De Souza v Shadowgrade Developments Ltd [1998] UKEAT 1152_98_1212

EAT

De Souza v Shadowgrade Developments Ltd

[1998] UKEAT 1152_98_1212 · 1998-12-12

JUDGE SMITH QC :

We have before us an application for leave to proceed to a full hearing by the appellant, Mrs Celina de Souza. The appeal is from an unanimous decision of the Industrial Tribunal held at London (South) after a hearing on 2nd and 3rd July 1998 of which extended reasons were sent to the parties on 31st July 1998, whereby the Industrial Tribunal held, amongst other findings, that the appellant had not been unfairly dismissed on 17th October 1997 from her position as a house cleaner with the respondent employers. It is common ground that at the time of her dismissal in October 1997 the appellant was pregnant having become pregnant in June 1997.

We have reminded ourselves, after hearing the helpful submissions of Mr Galway-Cooper on behalf of the appellant, that we only have to be satisfied that there is an arguable ground of appeal in order to let the matter proceed to a full hearing.

It was the appellant's case before the Industrial Tribunal that she had been the subject of automatic unfair dismissal on the grounds of her pregnancy, whereas it was the respondent's case that she had been fairly dismissed on the grounds of redundancy in circumstances where she had made clear that she was going to give notice very shortly in any event, and where there was evidence, upheld by the tribunal, that upon being told of the dismissal the appellant stated that had saved her the trouble of giving notice herself, and that she was pleased that she was leaving. To put it shortly, the Industrial Tribunal found that a genuine redundancy situation existed at the time of the dismissal and that particularly in the light of the matters we have just mentioned above, that she had been fairly selected for redundancy. They specifically posed the question for their judgment in paragraph 8 namely whether the reason for the dismissal was for pregnancy, or whether the reason was for redundancy and because she said she wanted to go in any event. The tribunal emphatically found that the reason was as pleaded by the respondents.

We look at the matter in little more detail in order to deal with the submissions made to us. Looking at the decision, it really speaks for itself. It is to be noted that at the end of paragraph 3 the Originating Application was amended to add a claim of automatic unfair dismissal on the grounds of pregnancy, and the respondents were given leave to amend the Notice of Appearance to add a paragraph in these terms:

"The respondents did not dismiss the applicant by reason of race or sex or pregnancy because there was a redundancy situation and she was selected because she had expressly said she intended to leave in any event."

So there were the issues, squarely, so to speak, before the tribunal, as a result of those amendments. Then there is a considerable number of facts found carefully, on the face of it, by the tribunal, in paragraphs 5(a)-(g), and amongst those findings of fact, was a finding in subparagraph (b) which was to the effect that at the time of the appellant's dismissal in October 1997, there was a genuine redundancy situation. That has been brought about by the management's decision to reduce the number of rental properties they held and consequently the number of cleaners they needed, putting it very shortly, and so at a management meeting held in September 1997 a decision was taken to make one or two cleaners redundant and at subparagraph (g) there is a reference to the relevant management meeting.

Although the points taken by Counsel today are inter-related to a considerable extent, we should express the clear view that we do not think it possible for the appellant to go behind the very clear finding of fact that there was a genuine redundancy situation. That is based on those findings of fact which we have already referred in paragraphs 5(b) and 5(g), and on the way in which the matter is expressed in the Industrial Tribunal's conclusions in paragraph 8 where they conclude:

. .. We find firstly that there was a redundancy situation. We accept the respondent's evidence that the number of apartments were reduced owing to the surrender of flats at Montford House, and there were a number of empty flats that only required light cleaning."

One of the points that is argued is that that was really a perverse finding by the Industrial Tribunal since the Industrial Tribunal for a number of very detailed technical reasons should have been very dubious about the very late disclosure of the minutes of the management meeting; the tribunal should have looked more carefully and analysed more fully the whole of the minutes of the management meeting; the tribunal should have looked at the precise chronology of events relating to the disposal and, indeed, acquisition of the rental properties and had they done all of that and also looked at the position with regard to not only the appellant but also other cleaners and what happened to them, the tribunal might have concluded that there was not really a genuine redundancy situation.

