MISS L E ANGOVE v BRY-KOL (DEVELOPMENTS) LTD [2000] UKEAT 1417_99_2502

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1417_99_2502Case No Appeal No. EAT/1417/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS L E ANGOVEAPPELLANTBRY-KOL (DEVELOPMENTS) LTDRESPONDENT
Before
Mr Justice LindsayDate 25 February 2000
[1]APPEARANCES For the Appellant MRS K PEARCE (Representative) MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Miss L.E. Angove in the matter Angove against Bry-Kol (Developments) Ltd. On 13 May 1998 Miss Angove lodged an IT1 for "automatic" unfair dismissal and sex discrimination. As her employment by Bry-Kol had been short-lived, namely from 13 October 1997 to 8 April 1999, so far as unfair dismissal was concerned, given the then two years requirement of continuous service as a pre-condition of applying for unfair dismissal, her case really was one of automatic unfair dismissal or nothing, and the particular form of automatic unfair dismissal which she claimed was by reason of pregnancy. When she was dismissed she was some 34 weeks pregnant and the Company knew of the pregnancy.[2]The hearing on 3 September 1999 led to a decision sent to the parties on 29 September 1999 and it was, as follows:
"The unanimous decision of the Tribunal is that the claim for 'automatic' unfair dismissal fails; the claim for unfair dismissal succeeds but no orders of compensation are made; the claim for sex discrimination fails."
[3]Undoubtedly, it was a rather odd decision, as there had been, correctly, no claim for what one might call "ordinary unfair dismissal".[4]On 8 November 1999 Miss Angove lodged a Notice of Appeal. Some of the four chief grounds of appeal which she specified seemed to us to give rise to arguable points of law. Thus we shall identify three points that, even at this stage seem to be arguable. The first is this, in her paragraph 2:
"… the tribunal appears to have concluded that the existence of a redundancy situation was mutually incompatible with a finding of 'automatic' unfair dismissal for pregnancy."
That seems to us to be arguable.[5]Secondly, in her paragraph 1.1, this ground also seems to us to be arguable:
"… A dismissal on the grounds of pregnancy is a dismissal on the ground of sex. The tribunal nevertheless failed to take account of the appellant's submission that the claim of sex discrimination related to her dismissal on grounds of pregnancy."
And, thirdly, at the end of her paragraph 4.2, this also seems arguable:
"… The pregnancy of the appellant was therefore a causative factor notwithstanding that the need to make redundancies was also a causative factor."
Those grounds are not unrelated to one another, but those three grounds seem to us raise arguable points of law.[6]There are other issues touched on in the Notice of Appeal which it is either difficult or impossible to rule upon at this stage, in the absence of Notes or Comments from the Chairman and in the absence of the Respondents, because these other points depend, at least in part, on what was said and done at the hearing. For example, in paragraph 1 of the expanded Notice of Appeal it says:
"The employment tribunal misunderstood the facts by finding in paragraph 11 of its decision that the claim of sex discrimination related solely to the late payment of maternity pay."
[7]Paragraph 11 of the Extended Reasons says this:
"We now go on to consider the question of the sex discrimination claim. In relation to this we asked for clarification from the applicant's representative at the beginning of the hearing. In essence the claim for sex discrimination, as framed in this case, really turns upon the delay in dealing with the MATB1 form and indeed that the payment was not made by the respondents until the eleventh hour, right at the end of July 1999, some four months after the applicant left."
Whether there really was a misunderstanding between the Appellant and the Tribunal is not a matter we can rule upon without knowing what was said and done at the hearing.[8]Another point that requires later clarification is this. In her Notice of Appeal at paragraph 2.1 and 2.2, Miss Angove says this:
"Firstly, no reference is made by the tribunal in the decision to evidence given by the appellant that she was transferred to the post in question only some four weeks before it was deleted. Secondly, no reference is made by the tribunal in the decision to the challenge made at the tribunal hearing by the appellant of the respondent's motives for transferring the appellant to this post shortly before the redundancy was declared."
[9]The employer's case appears to have been, looking at their IT3 paragraph 3:
"The Applicant was moved back onto the reception due to the fact that the service department was overstaffed. She was asked at that time whether she wanted to work part-time in the service department or whether she wanted to move back to the reception. She chose the reception."
It looks as if her case had been much the same because in the attachment to her IT1 she said:
"When I moved back into the Reception it was due to only being given the option of staying within the Service Department on a part time basis or returning to Reception on a full time basis."
[10]So it may thus have been that there was no hidden motive behind the transfer to Reception but that, in any event, Miss Angove could have avoided it by electing to work part time in the Service Department. If, on the evidence, that had proved the case, then Miss Angove's present criticism, which supposes a hidden motive in the transfer to Reception, may be devoid of content and the Tribunal would, in such a case, not be properly criticisable for not dealing with it more fully than it did. That is simply an example of an issue that cannot yet be resolved, one way or another, without us knowing more about what was said and done at the hearing.[11]So at this stage we shall let the whole of the Notice of Appeal go through to a full hearing. We have considered whether to ask for Chairman's Notes at this stage but we think it better, rather than risking the Chairman being vexed twice, to await the Respondent's consideration of what is necessary.[12]It is a notable rarity, but one found in this case, that the Respondent's advisers also accept that the Notice of Appeal raises an arguable point of law.[13]So what we shall say is this: that within 21 days after the receipt by the parties of the transcript of this decision they are to submit to the President here either (1), an agreed description of the Notes or Comments which the Chairman is to be invited to address himself to, on behalf of both sides, or, if that cannot be agreed, alternatively, (2), the two separate versions of what each side asks to be requested of the Chairman and (3), any other directions which either side believes to be appropriate.[14]When those papers are received I will myself consider the matter and therefore it will not be necessary to reconstitute the same three of us. I shall then rule, simply on paper, what it is that the Chairman is to be asked to address himself to.[15]The parties will be at liberty to require an oral directions hearing if truly necessary but, obviously, the point behind us now directing as we do, is in the hope that the costs and delays of a full oral directions hearing can be avoided.[16]It is possible that if and when whatever Chairman's Notes and Comments as are requested are received it will then be plain enough that some one or more of the present grounds of appeal can be abandoned without any loss to the Appellant.[17]We shall expect consideration to be given to amendment, so as to reduce the load on the EAT which hears the full appeal, if for no other reason than if a ground is unnecessarily run that may lead to an order as to the costs of that issue. Quite often, when that point arises, the argument is run that the preliminary hearing let the matter through so it cannot have been unreasonable to pursue the matter. But we would want to emphasise that that is not the case here. Although the whole Notice of Appeal goes forward the only grounds which we have ruled to be arguable are the three identified earlier and once the Chairman's Notes and Comments are available the position might well be that it will become apparent that other grounds are not reasonable to be run. So we invite the Appellant carefully to consider, once Chairman's Notes and Comments are available, whether it is necessary for her to run all the grounds in her present Notice of Appeal or whether she can safely prune those grounds to concentrate on a smaller number. That lies in the future.[18]For the moment all we say is that we allow the full Notice of Appeal to go to a full hearing. We shall expect the parties to address themselves to what Notes are requested of the Chairman and what Comments are requested of the Chairman in the manner which we have indicated.