Penman v Lewis [1995] UKEAT 570_92_2510

EAT
Penman v Lewis
[1995] UKEAT 570_92_2510 · 1995-10-25
The two appeals before the Tribunal arise out of a complaint of sex discrimination made by Mrs Helen Penman, a state registered nurse and wife of an obstetrician and gynaecologist, against Mr Terence Lewis, a consultant cardiothoracic who employed Mrs Penman as his personal assistant and secretary from 9th February 1991 until she was dismissed on 5th April 1991.Mrs Penman, who had not acquired the necessary two years continuity of employment to enable her to complain of unfair dismissal, presented an originating application to the Industrial Tribunal complaining that she "was dismissed for trying to have a baby." The details of the complaint assert that, when she was interviewed by Mr Lewis Mrs Penman informed him that she was undergoing fertility treatment in the form of intra-uterine insemination. Mr Lewis dismissed her after she was away from work on the morning of 25th March, the afternoon of 26th March and the morning of 27th March in the connection with her treatment.In his Notice of Appearance dated 7th August 1991, Mr Lewis, represented by the British Medical Association, alleged that Mrs Penman was dismissed because her work was not satisfactory due to an unacceptable level of absenteeism during the eight week period of her employment. He denied that he had dismissed Mrs Penman on the basis that she had "undergone invitro fertilisation in an attempt to conceive some ten days earlier."

The Tribunal Decision

These appeals rise out of two decisions of the Industrial Tribunal in this dispute.

The original Decision

(1)After two days of evidence on 22nd and 23rd April 1992 and a day of submissions on 17th June 1992, the Industrial Tribunal, held at London (South), unanimously dismissed the complaint of sex discrimination. The essence of their decision, set out in full reasons notified to the parties on 10th July 1992, was that there was no direct discrimination on the ground of sex, because they accepted Mr Lewis's evidence, supported by evidence from his partner, Dr Colvin, that he had decided to dismiss Mrs Penman before he knew that the absences on 25th March and 27th March 1991 were to take place. The reason for her dismissal was that she was absent without explanation on an extensive number of occasions from her position at the other end of the phone. The question of her sex or prospective pregnancy or her fertility treatment had no influence on Mr Lewis's mind when he reached the decision to dismiss. They held that a man in Mrs Penman's position, absent without explanation on an excessive number of occasions from his position at the other end of the phone, would have been dismissed. There was no evidence from which the Tribunal could find directly or by inference that Mr Lewis treated Mrs Penman less favourably that a man. The Tribunal also rejected the claim of indirect discrimination as there was no evidence which they could find directly or by inference that Mr Lewis imposed a requirement that she should not take two days leave for fertility treatment or take emergency leave for the treatment. The Tribunal stated that:
"There is no evidence on which we can find directly or by inference that Dr Lewis imposed a requirement which was such that the proportion of women who could comply with it was smaller than the proportion of men."
Mrs Penman appealed against that decision by Notice of Appeal dated 18th August 1992. On 24th June 1993 the Employment Appeal Tribunal made a direction on a preliminary hearing that the appeal should be allowed to proceed to a full hearing and directed that the Chairman should be asked to produce her Notes of Evidence. Those notes were produced in January 1994.

