MS G PEREIRA v 1) ESTATE MANAGEMENT (UK) LTD (2) MR B BRACKEN [1999] UKEAT 857_99_0810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 857_99_0810Case No Appeal No. EAT/857/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS G PEREIRAAPPELLANT1) ESTATE MANAGEMENT (UK) LTD (2) MR B BRACKENRESPONDENT
Before
Mr Justice Holland Ms S R Corby Mrs R A VickersDate 8 October 1999
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE HOLLAND: This matter started with an IT1 of 20 October 1998. By way of that IT1 the Applicant raised complaints of respectively sex discrimination and race discrimination. The form itself asserted, no doubt correctly, that the dates of the relevant employment were from 9 December 1996 to 24 July 1998. Pausing there, one draws attention to the fact that the employment was for a period of less than two years. Turning then to the way in which the complaint was developed it was in these terms:
"I was dismissed by the Respondents on 24 July 1998, as a result of a incident that took place on 2 July 1998 when I was involved with a colleague. The punishment of dismissal was unfair in all the circumstances, and not one a reasonable employer would have arrived at. I allege the decision to dismissal was a discriminatory action of both sex and race. Their decision has denied me my statutory rights to maternity pay."
We return in due course to those terms but remaining with the history, on 4 and 5 February 1999 the matter was heard by an Employment Tribunal held at Stratford and a decision was sent to the parties on 7 May 1999. The decision was in these terms:
"The unanimous decision of the Tribunal is that the Applicant was not unlawfully discriminated against on grounds of her race or sex."
[2]Against that finding there is an appeal to this Tribunal. That appeal has been listed before us this morning by way of a preliminary hearing. As we explained in the course of argument, our role this morning is to identify, if such there be, an arguable error of law arising from the decision of the Employment Tribunal. If such an error can be discerned then we will send the matter forward for an inter partes hearing. If on the other hand we are unable to find any such error, it is our present task to dismiss the appeal.[3]In hearing the matter this morning we have had the real advantage of a very moderate clear exposition by Ms Pereira of her case and on analysis there really are two matters which she raises, perhaps one more significant than the other. Dealing with one of the matters is arises in the findings of this Tribunal at paragraphs 31 and 32. The finding of paragraph 32 reads:
"Applying that comparator the Tribunal found that there was no difference in the way in which the Applicant was treated as compared with the treatment which would have been afforded to the comparator, comparing like with like. Even if the Tribunal had adopted Emelia Nartey as the comparator, when it would be clear that there was a difference in the treatment in that there was a decision to investigate one complaint and not another, the Tribunal would have asked what was the explanation. The explanation was the Respondents decided it was appropriate for them to defer the Applicant's complaint until she returned from her termination, whereas the complaint of violent conduct being made against her required immediate action. The Tribunal found that a reasonable explanation. Consequently the Tribunal did not find that the Applicant had been lawfully discriminated against in this matter."
[4]Submitted by Ms Pereira there is an error there. The error was reflected in the facts earlier recited in the judgment in the Extended Reasons and in particular paragraph 7. That reads:
"On 25 June 1998 Ms Pereira told Mr Bracken that she was pregnant and that she proposed to terminate the pregnancy on 30 June 1998. At the same time she complained to Mr Bracken at Mr Razaq's inefficiency. Mr Bracken's response was to say that he would look at it with her after she came back to work following the termination. In the event Ms Pereira decided not to terminate the pregnancy."
