Dealy & Anor v Scarlett [1997] UKEAT 81_97_3006

EAT
Dealy & Anor v Scarlett
[1997] UKEAT 81_97_3006 · 1997-06-30

JUDGE PETER CLARK :

By a Notice of Appeal dated 8th January 1997 the employer respondents before the Sheffield Industrial Tribunal, Mr Dealy proprietor of Weareasy, his firm, and Weareasy, appealed against the tribunal's majority decision to uphold the applicant employee, Ms Scarlett's complaints both of unfair dismissal and unlawful sex discrimination. Extended reasons for that decision are dated 3rd December 1996.By her answer, filed within time on 20th February 1997 by the local advice centre who represented her, no cross-appeal was advanced the applicant.The first matter raised for determination in this appeal is whether or not we should grant the applicant's application to amend her answer to add a cross-appeal against the deduction of 20% made by the tribunal from their award in respect of financial loss on account of the applicant's contributory fault.Miss Wakefield submits that leave ought to be granted in circumstances where the Answer was served in time, and the reason why no cross-appeal was then included in the Answer was that at that time the applicant was represented by an advice centre worker who was not legally qualified; that an unsuccessful attempt was made to obtain assistance from the Equal Opportunities Commission, and that thereafter it was only when Miss Wakefield was instructed under the Bar pro bono scheme that the Answer was put into proper form.Mr Sales opposes the application. He submits that, applying the principles set out by Mummery J in United Arab Emirates v Abdelghafar [1995] ICR 65 , no proper excuse has been put forward for the delay in pleading the cross-appeal, and there are no grounds for extending time for the cross-appeal.In our judgment the principles in Abdelghafar are directed essentially to the service of a Notice of Appeal. The principle of finality in litigation is an important consideration where the initial Notice of Appeal is out of time. Once the appeal is in train, absent prejudice to the appellant as is the case here, a less stringent approach may properly be taken in the exercise of our discretion.In these circumstances we allowed the applicant's application and a consequential amendment to the Notice of Appeal, to which we shall return.

The facts

The respondents carry on the business of garment manufacturing. The applicant was employed in that business as a machinist specialising in lock stitch hemming from 21st March 1995 until her dismissal on 15th March 1996. It follows that she had insufficient continuous service to quality for ordinary unfair dismissal protection.During the course of her employment she suffered from various health problems. Her supervisor, Miss Ella Wassell thought she made something of a meal of her illnesses, and felt obliged to give her an informal warning for absences from work on 20th July 1995, and on 8th September 1995 she gave her a warning about the alleged poor quality of her work. On the whole the applicant was not regarded by the respondent as a particularly satisfactory employee.On 1st December 1995 the applicant was given the result of a pregnancy test. It was positive. She arranged to see her doctor on Monday, 4th December 1995. That appointment would cause her to be late for work. She says that she telephoned Mr Dealy and told him that she was pregnant, that she was going to see the doctor, and that she would be late for work. In evidence, Mr Dealy denied receiving such a call. It was the respondent's case that they were not informed of her pregnancy until 8th December 1995. However, it seems from paragraph 9 of the tribunal's reasons that the tribunal by a majority at least, preferred the applicant's account that she had informed the respondent of her pregnancy a few days before the 8th December 1995.On 8th December, so the tribunal found, the applicant handed in a sick note to Miss Wassell and told her that she was pregnant. Miss Wassell handed her a final written warning and told her to buck her ideas up. Miss Wassell's evidence was that the applicant might have said she thought she was pregnant, but she, Miss Wassell, though that was "one of her illusions". That evidence was rejected by the tribunal on the basis that the applicant knew that she was pregnant by that time. Secondly, there was a factual dispute as to the reason for the final warning; Miss Wassell in evidence said that it was due to the poor quality of the applicant's work; the warning itself referred to poor attendance. Miss Wassell said that was a mistake, but again the tribunal rejected her evidence.The applicant kept ante-natal appointments at hospital on 21st December 1995 and 15th February 1996. The next one was arranged for 14th March 1996.On 14th March the applicant was due to attend hospital both for a scan and for an ante-natal appointment. She was specifically told by Miss Wassell that she had to return to work afterwards. The tribunal found that the applicant left the hospital at 3.10 p.m.. She then caught the bus and her evidence was she checked the bus timetables and discovered the first bus would get her back to work at about 4.15 p.m. Her shift was due to finish at 4.30 p.m. In those circumstances she did not think it worthwhile travelling back to work and she caught a bus home which arrived at 4.35 p.m.Her absence from work that afternoon was noted by Miss Wassell who informed Mr Dealy that the applicant had not returned from her ante-natal appointment and at about 4.00 p.m. Mr Dealy telephoned the hospital. Thereafter Mr Dealy took home that evening the applicant's personnel file.The next morning when the applicant arrived at work, she was approached Miss Wassell to apologise for failing to return to work the previous afternoon. She was then sent to the personnel manager's office, where Miss Wassell and Miss Platt, the personnel manager, challenged the applicant about her absence the previous afternoon. It seems that the applicant lied on that occasion saying that she had left the hospital at about 4 o'clock, when in fact, she had left at about 3.10 p.m.At this stage Mr Dealy joined the meeting and the tribunal found that he waved the applicant's personnel file around, criticised her general performance and ended up by dismissing her.