The Review Decision

(2)The second appeal, served on 10th December 1992, is against the refusal of the Chairman of the Industrial Tribunal to grant an application for a review. The application was made by Mrs Penman's solicitors in a letter dated 22nd July 1992. The application was made under Rule 10(1)(d) and/or 10(1)(e) of the 1985 Regulations then in force. The ground of the application was that relevant and important information was now available in the form of a transcript of a telephone conversation between Mrs Penman's solicitor, Miss Deighton, and a Jane Hanger on 18th July 1992. The conversation was taped by Miss Deighton without the knowledge or approval of Miss Hanger, who was asked by Miss Deighton for information relevant to the date on which a decision was made to dismiss Mrs Penman. It appears from the Chairman's Notes of Evidence given in chief by Dr Michael Colvin that he was asked when he became aware that Mr Lewis had decided to dismiss Mrs Penman and told him. His reply was that Mr Lewis did not directly tell him himself, but that on 20th March Jane Hanger said to him, while he was on a visit to the Cromwell Hospital, that Mr Lewis had decided to dismiss her. He was a bit surprised as he had not realised that it had got to that stage by that time. In paragraph 10 of the full reasons for their decision the Tribunal referred to this evidence of Dr Colvin as supporting Mr Lewis's evidence that he had decided to dismiss Mrs Penman before he knew that 25th and 27th March absences were to take place. The purpose the phone call by Miss Deighton to Jane Hanger on 18th July 1992 was to discover from Miss Hanger, who had not been called to give evidence by either side at the Industrial Tribunal hearing, what she remembered about the timing of Mr Lewis's decision to dismiss Mrs Penman. In the letter of 22nd July 1992 applying for a review Mrs Penman's solicitors claimed to have obtained new evidence that Jane Hanger did not know of the decision to dismiss Mrs Penman until after Mrs Penman had been dismissed, though she did know that Mr Lewis was thinking about dismissing her. The letter referred to the fact that both Mr Lewis and Dr Colvin gave evidence to the effect that the decision to dismiss took place before 20th March and that Jane Hanger knew of that decision. It was submitted that that date was important to the Tribunal's reasoning, because it was accepted by both parties that Mr Lewis received the a letter on 23rd March explaining that Mrs Penman would be absent during the following week for infertility treatment. It was contended, that on Jane Hanger's evidence, neither Mr Lewis nor Dr Colvin were right about the date of the decision to dismiss. This evidence was not available or foreseen or known of at the time of the hearing before the Industrial Tribunal, because Jane Hanger had been told not to speak to Mrs Penman. Mrs Penman had rung the office and been led to believe that this was the case by one of the secretaries. Alternatively, the application was made under Rule 10(1)(e). The interests of justice required a review primarily because the new evidence went to the heart of the case. The special circumstances in which that evidence had become available were that Mr Lewis had forbidden Jane Hanger from speaking to Mrs Penman during the course of the proceedings.For reasons notified to the parties on 29th October 1992, the Chairman of the Tribunal refused the application for the review on the grounds that it had no reasonable prospect of success. As for the ground that there was new evidence in the form of the transcript of the telephone conversation, the Chairman stated that that transcript did not indicate that Miss Hanger's evidence would assist Mrs Penman nor did it show any knowledge on Miss Hanger's part as to when the decision to dismiss was taken. The Tribunal had accepted Mr Lewis's direct evidence as to when he took the decision. That could not be disregarded in favour of evidence by Miss Hanger as to her lack of knowledge. Further, the fact that Mr Lewis had forbidden from speaking to Mrs Penman during the proceedings did not constitute a special circumstance and could have been adequately provided for by an application for a witness order during the course of the hearing.In those circumstances a Notice of Appeal was served on 10th December 1992 contending that the Industrial Tribunal had erred in law in that the decision of the Chairman to refuse the application was perverse, in that it was one that no reasonable tribunal, directing itself properly on the law, could have reached or was obviously wrong.On both appeals Miss Gay has appeared for Mrs Penman and Mr Linden for the Mr Lewis.

