Peplow v Cooper Nimmo (A Firm) [1998] UKEAT 978_98_0112

EAT

Peplow v Cooper Nimmo (A Firm)

[1998] UKEAT 978_98_0112 · 1998-12-01

MR JUSTICE LINDSAY : We have before us, as a Preliminary Hearing, the appeal of Mrs N Peplow in the matter Peplow v Cooper Nimmo Cooper Nimmo is a firm of solicitors.

There was a hearing on 1 June 1998 that led to a reserved decision, promulgated on 16 June, in the following terms:

"The unanimous decision of the Tribunal is that the applicant was not dismissed for a reason connected with her pregnancy within the meaning of section 99 of the Employment Rights Act 1996 and the respondents did not discriminate against the applicant on the grounds of her sex."

The background is as follows: on 11 December 1997 the Industrial Tribunal received Nicola Peplow's IT1 claiming unfair dismissal. We do not need to go into the background further than to say that amongst the allegations added to the IT1, Mrs Peplow said this:

"That was the final straw. I found that I could not return to work after that and consider that the actions of my employer amounted to constructive dismissal, there being no mutual trust or respect left between us because of their actions."

So plainly she was claiming unfair dismissal in the form known as 'constructive dismissal'.

On 1 June 1998, as we have mentioned, the Industrial Tribunal heard the case and made the decision which we have just read. In the course of their extended reasoning, which was the reasoning of Miss A F W Woolley and two members, they found in Mrs Peplow's favour that there was indeed constructive dismissal. They say at the end of para 21:

"We are satisfied that [there] was a fundamental breach of contract which caused her resignation. We find therefore that there was a dismissal within the meaning of section 95 of the Act."

But they then go on to hold that she was not dismissed by way of pregnancy or for some pregnancy-related reason. What they say as to that, on page 12 of our papers is that:-

"We accept that at all relevant stages the partners felt that the applicant was unreliable and prone to make careless errors. We find that was the reason why they refused to allow her to return as a cashier in November 1997 and it was also the reason why they failed to pay her the previously agreed rate of £5.50 an hour. We find therefore that that was the reason for the dismissal."

So that meant that although she was constructively dismissed her dismissal was not automatically unfair under the provisions of section 99(1)(a). They found that the reason for her dismissal was her carelessness and proneness to the making of careless errors.

But the Industrial Tribunal never moved on to discuss whether that reason, namely carelessness and proneness to making of errors which (was a reason that was inherently likely to fall within section 98(2)(a) - Capability - or 98(2)(b) - Conduct) was the sort of reason which rendered her dismissal fair or unfair under section 98(4). The allegation of unfair dismissal has therefore been left in the air. A reason for dismissal has been found such that it was not automatically unfair but the Tribunal did not move on to a conclusion of whether the constructive dismissal was fair or unfair. It does not follow that because a dismissal is not automatically unfair that it is, therefore, fair. In this complicated area the Industrial Tribunal seem to have failed to have complete the course, so to speak. That is a point that seems to us worthy of being raised at a full hearing.

We give leave to Mrs Peplow to amend her Notice of Appeal within ten days from today to raise that point, namely, that although the Tribunal found there had been a constructive dismissal, which was not automatically unfair, they did not go on to consider whether it was a fair or unfair dismissal. If within that ten day period the Notice of Appeal is so amended then we give leave for the matter to go to a full hearing. But, unless at the full hearing the Tribunal that hears the full hearing so allows, we would not allow any other point than the one we have just indicated to be taken further at that full hearing. So there is leave to take the point we have indicated, if the Notice of Appeal is amended, but that if other points are sought to be argued then they will have to be asked for leave to be argued at the full hearing itself.