Cespedes v Ian Boddy Solicitors [1995] UKEAT 112_91_1105

EAT
Cespedes v Ian Boddy Solicitors
[1995] UKEAT 112_91_1105 · 1995-05-11
MR JUSTICE MUMMERY (PRESIDENT) : This is an appeal by Ms V Cespedes against the decision of the Industrial Tribunal held at Nottingham, as long ago as 14th December 1990.The Tribunal unaminously decided that Ms Cespedes' claim should be dismissed. Her claim was against a firm of solicitors, Ian Boddy. She presented an application to the Industrial Tribunal on 27th September 1990 complaining of Sex Discrimination.Her case was concisely stated. She was a secretary/receptionist, and prospective trainee legal executive, who began her employment on 4th June 1990, but that was ended on 9th July 1990 when she was dismissed, because she was pregnant.In the extended reasons for the Decision, notified to the parties on 23rd January 1991, the Tribunal stated the issue in paragraph 1 as follows:
"1. Ms Cespedes complains that the respondent, as her employer, unlawfully discriminated against her under the Sex Discrimination Act by dismissing her. Although the legal basis of her claim has not been argued by the parties, it is clear that her case is that she was dismissed because the respondent became aware that she was pregnant, and that her dismissal was therefore directly discriminatory contrary to Section 6(2)(b) of the Act in that the grounds for dismissal could only apply to a woman. The respondent's case is a simple denial that the dismissal was in any way consequent upon the pregnancy of the applicant."
The undisputed facts where then set out, and the Tribunal, when it came to consider the legal result, referred to a decision of an Employment Appeal Tribunal Webb v. EMO Air Cargo (U.K.) Ltd [1990] IRLR 124 . We are told in paragraph 10:
"... that a distinction could be made between a dismissal occasioned solely or mainly by the simple fact of pregnancy, and one occasioned by the obvious impact of pregnancy upon the continued employment. In the former case, such a dismissal would clearly be discriminatory, in that only a woman can only be pregnant; in the latter, the question would be whether a man whose circumstances entailed a similar impact upon his employment, e.g. by reason of absence for a surgical operation, would have been treated any differently."
Applying the distinction drawn in that decision, the Tribunal stated in paragraph 11:
"... we are satisfied that [ the employer's ] anxiety was about the financial consequences of a management decision which he regretted, and that the future disruption of the firm's work to result from the pregnancy must also have been in his mind and a significantly contributory factor. We find that, had Ms Cespedes been a man facing Mr Boddy with a similar situation, it is virtually certain that he would have reacted in the same way."
The Tribunal concluded in paragraph 12:
"There is clearly no basis other than the pregnancy upon which it could be asserted that the treatment accorded to Ms Cespedes came about because she was a woman. While we are satisfied that the reason uppermost in Mr Boddy's mind was the unforeseen financial consequences of engaging Ms Cespedes, we also believe that the disruption which the pregnancy would undoubtedly cause was another reason. We see no grounds for believing that the pregnancy itself, rather than its consequences, was in any way a cause of Mr Boddy's action, and therefore do not find that what he did offended the Sex Discrimination Act, even though it offended every principle to be applied in cases in which unfair dismissal is alleged."
It is obvious from the dates of employment that there was no entitlement in Ms Cespedes to bring a claim for unfair dismissal. The only claim that she could bring was Sex Discrimination.The decision was appealed by a Notice of Appeal dated 26th February 1991. The grounds of appeal were amended in November 1991.The position today is that neither side have attended the hearing of the Appeal. The reasons for their non-attendance are explained in letters written by the solicitors for the Appellant and for the Respondents. The solicitors for the Appellant wrote to the Tribunal on 9th May 1995 referring to previous correspondence, and telephone calls with staff at the Tribunal:
"We have discussed the matter with the solicitors acting for the Respondent and we have also had sight of their letter to you of the 13.4.95. In the light of [ judicial history of ] Webb -v- EMO Air Cargo the Respondent does not now wish to resist the appeal. The appeal should therefore be allowed ... and the matter then remitted back to the Industrial Tribunal in Nottingham for damages to assessed."
We have also received a letter from the solicitors for the Respondent which says this:
"... The Respondent now has considered the decision of Webb -v- EMO Air Cargo and does not intend to resist the appeal. It is our view that the matter will have to be referred back to the Industrial Tribunal at Nottingham now for compensation to be assessed."
"We are writing to the Appellant's Solicitor to see if can agree the terms of an Order and propose submitting draft Order for approval by the EAT as soon as possible."
It was indicated that neither party would be in attendance. We have read the papers and the exchange of letters. We have come to the conclusion that it is no longer possible to uphold the decision of the Industrial Tribunal, which was based on the decision of Webb v EMO when it had been decided at the level of the Employment Appeal Tribunal. Webb v EMO has since passed to the Court of Appeal, the House of Lords and European Court of Justice. The reasoning of the Employment Appeal Tribunal applied by the Industrial Tribunal at Nottingham is no longer legally correct. The Decision is erroneous in law. It is right that the appeal should be allowed. We remit the matter to Industrial Tribunal at Nottingham.We would add this, however, as is made clear by the Decision of this Tribunal in J. Sainsbury Plc v Moger [1994] ICR 800 , appeals are not allowed simply because the parties consent to that course. Only the Employment Appeal Tribunal can reverse a decision of the Industrial Tribunal and remit the matter. The Employment Appeal Tribunal can only do that, if satisfied that there is an error of law in the decision. A decision of the Industrial Tribunal cannot be reversed simply by agreement of the parties. They have no power in law to do so. Normally, if a party wishes the Appeal to be allowed, he must attend and present an argument satisfying us that it is proper to allow the Appeal. In this case, we are prepared to take the exceptional course of allowing the Appeal on the basis of the written representations of the parties. We are able to do that, because the ground on which the Appeal is allowed is a very specific one, namely the decision under appeal was based on a legal authority which has since been reversed. We have been able to satisfy ourselves by consideration of the decision and the legal authority that it is proper to allow the Appeal.For all those reasons the Appeal is allowed, even though the parties have not attended to present their legal arguments.The case is remitted to the Industrial Tribunal to assess compensation.