LAKE HOUSE ESTATE LIMITED v MISS J MARTIN [2007] UKEAT 0312_07_2012

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0312_07_2012Case No Appeal No. UKEAT/0312/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LAKE HOUSE ESTATE LIMITEDAPPELLANTMISS J MARTINRESPONDENT
Before
His Honour Judge Peter Clark Mr B BeynonSir Alistair Graham KbeDate 20 December 2007
[1]APPEARANCES For the Appellant MR P KIRBY (of Counsel) Instructed by: Messrs Kerman & Co LLP Solicitors 200 Strand London WC2R 1DJ For the Respondent MR M NORMAN (of Counsel) Instructed by: Messrs Dutton Gregory Solicitors Trussell House 23 St Peter Street Winchester Hampshire SO23 8BT SUMMARY Practice and Procedure : Bias, misconduct and procedural irregularity Contract of Employment : Written particulars Unfair Dismissal : Automatically unfair reasons Maternity Rights and Parental Leave : Sex discrimination Appearance of bias in Employment Tribunal Judgment and Reasons. Withdrawal of claims later purportedly adjudicated on by Employment Tribunal. Sex discrimination on grounds of maternity leave. Written Particulars of Terms & Conditions of employment. HIS HONOUR JUDGE PETER CLARK The parties to these proceedings before the Southampton Employment Tribunal were Miss Martin, Claimant, and Lake House Estate, Respondent. We shall so describe them. We have before us for full hearing an appeal by the Respondent against the Reserved Judgment of an Employment Tribunal chaired by Mr J Simpson, promulgated with reasons on 8 May 2007 dealing with the issue of liability (the liability Judgment). There is no cross-appeal by the Claimant. Background[2]The Respondent is a management company formed for the purpose of running the country home of Mr and Mrs Sumner at Lake House near Salisbury. Surrounding the house are some 170 acres of land which are farmed.[3]The Claimant commenced employment with the Respondent as a sous chef in August 1997. In 2000 she succeeded Jo Sponzo as Head Chef. She reported to Mrs Sumner and worked mainly at Lake House. In Mrs Sumner's absence she reported to Jo Henderson, the Sumners' Personal Assistant. From June 2005 Mr Bowling, an accountant, acted as the Sumners' financial officer.[4]In January 2004 the Sumners acquired a town house in Queen Anne's Gate (QAG), London. Thereafter the Claimant frequently worked at QAG during the week and returned to Lake House at weekends when the Sumner family were in residence.[5]In August 2004 the Claimant fell pregnant and notified Ms Henderson of her condition. Ms Henderson told her that Mrs Sumner had directed her that if the Claimant reduced her hours of work her salary would be reduced. The Claimant's request for her colleague, the permanent sous chef Ms Jacques, to work longer hours was refused. At that time the Claimant worked a 4 day week and 3 weekends in 4; Ms Jacques 3 days.[6]In October 2004 the Claimant fell ill with gastro-enteritis and was signed off sick by her GP from 21 October to 4 November. As a result she was unable to go to the family's Lake District home to cook for them. On her return to work, the Employment Tribunal found, she was informed by Jo Sponzo that Mrs Sumner had been extremely displeased by her absence, saying to Mr Sponzo:
"Who the fuck does she think she is? She is my chef in the UK. She needs to be available if I need her, or she should re-think her position."
