MRS OLGA ASKEY v SENDO LTD [2003] UKEAT 0457_03_0808

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0457_03_0808Case No Appeal No. EAT/0457/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS OLGA ASKEYAPPELLANTSENDO LTDRESPONDENT
Before
His Honour Judge J McMullenDate 8 August 2003
[1]APPEARANCES For the Appellant MS FIONA MONK (Solicitor) Coventry Law Centre The Bridge Broadgate Coventry CV1 1NG HIS HONOUR JUDGE J MCMULLEN QC This case is about the correct approach to unfair dismissal following notice of pregnancy and Employment Tribunal procedure, when an Applicant takes her baby to the hearing. The judgment represents the views of all three members who pre-read the relevant papers. We will refer to the parties as Applicant and Respondent. Introduction[2]It is an appeal by the Applicant in those proceedings against a decision of an Employment Tribunal sitting at Birmingham over two days, Chairman, Mr J Bowen, Miss Hoggarth and Mr Kennedy, registered with Extended Reasons on 11 April 2003. Each party was represented by a solicitor. The Applicant claimed unfair dismissal and sex discrimination. The Respondent denied sex discrimination and contended the Applicant was dismissed for redundancy. The Issue[3]Essential issues as defined by the Tribunal as follows:
"1 The Applicant's claim is that during her employment as Personal Assistant to the Respondent's Director of Corporate Communications between 7 th May 2002 and 30 th June 2002, she received less favourable treatment at the hands of her employers following her disclosure to them of her pregnancy. Furthermore, on the 18 th June 2002, she was given notice of termination of her employment, her salary being paid to 30 th June 2002. In consequence, she claims her dismissal is automatically unfair dismissal contrary to s.99 of the Employment rights Act, 1996, in that she was dismissed by reason of her pregnancy. 2 The Respondent's response is that it soon became apparent after the applicant was employed that her role as a Personal Assistant was not developing. Furthermore that this was compounded by a sudden drastic alteration in the Respondent's fortunes. Such rendered the Applicant's role unfeasible and necessitated a cost-cutting exercise to be implemented across the respondent company. This included dispensing with a personal assistant for the Director of Corporate Communications, whose own role was preserved only by sabbatical leave being taken at a greatly reduced salary."
The Tribunal dismissed both claims. The Applicant appeals against both those findings and also makes a complaint of breach of the rules of natural justice. Directions sending this appeal to a Preliminary Hearing were given in Chambers by His Honour Judge Peter Clark on 19 June 2003. An invitation was given to the Respondent to make submissions in opposition which it has taken up. The Legislation[4]The relevant provisions of the legislation are Section 1(2)(a), Section 6(2)(b) and Section 63A of the Sex Discrimination Act 1975 (as amended), and the Employment Rights Act Section 99, relating to automatically unfair dismissal if the reason is pregnancy. Article 6(1) of the European Convention on Human Rights guarantees the right to a fair hearing by an impartial Tribunal.[5]The Tribunal did not set out any of the above sections. It referred to Section 6(1)(a), which was an error, since the discrimination occurred in 2002. Miss Monk acknowledges that little turns on that distinction, but it does point the way to it being arguable that the Tribunal committed an error of law. It did refer to Section 99. It cited no authority. It will rarely be acceptable for an Employment Tribunal not to set out the relevant legislation or principles of law to be applied – see the judgment of Sedley LJ, Allonby v Acrington & Rossendale College [2001] IRLR 364 :
"It is not sufficient for an Employment Tribunal to cite simply the statute but must give an indication of the correct test and show how it applied it."
The Facts[6]The facts are set out in short as follows:
"5 From the evidence it saw and heard, the Tribunal made the following findings of fact. (a) When interviewed in relation to her application to be appointed, the Applicant was unaware of her pregnancy. (b) When the Applicant commenced work on 7 th May 2002, she was unaware of her pregnancy but realised her condition shortly thereafter. (c) The Applicant inform Mrs. Van Hooren (but not the Respondent formally) of her pregnancy on 20 th May 2002. (d) On 5 th June 2002, the Applicant and Ms. Bisseker, at a routine review meeting, agreed that the Applicant's role as a personal assistant had not yet developed and that the tasks so far allocated to her were not stretching her abilities. The Applicant was encouraged to discuss enlargement of her role with Mrs. Van Hooren. (e) The Applicant was, at a subsequent meeting which occurred before the end of the same week, given three specific targets intended to enlarge her role as personal assistant, it being agreed that a further review would occur in August, 2002. (f) On 11 th June 2002 a meeting of senior management personnel of the Respondent company took place, at which cost-cutting to effect significant savings were discussed. (g) On 12 th June, 2002, the Applicant informed the Respondent formally of her pregnancy. (h) On 13 th June, 2002 a further management meeting discussed cost-cutting in more detail. The task of proposing cuts in expenditure was delegated by the Chief Executive Officer to individual heads of department. (i) On 17 th June, 2002 Mrs. Van Hooren told the Chief Executive Officer of the respondent that she planned reductions in her department which would involve sabbatical leave for herself and her Senior Manager and the dismissal of the Applicant who would become redundant. (j) On 18 th June, 2002 the Applicant was told of her redundancy and impending termination at a meeting with Mrs. Van Hooren and Ms. Bisseker. At such meeting the Applicant asked whether any alternative position was available to her and was told there was none. (k) The Respondent maintains written policies relating to Equal Opportunities and to Maternity. (l) A request made by the Applicant for her working hours to be reduced temporarily by one hour per working day, made on 12 th June was not processed promptly and not dealt with prior to her dismissal on 18 th June. (m) The letter of dismissal dated 19 th June, 2002 gave, as the reason for dismissal, the lack of development in the role of the Applicant and made no direct reference to cost-cutting but contained as assertion that the position did not actually exist within the department."
