MISS KISSOON v BILL FREEDMAN LTD [2001] UKEAT 1163_01_2410

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1163_01_2410

Case No Appeal No. EAT/1163/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS KISSOONAPPELLANT

BILL FREEDMAN LTDRESPONDENT

Before

Mr Justice Wall Miss A Mackie

Date 24 October 2001

[1]APPEARANCES For the Appellant MRS AMANDA DINGLE Representative Instructed by Messrs Bulfin & Co 203 Field End Road Eastcote Middlesex HA5 1QZ MR JUSTICE WALL This is the Preliminary Hearing of an appeal in which Natasha Kissoon (the Appellant) was employed by Bill Freedman Limited (the Respondent) which describes itself as a medium-sized company providing and managing cinematic entertainment. The Appellant was dismissed by the Respondent on 6 October 2000. She issued a Form IT1 on 16 October 2000 claiming sex discrimination and unfair dismissal, and in a decision promulgated on 13 August 2001 the Employment Tribunal sitting at London Central decided that her complaints were unfounded and dismissed them.

[2]The notice of appeal argues that the decision of the Tribunal was perverse because certain of the findings of fact which it made were contrary to the evidence. This, in a case where the Tribunal has set out the evidence and its findings in some detail is, inevitably, a difficult argument to mount and Miss Dingle has done so with economy by going straight to the points upon which she relies. The nature of the arguments advanced, however, were such that we were required to look carefully at the Tribunal's reasons and, in particular, their findings of fact.

[3]The Appellant had begun her employment with the Respondent as a temporary employee from an agency dealing with human resource matters. In the early weeks of her employment, one of her superiors, Miss Lynn, discussed with her the fact that the company wished to recruit a human resources manager. At that point the Appellant, who had an offer of employment at Glaxo Welcome, was not herself interested in the job but recommended a friend, a Miss Cribbin with whom she had been on a course and whom she thought fitted for the job. Miss Cribbin was duly interviewed; but at her second interview on 3 July it became apparent that the Appellant herself was interested in the post of human resources manager.

[4]The consequence, after an amount of discussion, was that the company employed both women, albeit in perhaps not as clearly defined roles as might have been appropriate. However, it was made clear to both by the managing director that because of the company's considerable investment involved in employing them both, there was a risk that if they did not deliver the objectives required of them and if their jobs were not done properly. they would at the end of six months (during which they were to be probationary employees) be dismissed.

[5]The Tribunal records that the Appellant characteristically expressed her confidence that that there would be no risk for her to worry about the status of her job. At that point in their reasons the Tribunal describes the Appellant as a highly articulate, well-educated black woman who obviously had a clear understanding of what was needed in a hierarchical structure for the delivery of human resources The Tribunal went on to find on balance that the Appellant was given to understand that she was to be the Human Resource Manager or at least have line management responsibility for Ms Cribbin.

[6]By 21 July, that is within three weeks of the start of the Appellant's permanent employment along with Ms Cribbin, it became clear that all was not particularly well and another employee left. That, I think, did not form any particular part of the dismissal or the Tribunal's decision, but it is part of the history.

[7]The Appellant went on extended holiday on 22 July. She maintained her commitment to her employment during that period by receiving and sending e-mails in relation to the company, but it was clear shortly after her return that all was not well and that there were frictions in the company generated largely (as the Respondent argued) by the Appellant's management style.

[8]On 12 September 2000 the Appellant became aware that she was pregnant. She told Miss Lynn of that fact. It was common ground and found by the Tribunal that Miss Lynn was delighted. What happened thereafter , however, was that there appeared to be increasing tension between the Appellant and Ms Cribbin.

[9]The Tribunal found in paragraph 19 of its reasons that one of the things the Appellant was engaged to do as part of her new human resources function was to revise the company's policies including the company's maternity policy. The Appellant asserted that she was unaware that the company had such a policy. It did, albeit that it was brief . It was set out in a document probably created in 1999 headed simply "Maternity Benefits", which was in the company's computer system. There was an issue as to which we will return in a moment as to whether or not the Appellant had seen this document.

[10]It was however common ground that maternity benefits were available to other employees to show that the company welcomed women with children working for them and returning to work after childbirth; and that the company had taken steps to ensure that this was possible. Accordingly, as the Tribunal found that this was not a company in any sense hostile to women working with them - if anything quite substantially the reverse.

[11]In paragraph 20 of their reasons the Tribunal says – and this is a paragraph which is challenged by the Appellant in this appeal:

"The Appellant's case was that in the two or three weeks that followed she had asked Ms Lynn repeatedly what the maternity package would be and that Ms Lynn had temporised. She fobbed her off. We have considered that evidence carefully, because if it were true it would be strong evidence in support of the Appellant's case."

