Cox v SWP Recruitment [1996] UKEAT 1037_96_1112

EAT
Cox v SWP Recruitment
[1996] UKEAT 1037_96_1112 · 1996-12-11
MR JUSTICE LINDSAY : We have before us the adjourned hearing of an appeal by Ms Lorna J Cox against the decision of the Industrial Tribunal sitting at London (North) under the chairmanship of Ms Lewzey and with Members Mr C James and Mrs R E Tomlin. The decision was promulgated on 5 August 1996 after a hearing with a number of witnesses and oral evidence on 8 July 1996.In the proceedings before the Industrial Tribunal Ms Cox was the Applicant and the Respondents were Mr David Jones and his wife, Clare Jones, trading as SWP Recruitment.Ms Cox had lodged an originating application on 1 March 1996. It raised claims for sexual discrimination. She asked that she should be presented with written reasons for her dismissal under s.53(2)(a) of the Employment Protection (Consolidation) Act 1978 or compensation for not having been given such reasons. Section 53(2)(a) is a provision that entitles an employee to be given written reasons for dismissal, even if they have not been requested, if she is dismissed whilst pregnant and so she asked for relief related to that section. She also raised s.60 of the 1978 Act, which is headed "Dismissal on ground of pregnancy". Oddly enough, I do not think her IT1 form of originating application in terms raises a claim for unfair dismissal but the Industrial Tribunal treated the matter as if there had, indeed, been a complaint on that score and no objection is taken at all to that absence, if, indeed, it remained an absence.The employer, which I shall call "the Firm", responded and their IT3, form of response, said:
"Pregnancy was/is not an issue. Quality attendance were the reasons for Lorna's dismissal."
To dispose of matters which we do not regard as being in issue in front of us, first of all, the Industrial Tribunal did hold that her dismissal was unfair. Secondly, Ms Cox did succeed under s.53(2)(a), she was awarded just short of £300. Thirdly, she was also awarded £598-odd as damages for non-payment of four weeks' pay in lieu of notice and, fourthly her claim for sexual discrimination failed. As to that, Mr Freer for Ms Cox would seek to say that there are issues relating to sex discrimination before us but, on our reading of his notice of appeal, they are not and we have discouraged further address on that subject as being a subject not properly raised in the notice of appeal. We regard it as being a case in which there is no appeal on those four subjects and that the appeal, in other words, is exclusively directed to her failure under s.60 of the 1978 Act. It is to be noted (and it explains, of course, the conduct of the case and the appeal) that her dismissal being unfair avails her very little so long as she fails also under s.60. Under s.64 of the 1978 Act she cannot usefully claim for unfair dismissal if she has not got at least two years' continuous service. The position here is that she began to work for the firm on 5 June 1995 and ended on 19 March 1996 at the latest and so she plainly fails to satisfy s.64(1). However, if she succeeds under s.60 then s.64(1) is disapplied (see s.64(4)). If, and only if, she succeeds under s.60 can she thus make substantial recovery for unfair dismissal and so it comes to pass that, despite the decision that her dismissal was unfair, she needs to appeal against her failure under s.60.It would be best for us to read s.60. Section 60 has two forms; it has been overtaken by the consolidation provisions of the 1996 Act but, so far as concerns the earlier formulation, there were two forms and which is appropriate does not, in fact, matter because the language is effectively and for present purposes identical. Section 60 in one form is headed "Dismissal on ground of pregnancy" and in the other form "Dismissal on grounds of pregnancy or childbirth". It continues in one form:-
"An employee shall be treated for the purposes of this Part as unfairly dismissed if - (a) the reason (or, if there is more than one, the principal reason) for her dismissal is that she is pregnant or any other reason connected with her pregnancy,
In the other formulation:
"An employee shall be treated for the purposes of this Part as unfairly dismissed if the reason or principal reason for her dismissal is that she is pregnant or is any other reason connected with her pregnancy, except one of the following reasons - (a) that at the effective date of termination she is or will have become, because of her pregnancy, incapable of adequately doing the work which she is employed to do; (b) that, because of her pregnancy, she cannot or will not be able to continue after that date to do that work without contravention (either by her or her employer) of a duty or restriction imposed by or under any enactment."
