Abbey National Plc v Donnelly [1998] UKEAT 492_98_0112

EAT
Abbey National Plc v Donnelly
[1998] UKEAT 492_98_0112 · 1998-12-01
MR JUSTICE LINDSAY : We have before us an appeal by Abbey National Plc against the decision of the Industrial Tribunal under the chairmanship of Mr D.H. Roose in London (North) that was promulgated on 25 February 1998 after a one-day hearing on 13 February 1998.The decision of the Industrial Tribunal, so far as under appeal, was this:
"The unanimous decision of the Tribunal is that (i) the Applicant was unfairly dismissed,
(ii) the Respondent unlawfully discriminated against the Applicant by reason of her sex."The Applicant in the Industrial Tribunal was Ms K. Donnelly. Her three other complaints were dismissed. For immediate purposes we need look only at her claim for unfair dismissal because it is so closely related to the claim in sex discrimination that, in practical terms, it is accepted that, if unfair dismissal stands, then so does sex discrimination and if the finding as to unfair dismissal were set aside, then so would be the sex discrimination.The case is one which involved, to some extent, the pregnancy of Ms K. Donnelly and therefore introduced to the general questions of unfair dismissal, the particular provisions of section 99 of the Employment Rights Act 1996 . Section 98 provides, in general, of course:
"98(1) in determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show - (a) the reason (or, if more than one, the principal reason) for the dismissal ...."
And then there are familiar further provisions in section 98. As for section 99, I think I need only read section 99(1) or part of it:
"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if - (a) the reason (or, if more than one, the principal reason) for the dismissal is that she is pregnant or any other reason connected with her pregnancy ..."
An important point in this matter is to ascertain what dismissal was having its fairness or unfairness tested on the facts of this particular case and a brief chronology will show the importance of that question to the case.On 29 April 1996 Ms Donnelly began employment with the Abbey National on a temporary basis. On 20 August 1996 she became "permanent" but subject to satisfactory completion of a six month probation period. The understanding was that the six months could be extended by Abbey National but, on the face of things, it being six months, it would have expired on 19 February 1997.Towards the end of January 1997, so the Abbey National claimed, it decided not to retain Ms Donnelly at the end of her probationary period, as in their view (this was always claimed) her probationary period had not been satisfactorily completed. On 4 February 1997 Ms Donnelly informed her superiors at Abbey National that she was pregnant. On 7 February 1997 she was dismissed with one month's notice, thus to run to take effect on 6 March 1997. A little later, perhaps it was on 13 February, Ms Donnelly met her immediate Branch Manager at Abbey National and it was agreed that she might stay on until the end of July 1997. On 13 February she signed a letter to that effect. It records that there had been a discussion with her supervisor of the options open to her. The note continued:
"As you are aware you have not met the basic standard requirement of your probation and whilst you have made considerable efforts to improve in some areas, you still fell short, and you have acknowledged that even if we were to extend probation you would not be able to meet the standard required in this short space of time.
However given the fact that I do consider you to be of some value to the branch and given your personal circumstances, I have agreed with Personnel to give you an extend notice up to the end of July 1997.Should you wish to accept this offer of extended notice I would appreciate you acknowledging by signing below" [and it is signed below by Ms Donnelly].We then have a position in which Ms Donnelly has been given notice, but with the agreement of both sides that notice has been extended to expire on 31 July 1997. However, as time passed, we come to 17 April 1997, when Ms Donnelly was dismissed on one month's notice, it thus expiring on 16 May 1997. That arose by way of a letter of 17 April from Abbey National to Ms Donnelly and it says this:
"It is very disappointing to note that you have been absent for 2 days and have not made any contact with this office with regards to your absence, particularly as you are fully aware of the situation at the branch.
