MRS B MARTIN v MICHAEL CONN GOLDSOBEL [2000] UKEAT 381_00_0906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 381_00_0906Case No Appeal No. EAT/381/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS B MARTINAPPELLANTMICHAEL CONN GOLDSOBELRESPONDENT
Before
Mr Justice LindsayDate 9 June 2000
[1]APPEARANCES For the Appellant MS ANYA PALMER (of Counsel) 1 Pump Court Temple London EC4Y 7AB MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Bernadette Martin in the matter Martin against Michael Conn Goldsobel, the Respondent being a firm of Solicitors. Ms Palmer appears today at this ex parte hearing on behalf of Mrs Martin. Mrs Martin began work for the firm of Solicitors on 28 September 1998. By a date in February 1999 she had informed the firm that she was pregnant. She was dismissed on 20 May 1999. Her claim was that she was told that her work, as a legal secretary, was poor and that by reason of her pregnancy it was getting worse. That was what her claim was. She claimed therefore, to have been unfairly dismissed and discriminated against on account of her pregnancy.[2]By contrast the firm asserted that her work was not up to standard. They said that her typing, her spelling, her punctuation and grammar were not of the required standard. They said that her timekeeping was unsatisfactory and that she spent an inordinate time of her working day on her mobile telephone on private matters and she was dismissed, as we say, with effect from 20 May 1999.[3]There was a hearing at London (North) under the chairmanship of Mr Flint spread over some two days. Both sides were legally represented and Mrs Martin's claim, as a matter of unanimous decision, was dismissed. The Decision was sent to the parties on 1 February 2000 and the Notice of Appeal was received on 14 March 2000.[4]The Notice asserts at paragraphs 6.1 to 6.3 some matters which are truly possible grounds of appeal. Thereafter, in paragraphs 6.4 to 6.8, there are grounds which seem more directed to what would be the proper course if the Appeal Tribunal, looking at grounds 6.1 to 6.3, allowed the appeal, the argument in 6.4 to 6.8 appearing to be that should such a case arise then it would be proper to remit to the Tribunal rather than that the Employment Appeal Tribunal should take the view that, although there had been error of law, the Tribunal had nonetheless come to the only right conclusion.[5]So it seems to us that the proper approach is to look at 6.1 to 6.3, leaving over 6.4 to 6.8 to be dealt with if there is a success on an appeal.[6]The Tribunal plainly recognised that it had before it a Section 99 case of claimed automatic unfair dismissal with pregnancy or a reason connected with pregnancy therefore needing to be shown to have been the only or the principal ground of claim. The Tribunal said this, in their first paragraph: "The Applicant had not at the effective date of termination, which was 20 May 1999, been continuously employed for a period greater than two years. If it can be established by the Applicant that the reason, or if more than one the principal reason for her dismissal, was her pregnancy, then she will of course be able to claim that her dismissal was automatically unfair having regard to the provisions of Section 99 of the Employment Rights Act 1996.[7]However, the Notice of Appeal claims that Mrs Martin had had an alternative claim for sex discrimination. It is not easy to spot any such alternative claim in her IT1, nor to discern what the detriment falling within Section 6 of the Sex Discrimination Act 1975 would be, if not dismissal within Section 6 (2)(b), but some alternative claim may have been made clear at the hearing. As to that, the Tribunal do not seem, for most of their Decision, to be conscious of any alternative claim, but then one comes to paragraph 7 of their Decision, which begins as follows:
"The Applicant has to establish that the reason, or, if more than one, the principal reason, for dismissal was her pregnancy and she also has to establish sex discrimination, i.e. that as a woman who was pregnant she had been dismissed or subjected to some other detriment because she was pregnant."
[8]If there was only a Section 99 claim that sentence would at least arguably represent an error of law because for Section 99 it suffices if the pregnancy or a reason connected with it is the only or principal reason for the dismissal and there would be no need to go beyond that, as that first sentence suggests, if all that was before the Tribunal was a Section 99 claim. On the other hand, if that reference to what Mrs Martin had also to show is a reference to what she needed to show under some claim other than Section 99 then the Tribunal was, it seems to us, acknowledging the existence of an alternative sex discrimination claim to which otherwise no reference was made, except by implication in that sentence in paragraph 7 and also, in the penultimate sentence of the whole case where the Tribunal say:
"Equally, we cannot find on these findings that there was any sex discrimination of the Applicant by her being treated unfavourably because she was a pregnant woman."
[9]But if there was an alternative claim, then the Tribunal was confusing itself because if, as they seem to be acknowledging, there was some form of claim other than under Section 99, then there was no need in respect of that alternative claim to establish, as that first sentence in paragraph 7 suggests, that Mrs Martin had needed to show in relation to that alternative claim that the pregnancy or a reason connected with it had to be demonstrated to be the only or the principal reason for the discrimination: see O'Neill v St Thomas More Upper School [1996] IRLR 172, at page 376, paragraph 40.[10]If in its deliberations the Tribunal had abided by that first sentence of paragraph 7 then it is at least arguable in our view (and, of course, at this stage that is all we are concerned about, arguability) that its later conclusions were arrived at upon an application of the wrong test in law and that that is the case whether or not an alternative claim to Section 99 was, indeed, laid before the Tribunal.[11]There is thus, in our view, a sufficient possibility of arguable error of law and, certainly, a sufficient degree of confusion visible in the reasoning of the Tribunal to justify the matter going to a full hearing. It may be that, in due course, notes of submissions by the Respondents below and possibly Chairman's Notes will be necessary to clarify if an alternative claim was, indeed, put and, if it was, how it was described? But such matters are best left to a time when they can be addressed by both sides, rather than at this ex parte stage. It is to be hoped that if there is any need for Chairman's Notes, the matter can be dealt with in the first instance by an approach to the President, in writing, so that the costs and delays of an oral directions hearing could be avoided.[12]So what we say, leaving aside Chairman's Notes for that reason, is first of all that the Notice of Appeal, as it exists, may go to a full hearing; skeleton arguments are to be lodged with the Employment Appeal Tribunal and exchanged between the parties not later than 14 days before the hearing date. If that is not honoured then the matter may be adjourned without further notice or without further submissions, leaving the costs, if any, thrown away by that to be dealt with at the adjourned hearing. Applications, if any, for Chairman's Notes are to be made, at all events in the first instance, in writing to the President.