MISS J ROBERTSON v HARDWARE SUPPLY CO (MIDDLESBROUGH) LTD [2000] UKEAT 392_99_3003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 392_99_3003Case No Appeal No. EAT/392/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS J ROBERTSONAPPELLANTHARDWARE SUPPLY CO (MIDDLESBROUGH) LTDRESPONDENT
Before
His Honour Judge CollinsDate 30 March 2000
[1]APPEARANCES For the Appellant MR JOHN FALKENSTEIN (of Counsel) Messrs Lauristons Solicitors 86 Borough Road Middlesbrough TS1 2PF For the Respondent MR ANDREW TWINEHAM (of Counsel) Messrs Jacksons Solicitors Innovation House Yarm Road Stockton-on-Tees TS18 3TN JUDGE COLLINS: This is an appeal against the decision of an Employment Tribunal sitting at Middlesbrough whose extended reasons were promulgated on 26 January 1999. By their decision the tribunal held that the Appellant Miss Robertson was not dismissed because she was pregnant and also held that she was not discriminated against on the grounds of her sex.[2]The brief history is that Miss Robertson is now 22 years old. Between 9 March 1998 and 28 September 1998 she was employed by the Respondents, Hardware Supply Co (Middlesbrough) Ltd as a Receptionist/Word Processor Operator at the modest wage of £7,250 per annum. In the summer she became pregnant and the employer became aware of that fact. On 3 September she returned to work having been away on the 1 st and 2 nd to discover that an employee named Tracy Gaines who had been away on maternity leave herself had come back from work and was doing the job which Miss Robertson had been doing. I quote from the tribunal:
"The Applicant asked Mr Honeyman what she was to do and was given work upstairs in the general office for the rest of the day. "
On 4 September 1998 Mr Honeyman told the applicant that there was not enough work for her and she was being dismissed by reason of redundancy. He gave her notice of termination of employment which expired on 30 September 1998."[3]By her originating application which was presented to the tribunal on 30 September 1998 the Appellant claimed that she had been unfairly dismissed and discriminated against on the grounds of her sex. She says in paragraph 3 that:
"On 4 September she was told by Mr Honeyman that one of the reasons she was redundant was that she was pregnant and also because of her having time off for ante-natal care."
And she says:
"I think that I was dismissed because I was pregnant. I think that this was an automatically unfair dismissal and also sex discrimination."
[4]The essence of the Respondents' grounds for resisting the application was that Miss Robertson was employed specifically to cover Mrs Gaines' maternity leave and that when Mrs Gaines returned to work it followed since there was no more work for the Appellant to do that she was dismissed.[5]The Appellant represented herself at the hearing with the assistance of her partner, Mr Wilson. Mr Twineham who appeared before us today represented the Respondents. The first question which arose for consideration was the terms of the contract under which Miss Robertson was employed. The tribunal was aware that the job had been advertised at the Job Centre having been passed there by the Multi Purpose Training Centre at Middlesbrough Borough Council on the basis that it would be an accelerated modern apprenticeship. We have seen the advertisement which was before the tribunal and it clearly states that the duration of the employment is permanent. There is nothing in the advertisement to suggest that it was temporary either for the purpose of covering maternity leave or at all.[6]The tribunal was aware that those facts were anomalous because in paragraph 6 of their reasons they say: We would regard it as being strange to say the least if somebody was employed for a very short period making use of the facilities of the Multi Purpose Training Centre." So they were not blind to the arguments in favour of the Appellant that she entered permanent employment. They recite in paragraph 6 Mr Honeyman's firm recollection that notwithstanding the terms of the advertisement and notwithstanding the general expectations arising from the facilities of the Multi Purpose Training Centre, she would be appointed only as a relief for another employee. The tribunal found it unnecessary to make any finding of fact on this issue. They simply recorded their belief that both parties were giving evidence to the best of their recollection:
"We take the view that the applicant rightly or wrongly had formed the impression that her employment was to be permanent although it might conceivably change in its day to day nature and that nothing was done as might so easily have been the case to make it completely plain to her that this was regarded by Mr Honeyman as being primary maternity cover with a possibility only of future employment. The matter could have been made clear in the letter of appointment and in our view should have been."