[7]The Claimant was again signed off work due to stomach pains from 16 – 23 December 2004. She returned on 26 December. Meanwhile her GP wrote to the Respondent on 17 December saying that the Claimant's health was suffering as a result of standing for long hours. Ms Henderson and Mr Bowling were, the Employment Tribunal found, unsympathetic and did not respond.[8]In February 2005 the Claimant enquired about the level of maternity leave pay she would receive: a nanny, Ms Gonzales, had been retained on full pay during her maternity leave. She was told that she would only receive statutory maternity pay; later Ms Henderson informed the Claimant that senior members of the Respondent, Mr Bowling and Mr Coopey, expected her to be so incensed by that decision that she would leave.[9]The Claimant commenced her maternity leave on 1 May 2005 and on 10 May gave birth to a son. Meanwhile, on 3 May she celebrated her 40th birthday. She received a gift of 8 tulips from the Sumners, in contrast with earlier years when she received more lavish presents from them.[10]Twice during her maternity leave the Claimant visited Lake House. On each occasion Ms Henderson made a point of saying words to the effect that it is better for mothers to be at home with their children and not working.[11]The Claimant wished to return to work after her maternity leave. A meeting was arranged at Lake House on 6 December 2005. In attendance were the Claimant, Ms Henderson and Mr Bowling. The Claimant was asked about her plans to return to work. She proposed working some days at QAG during the week and at weekends at Lake House; as to the former, she needed some notice so as to make child care arrangements. Mr Bowling said that he would discuss the matter with Mrs Sumner and revert back to the Claimant before Christmas.[12]The Claimant heard nothing substantively from Mr Bowling, despite raising the matter with him, other than an inaccurate note of the meeting held on 6 December, until 1 March 2006, when the Respondent wrote raising the question of redundancy. It was said that only one chef would be required at Lake House, that a full-time chef was to be engaged for QAG and warned that one out of the Claimant and Ms Jacques was at risk of redundancy.[13]A similar letter was sent to Ms Jacques, save that in the letter to the Claimant, but not to Ms Jacques, reference was made to legal action taken against a former chauffeur 'obtaining a freezing injunction against his assets and a gagging order against him'.[14]Ultimately a meeting took place on 18 April 2006 attended by the Claimant and her husband, Ms Henderson and Mr Bowling. It was the Respondent's position that both the Claimant and Ms Jacques had been assessed for the purposes of redundancy selection under six scored headings. The Claimant scored 21; Ms Jacques 23. Thereafter the Claimant was dismissed by letter dated 20 April 2006. The Claims before the Employment Tribunal[15]In addition to setting out in full detail her factual case, the Claimant's Particulars of Claim served with her form ET1 lodged on 20 July 2006 raised claims of breach of contract, unfair dismissal and unlawful sex discrimination. By their Form ET3 the Respondent resisted all these claims.[16]The case was listed for a preliminary hearing which came before the Regional Chairman, Mr R Peters, on 31 October 2006. By an Order dated 22 November 2006 the Regional Chairman identified the issues between the parties as they then stood. The breach of contract claim was based on the premise that the Claimant was entitled to full contractual pay during her maternity absence, not simply Statutory Maternity Pay (SMP). The claim of unfair dismissal was put in three alternative ways:(a) Automatically unfair dismissal under s98A(1) Employment Rights Act 1996 (ERA) as a result of the Respondent's failure to comply with the statutory Dismissal and disciplinary procedure (DDP). In particular, the Claimant was not informed of her right to appeal internally against the Respondent's decision to dismiss her.(b) 'Ordinary' unfair dismissal under s98 ERA, that is dismissal by reason of redundancy which was unfair in accordance with s98(4).(c) Automatically unfair dismissal under s99 ERA, read with Regulation 20(1)(b) of the Maternity and Parental Leave etc Regulations 1999 . It was said that a redundancy arose during her maternity leave and that she was not offered a suitable alternative vacancy under Regulation 10. As to unlawful direct sex discrimination, Mr Peters recorded the issues at paragraph A8 of his directions order as follows:
"A8 In the complaint of unlawful direct sex discrimination: A8.1 The alleged act of less favourable treatment was the Claimant's dismissal. A8.2 The Claimant asserts that but for the maternity leave no redundancy situation would have arisen and/or she would not have been selected for redundancy. A8.3 The Respondent asserts that there was a genuine redundancy situation unconnected with maternity. Accordingly; in so far as the burden of proof shifts, the Respondent says that there is a reason for dismissal which is not sex discrimination."