Although it may well be the case that had we been all hearing this matter at first instance, we might have reached a different conclusion on this aspect of the matter from that of the Industrial Tribunal, we really must set our face, that is the Employment Appeal Tribunal's face against allowing this kind of argument to develop. In our judgment there is no sufficient material here arguably to assert that there is any kind of perversity in the finding by the Industrial Tribunal relating to the redundancy situation. Accordingly, we do not allow that ground of the appeal.

We return to what perhaps is the main argument that has been addressed to us, though we repeat that we have taken on board the fact that the arguments are to an extent inter-related. The main argument that is addressed to us is that in the light particularly of the fairly recent decision of the European Court of Justice of Brown v Rentokil Ltd

[1998] IRLR 445

and also in the light of the well-known decision of Webb to which the Industrial Tribunal did properly refer themselves in paragraph 6(1), the Industrial Tribunal erred in failing to find that the true reason for the dismissal was to some extent at any rate on account of the appellant's pregnancy and accordingly, was an automatically unfair dismissal. That is the real burden of the application for leave to appeal.

With regard to that contention, we are particularly conscious of the importance in employment law of safeguarding the rights of women undergoing pregnancy and we have that very much in mind. We also have in mind the principle that a dismissal during the course of pregnancy, especially when it is a dismissal close up to the commencement of maternity leave, has to be exceptionally and clearly justified. We have got that fully in mind. We do note here that there were certain very important facts found by the Industrial Tribunal and that is why we have to go back to paragraph 5 where the facts found are summarised. It is clear from the subparagraphs in paragraph 5 that the Industrial Tribunal found that prior to the appellant even becoming pregnant, she was complaining regularly that the work was too heavy and too much for her, and, inferentially, that she did not like the work at all and was dissatisfied with the work. The Industrial Tribunal found that after she became aware that she was pregnant, she complained even more about the job, and she said that she was going to leave the job. Although the Industrial Tribunal record her evidence that she became concerned at the heavy weights she had to carry whilst she was pregnant, the Industrial Tribunal made no finding that that was the appellant's state of mind, and in fact found, that the appellant was planning to leave not because of the maternity leave, which was due to start in November 1997, but because she was dissatisfied with the work. In addition, the Industrial Tribunal upheld and clearly believed in its entirety the evidence of the house supervisor, Ms Summers, and found as a fact that after the appellant had been dismissed, she told Ms Summers that it had saved her, the appellant, giving notice, because she was going to come in the following week and give notice and that she was pleased to be leaving. The Industrial Tribunal, in addition found, as a fact, that she registered no complaint of any kind to anyone in authority when she was written to by Ms Billings giving notice of her dismissal on the grounds of redundancy.

In our judgment, those are very important, special and particular findings of fact that relate to this particular case and no other. We note in particular that there was no absence by the appellant on the grounds of any difficulties or illness arising out of her pregnancy; there was no question of any doctor's certificate or medical evidence showing that there had been any such absence due to any pregnancy related complaint of any kind. In the light of those findings of fact to which we have referred a little earlier, we then note that the Industrial Tribunal, correctly in our judgment, cited the relevant law in paragraph 6 of their decision. They there record that:

"... To dismiss a woman because she is pregnant is unlawful direct discrimination ( Webb v. Emo Air Cargo (UK) Ltd [1994] IRLR 482 ). The question in this case therefore is whether pregnancy was the reason for the dismissal."

In the following paragraph, headed "Unfair dismissal" they state:

"Section 99 of the Employment Rights Act 1996 provides that a dismissal is automatically unfair if the reason or principal reason for dismissal is pregnancy. The normal requirement of two years continuous employment does not apply."

It is clear that although the tribunal were not and could not have the benefit of a citation of Brown v Rentokil , because, as we understand it, that case had not been reported at the time of the hearing, they did have the benefit of the citation of Webb and did refer to Webb and also expressly to s. 99.