In Butterworth's Employment Law handbook (6th Edition) the form I read first is said to be substituted as from a day to be appointed and the handbook does not identify that date, which is why I have read out both forms, but so far as concerns the case before us, it does not matter which is the relevant form.It has to be noted that it does not of itself assist a woman claiming under s.60 that her pregnancy or a reason connected with the pregnancy was only one among two or more reasons for her dismissal. If there are two or more reasons for the dismissal, the pregnancy or associated reason has to be the principal reason for the dismissal. It is not enough to show some connection between pregnancy or matters associated or connected with pregnancy on the one hand and the dismissal on the other which falls short of pregnancy or that associated reason being either the reason or a principal reason for the dismissal.On that subject the Industrial Tribunal held this:
"The principal reason for the Applicant's dismissal was not that she was pregnant or any other reason connected with her pregnancy."
Before going to the facts found, we should mention this, that the hearing before us began on 11 December 1996. As the appeal developed there was increasing comment by Counsel for the Firm, Mr Crawford, as to what had been the evidence at the hearing and what he had concluded in relation to that. There came a stage at which, it seemed to us, we needed to see the Chairman's notes of evidence. There was a sharp conflict as to what had been given in evidence and what the effect of what had been given in evidence was, going beyond what was merely found in the decision of the Industrial Tribunal. So we adjourned for the matter to come back to us after the Chairman's notes had been obtained and the matter is now restored to the same constitution of the EAT and we now have full and helpful notes from Ms Lewzey, the Chairman.There were, indeed, sharp conflicts of evidence emerging at the Industrial Tribunal and, as I mentioned, there was cross-examination of witnesses on their oral evidence. Ms Lewzey's notes show that the representative then appearing for Ms Cox in her final speech said:

"We appreciate it comes down to who the Tribunal believes"

although it is not entirely clear from the context whether that representative was making that comment on only one particular issue or generally.The Firm's then representative, said:

"Either the Applicant or the Respondents are not telling the truth"

and that, plainly, in context, was a remark that related more generally than to one single issue.What the Industrial Tribunal said was this:
"1. There was a degree of conflict on the evidence. Having heard the various witnesses give their evidence having observed their demeanor in the witness box we found the following facts proved on the balance of probabilities after considering [the] whole of the evidence oral and documentary and after listening to the factual and legal submissions made by and on behalf of the respect parties."
The matter cannot be fully understood without some reference to the facts in chronological order, which we now attempt to do. In October 1991 Mr Jones began a business with his wife. We are not told precisely what it was or became. Its precise nature is not described but it is plain from the evidence that it is a business that requires speedy and precise clerical or office work being done. On 5 June 1995 Ms Cox began employment with the Firm. By this time the Firm had grown to having nine or ten members of staff but it still remained a small firm. Ms Cox joined as a member of the support staff at £10,000 per annum. After a short probationary period provided for in her contract she then passed on to being on four-weeks' notice on either side. At this stage the Firm did not keep sickness or absence records but from October 1995 the Firm did begin to keep sickness records and the reason why was because of Ms Cox's poor record. In the interval between 9 October 1995 and 5 January 1996 the records show that she was off for ten days' sickness and, indeed, at the Industrial Tribunal she admitted to 30 days off in the period of employment, which ran, as will later transpire, down to March 1996, so that she had 30 days' absence in a period very well less than a year and when she was off for sickness her absence was paid for by the Firm. The records show that she was off on 9 and 10 October and 4, 5, 6, 7, and 8 December. The Firm also was found by the Industrial Tribunal to have kept records intended to show the relevant efficiency of respective members of staff. In October 1995 Ms Cox achieved 41 percent of the average, in November 1995 49 percent of that average, in December only 19 percent of that average but there was an improvement in January 1996 to 90 percent of the average.At some date in December (and, of course, at this stage it was a private matter) Ms Cox's pregnancy was confirmed. She was bearing her first child. On 9 December 1995 Ms Cox obtained a doctor's certificate indicating 'flu and the doctor's certificate suggests that she stays off work until 11 December although, oddly enough, the absence records of the Firm do not show her as being absent in relation to that medical