[17]When the matter came on for the substantive hearing on liability before Mr Simpson's Employment Tribunal, Mr Norman, then appearing on behalf of the Claimant as he does before us, placed before the Employment Tribunal a (non-agreed) list of issues. Of particular significance was the following:(a) The breach of contract claim, relating to the level of pay during the Claimant's maternity leave, was withdrawn.(b) On the basis that automatically unfair dismissal under s98(A)(1) was, Mr Kirby accepts, conceded and/or determined by Mr Peters in favour of the Claimant (there was no answer to that part of the claim), Mr Norman did not pursue the alternative bases of the claim of unfair dismissal, namely ordinary unfair dismissal under s98 and automatically unfair dismissal under s99, as we have earlier identified those claims.[18]For completeness we should record that during the course of the substantive liability hearing a question arose as to whether the Respondent was in breach of its statutory duty to provide written particulars of the Claimant's contract of employment. Mr Kirby takes no point on the Claimant's failure to raise this separate head of claim in her form ET1, nor at the preliminary hearing before Mr Peters. However, he challenges the Employment Tribunal's reading on this aspect of the case to be found at paragraph 10k. of their liability reasons (L10k.). Mr Norman, for his part, accepts that the Respondent did not make the concession attributed to it by the Employment Tribunal at L10k. We shall return to that part of the appeal later; meanwhile, it is appropriate at this point for us to express our gratitude to both counsel for the conspicuously fair way in which each has presented his case on appeal. Having both appeared below they have each provided us with the utmost assistance in determining the matter. The Liability decision[19]Having set out their findings of fact, in terms to which we shall return, the Employment Tribunal made the following rulings and reached the following material conclusions:(1) The Claimant would not be permitted to resile from her concession that no redundancy situation existed; her case on sex discrimination was that but for her maternity leave she would not have been selected for redundancy (L5).(2) Although not recorded in the liability reasons the Employment Tribunal accepted the Respondent's submission that certain passages in the Claimant's witness statement should be excised, as being prejudicial without being probative of any issue to be determined. The redacted version of her witness statement is now before us. We shall return to it later.(3) At L18-19 they said:
"18. The Tribunal is satisfied the Respondent has discriminated against the Claimant on the grounds of sex as well as unfairly dismissing her on the basis of unfair selection for redundancy and for a pregnancy/maternity leave related reason. It is satisfied that but for her pregnancy and her taking maternity leave she would not have been selected for redundancy and the whole redundancy selection was a sham. It was contrived to cloak the Respondent's actions with respectability which were transparently designed to dismiss her once she fell from favour with the Sumner family as a result of being less flexible about her work arrangements due to her pregnancy and then later by having a small child to consider. Her dismissal is directly linked to her pregnancy and taking of maternity leave. 19. Unfortunately for the Respondent it was so badly mishandled and conducted in such an incompetent manner that the true purpose shines through the subterfuge and calumnious actions seeking to suppress the true facts. Although Mrs Sumner tried to distance herself from the various unlawful acts and have them carried out by minions on her behalf, when the evidence is looked at holistically, her involvement is clear. She is without doubt the driving force manipulating others to perform her 'dirty work' .The position is aggravated by her lack of courage either to face the Claimant direct and inform her that she was no longer required, or attend the Tribunal to give evidence and have her machinations exposed to the light of day through cross-examination by the Claimant's Counsel." (4) They summarized their conclusions at paragraph 33 thus: "33 Based on the above the Tribunal unanimously concludes: a. The Claimant was unfairly dismissed by reason of being unfairly selected for redundancy; b. The Claimant was unfairly dismissed for a pregnancy/maternity leave related reason; c. The Respondent unlawfully discriminated against the Claimant on the grounds of her sex; d. The Respondent failed to provide the Claimant with written particulars of her employment."
Remedy[20]The Respondent's Notice of Appeal against the liability judgment was lodged on 6 June 2007 and on 8 June the Employment Tribunal held a remedies hearing which had been fixed by their liability judgment.[21]By a remedies judgment with reasons promulgated on 16 July they ordered the Respondent to pay compensation to the Claimant totalling £24,944 made up as follows (R26):(1) Unfair dismissal £250 (loss of statutory rights). The basic award was cancelled out by the equivalent statutory redundancy payment of £2,320 already made by the Respondent.(2) Sex discrimination. £10,000 injury to feelings and £16,000 loss of earnings, less pay in lieu of notice and travel allowance not required by the Claimant. Interest was added.(3) A 10 per cent uplift under s31 Employment Act 2002 (EA) to reflect the Respondent's non-compliance with the Statutory DDP.(4) Two weeks pay under s38 EA in respect of the Respondent's failure to provide written particulars of the Claimant's contract of employment.[22]There is no appeal before us as to the Employment Tribunal's method of calculating compensation in their remedy judgment. Review[23]The Claimant applied for a review of the Employment Tribunal's remedy judgment to seek an award of aggravated damages and costs. That application was summarily dismissed by the Chairman by a decision dated 28 August 2007 The Appeal[24]It is convenient to consider the rival submissions of Counsel under the following heads:(1) Bias(2) Unfair dismissal(3) Sex discrimination(4) Written Particulars of employment. Bias[25]Unusually, if not uniquely, the Respondent's case on appeal is not that the Simpson Employment Tribunal gave the appearance of bias during the course of the Liability Hearing, but that such an appearance arises from the written reasons given by the Employment Tribunal in their Reserved Liability Judgment.[26]We acknowledge, as Mr Kirby submits, that the current test is that articulated by Lord Hope in Porter v Magill [2002] 2 AC 357 , 494 (HL) paragraph 103:
'The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.'
