EM-ESS Chemist Ltd v Simpson [1991] UKEAT 191_91_2911

EAT

EM-ESS Chemist Ltd v Simpson

[1991] UKEAT 191_91_2911 · 1991-11-29

MR JUSTICE TUCKER : This is an employer's Appeal from decisions of the Industrial Tribunal held at Liverpool on 14 February 1991 whereby the Tribunal decided that applications by the Applicant, the Respondent to these Appeals, in respect of unfair dismissal and sex discrimination succeeded. The appropriate sum of compensation was subsequently agreed between the parties.

The grounds of Appeal are as follows. It is said that the Tribunal erred in law, first in reaching its decision on unfair dismissal in the following three respects.

First, it placed an invalid interpretation upon a request by the Appellant that the Respondent should consider voluntary redundancy while she was absent due to an illness associated with her pregnancy. Second, the Tribunal relied to a large and unwarranted extent upon hearsay evidence. Third, the Tribunal failed to give any or due weight to the evidence that on the occasion of a previous pregnancy the Respondent had taken maternity leave and resumed work with the Appellant without any problems.

Second, in reaching its decision that there had been discrimination on the grounds of sex, the Tribunal first again relied upon hearsay evidence, second referred itself to the decision of the European Court of Justice in DEKKER v STICHTING VORMINGSCENTRUM VOOR JONJE VOLWASSEN

[1991] IRLR 27

without giving the Appellant's representative the opportunity to make submissions about it and third, failed to take account of the decision of the Employment Appeal Tribunal in the case of WEBB v EMO AIR CARGO LTD

[1990] IRLR 124

or, in the alternative, failed to give reasons for declining to follow that decision.

Mr Wearden, on behalf of the Appellants, developed these grounds of Appeal during argument before us. As to the finding of unfair dismissal he first reminded us of the Appellant's response to the Originating Application. He submitted that simply to ask an employee to consider possible redundancy cannot be interpreted as making that employee redundant, second, he pointed to passages in the Tribunal's Reasons where they undoubtedly relied on heresay evidence. These occur at para 5 (wrongly lettered (h), it should be (g)) and para 17.

(g) is in these terms:

"A day or two later the applicant telephoned the respondent's London Road shop and spoke to a Miss Jill Ready who was a dispenser and referred to the redundancy and Miss Ready told her that she hadn't heard any mention of redundancy save that Mr Patel has asked her how could he make a pregnant woman redundant."

At para 17 of the Reasons there is a reference to:

"Mr Patel has been asking Jill Ready how he could make a pregnant woman redundant."

Miss Ready did not give evidence before the Industrial Tribunal. The Respondent and Mr Patel did so and he denied the remark attributed to him. Mr Wearden concedes that the Industrial Tribunals are not bound by strict Rules of Evidence but he submits that there are limits beyond which they should not go and that this was evidence upon a crucial and not a peripheral issue.

Third, Mr Wearden submits that the Tribunal took no account of the fact that the Respondent had managed to return to work having taken maternity leave after her first pregnancy.

As to the finding of sex discrimination Mr Wearden again firstly criticises the Tribunal's reliance on hearsay evidence and second, comments that the Appellant's representative had no opportunity to comment on the case of DEKKER . He points to what he sees as a conflict between that case and the case of WEBB . We understand that the case of WEBB is going to the Court of Appeal. Having heard that we offered the parties an adjournment to await the outcome of those proceedings but both parties urged us to continue the hearing of this Appeal and for that reason we have continued to do so.

Finally, Mr Wearden says that there was no or no adequate reason given for the Tribunal's decision and that this amounted to an error of law.

We think there is another and much more important matter to which Mr Wearden did not refer contained in the final four lines of para 21 of the Tribunal's Reasons which are in these terms:

"..we take the view that a selection for redundancy and subsequent dismissal because of pregnancy is direct sex discrimination and therefore we are unanimous that the applicant was discriminated against on the grounds of her sex and her application in respect thereof succeeds."

We shall return to that topic in due course.

Against these submissions Mr Pratt for the Respondent, calls our attention to what was undoubtedly the central finding of fact made by the Industrial Tribunal and about which no complaint has been made in the Notice of Appeal, nor in the Appellants' submissions before us. That finding is set out in paras 9 and 10 of the Reasons and is in these terms:

"The Tribunal is satisfied from the facts it has found that there was an agreement entered into between Mr Patel on behalf of the respondent Company and the applicant that they would pay her the sum of £3,712.00 on the 8 October and at the same time hand her her P.45 and that the respondents failed to keep to their agreement.