certificate. On 21 December the Firm closed, presumably for its Christmas holidays. On 2 January 1996 it re-opened and Ms Cox did attend. Ms Langridge, who was a relatively senior member of the staff of the firm, was held not to have spoken to her about her performance or sickness record until January 1996. On 3, 4 and 5 January Ms Cox was not at work. No medical certificate was, it seems, issued to her or shown by her to the Firm in respect of that period. On 8 January Mr Jones spoke to her about her attendance and work rate. At some date in February 1996, and it would seem to be early February 1996, Mr Jones and Miss Langridge learnt for the first time of the fact that Ms Cox was pregnant. Ms Cox told either or both of them. On 20 February 1996, Ms Cox was absent from work. She had obtained a medical certificate that spoke of pregnancy induced fatigue being a thing that she was suffering from at the time. The certificate suggests that she should stay off work for two weeks (in other words, down to 5 March) but it is not shown in the Industrial Tribunal's decision that that medical certificate was produced to the Firm, Mr Jones or Miss Langridge or, indeed, anyone else, at this stage.On the same day, 20 February, Ms Cox spoke, presumably by telephone, to Ms Langridge and tells Ms Langridge that she has been signed off for two weeks from 20 February. Ms Langridge gave evidence at the Industrial Tribunal, not it seems cross-examined, that Ms Cox had then said that she felt fine but that she would like to take advantage of having another week off because it was her first pregnancy. This passage of Ms Langridge's evidence is not in terms referred to in the reasoning of the Industrial Tribunal but it might be appropriate to read the evidence on the subject. This is the evidence of Ms Langridge, the senior consultant for the Firm:
"I was certainly aware that she was pregnant by 26 February. I think I only knew at the beginning of February. The Applicant said that she had felt OK, had little twinge and wanted to go to the doctor. She said the doctor was not unduly concerned but suggested a week off. On Friday she phoned in and spoke to me because David Jones was not available. I asked how she was. She said feeling fine. She said she would like to take advantage of having another week off because of first pregnancy. When David Jones became available I went to see him..
Applicant gave impression in the conversation that she had been perfectly well and now wanted another week off."That is the position, therefore, at the telephone conversation of 20 February 1996.Having had that call, Ms Langridge then speaks to Mr Jones and Mr Jones 'phones Ms Cox and asks her to come to see him and that meeting took place on 26 February in the afternoon. Ms Cox came in to meet Mr Jones, not having attended work in the meantime, and there is a meeting between three, Cox, Jones and Langridge. The Industrial Tribunal held that even at this stage the medical certificate as to pregnancy-induced fatigue was not produced. The position was that the Firm plainly knew of the pregnancy but did not know of the certificate and did not, it seems, know that the absence was related to pregnancy. No doubt it was because of that that Mr Jones told Ms Cox that she was "skiving". She, it seems, had made no response. He then gave her a note and there were negotiations and talk that seemed to suggest that she was to be paid if she would leave voluntarily and that if she did leave voluntary he would provide her with a notice indicating that she had been sacked, so that she could claim money from the DHSS. On 28 February 1996 a new medical certificate was obtained from a different doctor, this time a Dr Gallow, by Ms Cox. It attributes her then condition to pregnancy and asthma and suggests, it would seem, that she take three weeks off work. Of course, this certificate was during the currency of the certificate that spoke of pregnancy-induced fatigue.On 4 March the Firm wrote to Ms Cox. Their letter mentioned earlier verbal warnings about her performance at work. That elicited no response. On 5 March 1996 the two weeks covered by the medical certificate that spoke of pregnancy-induced fatigue expired. On 15 March Mr Jones wrote to Ms Cox telling her that she was absent without leave and warning that unless the Firm heard from her on 18 March then the payment offer that had been spoken of would be withdrawn. On 19 March the Firm wrote a letter that said "you are no longer an employee" and sent Ms Cox her P.45. On 20 March there expired Dr Gallow's medical certificate of 28 February and, taking the matter a long way forward, on 4 September (this is not in evidence but we were told that it is the case) and Ms Cox's baby was born late. That, I think, is all we need of the chronology.To return to the Industrial Tribunal's findings, at paragraph 6 they say:
"The Tribunal heard evidence from Mr Jones and Ms T Langridge, a senior consultant for the Respondents who acted as deputy to Mr Jones, that the work of Ms Cox was not of high quality and contained typographical errors and careless mistakes such as telephone numbers being transcribed wrongly. The Tribunal was presented with copies of some work produced by Ms Cox which verified this evidence."
