United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JEREMY MCMULLEN (of Counsel) and MS HELEN GOWER Instructed by: Moriarty & Co. Sutton Coldfield West Midlands B72 1UY
For the Respondents	MR JOHN BOWERS Instructed by: Managing Solicitor, Bedford County Council Cauldwell Street Bedford MK42 9AP


 


MR JUSTICE MUMMERY (PRESIDENT):

1. This is an appeal against the decision of the industrial tribunal held at Bedford on four days in August and September 1994. In full reasons notified to the parties on 24 October 1994, the tribunal explained why they unanimously dismissed the applicant's claim for sex discrimination and why they awarded her a basic award of £410 for what was conceded to be an unfair dismissal of the applicant from her post as a probationary teacher of religious education and personal relationships at St. Thomas More School, Bedford. An application for a review of that decision was rejected for reasons notified on 23 February 1995.
2. The general point of law at the heart of this appeal concerns the employment rights of pregnant women at work. The essence of the applicant's case is that her constructive dismissal by the governors of the school constituted direct discrimination on the ground of sex, as her pregnancy was a ground — and an important ground — of her dismissal.
3. This appeal tribunal wishes to express its gratitude to Mr. McMullen, who appeared for the applicant, and Mr. Bowers, who appeared for the governors, for their excellent arguments on this difficult area of the law.

The findings of fact

4. The relevant facts found by the industrial tribunal may be summarised as follows. On 3 April 1990 the applicant was offered employment as a teacher of religious education and personal relationships at the school, a Roman Catholic voluntary aided school in Bedford. The religious education department is the leading department in the school and its daily religious life. The preponderance of the governors and teachers and about 80 per cent. of the pupils are Roman Catholic. The governors were the employers of the applicant who was expected "to make the ideologies and teachings of the Roman Catholic faith clear to the pupils in order to maintain the ethos of the school as a Roman Catholic school." On 1 September 1990 the applicant began to teach as a probationary teacher. She was then nearly 26 years old and was unmarried. On 16 July 1991 the applicant was informed that her probation was extended into the autumn term of 1991. This was recommended by the inspector for religious education and senior adviser (staff development) on account of the applicant's difficulty in handling relationships with pupils, parents and colleagues. From 2 to 19 September 1991 the applicant was absent from school through illness. She completed self-certification forms. From 10 October 1991 she was again away sick. Medical certificates were supplied. The applicant never returned to work at the school. (It is common ground that she was constructively dismissed, probably on 7 January 1993.)
5. On 11 November 1991 the applicant wrote to Mr. McManus, the headmaster of the school, requesting a transfer, for personal reasons, to another school in the county. (The council could not transfer her as it was not her employer.) On 20 November 1991 the headmaster was informed on the telephone by a counsellor/social worker that the applicant was pregnant. At that time the headmaster did not know who had made her pregnant. On 28 February 1992 the applicant gave notice of maternity leave, starting on 29 March 1992. On 4 March 1992 she applied for maternity pay.
6. By the spring of 1992 the headmaster and the chairman of the governors, Father Condon, knew that the applicant had become pregnant as a result of a relationship with a Roman Catholic priest known in the locality and at the school, to which he made regular visits to give advice and guidance to pupils and teachers.
7. In May 1992 the facts about the applicant were put to a meeting of the governors. Their initial view was that the applicant could not return to the school to teach religious education and that dismissal proceedings should be initiated. The chairman of the governors persuaded the governors to authorise him to make an offer to the applicant, under which she could return to the school after her confinement for one term's teaching of general subjects, on condition that she resigned and left her post at Christmas 1992. The tribunal found that the decision to dismiss was taken by the governors in May 1992. On 13 May 1992 Father Condon went to see the applicant to inform her of the governors' proposals. The applicant did not accept the offer and did not agree to resign. On 20 May 1992 the applicant's daugher, Jennifer, was born. On 7 July 1992 the applicant gave written notice to the governors of her intention to return to full-time employment in the post of a religious education teacher at the school.
8. On 20 July 1992 the personnel office wrote to the applicant telling her of an appointment made for her with Dr. Daniels for 24 July. Dr. Daniels was the senior clinical medical officer in the occupational health department at Bedford General Hospital and was the council's occupational health physician. The applicant did not keep the appointment. The school stopped paying her salary. On 28 August the applicant's solicitors wrote to Father Condon about the non-payment of salary and requested clarification of the governors' position. At about the end of August the applicant "went to press." Numerous articles began to appear in the local and national papers.
9. The applicant did not return to the school on 1 September. She was not allowed to. Her salary was not paid, apparently because she had not kept the appointment with Dr. Daniels. Accordingly, on 7 January 1993 she began proceedings in the Birmingham County Court claiming repudiatory breach of her contract of employment and payment of arrears of salary. Those proceedings were settled by a consent order. The action was stayed on terms that the Bedfordshire County Council should, on behalf of the governors, pay the applicant the sum of £9,778.59 in full and final satisfaction of her claim. The council also agreed to provide her with an agreed letter and reference signed by the chairman of the governors.
10. On 2 April 1993 the applicant presented an originating application to the industrial tribunal claiming unfair dismissal against the governors and Bedfordshire County Council. It is agreed on this appeal that, although the county council was joined as a respondent to the application in the industrial tribunal and to this appeal, there is no liability on its part for her claim of sex discrimination. The governors of the school were the applicant's employers. In her originating application the applicant alleged:

"On 20 May 1992 I gave birth to a daughter, Jennifer. I took maternity leave but by letter dated 5 August 1992 the chairman of the governors forbade me from returning to teach at school when the new term began in September 1992. I was not dismissed at that time but my salary was not paid. No explanation was given as to my status. I was simply left in the dark. By the time the January 1993 term had started and still no salary had been paid it was clear that I had to regard myself constructively dismissed. The true reason for the school's inability to resolve my position was the embarrassment felt by certain governors at the fact that Jennifer's father was a priest. The governors knew they could not properly dismiss me but did not want me to be at the school."

11. The governors contested the claim, denying that the applicant had been constructively dismissed and contending that her application was out of time. At interlocutory hearings the industrial tribunal decided that the application for unfair dismissal was not out of time and leave was granted to the applicant to amend her originating application to claim sex discrimination. In further and better particulars of their notice of appearance the governors admitted that the applicant was unfairly dismissed because of constructive dismissal, but contended that there were sufficient grounds for terminating her contract of employment, namely, some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which she held. They contended that no compensation was payable in all the circumstances of the case. In response to the claim of sex discrimination, the governors' case was stated as follows:

"[the governors] acted in the way they did towards [the applicant] as her continued employment was untenable because as a teacher of religious education at a Roman Catholic voluntary aided school she had had a sexual relationship with a Roman Catholic priest which relation had produced a baby and the circumstances of this and the relationship had become public knowledge. The action was not taken because she was pregnant and the governors would have taken the same action against a male teacher holding the same position as the applicant who had a similar relationship with a Roman Catholic nun with the same consequences."

12. The governors submitted that the applicant herself in her originating application based her claim on the issue of parentage of her child and no other reasons. The governors insisted that they did not dismiss her because she was pregnant. (No issue of justification of discrimination was raised, nor could it have provided a defence to direct discrimination.)
13. In October 1992 the applicant and her child's father, who was no longer a Roman Catholic priest, were married. We were informed during the hearing that they now have three children.

The decision of the industrial tribunal

Unfair dismissal

14. The unfairness of the applicant's dismissal was conceded by the governors. The tribunal accepted the governors' submission that the applicant should not be awarded any compensation, save for a basic award of two weeks' pay at the statutory maximum of £205 a week. Her dismissal would in any event have taken place after the press coverage rendered her position within the school untenable. She would have been entitled to be paid to the end of December 1992 and to notice thereafter, but she had already received payment for that amount under the terms of the compromise in the county court proceedings.
15. It is unnecessary to say more about the unfair dismissal proceedings. It has been agreed between the parties, and it is acceptable to this appeal tribunal, that the appeal by the applicant on the amount of compensation for unfair dismissal, along with a contested application by the applicant for leave to amend her notice of appeal, should be stayed pending the outcome of the part of the appeal against the tribunal's decision to dismiss her claim for sex discrimination. A successful appeal on the sex discrimination claim might render it unnecessary to pursue the question of unfair dismissal in the appeal.

