MR J PIMBLETT & SONS LTD v MRS A OWEN [2001] UKEAT 168_01_1505

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 168_01_1505Case No Appeal No. EAT/168/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J PIMBLETT & SONS LTDAPPELLANTMRS A OWENRESPONDENT
Before
Mr Justice Charles Mrs T A Marsland Mr J C ShrigleyDate 15 May 2001
[1]APPEARANCES For the Appellants MR D FLOOD (of Counsel) Instructed By: John Halson Solicitor 10 Pitville Close Liverpool L18 7JP MR JUSTICE CHARLES : We have before us an appeal by way of preliminary hearing. Our task is therefore to consider whether or not the appeal raises points of law that are reasonably arguable.[2]The appeal is against a decision of an Employment Tribunal sitting at Liverpool. The Extended Reasons for that decision were sent to the parties on 11 December 2000.[3]The parties to the proceedings were the Applicant, a Mrs Owen and John Pimlett & Sons Ltd, who are the Appellants.[4]The decision of the Employment Tribunal was as follows:
"(i) the applicant has been constructively unfairly dismissed (ii) the applicant has been discriminated against on the grounds of her sex (iii) the applicant has been discriminated against on the grounds of her disability"
[5]The basis for that decision is to be found in paragraph 7 of the Extended Reasons which opens as follows:
"The respondent, through Mrs Mather and Mrs Hanley, breached the applicant's contract of employment when they refused to let the applicant return to work. The two claimed that they were motivated by reasons of health and safety, not only for the applicant but also her colleagues. They thought that the applicant might cause an accident if she returned to work. The Tribunal found that this was an unreasonable conclusion to come to especially based upon the known medical evidence contained in the GP report. Mrs Mather and Mrs Hanley formed the view that the applicant could not return to work until she was 100% fit. Mrs Mather told us, 'I would have needed a medical report saying she was 100% fit for work' and 'because of the amount of lifting she was a danger to other staff'. This flew in the face of the medical evidence. The Tribunal concluded and found that the respondent did not consider any adjustments to the applicant's daily routine tasks. …"
[6]It was not in dispute, as we understand it, that the Appellants were refusing to let the Applicant return to work. It is plain to our minds that such a refusal does go to the root of a contract of employment and if it was unreasonable would warrant acceptance of that breach giving rise to a constructive dismissal.[7]In paragraph 7 the Employment Tribunal go on to conclude that the Appellant had a duty to make reasonable adjustments under section 6 of the Disability Discrimination Act 1995 and that the less favourable treatment of the Applicant was not justified.[8]The claim under the Sex Discrimination Act 1975 was based on the point that the Applicant could not have an operation to remedy, or seek to remedy, the problems she had with her wrist which caused her pain and meant that she could not do any heavy lifting, whilst she was pregnant.[9]A short timetable is that severe problems were encountered with the Applicant's wrist in about July 1999. Her letter of resignation which we have seen today was dated 8 December 1999 and she found out that she was pregnant in September 1999.[10]Before the Employment Tribunal, as recorded in paragraph 5(i) of the Extended Reasons, there was a joint skeleton argument which set out areas in dispute. We have been shown that today. Paragraph 2 of it shows that there was a dispute of fact between the parties as to what the Applicant had been told concerning the termination of her contract of employment if she was absent from work for a period of 26 weeks.[11]A short and therefore inaccurate summary is that on the one side the Applicant was asserting that she had been told effectively that it was company policy that after 26 weeks she would be dismissed. On the other the company were saying that(a) that was not their policy and(b) they had not told the Applicant anything of the sort and in this context there had been an amendment of the IT3. At the end of paragraph 2 of the Extended Reasons, in relation to the issues, the Employment Tribunal say this:
"The respondent specifically asked the Tribunal to make a finding on the issue as to whether or not the applicant was told (via Mrs Mather) that the respondent would get a doctor's report and after 26 weeks it was normal procedure for the respondent to terminate her contract and that it may happen in this case. The applicant and Mrs Mather were diametrically opposed as to their recollection as to what was said on this issue."
