RICHMOND INN HOTELS LTD v MS ANA-ISABEL MORCILLO [2001] UKEAT 1511_00_0706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1511_00_0706Case No Appeal No. EAT/1511/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
RICHMOND INN HOTELS LTDAPPELLANTMS ANA-ISABEL MORCILLORESPONDENT
Before
Mr Justice Nelson Mr D Chadwick Mr H SinghDate 7 June 2001
[1]APPEARANCES For the Appellant MS Y RUBAN (Employed Barrister) Instructed by First Business Support Southern Area Office 12 Westminster Court Hipley Street Old Woking Surrey GU22 9LQ MR JUSTICE NELSON This is a Preliminary Hearing in an Appeal against a decision of the Employment Tribunal at London (South) made on 1 November 2000 when by its unanimous decision the Tribunal found that the Appellant had unfairly dismissed the Respondent, discriminated against her by reason of her sex, unreasonably refused paid time off for antenatal care, unlawfully failed to pay statutory sick pay to her, failed to pay her in respect of a period of notice of one week and failed to pay the minimum hourly wage due to her.[2]The nature of the Appeal which is before us today and helpfully set out in the skeleton argument is based on one recurrent theme repeated throughout the various heads of argument and that is that the Tribunal in reaching its conclusion failed to identify the legal tests they had used to establish that the dismissal was directly related to the Applicant's pregnancy. What in fact, it is argued they did, was considered that the request for statutory sick pay equated to pregnancy and that was something that they should not have done. That finding therefore did not establish the clear line through to causation and hence rendered all the findings in error.[3]In addition it is said on the same factual basis that the finding expressed as it was in relation to a request for statutory sick pay was perverse and that if one compared paragraphs 14(i) of the conclusions in the Extended Reasons and 14(iv) one could see that this was so. The finding of sex discrimination for the same reasons cannot be established and was not established and hence that finding was in error in law it is submitted, on the basis that the finding was one which related to statutory rights and not in truth in relation, to pregnancy at all. Hence sex discrimination could not have been properly found.[4]It is necessary to set out what the findings were in relation to this matter by the Tribunal. Under paragraph 14(i) they said in relation to unfair dismissal (pregnancy) as follows:
"There is no doubt that the dismissal was directly related to the Applicant's pregnancy. Firstly, the attitude of Mrs Ammar changed towards the Applicant when she became pregnant and particularly when she started asking about her statutory maternity rights. The Applicant was so concerned to protect her position at the hotel that instead of going to hospital with a threatened miscarriage, she diverted to her doctor's surgery specifically so that she could obtain and deliver her sick note to her employer saying "threatened miscarriage"
. Mrs Ammar was therefore well aware of the reason for the Applicant's absence from work but decided to treat it as absence without leave. The last straw seems to have come when the Applicant returned to work and asked for her statutory sick pay which had not been paid to her by the Respondent. The sickness had arisen due to the Applicant's threatened miscarriage, and then continued when, unfortunately, she did in fact have a miscarriage. Pregnancy-related illness is part and parcel of pregnancy and cannot be separated from it. Therefore the principal reason that the Applicant was dismissed was a pregnancy-related reason." When dealing with the dismissal for asserting statutory right the Tribunal say as follows:
"We could equally well have found that the Applicant was unfairly dismissed because she asserted that she had been refused a statutory right. This is because the Applicant alleged to the Respondent that she had been refused the statutory right to statutory sick pay ("
SSP") to which she was entitled and which she had not received whilst she was off sick having her miscarriage despite the fact that her employer knew that she was unwell. Ms Morcillo was not necessarily aware of the detailed qualifying conditions for SSP set out in the Social Security Contributions and Benefits Act 1992 so she could not have said that she definitely satisfied them all, but she genuinely believed herself to be entitled to the payment as she was very concerned that she had not received it." The Tribunal go on to say later in that same paragraph:
"However, since both sections 99 and 104 require us to find the principal reason for the dismissal, we have found that that was the Applicant's pregnancy. The dismissal would not have taken place but for the pregnancy. Although it is possible to argue that there was one 'principal reason' for dismissal with two statutory remedies in respect of two different aspects of the dismissal, we all agree that if we must identify the one fundamental cause of the dismissal it was the pregnancy."
[5]In relation to those findings we are of the view that the Appellant's arguments before us place undue emphasis on that part of the finding which is described as the last straw being the request for statutory sick pay. Read as a whole the findings made after a vigorous contest on the evidence and when all that evidence has been heard clearly relate not just to the last straw but relate to the whole of the evidence before the Tribunal. The finding is clearly and expressly one which is that the dismissal was directly related to the pregnancy. 14(i) makes that abundantly clear. "At the last straw" reference is precisely that. It was the last straw to a series of events which had already taken place each of which indicated that it was a matter of pregnancy which had brought about the dismissal.[6]In the course of her argument Counsel has reminded us that the authorities require Tribunals to approach the question of causation in a simple pragmatic and practical manner. We are of the view that that is precisely what this Employment Tribunal did in this case and in coming to its conclusions both in relation to the findings on unfair dismissal and in relation to sex discrimination and indeed all the findings that they have made as set out in their Extended Reasons they have made no error of law. We do not think that the argument on perversity can even commence. The manner in which the Employment Tribunal dealt with it was sound and thorough and cannot be impinged. We therefore dismiss this Appeal.