Procedural matters

16. We should also mention that this appeal has had an unusually eventful procedural history set out in a separate judgment given in this appeal tribunal on 12 October 1995, when an order was made, on the applicant's application for a review, revoking an earlier order of this appeal tribunal on 15 February 1995 under which the applicant's appeal was withdrawn and consequently dismissed. It is unnecessary to repeat the procedural history. We need only complete it by noting that on 19 December 1995 the Court of Appeal refused to grant the governors of the school leave to appeal against this tribunal's order of 12 October 1995.
17. The final procedural point that should be mentioned is that we have exercised our powers under rules 26 and 37 of the Employment Appeal Tribunal Rules 1993 (S.I. 1993 No. 2854) to allow the governors of the school to participate in the appeal, even though they were late with their service of a respondent's answer on 12 December 1995 after their request for an extension of time had been refused on 6 December 1995.

Sex discrimination

18. The reasons for the industrial tribunal's unanimous decision to dismiss the applicant's claim for sex discrimination are contained in paragraphs 6, 7, 8 and 9 of the extended reasons. It is necessary to set out those paragraphs in full in order to do justice to the rival arguments on the appeal:

"6. With this guidance in mind we approach the facts as we have found them. It is now beyond doubt that dismissal on the grounds of pregnancy can amount to sex discrimination: Hayes v. Malleable Working Men's Club and Institute [1985] I.C.R. 703 . It is therefore incumbent upon us to decide what was the reason for the dismissal of the applicant.

"7. We have sought guidance from the authorities and have looked at the decisions of the European Court of Justice in Handels- og Kontorfunktionaerernes Forbund i Danmark v. Dansk Arbejdsgiverforening (Case 179/88) [1992] ICR 332 ; Dekker v. Stichting Vormingscentrum Voor Jong Volwassenen (VJV-Centrum) Plus (Case 177/88) [1992] ICR 325 , as well as the judgment of the European Court in Webb v. Emo Air Cargo (U.K.) Ltd. delivered on 14 July 1994 — from all of these cases it is clear that a refusal to appoint a pregnant woman (Dekker) and the dismissal of a pregnant woman (Hertz and now Webb ) where the sole reason of her dismissal was that she was pregnant amounts to direct discrimination on the grounds of sex.

"8. Since pregnancy discrimination is sex discrimination, does that put an end to our inquiry? We think not. We ask ourselves whether the applicant was dismissed because she was pregnant or whether there was another motive or mixed motive for the governors' actions. If the sole motive was pregnancy then that is sex discrimination. If there are mixed motives then it seems that the unlawful motive must be of sufficient weight in the decision making process to be treated as a cause of the act so motivated: Nagarajan v. Agnew [1995] I.C.R. 520 . In other words, where there are mixed motives an important, though not necessarily the predominant motive, must be the unlawful act complained of.

"9. What were the motives for the dismissal in this case? The governors contend that it was untenable for the applicant to teach religious education and personal relationships, with credibility, within the ethos of the school based as it is upon the teachings of the Roman Catholic Church, where 80 per cent. of the pupils were Roman Catholic. The fact that the applicant was pregnant by a Roman Catholic priest and that the fact of the relationship was in the public domain was a further reason for dismissal. We heard evidence relating to other unmarried teachers who had become pregnant and who were not treated in the same way as was the applicant. Neither of those teachers taught religious education nor was there any 'scandal' surrounding their relationships. In those circumstances, the school was supportive of the teachers in question. Thus it seems to us that an important motive for the dismissal was not the applicant's pregnancy per se but the fact that the pregnancy was by a Roman Catholic priest, and that, as a result, the school saw the applicant's position as a teacher of religious education and personal relationships as being untenable. Thus, we are left with the distinction between pregnancy, and the pregnancy of a religious education teacher by a Roman Catholic priest where that relationship has come into the public domain in so far as it had become known that the applicant was pregnant by a local priest and it was this which was the dominant motive for the governors' actions. In other words we are satisfied that pregnancy per se was not the reason for these actions and it must therefore follow that she was not discriminated against on the grounds of her sex and that her claim must fail."

Preliminary observations

19. The sole function of this appeal tribunal on the appeal is to decide whether there is an error of law in the reasoning of the industrial tribunal's decision to reject the applicant's claim.
20. Undercurrents of emotion inevitably colour a case in the minds of the parties and the public, especially when a case is concerned with religion, morality, and sex. In those circumstances it is essential that we clarify what this appeal tribunal is not deciding. It is not for this tribunal, any more than it is for any industrial tribunal, to make any value judgment on questions of religion, sexual morality, social mores or educational policies. Those are all matters of importance on which different people hold different strongly felt and sincere views. We cannot over-emphasise that this appeal tribunal is solely concerned with a question of law affecting the employment rights of the applicant. We make no value judgment, decision or comment on aspects of this case concerning the religious doctrines of the Roman Catholic Church, the celibacy of Roman Catholic priests, the morality of sex outside marriage, the place of religious education in schools or the social and personal problems of unmarried women who become pregnant. The sole issue before this tribunal is whether the applicant's employment rights, as a teacher employed by the governors, and as conferred by Parliament, have been infringed by an act of discrimination against her, i.e. her constructive dismissal, on the ground of her sex.