[12]Reading the letter of resignation and having regard to submissions made to us today, that was not a one-off conversation between Mrs Mather (and possibly one of her colleagues) and the Applicant, but was a subject which was returned to from time to time in the discussions. In the IT3 the conversation is dated (I think) 19 July but it is apparent from the Extended Reasons and the skeleton we have seen that there were returns to the topic.[13]The first ground of appeal relates to the conclusion that the Applicant was constructively dismissed. The second main grounds of appeal relate to the conclusions under the Disability Discrimination Act 1995 .[14]In the Notice of Appeal, as presently drafted, there is no express reference to the claim under the Sex Discrimination Act 1975 . The way in which that claim was dealt with was the pregnancy was gender-specific and integrally connected with the constructive dismissal. Indeed in describing the claims the Employment Tribunal say "The same facts amounted to both sex and disability discrimination" after they have described the claim for constructive dismissal.[15]The logic of the Sex Discrimination Act claim is that because the Applicant could not have the operation because she was pregnant the reason why she was unable to work was related to her pregnancy. From that starting point, as we understand it, it was accepted by the Respondent employers if (which they denied) they had effectively said: "There is a policy of terminating your employment after 26 weeks" and that was the reason or principal reason for the resignation, the Sex Discrimination Act claim would succeed because that guillotine or time limit was one which meant that because the Applicant was pregnant she could not have the operation and meet the 26 week time limit.[16]As appears from paragraph 10 of the IT3 (and this is also reflected in the agreed skeleton argument and the factual issues identified therein and to an extent by the first two paragraphs of paragraph 7 of the Extended Reasons which I have already read out) part of the Appellant's case was:(a) that they were prepared to continue to pay the Applicant sick pay and also to continue paying her through maternity leave, and(b) that if the operation was successful after she had had the baby then she could return to work. This case is linked to, or is part of, the issue as to whether or not the Applicant had been told in clear terms that she would be dismissed after 26 weeks absence and to our minds it is reasonably arguable that that case is not dealt with in any, or appropriate, detail by the Extended Reasons. It also seems to us reasonably arguable that that arguable failure gives rise to arguments in respect of the Sex Discrimination Act claim as well as the claim for constructive dismissal because that case (and thus the issue as to whether or not the Applicant had been told in clear terms that she would be dismissed after 26 weeks absence) was integrally linked with both claims.[17]The first ground of appeal in the Notice of Appeal relates to the finding of the Employment Tribunal on constructive dismissal. That argument has been helpfully clarified in a skeleton argument put in by Counsel who appeared for the Appellant below but did not himself draft the existing grounds of appeal. That argument points out that it was clearly common ground that issue was joined on the question as to what the Applicant had been told relating to termination of her contract after 26 weeks. As I have indicated the Extended Reasons record diametric opposition of recollection so far as that is concerned. The findings of fact in that respect are found in paragraph 5(xi) and (xii) and are in the following terms: "(xi) Some of the facts were disputed but we find that they were neutral in the main in determining liability. One of the main issues that the respondent was concerned about was whether Mrs Mather on behalf of the respondent had told the applicant that after 26 weeks it was normal procedure for the respondent to terminate the employment of someone in the applicant's position. The recollection of the applicant and Mrs Mather was different. Mrs Mather did not keep any notes. She did not write to the applicant confirming what had been said, there was no written procedure on sickness absence policy, there was no contract of employment produced and we have not seen any equal opportunities policy. We had to reach a conclusion based upon the evidence of the individuals. We find that the applicant had a genuine and reasonable belief that she was being told that this was the case although she may have been confused because of the way in which Mrs Mather expressed herself orally and which was compounded by the lack of any written data to support what Mrs Mather said. The applicant's version was confirmed in IT3 until it was amended in the run up to the first date fixed for the hearing. It was also a fact noted at an interlocutory hearing at which Mrs Mather had attended in May 2000. (xii) The Tribunal finds that Mrs Mather did mention the applicant resigning but this was part of an overall summary of the various options that would be available in due course. When this issue was first broached, the applicant conceded in her evidence that it was, 'put to me on a friendly basis'. We are not surprised that it was mentioned by Mrs Mather as it would be one of several options available." (xii) in some measure reflects paragraph 10 of the IT3 as to the nature of discussions in respect of the 26 week period and resignation; (xi) does not include a finding as to precisely what Mrs Mather said and focuses on the Applicant's understanding and is one in which the Employment Tribunal conclude that she may have been confused because of the way in which Mrs Mather expressed herself. The issue is therefore arguably left somewhat "in the air".[18]In the skeleton argument it is stated that the Respondent (that is the Respondent to the appeal Mrs Owen) went on to add that if the remark that she would be dismissed after 26 weeks of absence had not been made to her, the failure to allow her to return to work would not of itself have been enough to cause her to resign.