[7]Now a question which has been raised by Mr Falkenstein in his admirable argument on behalf of the Appellant has been that if the tribunal had forced themselves to come to a conclusion on the balance of probabilities as to what had been said at the interview between the Appellant and Mr Honeyman, they would have had to grapple in a more focused way with the question of what was in Mr Honeyman's mind as to whether the employment was permanent or not. The reason why Mr Falkenstein pursues this line of argument is that it laid the foundation for his principal argument that if Mr Honeyman had believed that the employment was permanent his subsequent explanation, which the tribunal accepted, that he had dismissed the Appellant 'for some other substantial reason that is that she had been employed for a particular purpose, namely maternity cover and that purpose had been fulfilled', could not stand up.[8]On this issue Mr Falkenstein makes an application, which he was given leave to make at this hearing by order of the President at the preliminary hearing, to admit further evidence. The further evidence which it sought to admit is that of Miss White, who runs the Youth Training Scheme at the Middlesbrough Borough Council Training Centre. The effect of her evidence, if we were to admit it, is that Mr Honeyman was the contact for the position, that the Job Centre was notified by Maria Ferguson on behalf of Mr Honeyman of the job, and that the only part of the advertisement which the MPTC worded was the part relating to the Modern Apprenticeship Training and the NVQ skills. And in accordance with the Ladd v Marshall principles, to which our attention has been drawn, we have to consider: Firstly whether that evidence was available with reasonable diligence at the hearing. Secondly, whether it would have an important influence on the result of the case Thirdly, whether it is apparently credible.[9]There is no difficulty with the third element, not withstanding the lukewarm submissions to the contrary. It is very difficult, however, to accept a submission that this evidence was not available with reasonable diligence at the time of the hearing. Although the Appellant may have sought to obtain it after the hearing to deal with a specific argument that was put forward by the employer, nevertheless the fact that the employer was saying that the original contract was not permanent was made perfectly clear in the Notice of Appearance. It was therefore open to the Appellant to bring forward all the evidence which she could assemble to disprove that assertion; Miss White's evidence is included. But we would not wish it to be thought that we are disposing of the application to admit fresh evidence, simply on a procedural technicality. The merits seem to us to be that Miss White's evidence really does not take the matter any further. The tribunal were well aware that the advertisement stated that the position was permanent and the question of who was responsible for that, was as alive before the tribunal as it is before us. They were fully seised of the point and the wording of the advertisement was before them. Miss White's evidence does not go as far as Mr Falkenstein suggests in pointing to the direct instruction of Mr Honeyman as being responsible for the use of the word 'permanent'. For those reasons we do not accede to the application to admit fresh evidence.[10]In the event the tribunal's decision not to come to any conclusions about the contract appears to have left them in the following state of mind. Paragraph 4 of their reasons may be interpreted in favour of the Appellant by making the assumption that they decided that on the objective contractual test the contract was in fact a permanent one but that Mr Honeyman's subjective belief was that it was something else. That is a perfectly logical position and it seems to us that it is not sensible to read the tribunal's reasoning in a different way.[11]The bulk of the evidence before the tribunal must plainly have been taken up by examination of the employer's general practice in relation to pregnant employees and the employer's reasons for dismissing the Appellant in this particular case. And it has to be emphasised that the question in the case is not what was the contract under which Miss Robertson was employed but why did the employer dismiss Miss Robertson? Her case that she was dismissed because she was pregnant and perhaps because of her absences from work which that pregnancy had necessitated, was a powerful one.