MS L HOWELL v STATUS CARD LTD T/A CHASE 3C [2001] UKEAT 1395_00_3003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1395_00_3003Case No Appeal No. EAT/1395/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS L HOWELLAPPELLANTSTATUS CARD LTD T/A CHASE 3CRESPONDENT
Before
Mr Justice LindsayDate 30 March 2001
[1]APPEARANCES For the Appellant MS ANYA PALMER (Of Counsel) Free Representation Unit 1 Pump court Temple London EC4Y 7AB MR JUSTICE LINDSAY (PRESIDENT) Here, as a Preliminary Hearing, we have before us the appeal of Liza Howell in the matter Howell v Status Card Ltd t/a Chase 3C . Today Miss Anya Palmer appears instructed by FRU on behalf of Miss Howell. We are grateful for her assistance, particularly that provided by a written skeleton argument.[2]On 20 August 1999 an IT1 was presented by Miss Howell for sex discrimination and unfair dismissal. She had been employed only from 29 March 1999 to 30 June 1999 as a Credit Controller. In her IT1 she said this in paragraph 4:
"On 28 June 1999, I informed Dave Armstrong that I was pregnant. He said that this would not look good for me and told me that my targets were down. I asked him about the provisions for maternity pay and leave. He said that the company "did not do this" and that I could not expect the company to hold my job open for me."
A little later she says:
"I contend that the fact that I was told to leave my job just two days after my notification indicates that it was directly connected to my pregnancy."
On 10 September 1999 the Company put in an IT3, its Notice of Appearance, and it said:
"The application is being resisted on the grounds that the Applicant was dismissed for not complying with company rules and for under performing and for no other reason."
[3]There was a hearing at London South spread over some three days between 13 March and 31 July 2000. On 2 October the decision was sent to the parties and it was unanimous. It was the decision of a Tribunal under the chairmanship of Miss C E Taylor and it was that the Respondent did not unlawfully discriminate against the Applicant on the grounds of her sex, the Applicant was not unfairly dismissed for a reason related to her pregnancy and the Applicant was not dismissed for asserting a statutory right. On 13 November there was a Notice of Appeal lodged at the Employment Appeal Tribunal.[4]It was not until 28 June 1999 that Miss Howell had told her employer that she was pregnant and she was dismissed on 30 June 1999. The reason given to her was that she was failing to meet her targets and the Tribunal accepted that she was failing to meet them. The Tribunal said in its paragraph 24:
"The Tribunal accepts the evidence of Mr Wood and Mr Armstrong that at the beginning of June they decided to dismiss the Applicant having formed the view that she was not going to be an effective collector. In arriving at this view we have had regard to the high turnover of staff who left due to the strain of the job, and the Respondent's past record of dismissing ineffective staff within a short time."
A little later they said:
"We find the principal reason for the Applicant's dismissal was her poor performance and not her pregnancy or her inquiry about maternity leave. Her complaints of unfair dismissal therefore fail and the tribunal finds that she was not unfairly dismissed. The Tribunal having found no evidence of less favourable treatment, the Applicant's complaint of sex discrimination also fails."
But it is to be noted that there is a reference, in the words "and the Respondent's past record of dismissing ineffective staff within a short time", which relates to how the Company had treated other staff. The Employment Tribunal do not explain what was the evidence they heard about the treatment of other staff. And that point becomes important because it is Miss Howell's case that evidence had been given of a specific comparator called Louise who firstly, performed short of her targets; secondly, who fell further short of them than Miss Howell had fallen short of Miss Howell's targets; thirdly, had nonetheless not been dismissed after three months; fourthly, had remained in employment for over 4½ months and, fifthly, who had not become pregnant.[5]Miss Palmer, in her skeleton argument on behalf of Miss Howell says:
"The Respondent gave various reasons why Louise's case was different to the Appellant's and why Louise had been kept on despite failing to meet targets in each of her first three months and indeed in her fourth month and well into her fifth month, whereas the Appellant had been dismissed at the end of her third month. It was submitted for the Appellant that the Respondent's explanations were not credible."
[6]But the Tribunal mentions no comparator at all and no reasons for distinguishing between Miss Howell's case and the case of the comparator. As we mentioned, the Tribunal said:
"The Tribunal having found no evidence of less favourable treatment, the Applicant's complaint of sex discrimination also fails."
There is there, in our view, an arguable error of law. First of all, it may be - and we only need to say 'maybe' at this stage - it may be that the familiar test of Meek v the City of Birmingham was breached if, indeed, there was evidence given as to a comparator which nonetheless has found no mention at all in the reasons given by the Employment Tribunal. If there was such evidence it could hardly be described as so peripheral that it need not even have been mentioned.[7]Secondly, it may be - and again we emphasise that is all we need to say - that to treat a pregnant woman less favourably than an unpregnant woman, in this case Louise, is sexually discriminatory in that it indicates a distinction between the treatment of pregnant women on the one hand and all other staff, both male and female, on the other and to that extent represents a comparison between the treatment of a woman and a treatment of a man.[8]Thirdly, maybe for the Employment Tribunal apparently to fail to take into account the evidence given as to Louise not having been dismissed at the expiry of the three months on the ground of performance so undermines the Tribunal's conclusion as to the principal reason for Miss Howell's dismissal as to represent an error of law.[9]There are, in other words, as it seems to us, arguable errors of law and we need say no more than that and we permit the whole Notice of Appeal to go to a full hearing. We shall ask the Chairman to provide her notes of all evidence as to the degree to which Miss Howell fell short of her given targets from time to time, as to Louise's comparative performance and of any evidence given to distinguish the performance of the two of them, Miss Howell on the one hand, Louise on the other and of evidence that suggested that there were reasons to treat them differently or, indeed, reasons to treat them the same or in a similar way.