The Industrial Tribunal decision

The key issue before the tribunal was, what was the reason for dismissal? It was for the applicant to show, both in relation to her claim under the Sex Discrimination Act and in respect of unfair dismissal, she not having completed two years continuous service, that the reason or principle reason was connected with her pregnancy. it was the respondent's case that it was due to her unreliability as an employee, clearly demonstrated during her employment.The minority member accepted the respondent's case, and would have dismissed both claims.The majority took a different view. In coming to the conclusion that the reason for dismissal was connected with her pregnancy they expressed their reasons thus:
"7. The majority do not find the respondents' explanations to be genuine ones. It is right of course that the applicant's attendance record was not a good one. She had had a number of warnings for that. Of course the precipitating factor that led to her dismissal was her failure to return to work on 14 March 1996. The practical consequences of the applicant's failure to be at work for that last half hour or so of the day would be slight. Using our industrial knowledge we recognise that the applicant returning from this scan having had a photograph of her baby taken was not likely to be able to apply herself in that last half hour to a great deal of work and indeed it seems to us as a matter of common sense that in all probability she would be more likely to be a disruptive influence to the other female employees around her who would no doubt take an interest in what had happened. We do not believe that in the context of this case that would have led to dismissal. The respondents had previously adopted a very relaxed attitude on this issue. We cannot accept therefore that that was the reason for dismissal."
At paragraph 8 they consider and reject the proposition that the applicant's lie on 15th March about her time of leaving the hospital the previous day, was a reason for dismissal.Thereafter they say this:
"9. Thus we reject the reasons given by the respondents for this dismissal and move on to consider whether or not we can draw an inference that the reason for dismissal was by reason of the applicant's pregnancy. We refer ourselves to the final written warning given on 8 December and to the unsatisfactory explanations given by the respondents for the reason for that final written warning. We refer ourselves to the fact that the respondents sought to deny that they knew about the applicant's pregnancy at that time when clearly they did and the fact that that final written warning came about within a few days of the respondents discovering that the applicant was pregnant. We believe that that enables us to draw an inference as to the respondents' attitude towards the applicant's pregnancy. We have accepted the evidence of Miss Scarlett that Miss Wassell tried to persuade her that pregnancy was not an illness, that she should back up her ideas. It is our view and our finding that Miss Wassell came to the conclusion that the applicant would make the most of her pregnancy as she had made the most of her illnesses. That inevitably was going to lead to other absences and pregnancy related illnesses. The applicant was an employee who was not held in very high regard by the respondents, whose quality of work was not good and they would be faced with having to support her through her pregnancy and of course allow her then to take maternity leave and pay maternity pay. It is our finding that they did not find that an acceptable proposition.
10. We find that they did set out effectively to trap the applicant on 14 March by specifically instructing her to come back to work believing with good reason that she would not do so, that they used that as an excuse for the dismissal, that it was an excuse it was not an explanation. In our view the explanation for this dismissal lies fairly and squarely with the applicant's pregnancy and on that basis we find both of these complaints made out and find the applicant as having been unfairly dismissed."However, the majority then went on to find that the applicant could have returned to work prior to the end of her shift on 14th March 1996 had she tried to. To that extent she brought dismissal on herself. Having considered the parties' submissions, they assessed the degree of contribution at 20%.Turning to the assessment of compensation, the tribunal reminded themselves that there must be no duplication between the awards for sex discrimination and unfair dismissal.They approached the matter in this way. First, they calculated the applicant's loss of earnings, allowing for maternity allowance, to the date of hearing, 8th November 1996, and then assessed future loss of earnings for a further three months. They deducted 20% and arrived at a total net loss of earnings figure of £3,075.30. To that they added £1,250 by way of compensation for injury to feelings.The tribunal issued a recoupment notice in respect of the loss of earnings to the date of hearing.

The Appeal

The issues raised in the appeal and cross-appeal focus on two areas of the tribunal's decision, the majority liability finding and the contribution finding.

