England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Tuesday, 9th July 2002

1. LORD JUSTICE MUMMERY: This is a renewed application for permission to appeal. The application is made by Mr Flood on behalf of the employers, John Pimblett & Sons Ltd, against whom claims were successfully made in the Employment Tribunal by their former employee, Mrs Angela Owen, for constructive unfair dismissal, sex discrimination and disability discrimination. The claims were made by her in her originating application of 3rd March 2000. Her complaints were upheld by the Employment Tribunal in Liverpool for reasons set out in their extended reasons sent to the parties on 8th February 2001, and the employer's appeal against that decision was dismissed by the Employment Appeal Tribunal chaired by Mr Justice Holland whose judgment, on its behalf, was sent to theparties on 1st May 2002.
2. Although the case, as appears from the decisions below and Mr Flood's skeleton argument, has been argued in detail at all levels, it is in my judgment a fairly straightforward case. Mrs Owen was employed by John Pimblett & Sons, who run a chain of bakery shops in the St Helen's area. She started her employment in December 1996. Unfortunately, in July 1999 she became ill suffering from pain in her right wrist and a condition subsequently diagnosed as tenosynovitis. She was away from work ill. On 6th September 1999 her general practitioner confirmed that she was pregnant. The medical advice was that it was necessary to postpone the operation on her wrist to deal with the condition tenosynovitis. So she remained suffering from that condition.
3. On 8th December 1999 she resigned in circumstances which were the basis of her claim of constructive dismissal, unfair dismissal and discrimination. In her originating application she put the matter in this way. I refer to the rider to her complaint. She says in relation to disability discrimination that she suffered fromtenosynovitis and her employers failed to make reasonable adjustments which would allow her to return to work in accordance with Section 6 of the Act. Further or in the alternative she contended that this was also sex discrimination. The operation on her wrist could not be carried out because of her pregnancy, and by subjecting her to detrimental action by placing her in a position where she could not return to work, so that her job was under threat, the respondents unlawfully discriminated against her on the grounds of sex. As for the claim of constructive unfair dismissal, her argument was that she had been prevented by John Pimblett & Sons from returning to work and at the same time she was threatened that she would lose her job after a certain period of absence from work. She did not want to be dismissed on the grounds of ill health because she had every reason to believe that she could return to work and do the work. Therefore she tendered her resignation. In brief, her case was that by not allowing her to return to work and by disregarding medical evidence which stated that she could return to work, the employers are in breach of the duty of trust and confidence. As a result of this she resigned. Those arguments were accepted by the Employment Tribunal.
4. For the purposes of obtaining permission to appeal from the decision of the Employment Tribunal to this court Mr Flood has to satisfy us, first, that there is a question of law arising from the decision of the Employment Tribunal and, secondly, that there is a real prospect of a question of law in the tribunal decision succeeding on an appeal to the full court. The Employment Tribunal, after setting out their summary of the relevant legal provisions as to which no criticism has been made, referred to the leading authority on constructive dismissal Western Excavating (EEC) Ltd v Sharp. They referred to the relevant provisions relating to claims of direct discrimination on the ground of sex in Section 1 (1) of the 1975 Act and they referred to the relevant provisions of Sections 4, 5 and 6 of the Disability Discrimination Act 1995.
5. They then set out their findings of fact. Among those were facts found in paragraph 5 (xi) of the extended reasons. They referred to certain facts which were disputed but which they found were neutral in the main in determining liability. One of the issues of fact which I shall refer to from this paragraph is important in view of the criticisms that Mr Flood has made of the extended reasons in his skeleton argument. The disputed fact was whether Mrs Mather on behalf of the employer had told Mrs Owen that after 26 weeks it was normal procedure for the employer to terminate the employment of someone in the position of Mrs Owen. The tribunal referred to the different recollections on this. Mrs Mather denied that this had been said. She did not keep any notes and she did not write to the applicant confirming what she had said. There was no written procedure on sickness absence policy. There was no contract of employment produced and no equal opportunities policy. The tribunal said:

"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."