The relevant law

21. Since the industrial tribunal reached their decision in October 1994 there has been a significant development in the relevant law, namely, the promulgation by the House of Lords on 19 October 1995 of their decision in Webb v. Emo Air Cargo (U.K.) Ltd. (No. 2) [1995] ICR 1021 , applying to the facts of Mrs. Webb's case the ruling of the European Court of Justice (Case C-32/93) [1994] ICR 770 on the interpretation of the Equal Treatment Directive (76/207/E.E.C.) , noted by the industrial tribunal in paragraph 7 of the extended reasons already quoted. In our view, the relevant legal principles and provisions to be applied for the determination of this appeal may be summarised as follows.

(1) The applicant's claim for sex discrimination is made under the Sex Discrimination Act 1975 . As the claim is for direct discrimination in the employment field, the relevant provisions are as follows. Section 1(1) provides:

"A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if —

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

Section 5(3) provides:

"A comparison of the cases of persons of different sex or marital status under section 1(1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

Section 6(2) provides:

"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her — …

(b) by dismissing her, or subjecting her to any other detriment."

(2) Those provisions contain two elements relevant to the resolution of the case: (a) the comparison element in the requirement of less favourable treatment than a man in circumstances which are the same or not materially different; and (b) the causal element in the requirement that such less favourable treatment must be "on the ground of her sex."

(3) The comparison element. The relevant law on the comparison element is as follows.

(a) The relevant provisions of the Sex Discrimination Act 1975 , construed in isolation from the provisions of the Equal Treatment Directive (76/207/E.E.C.) and the decisions of the Court of Justice, require a comparison to be made between a pregnant woman alleging that she has suffered less favourable treatment than a man and a hypothetical man, whose relevant circumstances are the same or not materially different. Thus, in Webb v. Emo Air Cargo (U.K.) Ltd. [1993] ICR 175, 182, the House of Lords held that the correct comparison under the Act of 1975 was between the pregnant woman and:

"a hypothetical man who would also be unavailable at the critical time. The relevant circumstance for the purposes of the comparison required by section 5(3) to be made is expected unavailability at the material time. The precise reason for the unavailability is not a relevant circumstance, and in particular it is not relevant that the reason is a condition which is capable of affecting only women, or for that matter only men:" per Lord Keith of Kinkel.

The result in that case would be that there was no direct discrimination against Mrs. Webb, because the industrial tribunal had found that the reason for her dismissal was her anticipated inability to carry out the primary task for which she had been recruited, namely, to cover the job of another female employee absent on maternity leave and that "a man recruited for the same purpose would have been treated similarly if he had declared that he required to be absent during the critical period:" see p. 178F–G.

(b) The House of Lords did not, however, stop at a consideration of a purely domestic law position under the Act of 1975. They considered the decisions of the Court of Justice on the Equal Treatment Directive (76/207/E.E.C.) in Dekker v. Stichting Vormingscentrum Voor Jong Vol- wassenen (VJV-Centrum) Plus (Case 177/178) [1992] ICR 325 and Handels- og Kontorfunktionaerernes Forbund i Danmark v. Dansk Arbejdsgiverforening (Case 179/88) [1992] ICR 332 That consideration led them to postpone their decision until the Court of Justice had answered the question referred to them by the House of Lords under article 177 of the E.E.C. Treaty . The answer to that question was necessary for a final adjudication of Mrs. Webb's employment rights, because, although the Equal Treatment Directive does not have a direct effect on the relationship between a worker and a private employer, the United Kingdom court is under a duty [1993] ICR 175 , 186:

"to construe domestic legislation in any field covered by a Community Directive so as to accord with the interpretation of the Directive as laid down by the European Court of Justice, if that can be done without distorting the meaning of the domestic legislation: …"

Lord Keith pointed out that that principle applies to legislation enacted before (as was the Sex Discrimination Act 1975 ), as well as after, the issue of the Directive.