Liability

Mr Sales attacks the majority's conclusion that the applicant was dismissed by reason of pregnancy primarily on the basis of what he submits was a finding of conspiracy in paragraph 10 of the reasons.He invited us to construe that paragraph as meaning this. The majority were there finding that before Miss Wassell instructed the applicant that she must return to work after her hospital appointment on 14th March 1996, Mr Dealy and Miss Wassell had put their heads together and hatched a plot to trap the applicant into failing to return to work after her appointment, thereby providing an excuse to dismiss her.Mr Sales argues that such a finding is wholly impermissible, there is no evidential basis for that finding, and he has taken us to the relevant findings of primary fact in paragraph 2 of the reasons, and further, if the majority were to take that view Mr Dealy and Miss Wassell ought to have been given a chance to deal with the allegation in cross-examination. Further, in seeking to draw such an inference the tribunal directed themselves only in accordance with the well-known guidance in contained in King v GB China Centre [1992] ICR 516 , and failed to take into account the seriousness of such a finding, and the need for increased certainty on the part of the tribunal in making such a finding. See Re: H [1996] AC 563 , 586C-587A, per Lord Nicholls of Birkenhead.All of these arguments are predicated upon Mr Sales' reading of paragraph 10 of the reasons. We read it differently. The correct analysis, in our judgment, is this. When, in paragraph 10, the majority refer to "they" they are referring to the respondents. We take that from the context of what preceded this paragraph, that is paragraph 9 of the reasons. Understood in that way the meaning is plain. The respondents, through Miss Wassell, effectively set out to trap the applicant on 14th March. Having sprung the trap, Miss Wassell then reported the matter to Mr Dealy. He checked with the hospital, took the applicant's personnel file home, and then attended the disciplinary hearing the next day and dismissed the applicant. Such findings are entirely consistent with the earlier findings of primary fact. In our view, the majority gave sufficient reasons for this finding, and accordingly, the first ground of appeal fails.Secondly, Mr Sales contends that there is an unbridgeable gap between the majority's findings at paragraphs 7-9 of the reasons and their earlier findings of primary fact.At paragraph 7 he contests the finding that the respondent had previously adopted a very relaxed attitude on the issue of absenteeism. We think that there is a basis for that finding in the tribunal's earlier finding that on 15th February 1996 Miss Wassell had given the applicant permission not to return to work after a hospital appointment that day (para. 2(k)).At paragraph 8 he challenges the inference drawn by the majority that Mr Dealy had, by the evening of 14th March, decided to dismiss the applicant the following day. Despite Mr Sales detailed arguments on this point we cannot say that this was not an inference which the majority was entitled to draw.Finally at paragraph 9 he disputes the majority's finding that Miss Wassell concluded that the applicant would make the most of her pregnancy as she had made the most of her illnesses in the past. Given the tribunal's earlier findings as to Miss Wassell's attitude to the applicant's absences through illness in the past, expressed on 8th December 1995, preferring the applicant's evidence to that of Miss Wassell, we again find that a permissible inference to draw. (see para. 2(g)).In conclusion, we are unable to discern any error of law on the part of the majority in arriving at its conclusion on liability.

Contribution

The respondent contends that in arriving at its finding of 20% contribution in paragraph 11 of the reasons, the tribunal failed to take into account a relevant factor, namely the applicant's poor employment record prior to 14th March 1996. Paragraph 11 reads:
"11. We would however find that the applicant could have returned to work prior to the close of her shift if she had tried to. We find that she really had little or no intention of doing so and that therefore to that extent she bought this dismissal onto herself. Having heard further submissions we would place the element of contributory fault at 20%."
We understand the tribunal there to be finding, first, that the incident on 14th March 1996 amounted to culpable or blameworthy conduct on the part of the applicant. Secondly, in assessing the level of contribution, it took into account the submissions of the parties. No doubt the respondent's submissions included reference to the history, to which the tribunal had itself earlier referred in its findings of primary fact. In these circumstances we are not satisfied that the tribunal failed to take into account the whole of the relevant circumstances in reaching their assessment of the level of contribution.Next, Miss Wakefield attacks the finding of 20% on the ground that it is excessive. We remind ourselves that successful challenges to the level of contribution will rarely arise. Hollier v Plysu [1983] IRLR 260 , 263. Yate Foundry v Walters [1984] ICR 445 , 451E-452B. We are not persuaded that the finding of 20% contribution in this case was perverse.Miss Wakefield further submits that the tribunal failed to indicate whether the assessment of financial loss was attributed to the finding of unfair dismissal or sex discrimination. If the latter, submits Miss Wakefield, they could not in law make a deduction for contributory fault.The short answer to that point, in our view, is that it is quite clear that the tribunal were ascribing the financial loss to the unfair dismissal claim. Hence the recoupment notice. Accordingly the question as to whether contribution can arise in a sex discrimination claim does not fall to be considered in the cross-appeal.However, Mr Sales sought to argue that contribution may arise in a sex discrimination claim in this way. He submits that a 20% deduction ought to have been applied to the award for injury to feelings which was plainly referable only to sex discrimination claim.Again, we have not found it necessary to consider that interesting and novel point in this case, since Mr Sales accepts that it was not argued below that contributory fault could be applied to an award under the Sex Discrimination Act . Applying the well-known principles in Kumchyk v Derby County Council [1978] ICR 1116 , we shall not permit the point to be taken on appeal for the first time.

Conclusion

It follows that each of the arguments advanced by Counsel in this case fails. Accordingly, both the appeal and cross-appeal are dismissed.