The Review Appeal

Miss Gay argued both appeals before we called upon Mr Linden to respond. She chose to argue the review appeal first, thought she accepted that, if she were successful on the main appeal, Mrs Penman would derive no benefit from arguing and winning the review appeal.Miss Gay made all the points that could possibly be made on behalf of Mrs Penman in relation to the refusal of the review. Her submissions may be summarised as follows:(1)There was now available extrinsic evidence that Dr Colvin's evidence to the Tribunal was unreliable. That evidence consisted of statements in the telephone conversation with Miss Deighton in which Miss Hanger said she did not know that Mr Lewis had decided to dismiss Mrs Penman, until after the dismissal had occurred. She knew it was in the air, but that was all. It followed that, contrary to what Dr Colvin had told the tribunal, Miss Hanger did not tell him on 20th March that a decision had been made to dismiss Mrs Penman. Dr Colvin's evidence was therefore unreliable and could not, contrary to what the Tribunal said, be relied on to support the evidence of Mr Lewis.(2)The Tribunal Chairman, in refusing a review, mistakenly said that the transcript of the telephone conversation did not indicate that Miss Hanger's evidence would assist Mrs Penman in any way and did not show knowledge on Miss Hanger's part as to when the decision to dismiss was taken. The Chairman had misunderstood the purpose of Miss Hanger's evidence, namely to undermine Dr Colin's evidence as to what she had told him.(3)The Tribunal Chairman had also erred in refusing to regard as a special circumstance the fact that Mrs Penman's solicitors had been forbidden to speak to Miss Hanger before the Tribunal hearing. That prohibition had prevented Mrs Penman from obtaining information which she had not known would be relevant. Miss Hanger's evidence would have enabled Mrs Penman to contradict a point that Mr Lewis had not indicated he would make.For those reasons the Chairman refusal to review was unreasonable. If the Industrial Tribunal had heard that evidence they would have found Dr Colvin's evidence to be incredible. The probability was that the Industrial Tribunal would have concluded that Mr Lewis decided to dismiss Mrs Penman after she had asked for and/or taken leave to go for fertility treatment. The Tribunal would then have been driven to conclude that the dismissal was, wholly or at least in part, in consequence of the absence for such treatment. A man absent for an analogous reason would not have been dismissed. Mrs Penman would therefore succeed in her claim for sex discrimination. The matter should be remitted to the Industrial Tribunal for a review of the main decision.

Conclusion of Review Appeal

We decline to follow this course for the following reasons:(1)As Miss Gay accepts, the only legal point on the review appeal is the alleged perversity of the Chairman's refusal to grant a review. For an appeal on that ground to succeed it has to be shown that no sensible person applying his mind to the question could have arrived at it: see East Berkshire Health Authority v Matadeen [1992] IRLR 336 .(2)The first ground of application for the review was that new evidence had become available since the hearing, the existence of which could not have been reasonably known of or foreseen at the time of the hearing. The alternative ground was that the interests of justice required a review. A decision of whether or not to grant a review on either of those grounds is a matter in the discretion of the Tribunal Chairman. Did the Chairman exercise that discretion in a way in which no reasonable Chairman could have exercised it?(3)The Chairman was entitled to reject the application simply on the ground that there was no good reason why Mrs Penman should not have sought a witness order for the attendance of Miss Hanger at the hearing. Such an order could have been requested before the hearing or during the course of it. Mrs Penman and her representative were aware at that time that Miss Hanger could give relevant evidence. According to the Notes of Evidence Mrs Penman herself gave evidence to the Tribunal that she had been told by Miss Hanger that she had initially been rejected by Mr Lewis without an interview because she was married, whereas Mr Lewis said Miss Hanger had complained about Mrs Penman's absences. Mrs Penman and her representative were also aware of the important parts of Dr Colvin's evidence about the conversation that he had with Miss Hanger on 20th March. No attempt was made to compel the attendance of Miss Hanger. Two months elapsed between the end of the evidence and the closing submissions. No attempt was made to bring further evidence to the attention of the Tribunal in that period. No reason was given for this. Indeed, it appears from the Chairman's Notes of Evidence that Miss Deighton put to Dr Colvin in cross-examination that his version of the conversation with Miss Hanger was incorrect and that Mrs Penman's evidence would be that:
"She phoned Miss Hanger after the dismissal and Miss Hanger that she knew it was on the cards but did not think it would happen."
Mrs Penman had therefore spoken to Miss Hanger, knew what she would say and could have called her to give evidence at the hearing. The prohibition on communication between Mrs Penman's solicitors and Miss Hanger would not have prevented the Tribunal from making a witness order if one had been asked for.(4)In any event, we agree with Mr Linden that the evidence heard by the Tribunal from Mr Lewis and Dr Colvin and accepted by them would not have been assisted by evidence from Miss Hanger to the effect that she was not aware that Mrs Penman was to be sacked until after it occurred and that she differed from Dr Colvin as to precisely what was said in their conversation on or about 20th March. It is significant that, on a number of occasions in the taped telephone conversation of 18th July 1992, Miss Hanger had difficulty in recalling what had in fact been said in the conversation. She says, repeatedly, when pressed by Miss Deighton that she could not remember. On page 10 of the transcript Miss Deighton says:
"JD:So you knew there was something in the air and it got worse during the last week but you didn't know she was going to be sacked until when you got back from holiday."
To that Miss Hanger said:
"JH:I knew there was very possible feeling for it you know -that it was a definite possibility."
A little later Miss Deighton said:
"JD:And can you - I know this is difficult - can you remember when you first sort of knew that?
Miss Hanger's reply was:
"JH:I can't remember but it was - I think it was before - I'm pretty sure it was before that last week."
Miss Deighton said:

