MISS M BAILEY v READY MIXED CONCRETE (LONDON) LTD [1999] UKEAT 162_99_1712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 162_99_1712Case No Appeal No. EAT/162/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS M BAILEYAPPELLANTREADY MIXED CONCRETE (LONDON) LTDRESPONDENT
Before
Mr Justice LindsayDate 17 December 1999
[1]APPEARANCES For the Appellant MR S RITCHIE (OF COUNSEL) INSTRUCTED BY: R N SHARMA & CO SOLICITORS 146 ACRE LANE LONDON SW2 5UT For the Respondent MR M WEST (ADVOCACY MANAGER) PENINSALE BUSINESS SERVICES LTD ADVOCACY & LITIGATION DEPARTMENT 2ND FLOOR STAMFORD HOUSE 361-365 CHAPEL STREET MANCHESTER M3 3JY MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a full hearing the Appeal of Miss Maxine Bailey in the matter Bailey v Ready Mixed Concrete (London) Ltd.[2]On 16 th April 1998 Miss Bailey lodged her IT1. It gave the date of termination of employment as 31 st March 1998 and in its original form it alleged only sex discrimination. On 15 th May 1998 the respondent company Ready Mixed Concrete (London) Ltd faxed its IT3 and that IT3 claimed amongst other things as follows: "Maxine was dismissed due to redundancy and no other reason. Her statement that an employee who had started her is still in our employment is quite simply not true. The workload of the department has diminished as certain duties were transferred to another RMC company. The consequences of this was that two positions with RMC London were redundant. In implementing the policy of last in, first out as used in previous redundancies, Maxine's position and that of one other lady, were those redundant. Both Maxine and the other lady made redundant were made a payment by the company in connection with the redundancy although neither had any legal entitlement to any such payment. We do not believe there is any case to answer".[3]On the 2 nd June 1998, Miss Bailey indicated to the Employment Tribunal that she had been advised by her solicitor to include a claim for unfair dismissal. On 8 th June 1998, that amendment was allowed so that unfair dismissal was added to sex discrimination as a complaint.[4]On 19 th November 1998, there was a hearing before the Employment Tribunal at London North under the Chairmanship of Mrs J R Hill and with members Mrs W Bishop and Mr R L Foskett and the decision was sent to the parties on 8 th December 1998 and the unanimous decision was as follows: The unanimous decision of the Tribunal is that the Applicant was:-(1) not dismissed for a reason connected with her pregnancy and(2) not the subject of discrimination on the grounds of her sex.[5]On 18 th January 1999, Miss Bailey lodged a Notice of Appeal and it was later refined with the assistance of very experienced leading counsel and today Miss Bailey has had the assistance of Mr Stuart Richie on her behalf and were grateful to him for the assistance that she has received. There is, as it seems to us on a fair reading of the amended Notice of Appeal (and that is the Notice of Appeal that emerged after the assistance of leading counsel) no appeal as to the failure of the claim for sex discrimination as such, namely a claim under the Sex Discrimination Act. But there is an appeal on the grounds of unfair dismissal. Miss Bailey had begun her employment with RMC on 22 nd July 1996 and she was dismissed on 31 st March 1998 and so she had, of course, served less than 2 years. At the time that we are dealing with, unfair dismissal could not be claimed by someone with less than 2 years service save in exceptional circumstances - see section 108 of the Employment Rights Act 1996.[6]The later amendment to require only one year does not affect this case, where termination was before 1 st June 1999. Accordingly Miss Bailey can only claim unfair dismissal if she can bring herself within one of the exceptional cases and the only exceptional case which she asserted below (and it seems to be the only one open to her), is that in section 99(1) of the 1996 Act. Section 99 begins:
"An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if: 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…."