[12]Finally though, the decision of the tribunal turned on findings of fact which they made about the conduct and motivation of Mr Honeyman. The tribunal found that he had intended to follow his usual practice of appointing an employee as cover for a pregnant employee and making that employment permanent only if there was work for the new employee when the existing employee returned. The tribunal found that as a fact having heard from Mr Honeyman and other female employees who had been in a similar position. Although, clearly, it was open on the evidence for the tribunal to come to a different view and reject Mr Honeyman's evidence, the fact is that they did accept it. We have no power to interfere with the essential decisions of tribunals on questions of credibility of witnesses, except in the most extreme and unusual of situations.[13]The tribunal decided that whether he was contractually entitled to do so or not, Mr Honeyman dismissed Miss Robertson, not because she was pregnant or because she was a woman but because once Mrs Gaines came back to work there was no work for her. That was plainly in breach of contract if her contract was permanent. In the circumstances of this case, particularly bearing in mind what the tribunal said about Mr Honeyman's failure to make the position to her, it was undoubtedly also an unfair dismissal. But the fact that she was not employed for 2 years at the date of the dismissal prevents her, of course from claiming compensation for unfair dismissal.[14]Having determined as a fact that Miss Robertson was not dismissed because she was pregnant her claim for unfair dismissal on the grounds of pregnancy obviously failed. The tribunal addressed separately the question of sex discrimination in paragraph 16. They came to the conclusion that any male employee in a similar position to Miss Robertson would have been dealt with in exactly the same way. So that although we pay tribute to Mr Falkenstein's argument and have a good deal of sympathy with Miss Robertson's position our decision is that the decision of the tribunal proceeded from their primary findings of fact as to what was in Mr Honeyman's mind. We have no jurisdiction to go behind those findings of fact and for those reasons this appeal will be dismissed. NOTES FOR FILE - EAT/392/99 22 October 1999 THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) MR J A SCOULLER MR P M SMITH MR JUSTICE LINDSAY (PRESIDENT): We do not think it is right to try and cherry-pick amongst the particular grounds that so far have been attempted. We will let the whole thing go forward. It is likely that some grounds will fail, but the ones that will fail will, I think, fail fairly promptly and not take up any great time, so we do not need to sort out which goes forward and which does not. For my part, I am impressed by the argument that Webb v EMO was not sufficiently in mind, given that it transpires that the Tribunal never quite analyses what the terms of the contract were in terms of whether it was permanent or not. It is very easy to read paragraph 14 and to conclude rather loosely that it must have been only a qualified period was offered, but the Tribunal shy away from that at the last minute. They do make it plain that "Regrettably we do not think that this was made clear to this Applicant". The Tribunal, having said earlier that the employer had intended to follow its usual practice of appointing an employee as cover for a pregnant employee during the duration of her maternity and then making that employment permanent only if there was work for the new employee when the existing employee returned, gone on to have should have paid more attention to what was actually said and done on the day, rather than what was intended, because quite often, of course, an intention just rests in the back of the head whereas what truly needs to be analysed in contractual terms is what was actually said and done. So we think there is a point there. That is, first of all, the point that you have drawn to our attention and, secondly, is the one which we think most needs to be concentrated on. So far as concerns an application that new evidence should be received, we do not feel able to rule on that without more information and we will give you leave to raise an application of that kind at the full hearing or if necessary at some intervening directions hearing. It is likely that the hearing will need evidence as to what steps were taken, what steps were not taken, why it was difficult or impossible to get such evidence earlier and so on. I do not think it is the sort of subject that simply can be addressed on the parties or advisers assertion. It needs to be proved. I do not know whether it is right for us to make a direction as to evidence, but what we can say is that the application is likely to fail unless it is supported by evidence. Quite what that evidence is, what it should say is, of course, a matter for the applicants. We do think that, just as you have been extremely helpful in putting their case today, it might be prudent that they should make some attempt to have professional representation when the matter returns. Perhaps you could explain to them what avenues are possible. It will not only assist them, it will assist whatever Tribunal hears the full hearing.