The Tribunal then set out the contentions of the parties and, broadly speaking, accepted the contentions and evidence of the Respondent over the Applicant.[7]The Applicant's case is that the Tribunal erred in law in that it failed to make clear the separate approaches enjoined by the relevant statutory provisions. It failed to apply the reasoning required under the new provisions relating to the burden of proof, which are helpfully set out in the judgment of the Employment Appeal Tribunal, His Honour Judge Ansell, in Barton v Investec Henderson Crossthwaite Securities Ltd [2003] IRLR 330 at paragraph 25, which we incorporate in this judgment.[8]It is sufficient, having considered the Respondent's written submissions, for us to indicate that there is a reasonably arguable case on points 1 to 4 of the Grounds of Appeal relating to the failure by the Tribunal to consider properly the law relating to the treatment of a pregnant employee, whether under the Employment Rights Act or under the Sex Discrimination Act . It may be on the Full Hearing that this matter can become clear, since it is asserted by the Respondent that a Skeleton Argument on his behalf included all of the relevant statutory provisions. We have seen that Skeleton and we agree that it did, it does not excuse the Tribunal from setting out the principles which it applied.[9]For those reasons this case will be sent to a Full Hearing. Although we have some doubts about certain aspects of the Grounds of Appeal where there are criticisms of the failure of the Tribunal to give "adequate weight" – see for example 3.3, and its decision to accept certain evidence – see for example 4.1, it is not practical for us to distinguish those matters and grounds 1 to 4 will go forward. Natural Justice[10]Ground 5 contends that there was a failure of the Tribunal to carry out the principles of natural justice relating to a fair hearing whether under the European Convention or at common law, if there be a distinction. The case is put on three grounds. First it is submitted that the Applicant was at a disadvantage when giving her evidence during the course of a long day since her nine week old baby was with her and she was breast feeding and no doubt that caused some stress. We have every sympathy with her and a Tribunal would be alert to the difficulties of a woman claiming that she was discriminated against and dismissed on the grounds of being pregnant when she comes to give her evidence. Nevertheless, any difficulty faced by the Applicant could have been remedied by her solicitor making representations to the Tribunal for an adjournment, either of the case entirely, or for part of the day when the Applicant could attend to her child. No application was made. The Respondent's submission to us indicates that the Chairman made clear that the Applicant, or her representative, should indicate if she needed more time and it would be readily given.[11]The law as we perceive it is that such transient difficulties faced by a party in a Tribunal should be addressed there and then – see Red Bank Manufacturing v Meadows [1992] ICR 204 . No complaint was made by the Applicant or on her behalf on the day. The case resumed a month later, with the Applicant still under cross-examination. It is contended that a finding against the Applicant about her case being unconvincing stems from her initial difficulties on day one. Nevertheless, that point was not made on day two when her difficulties were cured by the attendance of a friend to take care of the child. She was still under cross-examination and thus could correct any difficulties in her evidence which her solicitor considered had occurred as a result of the previous hearing. We reject the contention, therefore, that she was denied a fair hearing on the grounds that she had her baby with her. In our judgment appropriate steps were taken to adjust to this unusual situation, and no complaint being made, we find no breach of the rules of natural justice.[12]Secondly, it is contended that the Respondent produced a Skeleton Argument which was in the hands of the Tribunal before it was in the hands of the Appellant's solicitor. It will be borne in mind that the Applicant gave her evidence first and thus the first speech would fall to the Respondent. The Respondent addressed both the Skeleton Argument, which is comprehensive from our initial view of it, and made oral submissions. They were heard in full by the Applicant's solicitor. He had the opportunity, as appears to be the case, to write notes upon the Skeleton Argument and to make his own submissions. It will be recalled that he too had produced for the Tribunal a written Skeleton which he did not exchange with the Respondent's solicitor. We consider no breach of natural justice has occurred in the procedure adopted on the day. Generally speaking, of course, a document such as a Skeleton should be served on the Tribunal at the same time as on the other side, or, if an arrangement is made, for a later exchange if that should occur. There were no directions in this case. We see no error or irregularity in what occurred on the day.[13]Thirdly, it is contended that there was a material irregularity because the Respondent's solicitor and witness remained in the Tribunal room while the Applicant and her solicitor went outside for her to give him instructions. Generally speaking it will be irregular for a party to remain in the room with the Tribunal without the other, but we can understand that in a small hearing room it may be preferable for a party to step outside very briefly for an instruction to be given out of sight and earshot of the Tribunal. It will generally be appropriate for the Tribunal to rise while that occurs, but in the circumstances of this case, from what we understand to have happened, we divine no material irregularity in the procedure adopted.[14]We will therefore reject all three points relating to fair hearing. The case will go ahead on grounds 1-4 only.