GARETH CURLE T/A CURLE & CO v MRS A HEGARTY [2005] UKEAT 0092_04_2903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0092_04_2903Case No Appeal No. UKEAT/0092/04Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
GARETH CURLE T/A CURLE & COAPPELLANTMRS A HEGARTYRESPONDENT
Before
Lady Smith Mr A J Ramsden Dr W M SpeirsDate 29 March 2005
[1]APPEARANCES For the Appellant Mr M West, Employment Consultant Of- Peninsula Business Services Ltd Delphian House Riverside New Bailey Street MANCHESTER M3 5PB For the Respondent Mr F Dawson, Representative Of- Cumbernauld & Kilsyth Unemployed Workers Centre 14 King Street KILSYTH G65 OAW SUMMARY SEX DISCRIMINATION Detriment MATERNITY RIGHTS AND PARENTAL LEAVE Unfair dismissal Whether claimant dismissed; whether claimant's claim in respect of series of detriments timeously presented; joint motion for remit to a differently constituted Employment Tribunal. THE HONOURABLE LADY SMITH: Introduction This case concerns claims for unfair dismissal, detriment on the grounds of pregnancy, sex discrimination and breaches of certain maternity rights. The judgment represents the views of all three members who pre-read the relevant papers. We will refer to the parties as claimant and respondent.[2]This is an appeal by the respondent against a decision of an Employment Tribunal sitting at Glasgow, registered on 20 September 2004. The Chairman was Mr R A Mackenzie who sat with two members. The claimant was represented by Mr F Dawson, WRO and the respondent was represented by Mr McClorry, consultant. The claimant advanced claims for compensation for unfair dismissal, for compensation for detriments arising from acts relating to her pregnancy, and for breaches of her rights to remunerated time off for ante natal care. History[3]At an earlier hearing, held in Glasgow on 10 July 2003, the Employment Tribunal had found that the claimant's application had been presented timeously. The Chairman was Ms J Garvie. The respondent had sought to argue that the claimant's employment had ended on 12 September 2002. If it had, the application would have been late. In its extended reasons that Employment Tribunal observed that the claimant had treated her employment as having ended when she did not receive a reply to her letter to the respondent dated 11 December 2002 in which she had asked for confirmation that her job remained open to her. They further observed that she was entitled to do so as of 12 December 2002. Issues[4]The essential issues as defined by the Employment Tribunal in their decision of 20 September 2004 were whether or not the claimant was entitled to compensation for unfair dismissal, for the respondent's failure to pay her salary whilst she was absent for ante natal appointments, and for having been subjected to a series of detriments for reasons relating to her pregnancy. They found that she was not entitled to compensation in respect of the failure to pay her salary when absent for ante natal appointments since that part of her claim was not timeously made, the application had been lodged with the Employment Tribunal on 11 March 2003 and the latest date for such failure having been 14 November 2002. They found that her employment had terminated on 12 December 2002 but they did not find that she had been dismissed. They rejected her claim for unfair dismissal accordingly. They did, however, find that she had been subjected to a series of detriments and that she was entitled to compensation. They did not, in terms of their order, fix that compensation but provided for a further hearing to be fixed if parties could not reach agreement.[5]The respondent appeals against that decision. The relevant legislative provisions for the purposes of the appeal are parts of sections 47C, 48 and 49 of the Employment Rights Act 1996 which provide:
"47C (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act , by his employer done for a prescribed reason. (2) A prescribed reason is one which is prescribed by regulations made by the Secretary of State and which relates to – (a) (a) pregnancy , childbirth or maternity ……. 48 (1) An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section ……47C….. ………………….. (3) An employment tribunal shall not consider a complaint under this section unless it is presented – (a) before the end of the period three months beginning with the date of the act or failure to act to which the complaint relates or , where that act or failure is part of a series of similar acts or failures , the last of them ….. (4) For the purposes of subsection (3) – (a) (a) where an act extends over a period , the " date of the act" means the last day of that period , and (b) (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary , an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done . ………… 49(1) Where an employment tribunal finds a complaint under section 48 well founded, the tribunal – (a) (a) shall make a declaration to that effect, and (b) (b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates ……."
Background[6]The respondent employed the claimant as a secretary and book-keeper and the Employment Tribunal held that her employment commenced on 29 April 2002 and terminated on 12 December 2002. She was pregnant at the time her employment commenced, as the respondent was aware. She was then aged 34, her gross earnings were £12,500 per annum and her net earnings were £850 per month. She was absent from work due to sickness for a period of two weeks from 13 September 2002 and the respondent refused to pay her statutory sick pay during that period. She also had time off work to attend ante-natal appointments but was not paid, despite the respondent's statutory obligation to do so (ss. 55 and 56 of the Employment Rights Act 1996). The claimant applied to the Inland Revenue in respect of her claim for statutory sick pay and they made enquiries of the respondent who advised them that the claimant had left his employment on 13 September 2002. They, in turn, related that to the claimant who reacted by advising the Inland Revenue that she had not left his employment but was on maternity leave and by writing to the respondent by letter dated 11 December stating:
"….As you know I have never stated to you verbally or through correspondence that I was ending my employment with your company and that I am on Maternity Leave from 4 th October and the period before that from 14 September was SSP. I now need you to confirm that my position at Curle & Co is still open and I can return to work when my Maternity Leave ends."
The respondent did not reply to that letter.[7]The claimant claimed and the Employment Tribunal found that she had suffered a series of detriments in terms of section 47C of the Employment Rights Act 1996, as set out in paragraphs 38 – 44 of their extended reasons. The last of the series is said by them to have been as follows:
"44. The respondent subjected the applicant to a further detriment in respect of his failure to respond to the applicant's letter of 11 December 2002. His failure to respond could not have arisen before 12 December 2002 when he would reasonably have received the applicant's letter of 11 December 2002. This was the last act in a series of acts or failures by the respondent."
