MRS C GBOKOYI v BENNETT'S ECO-INVERTER (ENVIRONMENTAL SERVICES) LTD [2002] UKEAT 1282_00_1801

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1282_00_1801Case No Appeal No. EAT/1282/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS C GBOKOYIAPPELLANTBENNETT'S ECO-INVERTER (ENVIRONMENTAL SERVICES) LTDRESPONDENT
Before
Mr Recorder BurkeDate 18 January 2002
[1]APPEARANCES For the Appellant MR JAMES BURTON (Representative) Instructed By: Free Representation Unit Fourth Floor Peer House 8-14 Verulam Street London WC1X 8LZ For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR RECORDER BURKE QC: This is an appeal by the Appellant, Mrs Gbokoyi, against the decision of the Employment Tribunal sitting at London Central, chaired by Mrs Don and supported by extended reasons sent to the parties on 30 August 2000.[2]The Appellant claimed that her employer, the Respondents, had dismissed her by reason of her pregnancy and thus that her dismissal was automatically unfair. She claimed that that treatment of her, when she was pregnant, represented sex discrimination; and she claimed that the Respondents had failed in breach of contract to pay her monies due. The tribunal awarded her a small sum of money in unpaid salary; there is no appeal against that aspect of the tribunal's decision.[3]The appeal is brought against the tribunal's dismissal of the Appellant's unfair dismissal claim and, although the actual decision part of the Decision, as opposed to the extended reasons, does not expressly refer to such dismissal, against the dismissal by the tribunal which is to be inferred from the reasons of the discrimination claim.[4]The Appellant has been represented by Mr Burton, on the instructions of the Free Representation Unit; and we are grateful to him. The Respondents have not been represented and are not present. It is clear that they were served with the Notice of Appeal. They were in correspondence with the Employment Appeal Tribunal Office about this appeal in February 2001. Since then they have vanished. Letters from the Employment Appeal Tribunal have been returned marked "Gone away". They have not informed the Employment Appeal Tribunal of any change of address. Neither the Employment Appeal Tribunal nor the Free Representation Unit nor the Appellant has been able to contact them by letter or telephone or has any idea how they can be contacted. We are minded to add that, if they are still in existence or trading, there must be some doubt whether the Respondents would, if the Appellant had been able or were hereafter able to establish unfair dismissal and/or sex discrimination, to pay any compensation which she might be awarded. In the exercise of our discretion, having regard to the circumstances that we have set out, we have decided to proceed with this appeal and have heard it, albeit that it has been argued on one side only.[5]The Appellant was employed by the Respondents as a general administrative secretary from 2 February 2000. Her letter of appointment specifies that she was on a probationary period of three months.[6]Problems arose as to the payment of her salary at the end of her first month. She asserted that it had been agreed that she would be paid on the last Friday of the month. Mr Bennett, the Respondents' principal, asserted that it had not been so agreed. The tribunal was unable to make a finding as between those two assertions, - but it was not in dispute that the Appellant was given a cheque on 25 February which was, as we understand it, the last Friday of the month, which was post-dated to 29 February and which was then not met or not met in full when she presented it, apparently because there were insufficient funds to meet it. The Appellant was, unsurprisingly, very angry about this and expressed her anger in a strong and forthright letter to Mr Bennett on 2 March 2000. Mr Bennett responded to the Appellant by a letter of 6 March 2000 in which he objected to the nature and tone of the Appellant's letter of 2 March and referred to other matters of considerable importance. By the time he wrote that letter he had, as the Tribunal found as a fact, discovered that the Appellant was pregnant. In his letter, having set out his indignation about her letter to him, he said this:
"You mentioned the honesty on several occasions. Do you consider you were honest when you agreed to accept a permanent position (pending satisfactory completion of your probationary period) knowing that you were pregnant and therefore, would only be able to work for three months?"
He went on to say:
"Furthermore, your behaviour in this office: shouting, threatening and abusive will not be tolerated hence, you must now consider your position untenable."