[19]The argument continues that that evidence flies in the face of the finding made at the beginning of paragraph 7 of the Extended Reasons (which I have cited earlier) and the following further passage in that paragraph, namely: "The applicant's case for constructive dismissal falls all square on the test in Western Excavating v Sharp . There was a breach of contract in that she was not allowed to return to work to receive her pay for that work. This was a fundamental breach going to the heart of the contract. It was the reason for her resignation and there was no delay." does not accord with that piece of evidence.[20]In other words what is being argued is that:(a) a finding that the employer was refusing to allow the Applicant to return to work (which as we understand it was common ground) is not the same as a finding that this refusal was based on a policy or assertion that after 26 weeks absence employees (including the Applicant) would be dismissed which was disputed and was the breach, or a decisive or important element of the breach, relied on and asserted by the Applicant, and(b) the Employment Tribunal erred in law in basing their finding of constructive dismissal on the former finding and thus one that there was a refusal without making a finding as to, or in respect of, the reasons for that refusal. It is argued that the difference between the two findings is accentuated when it is remembered that it was part of the employer's case that they would continue to pay the Applicant through sick leave and maternity leave and would have her back if the operation was successful after the birth of her child. Also it is argued that the failure of the Employment Tribunal to make findings as to the reasons for the refusal to allow the Applicant to return to work had the consequence that as the Employment Tribunal erred in law by not dealing properly with the respective arguments of the parties.[21]In our judgment these are arguments that can be reasonably advanced and as I have already said they relate to both the Sex Discrimination Act claim as well as to the claim for constructive dismissal.[22]We have therefore concluded that the grounds of appeal relating to the conclusions of the Employment Tribunal as to the facts underlying their decision that there was a constructive dismissal and their explanation of that finding give rise to points that are reasonably arguable in respect of that claim and the claim under the Sex Discrimination Act. We add that it is arguable that those arguments are also relevant to the claim under the Disability Discrimination Act but further arguments were advanced in respect thereof to which we now turn.[23]Turning then to the conclusions under the Disability Discrimination Act we can take these more shortly. It seems to us reasonably arguable that the Employment Tribunal erred in law(a) by not applying the statutory criteria and test, and in addition(b) by not making clear findings of primary fact upon which they base their conclusions as to breach of duty and as to justification.[24]An important issue of fact, as identified again in the agreed skeleton argument, was as to the amount of lifting that was required in the Applicant's job. It is reasonably arguable on our reading of the Extended Reasons that that is not dealt with specifically. There was a sharp dispute between 10 per cent and 60 per cent and possibly higher which also, it was said to us, explains the "fixation" of the management as to the problems caused by lifting.[25]Other factual issues also arise as to this element of the claim. First there is a finding made as to the number of administrative staff put at 60 in paragraph 5(viii) in the Extended Reasons. The relevance of that is that part of the reasoning of the Employment Tribunal in respect of the Disability Discrimination Act claim is that proper consideration was not given to slotting the Applicant into an administrative role. It is argued that there are only five or six administrative staff and therefore that that part of the reasoning is flawed as it is based on a fundamental error of fact for which there was no evidence before the Tribunal.[26]Another issue of fact is that it was argued that there was evidence to the effect that the Applicant was at risk of having a sudden attack of severe pain in her wrist and as a result could drop cups of tea or other items, which could not be regarded as part of a task of heavy lifting, and this additional risk could cause danger and difficulty in the shop.[27]In the round, this ground of appeal is that the Employment Tribunal failed to make proper findings of primary fact, failed to apply the statutory criteria and failed to properly explain how they have reached their conclusions in respect of the Disability Discrimination Act claim. In our judgment those grounds give rise to points that are reasonably arguable and we will therefore give permission for the appeal to proceed on those grounds as well.[28]We think that covers all the grounds raised in the skeleton argument that has been put in by Counsel. That skeleton argument has a slightly different emphasis to, and possibly goes wider than, the existing Notice of Appeal. Counsel has asked us to give leave to amend the Notice of Appeal to accord with the points raised in his skeleton argument. We will give that leave. In doing so we expressly give liberty to the Respondent to the appeal to apply to vary or discharge that grant of leave. We do that because the Respondent to the appeal is not here. There may be points that the amendment is seeking to add grounds outside the time limit for bringing an appeal and potentially other arguments as to why that leave should not be given. Those arguments can only be dealt with if and when they are raised. As we have indicated, to our minds there is a considerable overlap between the existing Notice of Appeal and the amendments that would be put in, if it is to be argued that in a particular respect that overlap does not exist that is a matter for a future occasion.[29]The Respondent to the appeal can make an application to vary or discharge our leave by way of a preliminary hearing. However, it seems to us at present that the most appropriate time to make any such application would be on the full hearing provided, of course, that notification of it has been given to the Appellant a reasonable time before that hearing and the issue is raised in the skeleton arguments that have to be lodged in accordance with our Practice Direction.[30]We give this case Category B and a time estimate of a day.