As you are aware you were given extended notice up until the end of July 1997.Unfortunately as you have not made any contact with regards to your absence I have no alternative but to give you one month's paid notice with effect from 18th April.Please note that you will be required to work your notice. " [and then it explains why that was so]The Industrial Tribunal in their Extended Reasons dealt with that and they say in their paragraph 8:
"8 The Applicant's contract of employment provided that absences through sickness must be notified within one hour of normal starting time on the first day. Subsequent days were to be notified in accordance with the Respondent's absence policy. By letter dated 17 April the Applicant was dismissed with one month's notice because she had been absent for two days and had not made contact with the office. ...."
Ms Donnelly then lodged an IT1 form of complaint to the Industrial Tribunal on 4 August 1997 claiming that she had been dismissed on 16 May 1997. The Industrial Tribunal held that the effective date of termination in her case was 16 May. What they said was this, in paragraph 12:
"12 ... The Applicant was dismissed and the effective date of her dismissal was 16 May 1997. The reason given for the dismissal was that her performance had not met the required standard during her probation period with the Respondent. We find that the principal reason for dismissal was that the Applicant was pregnant. ...."
And later, still in paragraph 12, the Tribunal say:
"In the Applicant's circumstances it became likely that she was not going to be as regular an attender at the branch as others during the course of her pregnancy and we felt that that was the factor that led to her dismissal. Her supervisors by their actions had shown that this was not a state of affairs which appealed to them. We find that this is a dismissal which is automatically unfair."
That reference to "automatically unfair", of course, being a reference to the section 99(1)(a) provision which I have earlier read.Mr Oldham, for the Abbey National, the Appellants before us, described those last two sentences as not a finding of fact. We would regard it as just that - a finding of fact; whether it is, of course, a justified finding of fact is another matter, but it is a finding that the factor that led to her dismissal was as there explained. It would be unreal to distinguish between the factor in that sentence and the reference in section 98 to the reason or if more than one, the principal reason. When it comes to considering fairness or unfairness, is the employer here (and the Industrial Tribunal) to look at the dismissal on 16 May, by reason of the notice of 17 April, or is it to look at 31 July 1997, which is the date when the original notice would have expired? We say it is right to examine the position in relation to a dismissal on the 16 May 1997. Ms Donnelly was employed to (and only to) 16 May 1997. The notice that ran to 31 July was, in a sense, overtaken by events and never took effect and who is to know whether it would have taken effect had it not been overtaken by events. Her complaint specifies, and specifies only, a dismissal of 16 May 1997 and there is no holding in the decision of the Industrial Tribunal such, for example, that the dismissal of 17 April would not, or could not, have taken place but for the earlier notice of 7 February.We have had one or two cases drawn to our attention by Mr Oldham. In particular, Alboni v Ind Coope Retail Ltd [1998] IRLR 131 and Parkinson v March Consulting Ltd [1997] IRLR 308. Although we have no reason to quarrel (even if we would be entitled in point of stare decisis to quarrel) with either decision, we do not find anything in them that really helps us on the particular point now raised. In Alboni in the judgment of Simon Brown LJ in the Court of Appeal he refers back to a case of Stacey v Babcock Power Ltd [1986] IRLR 3 and he quotes from that:
"... When considering whether an employee had been unfairly dismissed within the meaning of s. 57 (3) ... it was necessary to take account of the whole process of dismissal initiated by the giving of notice and completed by its expiry rather than regarding the giving of the notice of dismissal as fixing the moment of dismissal and precluding consideration of events which occurred during the notice period."