(c) The European Court of Justice answered the question referred in a judgment given on 14 July 1994, shortly before the hearing of this case by the industrial tribunal in Birmingham. In Webb v. Emo Air Cargo (U.K.) (Case C-32/93) [1994] ICR 770 , 798, paras. 19 and 24, the Court of Justice held:

"the dismissal of a female worker on account of pregnancy constitutes direct discrimination on grounds of sex … there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy discovered very shortly after the conclusion of the employment contract, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons."

The reason why there can be no comparison is that:

"pregnancy is not in any way comparable with a pathological condition, and even less so with unavailability of work for non-medical grounds, both of which are situations that may justify the dismissal of a woman without discriminating on grounds of sex:" see p. 799, para. 25.

(d) On 19 October 1995 the House of Lords promulgated their decision in Webb v. Emo Air Cargo (U.K.) Ltd. (No. 2) [1995] ICR 1021 (a year after the decision and extended reasons were notified to the parties in this case) applying the ruling of the Court of Justice and the Equal Treatment Directive to interpretation of the Sex Discrimination Act 1975 . Lord Keith said, at p. 1027:

"The ruling of the Court of Justice proceeds on an interpretation of the broad principles dealt with in articles 2(1) and 5(1) of Council Directive (76/207/E.E.C.) . Sections 1(1)(a) and 5(3) of the Act of 1975 set out a more precise test of unlawful discrimination, and the problem is how to fit the terms of that test into the ruling. 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."

On that approach the House of Lords held, on the industrial tribunal's findings of fact, that Mrs. Webb had suffered direct discrimination on the ground of her sex.

(e) The consequence of that ruling for the present case is that the applicant's pregnancy is a circumstance relevant to her case, though it is not a circumstance which would be present in the case of a hypothetical man. The applicant's claim of sex discrimination is not, therefore, to be determined by a comparison of her treatment with the treatment of the hypothetical male comparator proposed by the governors as a male teacher of religious education and personal relationships who had fathered a child by a Roman Catholic nun and where there had been press publicity about that relationship. Such a comparison is not legally appropriate under the interpretation of the Act of 1975 in the light of the ruling of the Court of Justice. Pregnant women in employment occupy a special position which attracts special protection: see Gillespie v. Northern Health and Social Services Board (Case C-342/93) [1996] ICR 498 , 513, para. 17.

(4) The causation element. The governors are only liable for the treatment complained of by the applicant, i.e. her constructive dismissal, if it was on the ground of her sex. A dismissal on the ground of pregnancy is a dismissal on the ground of sex. The critical question in this case is whether the applicant's constructive dismissal was on the ground of her pregnancy, or on some other ground. In order to answer that question it is necessary to identify and apply the relevant legal principles of causation. A decision reached by an industrial tribunal by the application of the correct legal principles of causation to the facts of the case is a conclusion of fact which cannot be appealed to this appeal tribunal. This tribunal's jurisdiction is limited to correcting errors of law. If, however, the industrial tribunal have not identified or applied the correct legal principles of causation then a question of law arises for decision. Most of the argument on this appeal concerned the causation element. What are the correct legal principles of causation?

(a) It is established by the authority of the House of Lords that the test to be applied in determining whether treatment is directly discriminatory on the ground of sex is not one of subjective mental processes of the respondents, i.e., as to their intentions, motives, beliefs or subjective purposes. Those considerations may be relevant to remedies for discrimination, but they are not relevant to liability. A condition of liability in the expression "on the ground of her sex" is an objective test of causal connection. According to the ruling of the House of Lords on the similarly worded Race Relations Act 1976 , the relevant question is: would the applicant have received the same treatment but for her sex? See James v. Eastleigh Borough Council [1990] ICR 554 , 568A, 572C–E and 576C–E.

(b) In answering that causation question, regard must be had to the well established and uncontroversial legal principles recently discussed by the Court of Appeal in Banque Bruxelles Lambert S.A. v. Eagle Star Insurance Co. Ltd. [1995] Q.B. 375 , 406. Although that case was not cited in argument on the appeal, there can be no doubt that the principles discussed in that passage are beyond controversy at this level of decision.

22. The relevant principles are these:

(i) The tribunal's approach to the question of causation should be "simple, pragmatic and commensensical."

