practitioner, for which counselling was prescribed. The Tribunal noted the
difficulty which this dismissal had caused to the relationship with her
youngest child, the baby for whom the maternity leave was taken.
22.
The Tribunal made findings about the damage to that relationship, and to
the loss of esteem of the Claimant who had, through adversity been able to work
herself up to the position of manager at the forecourt shop, and so awarded £12,000,
which is in the middle of the band prescribed now by Da’bell v National
Society for Prevention of Cruelty to Children [2009] UKEAT/0227/09.
The Respondent’s case
23.
The Respondent contends that the Tribunal failed to pay sufficient
attention to the problems of a small business. We have already acknowledged
there is some force in the perception that Mr Knill advances. He contends
however the burden of proof should not have shifted to the Respondent, and that
it had an adequate explanation. The problem facing this employer was
impossible. His client had been subjected to a “witch’s ducking stool”.
Although he acknowledges that it is vitally important to protect women, a
miscarriage of justice has occurred here. In the skeleton argument, criticisms
are made of the way in which the Tribunal approached the burden of proof, but
essentially the argument is one of perversity. The Tribunal reached the wrong
conclusion on the basis of the facts.
24.
Secondly, the decision of the Tribunal was irrational, and the Tribunal
should have paid more attention to the matters which possessed Mr Lynch
concerning the drug dealing husband of the other employee.
25.
Mr Knill contends, thirdly, that the Tribunal was wrong to find that the
dismissal was automatically unfair, because the reason for dismissal was not
connected with the maternity.
26.
Fourthly, the remedy of £12,000 was manifestly excessive because there
was no proper medical evidence. It is accepted that the Claimant became
depressed, but this is insufficient. Mr Knill acknowledges that the correct
award would have been £7,000 not £12,000.
The Claimant’s case
27.
The Claimant contends, in an elegant skeleton argument, analytically
responding to the points, that the Tribunal made no error in the burden of
proof; there was ample material upon which the Tribunal could find that the
Claimant has put forward evidence which could show discrimination and that the
burden passed to Mr Lynch. Thereafter, the Tribunal was entitled to draw the
inference and to reject the explanations he gave.
28.
Miss Hart draws our attention to Fuller v The London Borough of Brent [2011] EWCA Civ 267, in which
Mummery LJ enjoins the EAT against taking a fussy or pernickety approach
to the reasons of the Tribunal, which must be read in the round. She contends
there is no error in the burden of proof.
29.
As to the perversity arguments, she relies on the high threshold for
successful appeals on the grounds of perversity (see Yeboah v Crofton
[2002] IRLR 634). In respect of the quantum, she contends there is no
requirement for the purposes of an award for injury to feelings to produce
medical evidence, that, of course, being appropriate if there is actual
illness. The Claimant was entitled to give evidence about how she feels.
The legal principles
30.
The legal principles to be applied in this case are not in dispute. The
burden of proof, passes from the Claimant to the Respondent once she has shown
matters which could prove sex discrimination or maternity discrimination: Igen v Wong.
The standard for a perversity appeal is very high: Yeboah v Crofton.
Decisions on quantum will rarely be attacked if the right band is found: Da’bell v NSPCC
adapting Vento [2003] ICR318 CA
Discussion and conclusions
31.
We prefer the arguments of Miss Hart and have decided to dismiss the
appeal.
The burden of proof
32.
In our judgment, there was ample material of great cogency from which
the Tribunal could conclude that discrimination had been proved by the
Claimant. The language used by Mr Lynch in six separate comments recorded by the
Tribunal is plainly sufficient for the Claimant to have shown relevant facts.
33.
Independently of those comments is the juxtaposition of the disciplinary
matters. This is simply a matter of chronology. There was no reason for the
matter being raised than the imminent return of the Claimant, and on the day
she was to resume her work, the disciplinary matter was thrust upon her. The
Claimant has shown evidence which could lead to discrimination.
34.
The Tribunal then rejected the explanations. It is not for the EAT to
second guess the Tribunal. It heard Mr Lynch and found him incredible. His
explanations were not persuasive, and so, not only did the Claimant provide
sufficient material, which went beyond simple facts, as is required in Madarassy v Nomura International plc
[2007] EWCA Civ 33, it showed a gender explicit issue (see the comment about
working mothers), which the Respondent was not able to explain. In our judgment,
this was a matter within the fact-finding and inference-drawing duties of the Employment
Tribunal, and we see no basis upon which we could intervene.
Perversity
35.
The same is true about the allegations of perversity. Given that the
evidence here was so plain to the Tribunal, it cannot be said that no
Employment Tribunal would have found as this Tribunal did. The interrelationship
between the discipline and the return to work is powerful. The Tribunal had to
make decisions about causation, and it had material before it upon which it
could decide that the treatment of the Claimant by her dismissal was connected
with and for the reason of her pregnancy and maternity.
Remedy
36.
We then turn to the remedy. As we said in Da’bell such
decisions are for the Employment Tribunal:
“46. We indicated at the outset that appeals on the basis of
inadequate or excessive compensation were more likely to succeed if the wrong
band were chosen. Mr Duggan conceded the claim was worth £6,000 to £8,000.
That is within the middle band. In our judgment disputes about the placement
within a band of an award are likely to be about fact and impression. They are
more likely to raise questions of law if they are about placement in the wrong
band or at the extremes. The difference here is between the mid point and the
lower end. Between the two poles are five steps. The Respondent concedes the
first (£8,000) and the Employment Tribunal chose the third (£12,000).
47. The Employment Tribunal listened to the Claimant tell her
story and say what effect the failures of the employer had had upon her; that
is a unique advantage not bestowed upon us. We will not interfere with such
findings unless they are manifestly wrong, which in this case they are not.
With out thanks to both Counsel for their written and oral submission, the
appeal and the cross-appeal are dismissed we noted at the outset that the
Respondent has paid in full the award of the Tribunal which of course will
remain as it falls.”
37.
The difficulty with the Respondent’s contention is that there was indeed
medical evidence. To say that it was not proper medical evidence is not
a legal argument. We accept the submission that medical evidence to indicate
injury to feelings is not a requirement, but here there was evidence, and it
did indicate distress. On top of that, the Claimant told her own story about
the relationship with her youngest child, following her dismissal. These were
pieces of powerful evidence for a Tribunal to consider and we see no difficulty
in the Tribunal awarding injury to feelings on that evidence.
38.
What was the proper band? As Mr Knill concedes, it was the middle band
of Vento Da’bell, and he puts it at £7,000; £12,000
was ordered.
39.
It would be tinkering if we were to change that and, as we indicated in Da’bell,
allocation of the wrong band may be more susceptible to an appeal as an error
of law, but within the same band it would be difficult to find that it was
manifestly excessive. This was a figure for the discretion of the Tribunal to
decide what was just inequitable, having heard the Claimant, and in our judgment
it made no error.
40.
The appeal is dismissed.
