Girlington Nursing Home v Bridgeman [1996] UKEAT 926_95_2706

EAT
Girlington Nursing Home v Bridgeman
[1996] UKEAT 926_95_2706 · 1996-06-27
MRS JUSTICE SMITH : This is an appeal from an Industrial Tribunal sitting in Leeds and from a decision dated 19th July 1995. The tribunal found that the appellants had dismissed the respondent from her employment with them and in so doing had discriminated against her on the ground of her sex, contrary to the Sex Discrimination Act 1975 .The facts as they appear in the decision are as follows. The appellants run a nursing home. The respondent is qualified as a registered general nurse. She commenced work for the appellants on 6th February 1994. A few days later, she discovered that she would in the future need an operation for an hysterectomy. She did not expect to be called into hospital for several months.In May 1994, she was offered the post of Matron which she declined, but accepted the position of Acting Matron. At that time she told Mr Joshi, the nursing home manager, about her future need for an operation.In September 1994, the respondent was off work sick for two weeks. On 3rd October 1994, by which time she had returned to work, she received notification that she was required to enter hospital for her operation on Tuesday 11th October 1994. She said that she wrote Mr Joshi a note on that day and handed it to him.There was a conflict of evidence before the tribunal as to what had taken place during the ensuing week. The respondent's account, in abbreviated form, was that on 9th October 1994 she had a conversation with Mr Joshi during which he gave her an envelope saying that it contained her wages. She asked to whom she was send her sick notes. He indicated that he already had her sick notes. She explained that she was referring to the future notes which would cover her absences while in hospital. She said that she received no reply to that and went home. Either on the way or on arrival at home, she opened the envelope and discovered that her P45 was there as well as her wages. She realised that she had been dismissed.Mr Joshi's account was that he had had a conversation with the respondent on 6th October 1994, at which she had said to him that she would finish after her shift on the Sunday, 9th October 1994, and asked if she could have her money then. Mr Joshi said that he had been surprised at that, but had taken it that she had decided to leave.It appears that the Industrial Tribunal rejected his evidence, accepted the respondent's evidence and found that the appellants had dismissed her.The tribunal then went on to consider the question of sex discrimination. Their conclusion is set out at paragraph 11:
"11. Bearing those points in mind we have come to the decision that there was a dismissal. The question arises as to whether this was discriminatory. In regard to sex discrimination cases, particularly in regard to pregnancy, there have been conflicting cases as to whether it is necessary to draw a comparison between a woman who goes off for pregnancy or pregnancy-related illness as compared to a man who goes off for an operation. We have followed the European Court decision in Webb v EMO Air Cargo Ltd which held that the dismissal of a woman on the grounds of pregnancy constitutes direct discrimination on the grounds of sex. Since pregnancy is not in any way comparable with a pathological condition and even less so with unavailability for work on non-medical grounds, there can be no question of comparing the situation of a woman who finds herself incapable by reason of pregnancy of performing the tasks for which she was recruited with that of a man similarly incapable for other medical reasons. This was a hysterectomy operation, it was not actually pregnancy, but we have to come to the decision that this was a gender-related medical condition and that it therefore amounted to dismissal on the grounds of sexual discrimination. It has been held since in Webb v EMO Air Cargo (UK) Ltd 1993 IRLR 27 by the House of Lords that less favourable treatment of a woman because of pregnancy can be but is not necessarily sex discrimination. We have come to the decision that the less favourable treatment of the applicant amounted to automatic sex discrimination and therefore we find in favour of the applicant."
It has not been disputed before us that this approach was plainly wrong. The rule that a dismissal for pregnancy is, in itself, an act of sex discrimination is confined strictly to the case of pregnancy, and is not to be extended to dismissal for absence for other illnesses or conditions which it happens can only be suffered by a woman. That is the clear effect of the decision of the European Court in Webb v EMO Cargo (UK) Ltd [1994] IRLR 482 . Thus the Industrial Tribunal erred in treating this respondent's need to undergo an hysterectomy operation, as being a gender related condition and in holding that the dismissal was automatically discriminatory.In a case such as this, it is necessary for the Industrial Tribunal to consider whether the employer would have treated a man in the same way, that is in this case by dismissing him, if the man had been in a comparable situation. That question was never considered by this Industrial Tribunal. Thus it is agreed that the decision cannot stand.The arguments before us have been concerned with what course we should now take. Mr Ford for the respondent employee has urged us to reach our own conclusions. He invites us to draw the inference from the facts found by the tribunal that this dismissal was tainted by discrimination on the ground of sex. He submits that it was inevitable that the Industrial Tribunal would have inferred that this was a discriminatory dismissal had they properly considered the point. He drew attention to the logical difficulty in which the employers had put themselves, saying on the one hand that they did not dismiss the employee, but having then to say in the alternative, if it were found that they had dismissed her, that they would have treated a man in the same way.Mr Ford also drew attention to the employer's refusal to provide information in response to a questionnaire, relating to the periods of time which other employees had been off sick during the past three years, and whether any disciplinary action had been taken against them including dismissal. The appellants had refused to provide that information on the grounds that it breached their employees' confidentiality. They did however reveal in their answers to the questionnaire that no employee, whether man or woman, had been dismissed in the last three years. That would mean therefore, that the question for the tribunal could not have been how these employers would have treated an actual male employee. They would have had to ask how the appellants would have treated a hypothetical male employee.We do not see how we could say, on the basis of the information before us, that the Industrial Tribunal would have been bound to draw the inference that the employer would have treated a man differently from the way in which he treated Mrs Bridgeman, and that this dismissal was discriminatory.Indeed, it appears to us that there is a complete dearth of material in the decision, from which one could draw any conclusion one way or the other. If we had to decide, we could only have said that the employee had not discharged the burden of proof upon her. But we do not think that we can properly decide.It seems to us that the whole of the decision is focused upon one issue only. Was the employee dismissed or did she resign? One can see from paragraph 1 of the extended reasons, that certainly by the time the decision came to written, the tribunal's attention was already focused upon the single question of whether this was a dismissal. At paragraph 1 the reasons say:
"The applicant brings the case on the basis that she was dismissed because she was going into a hospital for a pregnancy operation, that it is discrimination because it is a gender-based complaint."
Thus it appears to us, that at the time of writing the decision at least, the only issue which was under active consideration by the tribunal related to whether this was a dismissal. They did not have in mind any findings of fact which would help them reach a conclusion on the exercise of comparison, if and when they came to consider it.Finally, we have had to consider whether this case should be remitted to the same Industrial Tribunal with further directions, or whether it should go to a differently constituted tribunal for a re-hearing, as the appellants urge us to direct.Mr Ford, for Mrs Bridgeman, has stressed the hardship that she may well suffer if there is to be a re-hearing. The hearing lasted for two days. A repetition would no doubt cause her considerable stress and anxiety. We bear in mind also the cost of a re-hearing. We acknowledge the undesirability of this matter having to go back before a new tribunal.Mr Exall, for the appellants, has submitted that the decision was flawed from the outset and that the necessary findings of fact have not been made. Indeed, it is common ground between Mr Exall and Mr Ford, that the necessary evidence for the comparison to be made was not adduced. For example, Mr Joshi was not cross-examined about the absences due to ill-health of other employees, and the attitude of the appellants towards those employees.In the event, we have come to the conclusion that we must accept Mr Exall's submission on this issue. We do so with regret, but we do not think that justice could be done to both parties by sending this case back to the same tribunal.The appeal is allowed and we think it is necessary in the interests of justice that the matter should be remitted to a differently constituted tribunal for a complete re-hearing.