(ii) The question of causation has to be answered in the context of a decision to attribute liability for the acts complained of. It is not simply a matter of a factual, scientific or historical explanation of a sequence of events, let alone a matter for philosophical speculation. The basic question is: what, out of the whole complex of facts before the tribunal, is the "effective and predominant cause" or the "real or efficient cause" of the act complained of? As a matter of common sense not all the factors present in a situation are equally entitled to be treated as a cause of the crucial event for the purpose of attributing legal liability for consequences.

(iii) The approach to causation is further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of, though it must provide more than just the occasion for the result complained of. "It is enough if it is an effective cause:" see p. 406E–F.

23. Those general principles must be borne in mind in evaluating the opposing legal submissions of the parties on this appeal.

The submissions of the governors

24. On behalf of the governors of the school, Mr. Bowers made the following submissions supporting the conclusion of the industrial tribunal that there was no discrimination on the ground of sex in the dismissal of the applicant and that the appeal should therefore be dismissed.

(1) The industrial tribunal's conclusion was that it was not the pregnancy which caused the governors to dismiss the applicant, but the pregnancy as the "outward manifestation" of her relationship with a local Roman Catholic priest. This was in the context of the applicant's employment in the religious education department of the school where she was expected to make the teachings of the Roman Catholic faith clear to pupils in order to maintain the ethos of the school as a Roman Catholic school.

(2) The industrial tribunal had observed the correct legal principles and rules on the burden of proof in discrimination cases, on the drawing of inferences from primary facts, on the problem of weighing "mixed motives" (lawful and unlawful) in the decision-making process, and on the question of causation.

(3) The industrial tribunal reached an unambiguous and unappealable conclusion of fact. The applicant's dismissal was not "on the ground of her sex." The tribunal properly perceived a distinction between two different situations: (a) pregnancy (characterised by the tribunal as "pregnancy per se"); and (b) pregnancy as the manifestation of a relationship between a religious education teacher and a Roman Catholic priest where that relationship and the pregnancy had become public knowledge. As a result of that, it became untenable for the applicant to continue teaching religious education in a Roman Catholic school. In case (a) the governors had not made dismissals on that ground in the case of two other unmarried members of the staff who had become pregnant. This was not such a case. The industrial tribunal found that this was a (b) case and that the dismissal was not therefore on the ground of sex or even on the ground of sex and some additional factor, such as is found in the mixed motive" cases. The applicant was not, therefore, dismissed because she was pregnant, or because she was a woman, or because she was unmarried. She had not been treated less favourably than a man who, in circumstances that were not materially different, would also have been dismissed. In those circumstances, Mr. Bowers contended, it would have been an error of law on the part of the industrial tribunal to conclude that there had been sex discrimination contrary to the Sex Discrimination Act 1975 .

(4) The case was, therefore, distinguishable from the cases in the Court of Justice, such as Webb v. Emo Air Cargo (U.K.) Ltd. (Case C-32/93) [1994] ICR 770 , where dismissal was for pregnancy or for the consequences of pregnancy, which were not a "super-added" ground or condition. The case was also distinguishable from the mixed motive" cases by analogy from the victimisation case, Nagarajan v. Agnew [1995] I.C.R. 520 , 533. There were no mixed motives" in this case. There was only one motive for the dismissal of the applicant. That was the relationship which brought about the pregnancy, and the paternity of the child, not the product of the relationship which had brought the relationship to the attention of the governors. The applicant's pregnancy was relevant as background to the dismissal, but it was not the cause, or even a cause, of it.

(5) Alternatively, if pregnancy was a cause of the applicant's dismissal, the appeal tribunal should not adopt the "mixed motive" approach in Nagarajan v. Agnew [1995] I.C.R. 520 . The proper approach was a simple test of "effective cause," the "but for test" adopted by the House of Lords in James v. Eastleigh Borough Council [1990] ICR 554 The question is whether the applicant would have received the same treatment but for her pregnancy. Mr. Bowers referred to a number of cases: Reg. v. Birmingham City Council, Ex parte Equal Opportunities Commission [1989] AC 1155 ; Seide v. Gillette Industries Ltd. [1980] I.R.L.R. 427 (a race case which adopted the substantial, activating and effective cause" test held that the background racial factor was insufficient to constitute a cause); Owen & Briggs v. James [1982] I.C.R. 618 , 621, 623–626 (substantial reason for discrimination test) and Shomer v. B. R. Residential Lettings Ltd. [1992] I.R.L.R. 317 , 321. The question was: what was uppermost in the governors' minds? The answer was: not the applicant's pregnancy.