The tribunal then considered the submissions in paragraph 7 and ultimately came to express their conclusions in paragraph 8. Dealing particularly with the part of the tribunal's conclusions that relate to the argument that has been addressed to us in relation to the error they supposedly made with regard to their failure to conclude that the dismissal was on account of the pregnancy, they express themselves as follows, in paragraph 8:

"We accept that we have to consider what was the reason for the dismissal. Was it pregnancy as alleged by the applicant or that there was a redundancy situation and she was selected because she had expressly said she wanted to go in any event. ..."

In our judgment, the Industrial Tribunal there precisely and correctly set out the issue which they had to determine. Then the Industrial Tribunal continued as follows:

"As we have already said we found Ms Summers the most credible of the witnesses. Her evidence was that the applicant complained before and after her pregnancy the work was too heavy and too much and that she was going to leave. Indeed the applicant's own evidence was that it "was very tiring and strenuous work" and that she "began to become concerned at the heavy weights I was carrying whilst pregnant". She had in fact complained on behalf of herself and the other girls. Ms Summers evidence was that about a week before being made redundant the applicant told her again that she was going to leave. On the day she was dismissed she told Ms Summers that it saved her doing it because she was going to come in the following week and give her notice. The applicant had told her that she was pleased she was leaving. ... We find that the reason for the dismissal was as pleased by the respondents, that the reason was not pregnancy and that the claims of unlawful discrimination and unfair dismissal fail."

The submission was made to us that it is arguable that the Industrial Tribunal erred in law in that since it had been held in Brown that dismissal of a woman at anytime during her pregnancy, based on her inability as a result of her condition to perform her contractual duties, is direct sex discrimination and is unlawful; and since the Industrial Tribunal had some evidence before them from the appellant herself that although she had complained before her pregnancy after she became pregnant her volume of complaints increased in respect of the heavy lifting side of the job due her pregnancy, therefore, it was submitted to us, the Industrial Tribunal should have been bound to conclude that the dismissal was in part at least caused by the complaints made by the appellant which related to the heavy nature of the work and which complaints increased after she became pregnant. Thus the Industrial Tribunal should have held that what, in part, at least, caused her to be a candidate for selection for redundancy was her incapacity to carry out heavy work due to her pregnancy, which in turn caused her to increase her volume of complaints about the work she had to carry out, which in turn made her an obvious candidate for redundancy. Accordingly, it is submitted that it is at least arguable that the Industrial Tribunal should have found that she was dismissed unlawfully on account of her pregnancy.

In our judgment, the rather tortuous way in which this argument has to be put is indicative of its basic frailty. It is not a straightforward case like that of Mrs Brown in the Brown v Rentokil case, where there was a clear absence by Mrs Brown for medical reasons connected with her pregnancy, as the certificates from the doctor referred in the judgment clearly show, and where the employers nevertheless insisted on reliance on a contractual right to dismiss after her absence for 26 weeks. This particular case is quite different from the case of Brown . At the end of the day, in our judgment, provided the Industrial Tribunal refer themselves correctly to the relevant law, as in our judgment, they did, it must be for them to decide whether or not, on the particular facts before them, the dismissal was in anyway caused by reason of the pregnancy. The reality is that is exactly what the tribunal did address their minds to. They concluded, as in our judgment they were entitled to do, it was not in anyway any incapacity based upon her pregnancy which caused the appellant to complain that the work was too heavy, but rather her dislike of and dissatisfaction with the job. We take into account that the dismissal came very shortly before the period of maternity leave, and no doubt that must have been a matter which influenced the decision of the Industrial Tribunal, since they refer to all the relevant facts in relation to it. Nevertheless, having weighed all those matters up, as in our view the Industrial Tribunal correctly did, they were, in our judgment, fully entitled to accept the evidence of Ms Summers. The reality, as found by the Industrial Tribunal, was that the appellant did not like the work for reasons unconnected with her pregnancy, and was pleased to be dismissed because she was going to leave in any event. In our judgment, even bearing in mind the very stringent test which we referred to earlier in this judgment, which applies when a tribunal is considering the particular and specially protected position of persons who are pregnant, even bearing that stringent test in mind, in our judgment, the findings of fact and the conclusions of law arrived at by the tribunal were entirely permissible and reasonable, and, despite the argument of Mr Galway-Cooper, give rise to no arguable point of law. For those reasons this application is dismissed.