Taylorplan Services Ltd v Ero [1995] UKEAT 412_95_2610

EAT
Taylorplan Services Ltd v Ero
[1995] UKEAT 412_95_2610 · 1995-10-26
MR JUSTICE MAURICE KAY: This is a Preliminary Hearing of the appeal of Taylorplan Services Ltd., against a decision of the Industrial Tribunal held at Stratford on 21 March 1995. Ms Henrietta Ero was employed as a cleaner by Taylorplan from 1 March 1993. She worked as a domestic assistant providing cleaning services at Newham General Hospital in East London. In November 1993 she discovered she was pregnant and she informed her employers. She was asked to bring in a letter from her general practitioner and she did so. This confirmed her pregnancy and said that she was "fit to work but would like slightly lighter work if possible, as she has a previous history of miscarriage". It seems that the expected date of confinement was in July 1994.The Industrial Tribunal made a finding of fact that there were discussions about the pregnancy between Ms Ero and her line manager, Mrs Tull. It is recorded in paragraph 5(iii) of the decision that:
"... words were exchanged between Mrs Tull and Ms Ero which gave Ms Ero the impression that she, the Applicant, would not be of further use to the Respondent as a result of her pregnancy."
There was an incident on 27 December 1993, which resulted in a complaint about Ms Ero's work. This led to a discussion which became heated, and as a result Ms Ero was asked to leave the office and perhaps the building. The Industrial Tribunal stated:
"... Although she may have got the impression that she was dismissed at that meeting, we find that that was not the case."
She worked on 29 December but not thereafter. The Tribunal found that this was because she was under the impression that she had been dismissed. In fact, on the Tribunal's finding, she had not been dismissed then; indeed it was the case for Taylorplan at the Tribunal that she was not dismissed at any stage. The next thing that occurred was that on 7 January 1994, Mrs Tull informed the Wages department to issue a P45 for Ms Ero. Normally, Taylorplan would have sent a letter to an employee who was absent without explanation, requiring information as to the absence, but this was not done between 29 December and the raising of the P45 on 7 January.At the Tribunal, the case for Taylorplan was clearly put and it is summarised in paragraph 4 of the decision. They referred to a policy of non-discrimination and the policy which embraced maternity leave. These were general matters. The specific assertions made on behalf of the company were, firstly, that Ms Ero was confronted with a serious complaint about her conduct and, when so confronted, she had lost control of herself and shouted at Mrs Tull, whereupon she was asked to calm down and told to leave the building. Secondly, Taylorplan asserted that Ms Ero chose not to return to work after the incident until she returned her uniforms a few weeks later, thus indicating her decision to leave Taylorplan's employment.The claim of Ms Ero was that she was the victim of unlawful sex discrimination to the effect that she had suffered a detriment within the meaning of Section 6(2)(b) of the Sex Discrimination Act 1975 . In essence, she was saying that she had been dismissed because of her pregnancy. The Tribunal considered the rival contentions and evidence of the parties. Their crucial finding of fact is in paragraph 5(vi) of the decision. After referring to the omission to send the usual letter to an employee on unauthorised absence, the Tribunal stated:
"... Further on 7 January 1994, Mrs Tull informed the wages department to issue a P45 for Ms Ero. These actions of the Respondent, taken through Mrs Tull, arose as a result of her knowledge that Ms Ero was pregnant and that she would not be able to carry out her usual duties as a domestic assistant. These actions would not have taken place "but for" the fact that this Applicant was pregnant."
Shortly afterwards the Tribunal found that Ms Ero had intended to work for another five months, after which she would have prepared herself for her confinement and would not have intended to return to work after the birth of her baby.It is clear to us that, by those findings, the Tribunal was rejecting the case and the evidence that had been advanced on behalf of Taylorplan. Having reached the decision that there was no dismissal on 27 or 29 December, the Tribunal was concerned to examine why it was that Taylorplan sent the P45 out soon afterwards on 7 January. When considered in the context of their other findings, including the doctor's letter, the conversation between Mrs Tull and Ms Ero when pregnancy was discussed, and the failure to send the usual letter, the Tribunal came to the conclusion, as they were entitled to do, that this was a dismissal by reason of pregnancy, bearing in mind the medical request that Ms Ero be given slightly lighter work.Those findings of fact are ones which, in our judgement, the Industrial Tribunal was entitled to make. We have to consider whether there is a point of law which would have any prospect of success at a full hearing of this Appeal Tribunal. We have come to the conclusion that there is no point of law which would have such a prospect. The findings of fact that were made were open to the Tribunal and it would be impossible for Taylorplan successfully to surmount them if this appeal were to go further. Accordingly the appeal is dismissed.