(6) European Community law recognised that non-discriminatory treatment may be associated with a pregnancy, but not be accounted for by the pregnancy itself and may justify treatment of a woman, e.g. by dismissal, "without discriminating on ground of sex:" see Webb v. Emo Air Cargo (U.K.) Ltd. (Case C-32/93) [1994] ICR 770 , 799, para. 25, where it is recognised that there would not be sex discrimination where dismissal was on the ground of a pathological condition or on the ground of unavailability for work on non-medical grounds. The European Community cases relied on by the applicant are instances of sex discrimination on the ground of pregnancy where an additional factor ("pregnancy plus") is present. When properly analysed, they are cases where the additional or plus factor is deployed to circumvent the general principle in Webb . They are in substance an attempt to deprive the Equal Treatment Directive and the principle of effect by putting pregnancy discrimination in another way. They are not cases of two reasons or grounds, operating either independently or together, with one as a more dominant or effective cause than the other. They are cases where the employer says that he is not dismissing for pregnancy but for non-availability, when the non-availability is in fact the maternity leave consequential on the pregnancy. Examples of cases where there may be a pregnancy element, but no sex discrimination, are Handels- og Kontorfunktionaerernes Forbund i Danmark v. Dansk Arbejdsgiverforening (Case 179/88) [1992] ICR 332 and Brown v. Rentokil Ltd. [1995] I.R.L.R. 211 , 213, 214, 215.

(7) Finally, Mr. Bowers placed heavy reliance on the decision of this appeal tribunal in Berrisford v. Woodward Schools (Midlands Division) Ltd. [1991] I.C.R. 564 (decided before Webb v. Emo Air Cargo (U.K.) Ltd. [1993] ICR 175 ). He submitted that this case was particularly relevant on the causation element. The crucial point of the case was that, by a majority, the appeal tribunal recognised that the reason for dismissal of a pregnant woman, who was an unmarried matron at an all girls boarding school, was not discrimination on the ground of sex. The reason for her dismissal was not the "pregnancy itself" but the obvious manifestation of extra-marital sex:" see p. 566C. Miss Berrisford, like the applicant, was acting against the ethos of the school in which she was employed to work. That is not relying on a consequence of the pregnancy. It is an independent ground for dismissal. On this basis the industrial tribunal were entitled to accept the explanation of the governors of the school as to the ground of their acting in dismissing the applicant. This type of case was quite different from the cases where it was held that there was another reason for the dismissal and that that reason was in fact the inability of the pregnant woman to perform relevant duties because of the physical consequence of pregnancy. The reasoning in Berrisford was correct and on that basis the industrial tribunal's decision was unappealable.

Conclusion

25. We have given full and careful consideration to the arguments of the governors of the school, but have concluded that the industrial tribunal did make an error of law in dismissing the applicant's claim for sex discrimination. The tribunal did not properly apply the correct legal principles of causation to the facts found by them. We agree with Mr. McMullen that, if the industrial tribunal had correctly applied the correct legal principles to the facts, they would have inevitably found in the applicant's favour. The appeal should, therefore, be allowed and it should be declared that the governors have discriminated against the applicant on the ground of her sex in constructively dismissing her. The case will be remitted to the industrial tribunal to determine remedies. As we shall explain at the end of this decision, that does not mean that the applicant is necessarily entitled to recover substantial compensation or any other substantial remedy for sex discrimination. It will be for the industrial tribunal to consider whether it is just and equitable for her to be awarded compensation or any other remedy having regard to all the circumstances of the case. The reasons for our conclusion on the liability of the governors of the school are as follows.

(1) Although the tribunal initially directed themselves that it was for them to decide "what was the reason for the dismissal of the applicant," they misdirected themselves in law in their answer to the question.

(2) The tribunal started from the position that the dismissal of a woman for the sole reason that she was pregnant is direct discrimination on the ground of sex. That is a correct legal proposition but, as the tribunal themselves recognised, it is not a complete statement of the relevant law. The tribunal went on to consider the other "motives" for the governors' actions. It is at this point that the tribunal misdirected themselves.

(3) The tribunal asked: "what were the motives for the dismissal in this case?" They considered the governors' contentions about their motives and, on the basis of those contentions, the tribunal accepted that there was a distinction between two motives, namely, (a) pregnancy per se, and (b) pregnancy of a religious education teacher by a local Roman Catholic priest where that relationship had become public. On the basis of that distinction the tribunal concluded that there was no discrimination on the ground of sex, because (b) was the "dominant" motive for the governors' actions. Pregnancy per se was not the reason for those actions.