[5]Points out Ms Pereira, the key incident was on 2 July, that is on a date after 30 June. She points out that as at that date she was at work and she submits that it was a clear inference for the employers either that she had returned from the termination or that she was not going to undergo such. Thus it is the use of that reasoning by the Tribunal in that paragraph is fallacious and she submits that there is an error that should found a further inter partes hearing.[6]There are two immediate observations about that. The first is that even at its height, it is a very modest point upon which to take this matter forward. The other more pertinent observation is that the whole of that line of reasoning turns on the premise that the Tribunal adopted Emelia Nartey as a comparator. As it is in the preceding paragraph, paragraph 31, it indicated its essential finding that she was not a comparator for these purposes. Paragraph 32 is as it were providing belts and braces reasoning in the event that paragraph 31 is not sustained. We cannot be satisfied that that particular point is a point that would justify in itself a further hearing.[7]The other point raised by Ms Pereira has caused us more concern and has led us to examine the Extended Reasons very carefully. We have already recited in this judgment that which was set out in the IT1 is to be noted that that document purports to talk in terms of unfair dismissal but that as a concept does not sit easily with length of employment of less two years having regard to the terms of the Employment Rights Act 1996 and indeed the essential complaint is laid in the appropriate box, not on the basis of unfair dismissal, but on the basis of sex discrimination and race discrimination. The point arising from that document is simply that it behoved the Tribunal to be very careful as to the issues that were to be raised before it, given the terms of the IT1. In the event, points out Ms Pereira, by paragraphs 1 and 2 of the Extended Reasons the Employment Tribunal sought to direct itself as to what the matter was about and it does so in these terms:
"This is a complaint by Ms Pereira of unlawful race discrimination contrary to Sections 1(1)(a) and 4(2)(c) of the Race Relations Act 1976 and unlawful sex discrimination contrary to Sections 1(1)(a) and 6(2)(c) of the Sex Discrimination Act 1975. The acts complained of were her dismissal and in particular that: i) she was denied the right to bring a grievance; ii) she was denied an investigation interview; iii) the First Respondent failed to interview key witnesses; iv) the Second Respondent made a dishonest statement at a disciplinary hearing; v) that she was not believed because she was not "
Black British" or of African racial origin." 2 In relation to the complaint of race discrimination, the issues to be determined by the Tribunal were: was the Applicant treated as she alleged and if so, was she treated less favourably than others were or would have been treated and if so, was that on the grounds of race. In relation to sex discrimination, the issues were: was she treated as she alleged, and if so was that treatment less favourable than a man was or would have been treated and if so, was that on the grounds of her sex."[8]It is pointed out to us this morning that a very significant part of her personal case was the contention that the dismissal in this case was because of her pregnancy, that once she had decided not to terminate that pregnancy the employers were confronted with someone who was due to run the full course of a pregnancy with all that that implied and that it was in those circumstances that an excuse was seized upon in order to dismiss her. That is, this was essentially a dismissal because of pregnancy. At first blush we were concerned that that was not spelt out in the paragraphs 1 and 2 as already cited in this judgment and we have been concerned as to whether this Tribunal in the event properly addressed the true issues that arose in this matter. We would interpose immediately by saying that the Tribunal can not have found it easy to identify the precise issues, given the terms of the IT1 and error on their part in this regard would not be totally unexpected.[9]Having thus been alerted to the point we have however looked very carefully at the Extended Reasons as they now appear before us and the first and obvious comment is that whether or no they conceal an error of law, they do reflect a very careful attempt by this Employment Tribunal to sort out the issues and to make findings that relate to those issues. In the course of careful perusal of Extended Reasons it is to be noted that first by paragraph 28 the essential case of Ms Pereira is noted in these terms:
"The Applicant has asserted that the pregnancy was a pre-text in order to dismiss her and that the Respondents did not consider her pregnancy, therefore the dismissal was on grounds of pregnancy since they would not have dismissed her had she taken that into account."
[10]With great respect to the Tribunal their English may not be easy to follow, but what plainly has been set down there is the essential case that has been advanced to us this morning. Further than that, in paragraph 26, the Tribunal directed itself as to law in these terms:
"In relation to a case where a less favourable treatment is alleged to have been based on the grounds of pregnancy, it is recognised in a line of cases from the European Court in Hertz v Aldi [1991] ICR 74 and Dansk [1997] IRLR 643 to the English case of Webb v EMO Air Cargo Limited [1994] ICR 770 that dismissal on the grounds of pregnancy is automatically unfair discrimination without the need for comparison with a man since pregnancy is a condition unique to women."
[11]Yet further in the very last paragraph, that is paragraph 37, the Tribunal makes a specific finding in these terms:
"Turning to the complaint of sex discrimination the issue to address was whether the Applicant's pregnancy was the cause of her dismissal."
And after discussing the matter it then concludes that it cannot find a causative link between the pregnancy and the decision to dismiss.[12]Turning back to the issues as they are presented to us today, we readily agree that the notion that the dismissal was an unlawful reaction to her pregnancy does not appear in paragraphs 1 and 2 of the Extended Reasons. Nonetheless on a proper and fair reading of the balance of the Extended Reasons the point was clearly confronted by this Tribunal. Thus we are satisfied that there is not here a further point which would justify this matter being sent forward for an inter partes hearing.[13]We end by repeating that which has already appeared in this judgment, namely our tribute to the way in which Ms Pereira presented the matter to us which certainly gave us cause for careful re-reading of the Extended Reasons. At the end of the day we would not be doing her any favour at all to make a finding that there was a point. In our judgment there is not and thus it is we have, regretfully, to dismiss this appeal.