Section 105, in effect, has a corresponding exception in relation to redundancy.[7]It avails Miss Bailey nothing to point to some logical inconsistency or arguable error of law in some other part of the Employment Tribunal's decision unless she can show that the reason, or the principal reason for her dismissal, was pregnancy or any other reason connected with her pregnancy. If she cannot show that then she has no entitlement in law to claim for unfair dismissal. With that in mind, we go for the Employment Tribunal's decision.[8]The Tribunal described the ground on which the employer relied for the dismissal. They say in their paragraph 1:- "She was employed from the 22 July 1996 until 31 st March 1998 when the Respondents dismissed her on the grounds of redundancy". The company had had a re-organisation which led to a decision in that area. In their paragraph 7 they say:- "Mr Lockhart [and he is described as the company's accountant], together with the chief accountant, considered what action needed to be taken in relation to this transfer and concluded that two posts should be redundant" Miss Bailey, although then away on maternity leave, was warned. The Tribunal says:- "the Applicant contacted Mr Lockhart on 16 January and was made aware that she could be made redundant".[9]This company had a "last in, first out" redundancy policy. Miss Bailey was one of the two last to be appointed. The company maintained its claim that she was redundant. In paragraph 10 the Employment Tribunal says:- "The Respondents claimed that there was a genuine redundancy situation which required two employees to be dismissed on the grounds of redundancy and, on the basis of last-in first-out, the Applicant was selected". The Tribunal held that the company did indeed have too many staff; that is in their paragraph 13. Accordingly, said the company, Miss Bailey was selected. And in paragraph 13 the Tribunal says:
"Following through their logic, the Respondents concluded that two were to be declared redundant and that as their policy stated that they should select employees on the basis of last-in first-out they did so and the Applicant was selected"
. Somewhat confusingly, the Tribunal continued in their paragraph 14 as follows:- "The Tribunal does not accept that two posts were redundant but does accept that there was a need for a reduction in staff in the organisation by two. Consequently, the Tribunal concluded that although the Respondents honestly and genuinely believed that the Applicant was a redundant and pursued the policy in accordance with their normal custom and practice, the real reason for the Applicant's dismissal was that some other substantial reason, namely the need to reorganise the business to meet the budget requirements and to have the correct number of employees for the department".[10]We see it as difficult to resist the argument in the Appellant's skeleton (and as first, I think, touched on by leading counsel at the preliminary hearing) that truly there was a redundancy and that Miss Bailey was dismissed on account of redundancy, but that, of itself, does not avail Miss Bailey, as we explained, unless she is able to demonstrate that the reason or the principal reason for her dismissal was her pregnancy or some reason connected with it. If it is accepted, as on the Appellant's argument it would have to be, that the reason for dismissal was redundancy then in effect, Miss Bailey's search for a good ground of appeal move on to whether she was selected for dismissal for redundancy by reason of her pregnancy or for some reason connected with her pregnancy. But here, it seems to us, Miss Bailey runs into difficulties. The Tribunal held that there was a last-in, first-out policy for selection for redundancy. That policy identified Miss Bailey as one of the two persons to go. That conclusion is not itself appealed against in the sense that it is not said that there was no such policy or that it did not identify Miss Bailey or that it was a crude and inadequate policy and therefore should have not been followed on those grounds.[11]There is no indication from the decision by the Tribunal that Miss Bailey managed to prove to the Tribunal that she was selected for redundancy for any reason having any form of connection with her pregnancy. The Chairman's notes have not been sought (save that we have an indication of the evidence in one limited area) and so no argument can be mounted that the Tribunal could or should, on the evidence that it heard, have held that there was a connection between selection for redundancy and pregnancy. Although the Tribunal do not answer the question as to the influence, if any, of pregnancy upon dismissal with the fullest clarity that one might wish for, the question was posed and on a fair reading was answered. Thus, in their paragraph 15 they begin:- "In reaching the conclusion above, the Tribunal considered whether Respondents had been affected by the Applicant's pregnancy". And they answered that question, as it seemed, by stating, somewhat indirectly, an answer in their following passage:- "The operating factor for the Respondents appears to have been their generous gesture towards Jane Thompson in taking on an extra member of staff, a matter that impacted later on the number of staff within the accounts department but not a factor which was affected by the Applicant's pregnancy".[12]The Tribunal then move on to what seems to us to be a non sequitur; they say:- "Therefore, the Tribunal concluded that although the stated reason for dismissal as redundancy was incorrect as the correct reason was "some other substantial reason", that clearly meant that the dismissal was for a reason not connected with the Applicant's pregnancy". That does not seem to be a logical consequence but the Tribunal does plainly conclude that the dismissal was clearly not for a reason connected with Miss Bailey's pregnancy.