They then go on to reject that evidence for two reasons:

"It was common ground between the Appellant and Ms Lynn that when she first discovered she was pregnant notwithstanding Ms Lynn's delight, she, the Appellant was unsure whether she was going to have the baby. She already had two children and it was a possibility, and the Appellant freely said this to us, that she might have had an abortion. On 5 October the Human Resource Company Newsletter that the Appellant put together and published contained an announcement that the Appellant was going to have a baby. It was only at about that time that Ms Lynn knew for certain that was her intention. The Appellant was unlikely, in our view, to have wanted to discuss a maternity package in serious terms until she had decided whether or not she was going to keep her baby. Secondly, the reason we rejected the Appellant's evidence on this point, was that she had access to the company's computer system and there was unchallenged evidence from both Ms Cribbin and Ms Lynn that in a central file to which the Appellant would have had access, there was a file marked Human Resources and within that there are a number of policies, including the existing maternity policy. It was clearly accessible with one the things that Ms Cribbin did was to get access to it when she began to work on a draft of the policy that the Appellant was also to see in the weeks that followed. It is likely that the Appellant did see that policy. For those two reasons we were not satisfied on the balance of probabilities that the Appellant did continue to ask Ms Lynn about the policy, or that Ms Lynn temporised. In fact, it is more likely to be the case in the small open-plan office in which the Appellant and Ms Lynn worked, that on any occasion she had wanted to do so, she was well able to ask Ms Lynn about it. Whatever else Ms Lynn's management style may have been, it could not have said by any reasonable observer, that she was unapproachable."

[12]The circumstance which led to the Appellant's dismissal was a letter which she wrote to, but which fortunately was not, we think, seen by the addressee Ms Cribbin. It was seen by Ms Lynn. For present purposes we do not think it necessary to read the terms of that letter into the judgment. The Tribunal described being appalled at seeing it particularly one paragraph of it which was deeply critical and offensive of Ms Cribbin. The letter caused the Respondent considerable concern as did the fact that the relationship between the Appellant and Ms Cribbin had deteriorated markedly - a state of affairs which the Tribunal found was the responsibility of the Appellant.

[13]The final straw so far as the Respondent was concerned was the production by the Appellant of a training package which the Respondent and Ms Lynn in particular regarded as highly unsatisfactory. According to the Appellant it was a combination of all these circumstances which led to her dismissal. Ms Lynn was asked in cross-examination why the Appellant rather than Ms Cribbin had been dismissed. She gave a substantial number of reasons for it.

[14]The Tribunal directed itself correctly on the law in relation to unfair dismissal and sex discrimination and came to a very firm conclusion that the Appellant's pregnancy was not an effective cause of her dismissal. They bore in mind the company's policies, the agreed evidence about Ms Lynn's approach to pregnancy and her delight of the news that the Appellant was going to have a baby. They bore in mind as well the fact that all that was required was for the Appellant was to prove that the pregnancy was an effective cause of her dismissal. For the reasons they had given and the facts they had found, they decided the pregnancy was not a factor in this decision to dismiss.

[15]They conclude with this sentence:

"Although one is always looking in cases of this nature to ensure that the Respondent's personnel are not motivated, even unconsciously by such factors, on the evidence we that have heard, we cannot uphold that claim and it too is dismissed."

Accordingly, the Tribunal made very firm and careful findings of fact, and reached a conclusion which upon its face was plainly one it was entitled to reach on the evidence it had heard. The attack launched by Miss Dingle begins by acknowledging that the Tribunal did not err in its understanding of an application of the Sex Discrimination Act, and that it had applied the law appropriately. What is argued is the that the Tribunal's findings of fact were not supported by the evidence. This focuses on the paragraphs which we have read, namely the finding that the Appellant was not repeatedly asking about the maternity package, and had not been fobbed off. Miss Dingle argued that the finding by the Tribunal that the Appellant was unlikely to have wanted to discuss her maternity package in serious term until she has decided whether to keep the baby was directly contrary to the Appellant's unchallenged evidence that she wanted to know what the maternity package was because of concerns about financial matters. Finally, there was the finding that the Appellant had seen the file on the computer. There was, it is argued, no evidence to support that finding and it was accordingly perverse.

[16]With great respect to Ms Dingle we are unimpressed by these arguments. The fundamental point is that the Tribunal accepted the evidence given to it on behalf of the Respondent and on all material points rejected the evidence given by the Appellant. The crucial decision was that the Appellant's pregnancy played no part in her dismissal, and on the evidence that was plainly one the Tribunal was entitled to reach.

[17]Equally in our judgment the Tribunal was entitled to find as a fact that the Appellant did not ask repeatedly about the maternity package and was not fobbed off about it. The fact that the Appellant may have given evidence in relation to that aspect which was not challenged does not mean that the Tribunal necessarily had to accept it. Equally with her knowledge and expertise in computer matters and given her knowledge of the Respondent's computer system, the Tribunal was in our judgment perfectly entitled to find it more likely than not that the Appellant had seen the policy on the central computer.

[18]Even if the Tribunal was wrong to speculate about the reasons why in their view the Appellant was unlikely to have wanted to discuss her maternity package, that does not in our judgment undermine their essential findings that the Appellant's pregnancy was not an effective cause of the dismissal.

[19]In these circumstances we can detect no error of law in the Tribunal's decision. We find it a full and careful examination of the facts to which the law has been carefully applied. In these circumstances we are of the view there is no reasonable prospect of success and no purpose in the appeal proceeding to a full hearing . It will, accordingly, be dismissed at this stage.