[27]The allegations of bias (used as shorthand hereafter for the appearance of bias; no actual bias being alleged) fall under four categories:(i) The Employment Tribunal's consideration of matters and evidence not before the Employment Tribunal.(ii) 'Injudicious and offensive language'(iii) Findings about Mrs Sumner(iv) Lack of even-handedness[28]In considering each of those categories in turn our deliberations are informed by(a) the affidavit of Carl Robinson, the Respondent's solicitor who attended throughout the liability hearing, sworn on 3 July 2007 in these appeal proceedings following my direction by Order on the paper sift dated 19 June and(b) the comments of Mr Simpson on that affidavit provided on 2 August ('The Comments'). Mr Robinson was not required to attend for the purposes of cross-examination. No evidence was filed on behalf of the Claimant.

(i) Matters not before the Employment Tribunal

[29]It is common ground before us that in the list of issues prepared by Mr Norman for the liability hearing he indicated that on the basis that the Claimant's dismissal was automatically unfair under s98A(1) the alternative bases of ordinary unfair dismissal and s99 pregnancy-related dismissal were not pursued. In The Comments the Chairman simply reiterates what appears at L2, namely that the issues were defined at the preliminary hearing held before Mr Peters. However, we note that at L3 the Employment Tribunal state that the breach of contract claim (the sick pay point) was not pursued by the Claimant. That was made clear in Mr Norman's list of issues.[30]In these circumstances we are inclined to accept Mr Kirby's contention that the Chairman, when he came to write the Employment Tribunal's Reserved Liability Judgment and reasons overlooked the updated list of issues handed in by Mr Norman and again when he wrote The Comments. At all events we make that assumption in the Respondent's favour. However, the question is where does that leave this appeal tribunal? Our answer is that it fatally undermines the Employment Tribunal's substantive findings on unfair dismissal, to which we shall return, but it in no way gives rise to the appearance of bias per se as explained by Lord Hope. That said, we shall at the end of the present exercise state our overall impression having considered the Respondent's complaints individually.[31]Similarly, whilst it would appear that at L5(i) the Employment Tribunal briefly strayed into an area of redacted material in the Claimant's witness statement, that does not begin to amount to bias or a procedural irregularity which vitiates the Employment Tribunal's decision. (ii) Injudicious and offensive language[32]This complaint is directed to the Employment Tribunal's description of Mr Bowling as a 'gopher' (L10(e)) and 'minion' (L19). We accept that such language may be regarded as unjudicial, but the substance of the matter is that the Employment Tribunal formed a poor impression of this witness' credibility for reasons clearly demonstrated at L16. They did so having heard his evidence, not during it. We agree with Mr Norman that the test is that set out by Simon Brown LJ in R v Inner West London Coroner , ex p. Dallaglio [1994] 4 AER 139, a case in which a coroner, before concluding his inquest, publicly described the mother of one of the victims of the Bowbelle disaster as 'unhinged' and other relations as 'mentally unwell'. In finding that the appearance of bias was there made out Simon Brown LJ said:
"Injustice will have occurred as a result of bias if 'the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him'. I take 'unfairly regarded with disfavour' to mean 'was pre-disposed or prejudiced against one party's case for reasons unconnected with the merits of the issue."