[13]The argument to the contrary involves a careful look at the position of another employee, Miss Thompson. She had been mentioned in the quotation that we have already cited. She was employed by the company from 1982. In September 1996, she resigned because she had a mental health problem. When this came to the notice of Mr Martin Lockhart, the company's accountant, he invited her to return to work. Mr Lockhart gave evidence, both oral and written; his written evidence says little about Miss Thompson. Thus this aspect of the case must have come out either wholly or chiefly in oral evidence. We have no Chairman's notes save in one limited respect. The Tribunal held that Miss Thompson actually returned to work in March 1997. A letter that has been obtained from the Chairman of the Tribunal indicates that the evidence, by way of a letter from Miss Thompson, was that Miss Thompson had been due to return to work on 17 th March 1997 but had been taken into hospital and did not in fact return to work to 31 st March 1997. The Chairman's letter indicates (and this is the only respect in which we have any indication of precisely what evidence was given below save as appears in the decision itself) that Jane Thompson came back in March 1997. It is clear from the chronology that Miss Thompson was invited back to rejoin the company on or before the 17 th March 1997. It was pure chance that she did not in fact rejoin until 31 st March. But Miss Bailey did not announce her pregnancy until "about the same time" as 31 st March 1997. Indeed, it seems accepted that she did not indicate her pregnancy until April 1997. Miss Thompson's rejoining the employ of RMC was thus unconnected with any anticipated need to fill Miss Bailey's slot whilst Miss Bailey was pregnant or away on maternity leave because when Miss Thompson was invited back to rejoin the pregnancy was simply not known about.[14]The arguments here vary slightly between as was foreshadowed in writing and as we have actually heard orally. The argument seemed to be likely to take the following course, namely that Miss Thompson came in because Miss Bailey was pregnant. Miss Thompson's engagement then meant that the staff was too numerous. It was that superfluity that created the redundancy. Miss Bailey then goes on the redundancy because Miss Thompson's employment dated back to 1982; it was a redundancy that would not have existed but for the pregnancy and hence that she was dismissed for a reason connected with her pregnancy. We expected something on those lines. But any such argument collapses as Miss Thompson was invited to come and rejoin the company before Miss Bailey was known to be pregnant. The Tribunal regarded Mr Lockhart as a kindly man who in offering re-employment to Miss Thompson had made a generous gesture but specifically they held that it was a gesture unaffected by Miss Bailey's pregnancy. In the passage we have already read they say:- "The operating factor for the Respondents appears to have been their generous gesture towards Jane Thompson in taking on an extra member of staff, a matter that impacted later on the number of staff within the accounts department but not a factor which was affected by the Applicant's pregnancy". Earlier, in paragraph 12 they had said:- "the evidence produced by the Applicant from Jane Thompson, who had returned to work in March 1997, indicated that it was he who had invited Jane Thompson to return to work and to make her employment continuous. This pre-dated any question of the Applicant ceasing to work for the Respondent by a year". Although we quite see the argument that the Tribunal was wrong as to its conclusion about redundancy, we are unable find Miss Bailey to have been in any position to complain as to unfair dismissal for want of her having satisfied the necessary two year period, the absence of which, of course, denies any claim in unfair dismissal.[15]Mr Ritchie has today advanced a more sophisticated argument which depends greatly, as it seems to us, on the consequences of Miss Bailey having been away on maternity leave. The argument is that had she not been away on maternity leave the reorganisation which the company embarked upon could well have taken a different shape than the shape it actually took and that it could be that the shape which would then have emerged would not necessarily have led or would not have led to Miss Bailey having been found redundant. As the absence on maternity grounds therefore may well have had a causative affect on how the reorganisation took place and hence how redundancy was to be dealt with, it could be said that the pregnancy was a material cause in relation to the dismissal. The argument is something on those lines; it has not, speaking for myself, been entirely easy to follow how exactly the argument is put but the great difficulty that we have with this type of argument is that maternity leave and absence on that account do not seem to feature at all in the decision as we have it in the extended reasons of the Tribunal.[16]We do not, therefore, know how far Mr Ritchie's argument is speculation or even wishful thinking as to how the case might have been put and how the evidence could have been adduced. The Chairman's notes have not been sought, save in relation to the very limited aspect to which we have already referred. If a case is to be made on grounds that do not appear out of a decision then a request has to be made for the Chairman's notes and here none was made notwithstanding that at the preliminary stage leading counsel of great experience was embarking on the matter. We do not feel able to conclude in Mr Ritchie's favour, or hence in Miss Bailey's favour, on an argument which seems, as far as one can tell, to have no basis in fact found or even in facts which could properly or should properly have been found.[17]Accordingly, although we have real doubts about whether the case should have been put otherwise, we do not see that we can cope with the argument which Mr Ritchie has put today other than to say that it seems to us to have no available foundation in fact. Mr Ritchie concentrates on whether the right questions were asked by the Tribunal in relation to causation but the first sentence of paragraph 15, which we have already quoted, namely that "In reaching the conclusion above the Tribunal considered whether the Respondents had been affected by the Applicant's pregnancy", does seem to us to be the right question. Although the answer is perhaps not as clear as it might have been, it is quite plain that "the operating factor" was found by the Tribunal to be the generous gesture towards Jane Thompson, which seems to have been quite unrelated to Miss Bailey's pregnancy.[18]The decision of the Tribunal, so far as we can see, represents no error of law and so we must accordingly dismiss the appeal.