"JD:What, just like the week before?"

Miss Hanger said:
"JH:I can't remember, I really can't remember. I know we were having an extremely busy time and Helen was fired."
For those reasons the review is dismissed.

The Appeal on Liability

Perversity was also the only point of law on the appeal against the decision at the main hearing. Miss Gay submitted that it was an error of law on the part of the Tribunal to conclude that the reason for Mrs Penman's dismissal was that she was absent without explanation on an excessive number of occasions from her position at the end of the phone. It was perverse of the Tribunal to state, as they did in paragraph 13 (vii) of their full reasons, that there was no evidence on which they could find, directly or by inference, that Mr Lewis treated Mrs Penman less favourably than a man.Miss Gay argued the perversity ground with commendable thoroughness. She made the following detailed points:(1)There was a disparity between the reason given by Mr Lewis in advance of the Tribunal hearing for dismissing Mrs Penman and the reason relied on by Mr Lewis at the hearing and accepted by the Tribunal.In the Notice of Appearance the position adopted by Mr Lewis was that Mrs Penman was dismissed because her work was not satisfactory "due to absenteeism". Particulars were sought of absenteeism. In the response given on 31st January 1992 it was stated that there were no formal records of the dates and times when Mrs Penman was absent from work. Mr Lewis was not in a position to prove or disprove the dates when Mrs Penman states that she was absent. It was asserted that an acceptable level of absenteeism during an employment which lasted eight weeks would normally be expected to be nil, especially as Mrs Penman was employed in a position of considerable responsibility. It was stated that no leave was agreed between Mrs Penman and Mr Lewis. Reference was made in the particulars to informal arrangements between the three secretaries who share the office and the responsibility of Mrs Penman's post as a PA/Secretary in dealing with bookings for operations or out-patients, helping with the day to day problems of patients and relatives, and arranging operating lists and operating assistance. Virtually all of that was carried out without supervision and required trust between Mr Lewis and his PA/Secretary.Miss Gay also referred to Mr Lewis's answers to the Section 24 questionnaire which stated:
"You were dismissed because your absenteeism was unacceptable bearing in mind that my business consists of entirely of myself and my secretary and thus the impact of the absence of my secretary is very great to my business.
The periods that you were absent during the eight week period of your employ will be known to yourself and were obviously common knowledge to the other secretaries in the office. This was particularly disruptive during the whole week starting Monday, 25th March when you knew well in advance that cross-over was likely to be especially important and difficult."Miss Gay contended that, at no time prior to the hearing, did Mr Lewis suggest that the supposed absence of Mrs Penman was anything other than a complete absence from work away from her place of employment, not just away from the end of the telephone. Matters took a different turn at the Tribunal when Mr Lewis relied wholly upon Mrs Penman's absence from her position at the end of the telephone. It was unreasonable and perverse for the Tribunal to have permitted that alteration in the statement for reason for dismissal. It was unreasonable and perverse for the Tribunal to have accepted that reason as a valid explanation for dismissal. Miss Gay took us in detail through the notes of evidence contending that there was no evidence that Mrs Penman was out of the office in working hours other than on Mr Lewis's business, save for two periods of one hour each referred to in the chronology and for 2 1 / 2 days in late March. Mrs Penman was not asked in chief about tasks which took her away from the telephone, because the potential relevance of that was not appreciated at the time. She was not cross-examined on that aspect of the case. In his evidence in chief and cross-examination Mr Lewis referred to absenteeism as the reason for the dismissal, rather than being away from the telephone. In giving further evidence when she was recalled, Mrs Penman said that she was away from the phone between a 1 / 4 of an hour or an 1 1 / 2 hours, not every day. She gave evidence of tasks which took her out of the office e.g. going to the operating theatre, renewing car tax, renewing contact lenses, going to work, going to the post office and so on. Dr Colvin did not give evidence to the effect that there were greater difficulties with Mrs Penman than with the other secretaries. His evidence was that he was surprised to learn of the decision of Mr Lewis to dismiss her.All this pointed to the perversity of the Tribunal in accepting the absence from the telephone as a reason for dismissal. That was a novel reason. It was a departure from the stated case. The assertion was undocumented, vague and unsupported by external evidence. Miss Gay submitted that the only conclusion which a reasonable Tribunal could have reached on that evidence was that the reason given by Mr Lewis at the Tribunal for dismissing Mrs Penman was not the correct reason. The correct reason was that relied on by Mrs Penman to support her case for sex discrimination.(2)It was pointed out that the Tribunal had failed to pay attention to the fact that Mr Lewis contradicted himself in evidence as to the date when he decided to dismiss Mrs Penman. According to the Notes of Evidence he said in chief and initially in cross-examination that the decision was made early in the week of the 18th and 19th March, but he later indicated that the final decision had not been reached, and that he had decided to think about it over the week-end which culminated in Sunday 24th March.(3)It was perverse of the Tribunal to conclude that Mr Lewis did not know of the intended absence for IVF treatment at the time when he took the decision to dismiss or to conclude that he was unaffected by it. The evidence was that there had only been two separate hours of absence. Mrs Penman had notified Mr Lewis of an intention to take two mornings away from work for fertility treatment. Notification had reached him on the evening of 24th March 1992.(4)Finally, it was perverse for the Tribunal to conclude that there was no evidence from which they could find that Mr Lewis treated Mrs Penman less favourably than a man. Mr Lewis had made it clear that he had never raised the issue of absenteeism or failure to answer the telephone with Mrs Penman, though he spent about an hour a week with her. In positing of how he would have reacted to a man who had just joined the team and with whom "niggling problems" arose Mr Lewis's evidence was that:

"If I thought it was quiet we would sort it out I could have had a quiet chat."

He had also said in chief that during the period of Mrs Penman's employment business was very slack. Miss Gay submitted that this was direct evidence that Mr Lewis would have treated a man differently from the way in which he treated Mrs Penman. That different treatment was less favourable, because it resulted in her dismissal without having had the opportunity to correct or explain either absenteeism or her absence from the telephone.

Conclusion on Main Appeal

After detailed consideration of all the points advanced by Miss Gay, we conclude that there was no perversity in the Tribunal's decision, and there are no grounds on which we are entitled to disturb it. We are satisfied that there was evidence given to the Industrial Tribunal on which they were entitled to find that there had been no sex discrimination.Mrs Penman's case was that she had been dismissed for taking time off for IVF treatment between 25th and 27th March and that she was not dismissed for other absences, because there had been no other absences. Against that Mr Lewis gave evidence that he had not dismissed Mrs Penman for taking the time off for IVF treatment between 25th and 27th March, as he had decided to dismiss her before 20th March, and that decision had nothing to do with the fact that Mrs Penman would be absent between 25th and 27th March. His evidence, which the Tribunal accepted, was that the reason for dismissal was that Mrs Penman was absent without explanation on an excessive amount of times from her position at the other end of the phone. He gave evidence of how busy he was, of how important it was that someone should be available to take calls from prospective patients and the needs of other patients and practitioners with whom he worked. He gave evidence of his heavy reliance on his Secretary/PA and the need to have complete trust in her. He found from the outset that she would not be available when he phoned in. That happened two or three times a week and he did not regard it as acceptable, so he had decided to dismiss her.Further, there was evidence by Mr Lewis, which the Tribunal accepted, that he would have treated a male PA/Secretary in exactly the same way. In response to a question of the Chairman:

"If your PA/Secretary was a man what would your reaction have been"

Mr Lewis answered:

"Exactly the same."