In every employment contract there is an implied condition of mutual trust and confidence and we are unanimous that the respondents acted in breach of that implied condition when they failed to abide by the above agreement and that breach was sufficiently serious to entitle the applicant to put an end to her contract of employment and that she acted by doing so within a reasonable period of time."

In those unchallenged findings the Tribunal concludes that a dismissal was occasioned. It was occasioned as Mr Pratt has submitted, by the employee resigning in circumstances where the Tribunal held as a fact, that the employer had breached the implied term of the Contract of Employment that there should be mutual trust and confidence between the parties.

We agree with Counsel that that was a central finding, not subject to any appeal and yet it was a most important finding. Moreover, having come to that conclusion, it is difficult to imagine how the Tribunal could ever have found that the employer could breach the trust to his employee reasonably. And so a finding of unfair dismissal at that stage was, we agree inevitable. However, out of benevolence to the Appellants the Tribunal went on to consider what may have been behind that breach and they appear to have considered that the reason for it was redundancy.

There being no suggestion or explanation to the contrary the Tribunal were entitled, partly on evidence and partly on inference to draw the conclusion which they did, that if the Respondent was made redundant the reason was her pregnancy. Having reached that conclusion they would be bound to hold under the provisions of section 60 of the Employment Protection (Consolidation) Act 1978 that the dismissal was automatically unfair.

Those are Mr Pratt's submissions in summary and we attach considerable weight to them.

The Tribunal did not in fact go on to consider the provisions of section 60 as they ought to have done. They went on to consider the provisions instead of section 57(3) but we do not see that the Appellants suffered any prejudice by that.

The Appellants' case before the Tribunal was, was that there was no dismissal at all. So it is difficult to see how they could have suggested what the reason for any dismissal might have been. There was no need for the Tribunal to have gone on to consider whether the reason was redundancy, let alone why the Respondent was selected for redundancy. However, the Tribunal chose to do so and we cannot see that the Appellants suffered any harm. We think that the Tribunal perhaps, went to the limits of what was permissible in considering the hearsay evidence but even without this evidence, there was other evidence from which it would have been proper to infer, that pregnancy was the reason for the dismissal and if it was, then the dismissal was rendered automatically unfair by section 60. That other evidence was the fact that the Respondent was pregnant, that she was absent from work due to an illness associated with her pregnancy, and that she was invited to consider redundancy.

A finding of fact by an Industrial Tribunal can only be attacked if it is perverse, that is to say if it is a finding which no reasonable Tribunal properly directing itself could reach. We are not able to say that that occurred here. There was evidence upon which the Tribunal could reach the conclusions which it did. There is no error of law disclosed from the grounds of Appeal and none has been demonstrated.

Accordingly we dismiss the Appeal against the decision of the Industrial Tribunal that the Respondent was unfairly dismissed. The complaint of sex discrimination apparently took up very little time at the Hearing and that no doubt explains whey the Tribunal spent so little time in dealing with it in their Reasons. Mr Pratt concedes that it can be criticised as being simplistic. Unfortunately we think that in this part of their decision the Tribunal did fall into error.

First, while it was perfectly proper of them to refer to the case of DEKKER , they ought to have invited submissions on behalf of each of the parties upon that case. Second, it is in our view, not the law that dismissal because of pregnancy is direct sex discrimination but that it can be. We have been referred to the decision of this Tribunal in BERRISFORD v WOODARD SCHOOLS (MIDLAND DIVISION) LTD

[1991] IRLR 247

and in particular to para 16, page 249 of the Judgment of Mr Justice Knox on behalf of himself and the members in that case. Mr Justice Knox says this:

"That leaves the effect of Community Law. It is important to record the submissions on this aspect that were made to us. It is expressely accepted that the decision in WEBB'S case, supra, was not inconsistent with the decision in the European Court of Justice in DEKKER V STICHTING VORMINGSCENTRUM VOOR JONGE VOLWASSENEN [1991] IRLR 27 , but it was submitted that DEKKER'S case shows that dismissal for pregnancy is without more sexually discriminatory."

Accordingly we take the view that there was both a procedural error and a misdirection in law. That was a material misdirection and in view of it we do not feel that that part of the decision can stand. To that extent the Appeal is allowed. The result is accordingly that the decision of unfair dismissal is upheld but the decision of sex discrimination is quashed. We are informed by the representatives of the parties that that will make no difference to their agreement as to the amount of compensation payable.