United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 471_95_0611

Appeal No. EAT/471/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 November 1995

Before

HIS HONOUR JUDGE J HULL QC

MR R H PHIPPS

MR R TODD

---

INTER QUEST LTD          APPELLANTS

MRS C AHERN          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellants MR SAK ANNAN

(Managing Director)

Inter Quest Ltd

Unit 6

The Big Peg

Warstone Lane

Birmingham B18 6NA


 


JUDGE HULL QC: This is an appeal to us by a company called Inter Quest Ltd, a small company, of which the managing director is Mr Annan, who has appeared before us. The other party is a Mrs Ahern, who was employed by him at Inter Quest Ltd as a hair stylist. She is a lady who is now aged about 32.

The history of the matter, very shortly, is as follows. Mrs Ahern obtained employment with Inter Quest Ltd in the Birmingham area as a hair stylist on 23 August 1993 and the employment did not last very long. Her employment ended. There were two views of that. The employer said that her employment ended on 8 January 1994 and she said, when she applied to the Tribunal, that it had ended on 8 February 1994.

She was by then pregnant and on 28 March she issued her application to the Industrial Tribunal complaining that she had been discriminated against on the ground of her sex.

The Industrial Tribunal sat at Birmingham under the chairmanship of Mr McCarry with two industrial Members on 4 October 1994 and they reconstituted the Tribunal, they restored the hearing on 28 February 1995 and, finally, they promulgated their decision on 20 March 1995. They found that, indeed, there had been discrimination. They found, on balance, having heard the witnesses who came before them, that they preferred the evidence of the Applicant, Mrs Ahern. They found that she had been dismissed because she was pregnant and they held that that was discrimination against her on the ground of sex and they gave her compensation.

To understand the appeal, one has to go through a few more of the facts. The first complaint which is made to us arises in this way: after the Industrial Tribunal had conducted their first hearing, they received three days later a request for a review, which is at page 10 of our papers. When one looks at that, it is signed by Mr Annan and he says:

"In the interest of justice we kindly ask the tribunal to review the decision reached.

We enclose for your perusal the details of our grounds for asking the decision reached by the tribunal to be reviewed."

When one looks at it, he said at page 11:

"1. On a point of law there is no evidence either orally or in writing that the complainant informed us that she was pregnant before our decision to offer her the 3 days a week position."

That was offered to her, I think, on 8 January. Then he said:

"2. Her doctor's note dated the 29th December 1993 which should be considered as neutral, authoritative and inviolable evidence of her condition at the time did not state she was pregnant.

3. The complainant admitted at the hearing that on some days she only did a £4.50 work as opposed to her daily wages of £32.40. The tribunal did not take into consideration our long standing acute financial difficulties and as directors of a limited company we have a legal obligation to take the necessary steps to avoid trading insolvently. Our decision to offer her the 3 days a week position was not merely convenient it was an absolute necessity.

4. The tribunal failed to take into consideration whether or not any reasonable person either pregnant or not will turn down the complainant's new position of 3 days a week. Bearing in mind that the total weekly hours will enable her to enjoy the protection and claim all the necessary benefits offered to expectant mothers as stipulated by the necessary acts.

5. Her second doctor's note enclosed herewith dated 10th February 1994 which was part of the documents presented to us at the hearing contained a serious discrepancy and also contradicts what we were told at the time she was taken ill. It undermines her credibility of telling the truth as to the reasons of not working the agreed 3 days a week."

That was the request for review which was heard.

The Tribunal considered that they had made an omission in failing to refer to an important statutory instrument and take into account its provisions and on 24 October they wrote to the parties and said:

"The chairman has asked me to bring to the attention of the parties the fact that at the hearing, when calculating the compensation, the tribunal omitted to give effect to the Sex Discrimination and Equal Pay (Remedies) Regulations 1993 in connection with the calculation of interest.

In these circumstances the chairman instructs that the tribunal should reconvene to consider this matter.

Regarding the respondents request for a review, this matter will be dealt with after the new hearing when the decision has been promulgated.

Please note that a fresh Notice of Hearing will be issued in due course."

In due course, on 28 February, the Industrial Tribunal did reconvene and their decision is with our papers. They promulgated the decision, as I say, on 20 March, when they had reconvened.

The first point concerns not the decision itself but what happened when the Tribunal reconvened and sat on 28 February. Mr Annan tells us that what happened on that occasion was that the Chairman suddenly called on him to support his application for a review and Mr Annan said something in support of that apparently and the Chairman then announced, apparently for the benefit of the solicitor for Miss Ahern, that there was no need for him to worry because he, the Chairman, proposed to dismiss this application in due course, as indeed happened because, on the same day that the Industrial Tribunal promulgated its decision, the Chairman said that:

"In exercise of the powers conferred upon me by Rule 11(5) of the Rules of Procedure set out in the Schedule to the Industrial Tribunals (Constitution and Rules of Procedure) 1993 I refuse the application for a Review by the Respondent.

REASONS

whilst the application is stated to be `in the interests of justice', it refers to nothing new or to anything which was not before the Tribunal and which was not taken into account by the Tribunal."