[33]In the present case we are satisfied that the Employment Tribunal Chairman's use of unjudicial language in their reasons does not indicate a pre-judgment, as in ex p Dallaglio , but a judgment reached after the tribunal enquiry was concluded. It is a judgment. (iii) Mrs Sumner[34]Mr and Mrs Sumner are a well-known couple. He is better known as 'Sting'; she is the actress Trudie Styler. Inevitably this case attracted some press interest for that reason. What is said by Mr Kirby is that the Employment Tribunal ought not to have denigrated Mrs Sumner (no complaint was made by the Claimant against Mr Sumner) in her absence.[35]Again, we accept that some of the language used by the Employment Tribunal to express their findings as to the part played by Mrs Sumner in the eventual dismissal of the Claimant may be characterized as robust. It is suggested that at the least the Employment Tribunal ought first to have enquired why Mrs Sumner had not been called to give evidence. Here we disagree with Mr Kirby.[36]The Respondent company operates the Sumners' country estate. In her ET1 the Claimant made absolutely clear her case that it was Mrs Sumner who wished to be rid of her and it was Mrs Sumner's staff who did her bidding. It was for the Respondent, represented by solicitors and counsel, to decide whether to call Mrs Sumner to give evidence, knowing that without her evidence certain assertions made by the Claimant were liable to be accepted by the Employment Tribunal. That case was accepted by the Employment Tribunal, after hearing the evidence. They were entitled to reach that judgment. Whilst couched in strong language the Employment Tribunal's reasons do not suggest to us any hint of pre-judgment. The appearance of bias test is not met. (iv) Lack of even-handedness[37]Mr Kirby cites a litany of complaints, about criticisms made of the Respondent's side when similar criticisms could have been but were not made of the Claimant's side. We have considered each of them but have concluded that this general complaint is not made out. Quite simply the Employment Tribunal rejected the Respondent's case and accepted that of the Claimant. That is, ultimately, what the trial process is all about. Winners and losers. One thing is for certain; these reasons were Meek -compliant; the parties knew why they won or lost.[38]We also find it significant that the Employment Tribunal made rulings on what seem to us to have been an entirely even-handed basis; for example, the Employment Tribunal agreed with the Respondent's position as to certain parts of the Claimant's witness statement and in relation to the Claimant's change of position in challenging the fact of redundancy. After the liability judgment, now under appeal, the Chairman summarily dismissed the Claimant's two part review application.[39]In short, having stood back and looked at the liability decision as a whole, as Mr Kirby invites us to do, we reject the bias complaint raised in this appeal, applying the test of the fair-minded and informed observer. Unfair Dismissal[40]As we have already indicated, and as Mr Norman has properly conceded throughout the appeal process, the Employment Tribunal's apparent finding that the Claimant was unfairly dismissed(a) on ordinary s98(4) principles and(b) on pregnancy-related grounds was not open to it, those bases of claim having been withdrawn at the outset of the substantive liability hearing. We shall allow the appeal to this extent and declare that the Claimant was unfairly dismissed solely under s98A(1) ERA, as the Respondent conceded. Sex Discrimination[41]The critical conclusion by the Employment Tribunal is to be found at L18:
"It is satisfied that but for her pregnancy and her taking maternity leave she would not have been selected for redundancy and the whole redundancy selection was a sham…Her dismissal is directly linked to her pregnancy and taking of maternity leave."
[42]Mr Kirby submits that in so finding the Employment Tribunal went behind its own ruling (L5) and the Claimant's concession that a redundancy situation existed and that redundancy was the reason for dismissal.[43]We disagree. In our judgment, the Employment Tribunal proceeded on the basis that a redundancy situation had arisen: the jobs of the Claimant and Ms Jacques were to be reduced to one post. However, for reasons clearly explained at L20 the Employment Tribunal found that the redundancy selection exercise was a sham; it was weighted towards retaining Ms Jacques at the expense of the Claimant. And the reason for that disingenuous process was because Mrs Sumner wished to part company with the Claimant, whose value to her had been diminished by her pregnancy and maternity leave. The Respondent may not care for that conclusion but it was one which was plainly open to the Employment Tribunal, on their findings of fact, in our view.[44]Mr Kirby takes a separate point in relation to the alternative provisions contained in s3A(1)(a) and (b)SDA. s3A(1) provides:
"(1) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if – (a) at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably than he would treat her had she not become pregnant; or (b) on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably than he would treat her if she were neither exercising nor seeking to exercise, and had neither exercised nor sought to exercise, such a right."
[45]He has shown us the original formulation of the sex discrimination claim in the preliminary hearing order of Mr Peters and the respective closing written submissions of Counsel which, by agreement, were exchanged sequentially, Mr Norman disclosing his submissions first.

(b) We can do no better than recite paragraph 29, where he said:

"29 subsection 1(b) 29.1 The facts established are such that a reasonable tribunal could conclude that on the ground that the Claimant had exercised her right to maternity leave the Respondent dismissed her by making her redundant in a process that was calculated to favour NJ (Ms Jacques) to her. 29.2 The Respondent fails to prove that it did not do so, i.e. it proffers no adequate explanation for the facts so found."