6. They say that the applicant's version was "conferred" - I think they mean confirmed - in the IT3 until it was amended in the run up to the date of the hearing.
7. The tribunal referred to the submissions and then came to conclusions. The main conclusions were that the employer, through Mrs Mather and Mrs Hanley, breached the contract of employment when they refused to let Mrs Owen return to work. They claim that they were motivated by reasons of health and safety, not only for Mrs Owen but also for her colleagues. They thought she might cause an accident if she returned to work. The tribunal found that this was an unusual conclusion to come to especially based upon the known medical evidence which was contained in the GP's report. Mrs Mather and Mrs Hanley formed the view that the applicant could not return to work until 100 per cent fit, but the tribunal concluded that that was in the face of the medical evidence. The tribunal also concluded and found that the employer did not consider any adjustments to Mrs Owen's daily routine tasks. Their view was that Mrs Mather and Mrs Hanley had a rigid, blinkered approach to the issues. They had no relevant training and they failed to recognise the obligations upon an employer in the terms of the two discrimination Acts. They then said, and this is important to the Sex Discrimination claim:

"They both knew that [Mrs Mather] could not have her operation to remedy her tenosynovitis straightaway through a reason connected with her pregnancy. This amounted to direct sex discrimination. The failure to allow the applicant back to work was such that the applicant was entitled to accept the repudiation of her contract of employment and resign."

8. They went on to say:

"The failure to make the adjustments ..... has not been justified on a balance of probabilities or at all."

9. Moving to the constructive dismissal claim, the tribunal concluded that the case fell four square within Western Excavating (EEC) Ltd v Sharp. They said:

"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."

