United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1028_93_0202

Appeal No. EAT/1028/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2 February 1996

Before

THE HONOURABLE MR JUSTICE TUCKER

MR A C BLYGHTON

MISS C HOLROYD

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MRS S WILSON          APPELLANT

POLISHED METAL PRODUCTS LTD (FORMERLY BRASS SINKS LTD)          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR M RIAZ

For the Respondents OSBORNE CLARKE

30 Queen Charlotte Street

Bristol

BS99 7QQ


 


MR JUSTICE TUCKER: This is an employee's appeal from a decision of the Industrial Tribunal sitting at Cardiff on 16 September 1993. The Tribunal's decision was unanimous that the Appellant's complaint of sex discrimination failed, but her complaint of unfair dismissal succeeded. The Tribunal subsequently awarded compensation on the one ground on which the Appellant had succeeded. The reason for the delay in the hearing of the appeal before us is, that the parties were clearly awaiting the outcome of the reference to the European Court of the well-known case of Webb v EMO Air Cargo (UK) Ltd. That case has now been heard by the European Court on a referral from the House of Lords and has subsequently been considered by the House of Lords itself, as reported in 1995 ICR 1021.

The Appellant, Mrs S E Wilson had been employed for a number of years by the Respondents, whose name seems to have changed frequently, but who are now known as Polished Metal Products Ltd formerly Brass Sinks Ltd. We have allowed the proceedings to be amended, so as to record their current name. In early December 1992, Mrs Wilson realised that she was pregnant and she subsequently told her employers about it. She was a valued employee in this small but flourishing business. She was anxious as soon as possible after the birth of her baby to return to work with the Respondents, as was her entitlement. Her entitlement was also to be granted maternity leave, both before her confinement and for a number of weeks afterwards. She set out all these matters perfectly properly to her employers by giving them written notice of the expected date of her confinement. On 5 February 1993 the Respondents replied saying we are very sorry to have to refuse your request to return to work. She interpreted that letter as she was entitled to do, as a dismissal notice. The employers confirmed it on 5 March by saying it is impossible to keep your position open.

Mrs Wilson's last day at work was 21 May. She showed her anxiety to return to work and her willingness to do so, in that she was prepared to take the absolute minimum period allowed for statutory maternity pay, namely eighteen weeks. (Maternity leave is now much longer than that.) When the matter came before the Tribunal, they had no difficulty in concluding that she had been unfairly dismissed. In that her dismissal was for a reason connected with pregnancy, and was therefore automatically unfair.

Viewing the law as many Tribunals then did, the Tribunal felt unable to find that there had been sex discrimination. They considered Section 1 of the Sex Discrimination Act 1975 which provides:

"(1) A person discriminates against a woman... if__

(a) on the grounds of her sex he treats her less favourably than he treats or would treat a man"

They considered the meaning of the words "less favourably" and they directed themselves that that indicated a comparative situation. The Tribunal asked themselves whether the evidence showed that the Respondents would have been equally harsh to a man who was obliged to take some months off for illness, followed by post-illness attendance difficulties, comparable to child-care arrangements.

The evidence before the Tribunal demonstrated to them that these employers were so harsh in their attitude towards their employees, that they would have dismissed anyone, whether for pregnancy, illness or anything else. What the Tribunal say about it is this:

"27. The picture that emerges is of an employer with an unusual capacity for interpreting circumstances and contractual or statutory requirements to suit its own point of view to the exclusion of employee needs and entitlements.

28. There was no reason on the evidence to suppose that this attitude was confined to pregnant women. It extended to holidays and sickness. The only other dismissal had been of a man, for sickness. We have no doubt that a male employee with health needs or holiday entitlements would be treated with as little concern as was Mrs Wilson. For that reason we find that she was not treated less favourably than a man and that the treatment she received was not on grounds of sex."

The Tribunal were not alone in those days in considering that a male comparator had to be found. It can be seen from the House of Lords decision in Webb v EMO Air Cargo No.2 that it had been held by the Industrial Tribunal, this Employment Appeal Tribunal, the Court of Appeal, and by the House itself, that on a proper construction of the relevant provision of the Act of 1975, the dismissal of the Appellant in that case did not constitute unlawful discrimination against her on the ground of her sex. Webb was a case where Mrs Webb was, in effect, a substitute called into employment, to stand in place of another lady who had herself become pregnant.

In the decision of the European Court they say at paragraph 26 something which is particularly pertinent to the present circumstances. However, the protection afforded by Community Law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Lord Keith giving the leading speech in the House of Lords in Webb No.2 interpreted the ruling of the European Court and of the Directive as follows:

"... It seems to me that the only way of doing so is to hold that, in a case where a woman is engaged for an indefinite period, the fact that the reason why she will be temporarily unavailable for work at a time when to her knowledge her services will be particularly required is pregnancy is a circumstance relevant to her case, being a circumstance which could not be present in the case of the hypothetical man."...

Therefore the Tribunal are to be excused for coming to the conclusion which they did, but having regard to the decision of the European Court and to its interpretation by the House of Lords, it is clear that the law is and was, that employees in this situation who are dismissed on the ground of pregnancy, are being discriminated against on the ground of sex. Accordingly we need go no further than this.

So far as this appeal is concerned, we conclude that the Industrial Tribunal were, in the light of the authorities to which we have referred, wrong in their conclusion that there was no sex discrimination. There was discrimination on the ground of sex in this case. Of course their decision as to unfair dismissal stands but in addition we find that there was sex discrimination. That leaves outstanding the question of compensation for injury to feelings. That is a matter which we are not able to assess and it must be remitted to the Tribunal for their assessment. If possible it would be helpful if the same Tribunal could make the compensation award. If not, then we request the Regional Chairman of the Tribunals to appoint a differently constituted Tribunal to hear the matter. Finally, we ought to make it clear that the solicitors for the Respondents have not appeared before us. They have written a letter explaining the reasons for that. They say that their clients wish to withdraw from the appeal, leaving the Appellant's solicitor free to persuade the Appeal Tribunal to make whatever order the Appeal Tribunal may consider appropriate. Mr Riaz has persuaded us without any difficulty at all to allow the appeal. We hope we have now made the appropriate order.