[46]That formulation, it seems to us, does not depart from the formulation contained at A8.2. of the preliminary hearing order (deleting the abandoned challenge to the fact of redundancy), namely:
"The Claimant asserts that but for the maternity leave … she would not have been selected for redundancy."
[47]In meeting the Claimant's case, in his written submissions in reply, Mr Kirby took these points: first, that the Claimant could not now challenge the fact of redundancy and secondly that in relying on s3A(1)(a) the Claimant was raising a claim which was time-barred (i.e. relying on the protected period prior to dismissal).[48]At paragraph 25 of his response Mr Kirby explained that the way in which Mr Norman formulated the claim under s3A(1)(b) at paragraph 29.1 of his submissions had not been raised prior to his list of issues document produced at the outset of the liability hearing. Mr Kirby went on to put in issue the fact alleged, namely that the reason for the Claimant's selection for redundancy was her having exercised her right to maternity leave. He relied on the lower overall mark accorded to the Claimant than Ms Jacques in the selection exercise.[49]It is fair to say that the Employment Tribunal did not entirely appreciate the limitation point taken by Mr Kirby in relation to the s3A(1)(a) claim; instead, at L6, they focussed on time running from dismissal, which bears on the s3A(1)(b) claim. It is not contended that the claim under s3A(1)(b) was out of time.[50]Further, having referred to both s3A(1)(a)and(b) at L17, Mr Kirby submits that it was not open to the Employment Tribunal to go on to consider the claim under s3A(1)(a) without dealing properly with the limitation point raised.[51]The short answer to this submission is that, at L18, the ET resolved the s3A(1)(b) claim in favour of the Claimant. They were entitled to do so. The findings of fact support such a finding, applying the reverse burden of proof under s54A SDA (see L43). Consequently, the claim under s3A(1)(a) is rendered moot. Written Particulars[52]With some diffidence Mr Kirby raises a challenge to the Employment Tribunal's finding that the Respondent failed to provide a written statement of the Claimant's particulars of employment contrary to s.1.ERA. An award of two weeks' pay was made in the remedy judgment pursuant to s38(3) and (4)(a) EA2002.[53]The relevant findings of fact by the Employment Tribunal are to be found at L10.k, where it is said:
"The Claimant never received a written contract of employment. The Respondent sought to provide her with such but each draft had a mobility clause inserted which the Claimant declined to accept. She was willing to remain flexible and work at both Salisbury and London but was not prepared to be contractually bound at one of [sic] other as directed. The Claimant corresponded with the Respondent in 2000, 2003 and 2005 seeking to resolve her contract situation but it was never done and the Respondent concedes the Claimant was never provided with written particulars of employment."
[54]Since Mr Norman accepts that such a concession was not made by Mr Kirby, the question arises as to whether it is necessary to remit the s38 issue to the Employment Tribunal for further determination. We consider it neither necessary nor proportionate to do so. We shall decide the point, based on the Employment Tribunal's findings of fact and the submission of counsel.[55]Part I ERA has its origins in the Contracts of Employment Act 1963 . The statutory requirement is for the employer to provide a written statement of the employee's terms and conditions of employment. It is not a requirement that the parties enter into a written contract. The statement is the employer's version of the main contractual terms.[56]In our judgment the Employment Tribunal reached a permissible conclusion on the facts, regardless of the mistaken concession by the Respondent. The evidence of the Claimant (witness statement paragraph 19) accepted by the Employment Tribunal was that no agreement was ever reached between the parties as to the terms of the contract of employment. Draft contracts were provided for her agreement but she did not agree terms, particularly in relation to mobility (a mandatory term to be contained in the written particulars: ERA s1(4)(h)). It was open to the Respondent at any time to provide a written statement identifying those terms which it believed to be agreed; it never did so. In these circumstances, applying s38 EA 2002, the Employment Tribunal was entitled to order the minimum award of two weeks' pay. Conclusion[57]It follows that:(1) The appeal is allowed to the extent that the ET findings of unfair dismissal based on (a) s98 ERA and (b) s99 ERA are set aside.(2) However, the finding of unfair dismissal is affirmed on the basis of the Respondent's breach of s98A(1) ERA.(3) The finding of sex discrimination contrary to s3A(1)(b) SDA is also affirmed.(4) The appeal against the award of two weeks' pay under s38 EA 2002 is dismissed.(5) Consequently the compensation awarded in the remedy judgment remains undisturbed.