That does not really assist us because it does not tell one which is the dismissal the whole process of which is to be studied. We certainly do not find anything in it that suggests that it was wrong of the Industrial Tribunal to look, if not only, certainly chiefly, at the events of 17 April 1997 leading to the dismissal on 16 May. The importance of that point to this case is that the reasoning of the Industrial Tribunal in the passage earlier cited (namely that in Ms Donnelly's circumstances it became likely that she was not going to be as a regular an attender at the branch as others during the course of her pregnancy and the facts in the next sentence) could not apply to a dismissal based only on the state of affairs as known to be at 7 February 1997 when the original notice was given. By 7 February 1997, although it was known that Ms Donnelly was pregnant there had by then been no events founding a belief that it was likely that she was not going to be a regular attender at work, as regular as others, during the course of her pregnancy, and by 7 February 1997 her supervisors had not shown either her pregnancy or any prospective poor likelihood of a good attendance rate during pregnancy as being things that did not appeal to them. So that had the relevant dismissal been one by notice on 7 February 1997 for expiry on 31 July 1997 there would have been a very strong argument that the Industrial Tribunal, in its reasoning that we have quoted, must have misled itself and hence had committed some error of law. But if one looks at the events of 17 April 1997 leading to an actual dismissal on 16 May, well then, very different considerations apply.With that background and chronology we turn to the particular grounds of appeal that Mr Oldham has raised in a well prepared skeleton argument, and the first ground asserted is that the Industrial Tribunal failed to determine whether the earlier decision to dismiss was due to pregnancy. That is true. They did not determine that but we would say that they did not have to. The Act concerns reasons for dismissals, not reasons for decisions to dismiss that do not themselves lead to a dismissal. The dismissal that took effect was not a dismissal upon the notice of 7 February for 31 July 1997, but a dismissal of 17 April to take effect on 16 May. The dismissal that was actually complained of was not dated 7 February for 31 July but the later one. There was no necessary inescapable logical link between the two such that, as could perhaps be the case in other states of fact, that the latter could only have been given if the former had been given, so we therefore see nothing in this first ground of appeal.The second ground of appeal is perversity, always a heavy burden for an Appellant. Mr Nicol, on behalf of Ms Donnelly, has drawn our attention to the well known passages in Piggott Brothers & Co Ltd v Jackson [1991] IRLR 309 in the Court of Appeal and we ask ourselves (using Lord Donaldson's expression) was the decision a permissible option? This argument perhaps does not stand alone but is related to the other arguments that are introduced by the Appellant, but we do not find that this decision was a result that was not a permissible option.The third ground of appeal was that there was no evidence from which it could be concluded that the notice of 17 April 1997 was given by reason of a feared likelihood on Abbey National's part that Ms Donnelly would not be as regular an attender as others during the course of her pregnancy. On 24 February she had spoken to another supervisor at her employers at Abbey National about a threatened miscarriage. In one version her statement says (I am looking at page 13 of our papers, paragraph 6):
"6. On Monday 24/2/97, I had an urgent ante-natal scan during working hours. I went early in the morning and, as a result, I arrived late for work. Miss Mogg asked me where I had been and I explained that I had been for a scan, and she said 'Could you not go on your day off". I said I could not, it was urgent, as my doctor feared that I had a 'Threatened Miscarriage'. ..."
Turning to page 24 paragraph 12 she says:
"12. In late February, early March 1997, I had an urgent ante-natal scan during working hours. I went early in the morning and as a result I arrived late for work. [I continue because this version is slightly different]. Miss Mogg asked me where I had been and I explained I had been for a scan. She said 'Could you not go on your day'. I said I could not, it was urgent as my doctor feared that I may have had a miscarriage and needed to check the foetal heartbeat. ..."
There was a doctor's certificate as to a threatened miscarriage on 24 February 1997, but it is not shown that that came to Abbey National's notice but equally it is not shown that it did not. It is an unfortunate feature that we do not know whether it did or not but it looks as if the better view is that it did not come to the employer's notice. But on 16 April 1997 there was a doctor's certificate that indicated "stress reaction - pregnant" and as to that Ms Donnelly said (and I am still on page 25 but now paragraph 13):
"13. On Tuesday 15/4/97, I attended my GP and he asked me to return the following day. I rang Miss Mogg and told her that I would be going back to my GP the following day. I returned the following day and got a certificate for 2 weeks, ... the reason for my absence was stress reaction and pregnant. He [that must be the doctor] advised me to remain off work for 2 weeks."