Although that passage begins with "The Tribunal heard evidence ..." it was preceded by the passage that we have already cited from paragraph 2 that said "we found the following facts" and so I think the position must be taken to be that when the Industrial Tribunal says that they heard evidence to such and such an effect, they are accepting it as being true, at any rate in cases where they do not indicate otherwise.There is then in the Industrial Tribunal's findings a reference to the percentage of the average of work which Ms Cox was achieving. We have already sufficiently summarized that. We have also mentioned that in February 1996 Mr Jones and Ms Langridge learned of Ms Cox's pregnancy. The Industrial Tribunal continues:
"There was a conflict on the evidence of what was said in the telephone conversation but the Tribunal was satisfied that Ms Cox told Ms Langridge that she had been signed off by her doctor for 2 weeks from 20 February.
11. This telephone call brought the situation to a head and Ms Langridge spoke with Mr Jones."The Industrial Tribunal, going on to the meeting, says:
"Mr Jones and Ms Langridge confirmed that they did not have the medical certificate presented to them at the meeting. [The meeting of 26 February.] "
The Industrial Tribunal cites section 60 and then they come to important passages at paragraphs 16 and 17
"The Tribunal found that the reasons for Ms Cox's dismissal were her performance in relation to the quality and volume of work undertaken by her and her continued absences through sickness which ran through the entire period of her employment by the Respondents prior to and after she became pregnant. The Tribunal were satisfied that pregnancy was not a principal reason for Ms Cox's dismissal and that the absence through sickness was general absenteeism rather than specific sickness absence connected with Ms Cox's pregnancy. The unanimous decision of the Tribunal was that the reason for Ms Cox's dismissal related to her capability for performing the job, a reason under section 57(2)(a) of the Act..
. ..17. The Tribunal was satisfied that the reason or the principal reason for Ms Cox's dismissal was not that she was pregnant or any other reason connected with her pregnancy and therefore it is the unanimous decision of the Tribunal that her claim under section 60 of the Act fails."There are, it would be fair comment to make, few subjects on which Industrial Tribunals have more experience than in evaluating the reasons shown for dismissal by employers and in assigning those reasons precedency between themselves. They are encouraged to adopt a simple, pragmatic and commonsensical approach to causation - see for example O'Neill v(1) Governors of St Thomas More RCVA Upper School(2) Bedfordshire County Council [1996] IRLR 372 at paragraphs 38 to 41, to which I referred the parties at the earlier hearing of this matter. It is also a commonplace to refer to the Industrial Tribunal as the "industrial jury". Two of the three jury members, so to speak, were in this case in a particular position to have a better understanding than many of the condition of women.The Appellant, for whom Mr Freer has appeared before us and has presented an attractive and forceful argument, in her skeleton argument specifies in some detail her argument, which concludes:
"The reason for the Appellant's dismissal had to be due solely to her absence from work from 20 February 1996.