10. They went on to say in relation to Section 1 (1) (a) of the Sex Discrimination Act that by not allowing her to return to work in the circumstances of her pregnancy that was sex discrimination. They also found that there was, in the conduct of the employer, disability discrimination.
11. In summary, those are the reasons why it was found that Mrs Owen had established all three heads of her claim on the balance of probabilities and they awarded her compensation totalling £7,283.22.
12. The Employment Appeal Tribunal were unable to find any error of law in the decision. In those circumstances an application was made for permission to appeal to this court, which had been refused by the Employment Appeal Tribunal. I refused permission on paper on the basis that the tribunal was entitled to come to the conclusions it had on liability. The law had been correctly applied. There was no question of law arising from the Employment Tribunal's decision and there was no real prospect of the appeal succeeding.
13. Today Mr Flood has made forceful oral submissions highlighting the points made in his very detailed skeleton argument. It helpfully sets out not only the points which he wished to make but seeks to support them by reference to quoted parts of the Employment Tribunal's decision. The main points which Mr Flood has made are based on two issues upon which he says the tribunal did not make satisfactory findings. What he says is that there were two issues of fact upon which many issues of the claim depended. Those were, first, whether the representatives of the employer - Mrs Mather and Mrs Hanley - had said to Mrs Owen that it was the normal practice of the employer to dismiss employees after 26 weeks' sickness absence and, secondly, another issue of fact, namely what proportion of Mrs Owen's duties comprised heavy lifting. In his oral submissions Mr Flood chose to deal first with the heavy lifting issue. He said on that that the tribunal failed to make any finding of fact as to what proportion of the normal duties of Mrs Owen consisted of heavy lifting. The tribunal's decision had identified the issue of fact, but had failed to address it or resolve it. It was an important difference. The employers were saying that 60 per cent of her normal duties consisted of heavy lifting whereas Mrs Owen was saying only 10 per cent was heavy lifting. Mr Flood submitted that the representatives of the employers had not misunderstood or misread the GP's report. What they read was that she could not undertake heavy lifting and they understood this to mean that Mrs Owen could not undertake 60 per cent of her duties. It was submitted that a finding that the employer's refusal to permit Mrs Owen to return to work was not justified for the purposes of the Disability Discrimination Act (Section 5) could not be properly made without a finding of fact as to what proportion of her employment tasks Mrs Owen was unable to do due to her disability. It was the function of the tribunal to make clear findings of fact on relevant issues. They had failed to do that and that raised a question of law.
14. The second argument consisted of the failure of the tribunal to make a finding of fact as to whether or not the employers' representatives had said to Mrs Owen at any time before her resignation that it was the employer's policy to dismiss employees, who were absent through illness after 26 weeks of absence. The tribunal identified that there was a difference of recollection on the part of Mrs Owen and the employer's representatives. But, Mr Flood submits, they had failed to make a finding of fact on that issue. The conclusion they had come to was a different one, namely that Mrs Owen had a genuine and reasonable belief that she was being told that this was the employer's policy. That was not the issue. The tribunal had failed in its duties to make a clear finding of fact on whether that in fact is what she was told. He then submitted that the effect of this failure was that the fundamental breach - which Mrs Owen stated in her evidence and her submissions to the tribunal she had accepted in order to terminate the contract - had not been proved to have actually occurred. Accordingly, there was no fundamental breach and it followed that there was no constructive dismissal. The effect of the tribunal's failure to make a crucial finding was that Mrs Owen had resigned in response to something the tribunal had not found had occurred and had not found had amounted to a fundamental breach. Those are the two main points on which this appeal is sought to be brought.
15. There are a number of other points which have been raised, but I would regard those as points of detail in this sense that, if Mr Flood has not a reasonable prospect of success on these two arguments, he is most unlikely to succeed on any of the others. In my judgment the two points focussed on by Mr Flood do not amount to questions of law which have a real prospect of success on the appeal.
16. Taking, first of all, the dismissal after 26 weeks point, as I see it, the position really is quite simple. At the time when Mrs Owen resigned the 26 weeks was almost up. She had been ill and away since the middle of July. The tribunal found as a fact that she genuinely and reasonably believed at that time that it was the employer's policy that she would be dismissed after 26 weeks. She was not going to be able to return to work before the expiration of the 26 weeks, because she had an illness which could not be treated by reason of her pregnancy.
17. In my judgment, in those circumstances the tribunal was fully entitled to come to the conclusion that she was constructively unfairly dismissed. It is sufficient, in my view, that what she was told by the employer's representatives was reasonably believed by her to be the case. This is not a case of an employee simply asserting a subjective state of belief which is unrelated to what the employer has said. In my view, there was no error of law on the part of the Employment Tribunal in not making a clear finding as to whether Mrs Mather or Mrs Hanley said this was the employer's policy.
18. On the question of sex discrimination Mr Flood took a point in his skeleton argument that this was not a case of direct discrimination. On that, I am of the view that he is wrong. The claim as brought was of direct discrimination under Section 1 (1) (a), that is the Section correctly quoted by the tribunal in its summary of the relevant law. It is direct discrimination of a pregnant woman to dismiss her either expressly or constructively when the effective reason for her dismissal is her pregnancy. No question arises of making a comparison with the position of a man. The tribunal were, in my view, entitled to come to the conclusion that her pregnancy was the effective reason for her constructive dismissal, because the reason why she was not able to return to work was because she was ill and untreatable while she was pregnant. If she had not been pregnant her illness could have been treated at an earlier stage and she might have been able to return to work. So Mr Flood's reliance on the fact that she was ill and that a man in the same condition would hvae been kept off for the same reason are really quite beside the point.
19. I would reject his submission that there was an error of law in the decision of the Employment Tribunal in holding that this was a case of direct discrimination.
20. As to the heavy lifting point, I am also of the view that there is no reasonable prospect of this being established as a question of law which would require the Court of Appeal, if it was established, to remit the matter to a fresh tribunal for a re-hearing. The position on this is covered by the findings of the Employment Tribunal in the passages already quoted from their concluding section of the extended reasons. They made clear findings - and I repeat here that there can be no question of appeals against findings of fact - that the employer's representatives did not consider adjustments to her daily tasks, because they had formed the view that she could not return to work until she was 100 per cent fit and the tribunal found as a fact that that flew in the face of the medical evidence. They had not really come to grips with Mrs Owen's situation. The tribunal found that they had not had relevant training. They did not recognise the obligations of the employer under the Discrimination Acts and they did not consider the situation because they took a rigid and blinkered approach to the relevant issues.
21. In the circumstances of those findings of fact I come to the conclusion that the failure of the tribunal to make a specific finding of fact as to whether 10 per cent of Mrs Owen's work was heavy work as she said, or 60 per cent as the employer's representatives said, would not make any difference to the end result in this case. In the end, notwithstanding the valiant efforts of Mr Flood and his most detailed examination of the decision in this case, I conclude that this application should be refused because there is no real prospect of the employer convincing a full court that there are questions of law arising from the decision of the Employment Tribunal which should be examined by them. I would refuse the application.
22. LORD JUSTICE SEDLEY: I agree.
Order: Application refused