It is Abbey National's own case that Ms Donnelly went off work through sickness. At page 18 of our papers we have part of the Notice of Appearance by the Respondent and that says at No.6:
"6. Due to the Applicant's pregnancy, the Respondent agreed to extend her notice period in order to assist the Applicant with her personal circumstances i.e. so that the Applicant was in employment two months before the due birth of her child.
7. The Applicant subsequently went off sick and because of her failure to communicate with the Respondent, and the needs of the Respondent's business, her notice was then reduced to one month and the Applicant was given notice of this by letter dated 17 April 1997."So they knew of the pregnancy and they knew of the illness. Mr Nicol, with some justification says, intending it not to be a pejorative description, that Abbey National had a somewhat hostile attitude to time off taken by staff for reasons connected with ante-natal health and he refers to the passage in paragraph 6 of the Extended Reasons where the Industrial Tribunal says:
"6. On 11 February the Applicant was required to attend hospital for an ante-natal scan and Mrs Burnell [the Branch Manager] stated that she would re-arrange her days off so that she could attend in her own time. ..."
So there was no great willingness to allow time off other than in what was already, or could be arranged to be, the pregnant person's time off. It is also worth referring to page 67 of our papers, which is a very difficult copy to read headed "Abbey National Sickness Certification Statement". It has a Section B which is described as "To be completed by the Manager every time employee contacts the Company during illness". Under the date 15/4/97 it says "Phone - will let us know when comes back from doctors" and for 17/4/97, it says "Sick note received - 2 weeks off". Oral evidence was given also but we do not know what it was because we have not got the Chairman's notes.An Appellant who has a complaint that there was no evidence available whatsoever to support a particular finding of fact has, of course, to prove that. The ordinary way of proving it is by reference to the Chairman's Notes and to a reference to an absence in those Chairman's Notes. Given the written evidence to which we have referred and the possibility of oral evidence that supplemented it, together with the broad range of inference that is open to an Industrial Tribunal as the industrial jury, we feel unable to say, on the material before us, that an Industrial Tribunal could not properly have concluded as it did when it said that the factor that led to Ms Donnelly's dismissal was that it had become perceived to be likely that she was not going to be as regular an attender of the branch as others during the course of her pregnancy. It is to be remembered also that the Abbey National had asserted that there had been a decision to dismiss her in January 1997 (before Abbey National knew of her pregnancy at all) and it is implicit in the Industrial Tribunal's decision that that reason, which would seem to have been given by the Building Society as the primary reason or principal reason, was not accepted on the facts. We therefore do not attach weight to this third ground of appeal.The fourth ground of appeal is that there is an internal inconsistency between two passages, each of which we have already cited, namely the passage in the Industrial Tribunal's conclusion, "We find that the principal reason for dismissal was that the Applicant was pregnant" and the later one about what they held to be the factor that led to her dismissal. We do not see that to be an inconsistency. The former references was surely a perhaps somewhat idle shorthand reference to section 99 (1)(a), which we have cited. Mr Nicol points out that in law, under the recent case of Brown v Rentokil Ltd [1998] IRLR 445 , if a matter is pregnancy related then it is regarded in law as essentially referable to the fact of pregnancy. Of course, it would have been better in that first reference if the Industrial Tribunal had said "or any other reason connected with her pregnancy" as the Act, at section 99(1)(a), says, but they plainly had it in mind to revert to the subject and do revert to it in the very same paragraph, where they then spell out a factor that is plainly pregnancy related. Abbey National, through Mr Rowland, says that when looking at these alleged inconsistencies, it does not know why it lost. However, it seems to us plain enough that the Abbey National lost because the Industrial Tribunal held that the reason for Ms Donnelly's dismissal was pregnancy related. To the extent of certainty in reasoning that the well known decision in Meek v City of Birmingham