23. As the Appellant's absence from work from 20 February was due to 'pregnancy induced fatigue' ... the dismissal must have been for a reason principally connected with the Appellant's pregnancy.24. The principal reason for the Appellant's dismissal was her absence due to pregnancy induced fatigue since she would not have been dismissed had she not been so absent. This is a reason connected with pregnancy notwithstanding that the Appellant would not have been dismissed because of this absence alone had it not been for her previous alleged poor attendance record."If we might use the word "pregnancy" for the moment to include matters associated or connected with the pregnancy, it has to be noticed that the Industrial Tribunal does not say that pregnancy had nothing whatsoever to do with her dismissal nor does it say that her absence, by reason of pregnancy, had nothing to do with her dismissal. What the Industrial Tribunal did conclude, and they directed themselves as to this in relation to the question which s.60 requires to be answered, was that pregnancy and matters associated with pregnancy was not the only or the principal reason for her dismissal. That, as it seems to us, is an assessment that has to be made as a matter of fact on what was disputed evidence which was recognized by both sides to be evidence that had to be assessed and ruled upon by the Industrial Tribunal. Even without a sight of the Chairman's notes, which we shall mention in a moment, we would have had difficulty in accepting any submissions that suggested that Ms Cox's poor quality of work or poor volume were not reasons for dismissal. It was a case, in other words, of there being more than one reason for dismissal and it was for the Industrial Tribunal to ascribe to those reasons an order of precedency, based on the evidence that they had heard.It is not for us to say whether we would have come to the same conclusion as to the order of precedency amongst the reasons. The question for us is whether an Industrial Tribunal, properly directing itself, could have arrived at the conclusion at which this particular Industrial Tribunal did arrive, namely, that neither pregnancy nor any other reason connected with pregnancy was the principal reason, there being more than one reason for the dismissal. We cannot answer that no Industrial Tribunal, properly directing itself, could have concluded as this one did. We add this: that the Chairman's notes, now disclosed to us, show evidence being given by the Firm, in chief by Mr Jones, that there was inaccurate work by Ms Cox before her pregnancy and during it, that she had given unconvincing explanations of absences even before the Firm's attendance records began in October 1995, that there was complaint made to her as to her work rate and attendance record, that it was put to her that she was "skiving" and it solicited no response and Mr Jones, in turn, said that her pregnancy was not anything to do with her dismissal and that she had not at the time suggested that it was. Those are subjects, not only as to which Mr Jones gave evidence in chief but, so far as one can tell from the notes, are subjects which were not (effectively, at any rate) touched on in cross-examination. Moreover, Ms Langridge, the senior consultant, gave oral evidence that Ms Cox's work was not of a high quality but was careless. She also gave evidence that Ms Cox was told by Mr Jones that she, Ms Cox, was "skiving" but had made no response and, again, there appears to have been no effective cross-examination on that subject. Yet another witness, Mrs Irwin, who was a worker in the office, gave evidence that Ms Cox had not, at any rate on one occasion (it is not quite clear whether the evidence relates only to one occasion or more generally) had not pulled her weight.Mr Freer has very properly taken us to the decision of the Industrial Tribunal in A J George v Beecham Group [1977] IRLR 43 . It is, of course, not binding on us but it is instructive. In that case, at paragraph 8, one finds this:
"We certainly cannot, nor would we wish to, look in isolation at the final event that precipitates the dismissal. On the contrary we have to have regard to all the circumstances including the earlier events that led up to the final decision. See Turner v Wadham Stringer Commercials (Portsmouth) Ltd [1947] IRLR 83. We are quite prepared to accept that without Miss George's previous history the respondents would not have dismissed her had the events in July 1976 stood alone. We further recognise that it does not necessarily follow in every case that the final incident constitutes the principal reason. We have to find the genuine and true principal reason for the dismissal and there are cases, although we think them exceptional, where the final incident is but a trivial matter or even a mere excuse. In the Wadham Stringer case itself the Tribunal took the view that the final event did not truly reflect the reason.
But no such view is we consider tenable in the present case, more particularly in the light of Mr Burfitt's answers that we have quoted. At least it is not a view we are prepared to take. We find no great assistance in seeking to describe the July absence as the last straw or the final blow. That may well be the case although we would reject any attempt further to minimise that absence by inserting such words as 'only'. It remains in our view quite inescapable that without the July absence Miss George would never have been dismissed."There is in our case no equivalent finding by the Industrial Tribunal. In other words, one cannot here arrive at the EAT with, as if a fair wind behind the Appellant, a finding that had not the final events happened, there would not have been a dismissal. There is no such finding in this case.In all, it seems to us that the Industrial Tribunal came to a conclusion on heavily disputed facts, but facts which had to be resolved by them as the industrial jury, having the immense advantage of having had oral evidence, examination in chief and cross-examination before them. On those facts they held against Ms Cox. We do not feel able to say that they misdirected themselves on the law. There was evidence on which they could have concluded as they did and we do not find it possible to describe the conclusion as perverse. Accordingly, we dismiss the appeal.