Under the regulations to which the learned Chairman referred it is provided as follows, dealing with applications for review, Rule 11(5):

"An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."

That is evidently what the Chairman was doing on this occasion because, having received this complaint about what the Chairman had done, this Tribunal wrote to the Chairman and received his letter dealing with the matter, which is at page 19, dated 13 June 1995. Mr McCarry writes:

"Unfortunately, at the conclusion of the original hearing, I omitted to consider the effects of the Sex Discrimination and Equal Pay (Remedies) Regulations 1993 in calculating the applicant's compensation. In order that the parties should have the right to comment, I ordered that the case should be relisted for consideration of this point alone. In the meantime, before the new hearing, the Respondent requested a Review on the grounds of new evidence being available and `in the interests of Justice'. I informed the parties that the Review would be dealt with after the new hearing.

Accordingly, after inviting the parties' comments on the question of interest, I asked the Respondent to make his application for Review. Having listened to the grounds and reasons for the application I felt that it was obvious that the `new' evidence was not new at all, but had been before the Tribunal on the previous occasion. There being no other grounds for Review within Rule 11 of the Industrial Tribunals Rules of Procedure 1993, I announced that, in my opinion, the application had no reasonable prospect of success and that I was refusing it in exercise of my powers under para.5 of that Rule."

That is what the Chairman says about it.

Quite rightly, he could not consider the review until the Tribunal had promulgated their reasons and he then said that the application for review was dismissed. The normal course when applying for a review is for a party who has received the reasons given by the Industrial Tribunal to write then asking for a review. If the Chairman concludes that it has no reasonable prospect of success then he is entitled to dismiss the application and refuse it there and then, simply on paper.

What had happened was that the Chairman had given Mr Annan a privilege which Mr Annan was not entitled to, namely, an opportunity to address him, the Chairman, if Mr Annan wished to do so, as Mr Annan apparently did and it is not correct to say that anything unfair or improper has taken place. Mr Annan was heard and the Chairman, having heard him, said that he did not think that there was any prospect of success and, adjourning the matter formally until the reasons had been promulgated, he then rejected the application for a review.

In our view, having looked at what is said in the decision, having looked at all the circumstances, we consider that it was well within the Chairman's rights, and in his discretion, to dismiss the application for a review on the grounds which he set out. So much for the first complaint.

We now have to look at the decision itself. As I say, Mrs Ahern had complained to the Industrial Tribunal that she had been discriminated against on the ground of her sex. The Tribunal went into the matter at very considerable length. The reasons, which start at page 3 of our bundle and go on to page 9, are very carefully reasoned and moderate. They set out the evidence, which they have heard, and they say that there was a conflict of evidence between the parties. It is very important. Of course, they had to decide who to believe and who not to believe. They would not necessarily suggest that anybody was not telling the truth but people's recollections vary and it was very important for them to decide whose evidence they preferred. They said, in paragraph 6:

"We feel, having heard the witnesses and having had the opportunity of observing their demeanour on the witness stand and under oath, that the evidence of the applicant and her witness had the greater consistency with the known provable facts and also the greater ring of truth. We have no hesitation in preferring the evidence of the applicant and her husband, wherever there is a dispute between their evidence and the evidence of the respondents."

The Industrial Tribunal is a tribunal of fact. Parliament has said that they are to have sole jurisdiction of that. That was the conclusion they reached and so, of course, Mr Annan is at the disadvantage that his evidence was not preferred. The evidence which was preferred was that of the Applicant, Mrs Ahern. They went on to say that:

"Again, preferring the evidence of the applicant, we are satisfied that on 9 and 10 December 1933 she informed Mrs Annan, firstly of her suspicions, and then her confirmation of the fact that she was pregnant."

There was Mr Annan's wife informed three weeks before the medical certificates arose at all that indeed Mrs Ahern was expecting a child and they go into some detail about that. It is obvious that Mrs Annan would have passed that information on to Mr Annan, as it was a matter of some importance. They go on to say:

"The applicant then suffered illness on 29 December and her husband took in the sickness certificate ... she was suffering from pain in the abdomen with `P/V bleeding'" [which apparently refers to pre-vaginal bleeding].

They go into what happened. In January 1994, very shortly after this, she was put on a three-day week and we are told by Mr Annan that money was very short. It was essential to make economies and, apparently, she was handed on that occasion a P.45, dated 8 January.

However that may be, they then went into the law and said the question for them was whether she was discriminated against by reason of her sex, her gender. They say, quite rightly, that if a woman is dismissed because she is pregnant it almost inevitably follows that she has been dismissed, discriminated against, on the ground of her gender. They found that, in truth, there was a dismissal when her hours were reduced. They say:

"it looks suspicious that the occurrence is directly after the first occasion the applicant is off sick, early in her pregnancy, soon after having told her employer that she was indeed pregnant."

Mr Annan has told us today to look at the certificates and says that the first certificate does not say that she is pregnant.