The Tribunal was entitled to accept that evidence. It was given on oath. It was for the Tribunal to decide whether or not to believe Mr Lewis. They decided to believe him. The Appeal Tribunal cannot go behind that finding and is not entitled to act on Miss Gay's submission that sworn evidence given by Mr Lewis should be disregarded.As to the reason why Mr Lewis had not communicated his decision to dismiss her as soon as he had made the decision to do so, Mr Lewis gave evidence that, after he had made the decision, he received a letter of 24th March informing him that Mrs Penman would be undergoing fertility treatment in following week. It was in those circumstances that he did not think it humane to communicate his decision, and he waited until a point after the treatment when both he and Mrs Penman would be available. Mr Lewis also gave evidence that he did not know that the reason for Mrs Penman's absences had been the fertility treatment when he took the decision in the past. Mrs Penman had denied that fertility treatment ever caused her to be absent from the phone. The Tribunal accepted that.In those circumstances we are of the view that the Tribunal was entitled to accept all of Mr Lewis's evidence and to conclude that he was not guilty of sex discrimination because he did not treat Mrs Penman any less favourably than he would have treated a man in similar circumstances. It was to be borne in mind that this is not a case of unfair dismissal. The manner in which Mr Lewis carried out the dismissal is not relevant to the complaint made by Mrs Penman. The basis of the Tribunal's decision was that Mrs Penman's case on sex discrimination had not been proved. In those circumstances we agree with Mr Linden that it is impossible for this Tribunal to interfere with that conclusion.We should add that during the course of the hearing there was some discussion whether it would have amounted to sex discrimination if it had been established, as a fact, that the reason for Mrs Penman's dismissal by Mr Lewis was her absence for fertility treatment. It would have been relevant to examine that matter further if it had been decided that the decision of the Industrial Tribunal was perverse and that the matter should be remitted to a different Industrial Tribunal for re-hearing. A question might then arise on the recent decision of the House of Lords in Webb v EMO Air Cargo (UK) Ltd [19th October 1995] as to whether, in all the circumstances, there had been sex discrimination. It was pointed out by Miss Gay that there was before the Industrial Tribunal uncontradicted evidence that the treatment undergone by Mrs Penman was more involved and time consuming for a woman than for a man. The treatment for a woman would involve attending the clinic on three or four occasions during the treatment cycle for scans each taking between 1 / 2 and 1 hour at the clinic. The insemination itself would involve the most part of a morning at the clinic. A man, however, would still only have to attend once for about 1 / 2 an hour. In those circumstances Miss Gay submitted, if Mrs Penman was dismissed because she took time off for that treatment, she was treated less favourably than a man would have been and that was sex discrimination. She referred to a paragraph in the speech of Lord Keith in Webb v EMO to this effect:
"... in a case where a woman is engaged for an indefinite period, the fact that the reason why she will be temporarily unavailable for work at a time when to her knowledge her services will be particularly required is pregnancy is a circumstance relevant to her case, being a circumstance which could not be present in the case of the hypothetical man."
Miss Gay submitted that Mrs Penman was engaged for an indefinite period and the reason that she was temporarily unavailable for work was connected with pregnancy. That would provide the basis of a claim for sex discrimination.That is an interesting argument, but it is not necessary to pursue the point in this case since we are satisfied, for the reasons mentioned above, that the Industrial Tribunal was entitled, on the evidence before it, to reach the conclusion that Mr Lewis dismissed Mrs Penman for a different reason than her absence for IVF treatment. He took the decision to dismiss her before he knew of her proposed absence for that treatment. He dismissed her for a reason for which he would have dismissed a man. There is no sex discrimination on the findings of fact by the Tribunal. For all those reasons the appeal against the main decision is also dismissed.