Messrs Ian Tonge Property Services v Dakin [1998] UKEAT 12_98_2402

EAT
Messrs Ian Tonge Property Services v Dakin
[1998] UKEAT 12_98_2402 · 1998-02-24
MR JUSTICE BELL : This is a preliminary ex parte hearing in relation to an appeal against the decision of an Industrial Tribunal sitting in Manchester, promulgated on 22nd September 1997.The respondent to the appeal, Miss Joanne Dakin, was employed by the appellants from May 1995 and had not long returned to work from maternity leave, her baby having tragically died, when on 17th March 1997 she was told that her employment was to be terminated as from 11th April 1997. She presented an Originating Application to the Industrial Tribunal which the tribunal, correctly in our view, treated as both a complaint of unfair dismissal by reason of pregnancy and childbirth under ss. 98 and 99 of the Employment Rights Act 1996 , and a complaint that she had been unlawfully discriminated against on the grounds of her sex. The Industrial Tribunal rejected the first complaint, reluctantly, because Miss Dakin's dismissal did not relate to the pregnancy and maternity leave which had by then finished. Miss Dakin was pregnant again by the time of her dismissal, but she did not discover this until later, so of course, the appellants could not have known of her second pregnancy, so her second pregnancy was not an issue in the dismissal. However, the Industrial Tribunal found that Miss Dakin was dismissed because she was likely to become pregnant again, and so was unlawfully discriminated against on grounds of sex contrary to s.6(2)(b) with s. 1(1)(a) of the Sex Discrimination Act 1975 .The Notice of Appeal alleges that the conclusions of the Industrial Tribunal were perverse. It takes issue with whether certain findings were truly findings of fact, since they did not appear in the section of the decision dealing with findings of fact. There is nothing in that point as expressed in the Notice of Appeal, as Mr Horne, who appears for the appellants today, has accepted. It is merely a matter of drafting, which we cannot criticise.The Notice of Appeal goes on in paragraph (iii)to say:
"(iii) If the Appellant's did not know that the Respondent was pregnant, then, it is submitted, as a matter of law there can be no discrimination.
The protection afforded to a pregnant female extends to the facts and circumstances relating to an actual pregnancy and not speculative pregnancy."In our judgment, that is to confuse the difference between Miss Dakin's claim of unfair dismissal which was based on pregnancy and which the Industrial Tribunal rejected with the finding of unlawful discrimination on grounds of sex which was in turn based upon the Industrial Tribunal's finding that Miss Dakin was dismissed because of the likelihood of a further pregnancy. The protection afforded by the 1975 Act was not restricted to a woman who was actually pregnant, it was related to unlawful discrimination on grounds of sex which obviously may include the likelihood of pregnancy. It is not surprising, in those circumstances, that Mr Horne has not put that forward as a meritorious ground of appeal today.What Mr Horne has argued is that the tribunal's finding that the appellants were aware that Miss Dakin was trying to become pregnant or likely to be pregnant again was perverse, and unsupported by the evidence which it heard. The relevant parts of the Industrial Tribunal's decision are its various references to the appellants' adverse reaction to Miss Dakin's first pregnancy, and then the first sentence of its conclusion at paragraph 15:
"The Tribunal finds that the applicant was dismissed because of the likelihood that she would become pregnant again shortly."
The justifications for that conclusion appear in paragraphs 16 and 17. Namely, that the tribunal found that Miss Dakin had expressed on a number of occasions that she was trying to become pregnant again. The tribunal therefore looked in the light of the adverse reaction of the appellants to her previous pregnancy, to see whether there might be any reason unrelated to the possibility of her trying to become pregnant again which might explain her dismissal. They found that there was none. In our view, that cannot be challenged. So they went on in paragraph 17 of their conclusions to say:
"There being no other explanation on offer from the respondents, the only alternative explanation which the Tribunal can infer is that the applicant was dismissed because she had announced that she intended to try to become pregnant again."
In his admirably short but clear submissions today, Mr Horne has argued that for the tribunal to reach that conclusion it had to be established that the appellants actually knew that Miss Dakin was trying to become pregnant. It would be easy to find that, if there was evidence that a senior member of staff knew, or that a senior member of staff was told, and there were no evidence to say, Mr Horne contends, that when Miss Dakin mentioned her wish to become pregnant again, it was to a senior member of staff let alone one of the appellants. He does accept that there was no challenge by cross-examination of Miss Dakin suggesting that she did not tell any senior member of staff or did not tell either of the three appellants.In our view, once the Industrial Tribunal had accepted that Miss Dakin on a number of occasions expressed that she was trying to become pregnant again, and once the tribunal found the appellants' explanation for her dismissal to be unsubstantiated and not credible against the background of the appellants' reaction to her first pregnancy, they were more than entitled to say that the only explanation for her dismissal was that the appellants must have known of her wish to become pregnant and dismissed her on that ground. In our view, that is the correct analysis of the decision of the Industrial Tribunal in this case, and it is beyond any arguable challenge. For that reason this appeal must be dismissed at this stage.