requires, we would say that such a degree of certainty is here satisfied and hence the fourth ground of appeal leads the Appellant nowhere.The fifth ground is that it is said that it was not Ms Donnelly's case that she was dismissed because of the likelihood of her being a poor attender. However, it is not for the employee to show the reason for the dismissal; that is a thing that the employer has to do and in any event we have already held that we cannot, on the material before us, fault in law the conclusion of the Industrial Tribunal namely that what was plainly a reason connected with pregnancy, was held by the Industrial Tribunal to be the factor that led to the dismissal.The sixth ground of appeal is that there was a failure to identify whether the person who took the decision to dismiss was aware of the reasons for Ms Donnelly's absence for two days, before the notice was given by that notice giver on 17 April 1997. There was it seems, so far as one can tell from the written proofs of evidence that presumably were used as evidence in chief, no evidence in writing in chief that whoever gave the notice did not know that Ms Donnelly was ill and did not know that that illness was pregnancy related. It was Mrs Marcia Burnell who gave the notice. What she says in paragraph 22 of her witness statement was, "As a result, I therefore prepared a letter to be sent to Kelly Donnelly giving her one month's notice". It was she who spoke of Ms Donnelly's very high sick leave record. At her paragraph 21 she says:
"21 Kelly Donnelly continued working at the branch during her notice period with a very high sick leave record. On Monday 14th April 1997 Kelly Donnelly was at work and Jean Mogg advised me that Kelly had left the branch early to visit the doctor because she wasn't feeling too well. Two days went by and I recall Jean Mogg advising me that Kelly had not contacted the branch with regard to her absence. ..."
She plainly did know that Ms Donnelly was pregnant. In her paragraph 15 she says, "Shortly after my meeting with Jean Mogg had taken place a member of staff advised me that Kelly Donnelly was pregnant". She knew of her absence through illness. She spoke to Jean Mogg on the subject of Ms Donnelly. Jean Mogg also knew that Ms Donnelly was pregnant. Ms Mogg also knew of the possibility of a miscarriage. What Ms Donnelly had said in her written evidence was (as I quoted earlier), "I said I could not, it was urgent, as my doctor feared that I may have had a miscarriage and needed to check the foetal heartbeat". Ms Donnelly had phoned Ms Mogg to tell her of Ms Donnelly's visit to her doctor. On that she said:
"On Tuesday 15/4/97, I attended my GP and he asked me to return the following day. I rang Ms Mogg and told her that I would be going back to my GP the following day. I returned the following day and got a certificate for 2 weeks. ... the reason for my absence was stress reaction and pregnant. He advised my to remain off work for 2 weeks. ..."
So plainly Mrs Burnell had material from which an inference might have been drawn at the time of her giving notice that the time off that had been taken by Ms Donnelly was because of illness and was, moreover, because of an illness connected with or related to pregnancy. She could have so inferred. There was no evidence in chief that Mrs Burnell thought it was an illness that was related to anything else, in the sense of being explained to her as being an illness of some other kind, and there was no evidence that she thought it was not connected with the pregnancy. Although, as to unfair dismissal, we could not describe the Industrial Tribunal's decision as the most amply reasoned one that we have seen, we have not detected from the material in front of us (and we emphasise that we are limited to the material in front of us) any shortcoming in law. We cannot be sure that the Industrial Tribunal did not have sufficient material before it from which it could properly conclude, as it did, in the passage that we have already cited.Accordingly, so far as concerns unfair dismissal, we dismiss the appeal. As we mentioned at the outset, it is accepted on the particular facts here that although the legal analysis varies as between unfair dismissal and sex discrimination, the two here stand or fall together and it follows from our view of the case on unfair dismissal that we accordingly dismiss the appeal on sex discrimination also. Accordingly, we remit the matter to the Industrial Tribunal for a decision on compensation should it be that the invitation which the Industrial Tribunal extended to the parties to seek to agree compensation should come to nothing. Subject to that, we dismiss the appeal and remit the matter for a decision on compensation.