(4) In our view, the distinction made by the tribunal between pregnancy per se and pregnancy in the circumstances of this case is legally erroneous. The tribunal may have been led to draw such a distinction as a reflection of the perceived subjective motives of the governors advanced by them in their submissions. The Sex Discrimination Act 1975 requires the industrial tribunal to decide a case of sex discrimination by having regard to the question whether the treatment complained of was on the ground of sex, not by having regard to the subjective motives of the alleged discriminator. (Consideration of motives is to be avoided.) Dismissal for pregnancy is on a ground of sex. Pregnancy is unique to the female sex. The concept of "pregnancy per se" is misleading, because it suggests pregnancy as the sole ground of dismissal. Pregnancy always has surrounding circumstances, some arising prior to the state of pregnancy, some accompanying it, some consequential on it. The critical question is whether, on an objective consideration of all the surrounding circumstances, the dismissal or other treatment complained of by the applicant is on the ground of pregnancy. It need not be only on that ground. It need not even be mainly on that ground. Thus, the fact that the employer's ground for dismissal is that the pregnant woman will become unavailable for work because of her pregnancy does not make it any the less a dismissal on the ground of pregnancy. She is not available because she is pregnant. Similarly, in the present case, the other factors in the circumstances surrounding the pregnancy relied upon as the "dominant motive" are all causally related to the fact that the applicant was pregnant — the paternity of the child, the publicity of that fact and the consequent untenability of the applicant's position as a religious education teacher are all pregnancy based or pregnancy related grounds. Her pregnancy precipitated and permeated the decision to dismiss her. It is not possible, in our view, to say, on the facts found by the industrial tribunal, that the ground for the applicant's dismissal was anything other than her pregnancy. Indeed, there was no finding of fact by the tribunal that the applicant would have been dismissed, even if she had not become pregnant. (The governors' submission that the applicant might have been dismissed on the ground of the relationship, even if she had not become pregnant, might affect the remedies available to her for sex discrimination. We are only concerned at this stage with liability, not remedies.)

The result

26. We wish to make several points in clarification of the conclusions stated above.

(1) Our conclusions do not mean that every woman who is pregnant and who is dismissed or who suffers some other detriment has a valid claim against her employer for sex discrimination. If, on the evidence, the industrial tribunal conclude, on a correct application of the law, that the pregnancy of the woman is not a ground for the dismissal or other detriment, the treatment complained of will not be on the ground of sex contrary to the Sex Discrimination Act 1975 . It would be on some other ground.

(2) It should not be assumed by the applicant or those advising her or by others in a similar position that, if liability for sex discrimination is established, then full compensation for loss of the job and other consequential loss will be automatically awarded. On this appeal we are only concerned, as was the industrial tribunal, with the question of liability. The matter must now be remitted to the industrial tribunal to deal with remedies. The remedies available to an applicant on a complaint to an industrial tribunal which is held to be well founded are set out in section 65 of the Sex Discrimination Act 1975 . That provides:

"(1) Where an industrial tribunal finds that a complaint presented to it under section 63 is well-founded the tribunal shall make such of the following as it considers just and equitable —

an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;

an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court or by a sheriff court to pay to the complainant if the complaint had fallen to be dealt with under section 66; and

a recommendation that the respondent take within a specificed period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates."

Under section 66 a claim for sex discrimination is to be treated in like manner as any other claim in tort, for which it is expressly provided that damages may include compensation for injury to feelings: section 66(4) . It is for the industrial tribunal to decide, having regard to all the circumstances, whether it is just and equitable to award to the applicant in this case the remedies specified in section 65 .

(3) During argument reference was made to other situations in which protection against discrimination on the ground of sex may or may not be available. Would there be sex discrimination if an employer dismissed a pregnant female employee on the ground that (a) she was not married, or (b) she was married, but not to the father, or (c) she had an abortion, or (d) refused to have an abortion? Would there be sex discrimination if an employer dismissed a male employee on the ground that (a) he had made an unmarried woman pregnant, or (b) he had made a married woman who was not his wife pregnant? It is instructive to reflect on these problems, but we are not required to solve them in this case. They will be resolved as and when they arise in particular cases.