[8]The Employment Tribunal then considered the question of remedy and, at paragraph 49, indicated that they considered that the claimant's then current unfitness to work related to the treatment of the applicant by the respondent "after 13 April 2003" . Submissions for the Respondent[9]Before us, Mr West, for the respondent, submitted that the Employment Tribunal had erred in law in several respects. Firstly he drew attention to the reference in paragraph 49 to treatment of the claimant by the respondent "after 13 April 2003" , as indicated above. That date had not been referred to in the evidence and would, in any event, have been irrelevant in a claim for detriment since it post-dated the termination of the claimant's employment. It was not open to the Employment Tribunal to give any consideration to anything done or not done by the respondent after 13 April 2003 or, indeed, after 12 December 2002.[10]Secondly, the Employment Tribunal had not addressed the question of whether it was competent for them to hear the claimant's complaint of detriment at all. The problem was that it was presented under reference to s.47C of Employment Rights Act 1996 but the right to make a complaint to an Employment Tribunal in respect of a detriment detailed in that section did not come into force until 6 April 2003 (see: Employment Act 2002 s.53, Sch 7 paras 24 and 27 which introduced the reference to s.47C into s.48(1)), a date which was after the events complained of. Mr West had not identified any relevant transitional provisions. Mr West wondered whether the importance of April 2003 in this context was what the Employment Tribunal had had in mind when referring to the date of 13 April 2003 that he had referred to in his first argument.[11]Thirdly, and most significantly, the Employment Tribunal had, in any event, failed to identify the date by which the respondent could have been expected, if acting as a reasonable employer, to have responded to the claimant's letter of 11 December 2002. The detriment there complained of being a failure to act, they were obliged to consider the terms of s.48(4) of the Employment Rights Act 1996 the effect of which, in the present case, was that they required to identify the date on which the period expired within which the respondent might reasonably have been expected to act. Mr West pointed out that there was nothing in the Employment Tribunal's reasons to indicate that they took the view that it was unreasonable to have failed to respond on the same day that the claimant's letter was to be taken to have been received. If the proper view was that it was reasonable to allow the respondent some time beyond that day to consider and respond to the claimant's letter, then that would mean that the failure to respond to the claimant's letter had occurred after the termination of her employment and was, accordingly, not relevant. That would mean that the latest in the series of detriments founded upon was 14 November 2002, more than three months prior to the lodging of the claimant's application resulting in the whole claim for detriment being out of time.[12]Mr West, at one stage, suggested that we should make a finding that it was not reasonable to expect the respondent to have replied to the claimant's letter on 12 December 2002 and dismiss the claim accordingly but ultimately his position was that, in the whole circumstances, the appeal should be allowed and the case remitted to a differently constituted Employment Tribunal for a rehearing. Submissions for the Claimant[13]In response, Mr Dawson for the claimant did not deal with Mr West's second argument. As regards his first one, he suggested that the Employment Tribunal may have meant 13 September 2002 rather than 13 April 2003 because that was the date that the claimant's sickness absence began. As regards his third argument, Mr West ultimately saw that there was some force in what Mr West was contending and joined with Mr West in requesting that the case be remitted to a differently constituted Employment Tribunal. Decision[14]We have no difficulty in acceding to what came to be the parties' joint motion. The first and third grounds relied on by the respondent do disclose that the tribunal erred in law. It is, we can see, possible that the Tribunal meant to refer to 13 September 2002 rather than 13 April 2003 but that is not what they say and it is not for us to speculate. It is not so obvious a typographical error as to be capable of being differently read. As regards the failure to identify a date by which the respondent should have responded to the claimant's letter, the Tribunal have, we agree, missed the point. It is not enough to identify, as they did in paragraph 44, that he could not have acted before 12 December 2002. The application not having been lodged until 11 March 2003, the dates are crucial and they required to specify the last date by which he should have responded, bearing in mind the test set out at the end of s.48(4) of the Employment Rights Act 1996. If that date is any date later than 12 December 2002 then the claim in respect of the series of detriments founded on, the only part of the claimant's case which survives, is out of time and will fall to be rejected since the claimant has not presented any case under s.48(3)(b) to the effect that it was not reasonably practicable for her to present her application earlier.[15]As regards the respondent's second argument, we simply note, at this stage, that Mr Dawson did not refer to any transitional provisions which would have made it competent for a claim under reference to s.47C to have been presented to an Employment Tribunal prior to 6 April 2003. Observation[16]We would add that there was some discussion regarding the approach adopted by the Tribunal to the matter of compensation in this case. As we have noted, the Tribunal ordered the respondent to pay compensation in principle but provided that a further hearing would be fixed for the determination of the amount of compensation to be effected if parties could not reach agreement on the matter. The order was clearly designed in the expectation that parties would seek to reach a negotiated settlement and by way of encouragement to them to try to do so. That seems entirely appropriate and in accordance with good practice in a case of this sort. However, the Tribunal then, in their extended reasons, at paragraph 51 state:
"We shall award by way of compensation the applicant's net earnings with the respondent from 1 February 2003 to 31 January, 2005 of £850 per month less the incapacity benefit which the applicant has received from February 2003 and can expect to receive until January 2005."
[17]In short, notwithstanding the terms of their order, which appeared to leave open the question of the amount of compensation to be paid, they purported, in the body of their extended reasons, to fix the amount to be paid. It was, we consider, inappropriate and unhelpful for them to do so and we take this opportunity to state that in the event that a Tribunal considers that as regards compensation, parties should first be given an opportunity to reach agreement as to the amount, it should not, at that stage, include any findings in their reasons as to what that amount ought to be. It is premature for them to do so.