[7]The tribunal found that this was a letter of dismissal. They were plainly entitled so to do. The issue, therefore, on the unfair dismissal claim, was as to the reason or principal reason for the dismissal. If the reason or principal reason for the dismissal was the Appellant's pregnancy then, pursuant to section 99 of the Employment Rights Act 1996 , the dismissal was automatically unfair and the fact that the Appellant had been employed for only one month was irrelevant. If the reason or principal reason for the dismissal was not pregnancy, then the Appellant's unfair dismissal claim was bound to fail because she had not been employed for a sufficient period to qualify for the right not to be unfairly dismissed.[8]The issue on the Sex Discrimination claim was, pursuant to the decision of the Court of Appeal in O'Neill v The Governors of St Thomas More Roman Catholic Voluntary School and Others [1996] IRLR 372 , whether the pregnancy was an effective cause of the adverse treatment of the Appellant by her employer.[9]The Respondents in their IT3 pleaded that the reason for the dismissal was the Appellant's conduct. They did not define what that conduct was. It could, having regard to the terms of Mr Bennett's letter, have been her conduct in obtaining the job when pregnant or the terms of the letter she wrote on 2 March, or her abusive behaviour in the office, or any combination of the three. We should note that the IT3 did not complain of incapability on the Appellant's part. We are told by Mr Burton, who appeared on behalf of the Appellant at the tribunal, that a capability issue arose because, in advance witness statements, the Respondents asserted that the Appellant did not have the qualifications which she said she had had at the time that she obtained her employment. The Appellant turned up at the tribunal with documentary evidence of those qualifications and was not thereafter cross-examined about the qualifications or on any other matter relating to capability. Thus, it would appear, assuming Mr Bennett's account of what happened to be right (and we see no reason why we should not do so), that capability was not a live issue at the end of the tribunal's hearing of the evidence.[10]In paragraph 17 of its decision the tribunal say this:
"We considered the reason for the dismissal. We find, as a fact on the evidence, that Mrs Gbokoyi was dismissed by reason of section 98(1)(b), (2)(a) and (b) of the Act. Clearly, the relationship between Mr Bennett and Mrs Gbokoyi had broken down for whatever reason. "
Later, in the same paragraph, they say:
"We do not find, as a fact on the evidence, that Mrs Gbokoyi was dismissed because she was pregnant."
And they go on to say that she was dismissed because of the bad feeling that had arisen between the two and because Mr Bennett had lost all trust and confidence in her ability to run the office. The tribunal's conclusion as to the reasons for dismissal, expressed in terms of the relevant sections and subsections of the Act, was a conclusion that the reasons were conduct and capability. They do not specify what the conduct was. They do not specify what incapability there was. They do not identify how or why such conduct or capability, if there was any, was separated from and did not include any element relating to the pregnancy. It is plain from the letter of 6 March that Mr Bennett considered that Mrs Gbokoyi had committed misconduct, indeed, dishonesty, in obtaining the job when she knew she was pregnant without revealing it.[11]It is clear to us, in the circumstances of this case, that simply to say that the reason was conduct or capability without specifying what conduct or incapability there was on which the employers acted other than conduct or incapability relating to the pregnancy, was insufficient. It did not exclude the pregnancy as the reason, or the principal reason, for the dismissal, still less did it exclude the pregnancy as an effective reason or an effective cause of the dismissal. The tribunal went on, as we have said, to find that the pregnancy was not a reason for the dismissal; but the reason which they set out for that conclusion, namely that Mr Bennett had lost trust and confidence in the Appellant, equally cannot stand alone because that loss of trust and confidence may well have, itself, arisen partly or substantially or wholly from the pregnancy and the connected fact that Mrs Gbokoyi had obtained the job when she was pregnant, apparently in the view of Mr Bennett as a result of dishonesty.[12]Thus, the tribunal does not seem to have appreciated that the lack of trust and confidence, which caused Mr Bennett to write the letter and to dismiss Mrs Gbokoyi would appear to have been to some extent, but indefinable extent, mixed up with and part of the conduct and capability on which the employers relied. That approach on the part of the tribunal was, in our judgment, a fundamental error in the tribunal's decision.[13]We conclude that the decision as to the unfair dismissal claim cannot stand. As for the sex discrimination claim, while the tribunal does refer to the well known decisions of Webb v Emo and King v Great Britain-China Centre , it does not appear that the tribunal gave any separate consideration to whether the pregnancy was an effective cause of the adverse treatment of Mrs Gbokoyi and, insofar as it relied on the reasons which it had set out for rejecting the unfair dismissal claim, those reasons were flawed as we have set out.[14]We are therefore unanimously of the view that this decision on the unfair dismissal claim and on the sex discrimination claim cannot stand. What the tribunal had to decide was, having regard to all the allegations of conduct and, if there were any incapability (and it may well be that in relying on incapability at all the tribunal was falling into further error) was the reason for the dismissal or the principal reason for the dismissal pregnancy and, in relation to sex discrimination, was the pregnancy an effective cause of the treatment which the Appellant received? In our judgment the tribunal failed to ask itself those questions appropriately.[15]We are, however, not in a position ourselves to answer those two questions. It is quite clear to us (and Mr Burton implicitly accepted in his submissions that that was so) that this case will have to go back to a different tribunal to be re-heard on the evidence and for a conclusion to be reached in accordance with the law.[16]We would add that, having regard to the disappearance of the Respondents and the serious risk that the fruits of any further hearing, if any, will be nil, the Appellants and those who advise her may want to consider very carefully whether actually taking this matter back to a tribunal has any purpose; but that is not for us and we only throw that out as a suggestion which, no doubt, the Appellant and those who advise her will give such weight to as they wish.[17]The appeal is allowed on those terms.