The Tribunal go on to say that they think there is a prima facie case here. It looks as though she is being discriminated against because she has become pregnant. They say:

"it may well be that the discriminator is unconscious of the fact"

that he is discriminating and:

"We have looked at the explanation provided by the respondents and we have to say that it does not satisfy us that the timing of what took place had, of necessity, to be on 5 January and that it was a mere coincidence that the events took place on that day so close to the pregnancy linked absence. After all, trade had picked up somewhat before and around Christmas."

They say what they had heard from Mr Annan. They say:

"He made it clear that he would not have employed a married woman, had he known she intended to become pregnant...

We do not consider that the respondents have been entirely straightforward and honest with us, particularly on the question of 3-day week as related previously. We do not believe, as the respondents would have us believe, that this was a guaranteed 3 days per week, for the reasons we have already stated. But, why should the respondents choose to try and mislead us in that way? It is our experience that people who do not tell the whole truth usually have something to hide, and it raises the question as to whether Mrs Kirkpatrick has indeed put her finger on the true reason when she suggested that, if the respondents admitted that the 3 days were not permanent and guaranteed, they would thereby have to admit that they had in fact divested themselves of the employer's responsibilities to pregnant employees."

In other words, dismissed her.

They say:

"We feel the same also about the attempt to mislead us concerning the date of the respondents' knowledge of the applicant's pregnancy. They would have us believe they were not aware of the pregnancy until a week after the decision had been taken concerning the reduction of the applicant's 3 days per week. We find that not to be the case. As we have already stated, we prefer the evidence of the applicant ..."

In paragraph 18 they say, although they accept what is said about the business difficulties, that the employers:

"have allowed themselves to be unduly and improperly influenced in their actions by worries that their problems could not be satisfactorily dealt with by a pregnant employee. ... It therefore follows that considerations connected with the applicant's sex were a very real part of the detriment she suffered, and that accordingly the applicant has proved her case."

They took a long time to say it. They looked into all sides of it. We think that this Tribunal cannot be criticised for the decision which they reached. It was a decision of fact, which they were entitled to reach and although, of course, one sympathises with Mr Annan in the fact that he disagrees with it and gave evidence to the contrary, they preferred the evidence of the Applicant, Mrs Ahern, to that of Mr Annan.

Mr Annan, in support of his appeal today, has said three things. First of all, he said "We terminated the employment because we could not afford her wages". He referred again to the business difficulties. The answer to that, so far as we are concerned, is that that is not a point of law, it was the very point of fact, or one of the very points of fact, which the Tribunal had to consider. Then he says that she left her position of her own volition. That, again, was a matter which the Tribunal considered carefully and came to the conclusion that she was, indeed, dismissed. That was the reality of it. Then he referred to the medical sick notes. He very kindly sent us the sick notes so that we can look at them for ourselves. The first one is the fifth page of the documents he sent to us. When you look at that it is the original note of 22 December 1993 and it does say that Carol Ahern, the employee, should refrain from work for five days. She was suffering:

"Pain Abdomen with P/V bleeding"

That was signed by a doctor, and looks like a "Dr. Aly".

The next note is a strange document, on the face of it, it is dated 10 February 1994 but it says as follows:

"I have not examined you but, on the basis of a recent written report from Doctor Ali [which appears to be the one which I have just referred to] I have advised you that you should refrain from 29.12.94 [that is plainly a mistake for 29.12.93] to 4.1.94 from work for/until 1 week. Diagnosis of your disorder threatened miscarriage."

It is a strange document, as I say, because the doctor, Rajput, if that is the name of the doctor, was, so to speak, certifying retrospectively six weeks after he was saying she should refrain from work. It is quite plain it is not what it purports to be. It looks as though Dr Rajput, if that is the name of the doctor who signed it, is simply saying, "Knowing what I now know, that absence of yours, which my colleague advised me that you should take, was due to a threatened miscarriage". Over the page, the seventh document is the document which that doctor signed on that very day, 10 February, saying that she was suffering from a stressful pregnancy and hypertension and was advised to refrain from work for two weeks.

We do not think that the Tribunal relied on this document in reaching their decision that Mr Annan and his lady knew all about the pregnancy and that that was what influenced them early in January. They did nothing of the sort. They were finding that the reason that that was known to Mr and Mrs Annan was because, in fact, Mrs Annan had been told about it three weeks before, as they set out quite expressly.

What it amounts to is this: this appeal is in our list for Mr Annan to show, if he can, that there is some fairly arguable point of law which we ought to consider. We have read the notice appeal. We have read all the documents in the case. Having heard what Mr Annan has said, for the reasons I have endeavoured to indicate we have come to the conclusion that there is no point of law in this case. We, therefore, cannot consider an appeal at all. What Mr Annan is battling against and, so far as we are concerned, cannot battle against successfully, is decisions of fact by the Industrial Tribunal which are against him. We cannot find any point of law. We cannot find any unfairness here by the Tribunal. In the circumstances, we have to say that the appeal must be dismissed now. That will, of course, save all the trouble and expense of a full hearing, which we could not in any event entertain because Parliament has said that we can only consider points of law. In those circumstances, the appeal must be dismissed today.