United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 23_93_0502

Appeal No. EAT/23/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5th February 1996

Before

HIS HONOUR JUDGE CLARK

MRS M E SUNDERLAND JP

MR N W WILLIS

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MISS H REES          APPELLANT

APOLLO WATCH REPAIRS PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR PUSHPINDER SAINI

(of Counsel)

Messrs Duncan Forbes

Solicitors

Druid's Alter

Llangenny

Crickhowell

Powys

NP8 1HD

For the Respondents MR NIGEL GRIFFIN

(of Counsel)

Messrs Grossman Hermer Seligman

Solicitors

7-8 Park Place

Carfiff


 


JUDGE CLARK: This is an appeal by the applicant, Miss Heather Rees, against a decision of the Cardiff Industrial Tribunal entered on the register on 30th October 1992 dismissing her complaint of direct discrimination contrary to the Sex Discrimination Act 1975 [the 1975 Act]. Her complaint of unfair dismissal by her former employers, Apollo Watch Repairs PLC, was upheld.

The factual background, as found by the Industrial Tribunal, is that the appellant commenced employment with the respondent on 19th September 1988. She worked as a private secretary to Mr Julian Pollock who was initially the Marketing Director and later the Joint Managing Director and Marketing Director.

In March 1990 Miss Rees discovered that she was pregnant. She left on maternity leave on 28th September 1990. She believed that she would be returning to work in February 1991, but the tribunal found that there was no firm agreement that Mr Pollock would keep her job open for her. During her absence from 28th September 1990 a replacement, Mrs Catherine Turner was engaged. The tribunal accepted that Mr Pollock found Mrs Turner more competent and efficient than Mrs Rees. Equally, no complaints had been made about Miss Rees' attendance or time-keeping before she left on maternity leave, nor had she received any warnings about the quality of her work.

Her child was born on 25th November 1990. She then received a letter from Mr Pollock dated 7th December 1990 in these terms:

"Firstly, my congratulations on the birth of your son. You must be very pleased. I am writing with regard to your possibility of returning to Apollo. When you left we discussed the options open to you. Unfortunately, I am no longer able to guarantee that you are able to return. As I am sure you will appreciate circumstances do change, and I am sorry that I am unable to keep the job for you. I would like to take this opportunity of wishing you and your family the very best of luck in the future.

Regards

Julian Pollock"

The tribunal found that her employment was terminated upon receipt of that letter. She was dismissed.

He complaints of unfair dismissal and sex discrimination were heard by the tribunal on 30th and 31st October 1991. At that time the judgment of the Court of Appeal in Webb v EMO Cargo (UK) Ltd (Webb) was expected shortly. The tribunal reserved its decision until after that judgment became available. There was then a delay pending written submissions by the parties being lodged with the tribunal in September 1992. The tribunal's reserved decision is dated 30th October 1992.

Unfair Dismissal

The first question for the tribunal was what was the reason or principal reason for dismissal. It reminded itself that if the reason or principal reason was that set out in Section 60(1) of the Employment Protection (Consolidation) Act 1978 [the 1978 Act], namely that she is pregnant or any other reason connected with her pregnancy, then the dismissal was automatically unfair. The tribunal expressed themselves in paragraph 6 of their decision in this way:

"Mr Pollock has explained to us the reason why he decided to take this action (such action in our opinion amounting to dismissal). We believe him. We think he is witness of truth. In our view he did not dismiss because Miss Rees was pregnant. He did not dismiss because she was on that account to be away from work. He dismissed because (a) he believed - honestly - that Miss Rees had no contractual right to return and he was free to dispense with her services; and (b) he had found a replacement whom he personally found to be more efficient and acceptable."

Without categorising either of those reasons as falling within Section 60 or Section 57 (1) or (2) of the 1978 Act, nor making a finding as to which was the principal reason for dismissal, the tribunal went on to consider the question of reasonableness under Section 57(3), deciding that question in favour of the appellant. Accordingly the dismissal was unfair and the tribunal made no finding in relation to Section 60 (1).

In this appeal Mr Saini, on behalf of the appellant, sought leave to amend his grounds of appeal to invite us to rule that the reason or principal reason for her dismissal was that contained in Section 60(1). The application was unopposed and we heard argument on the point. Having done so, we have concluded that the point is academic in this case, the tribunal having found that the dismissal was unfair, and we do not consider it helpful to investigate the relationship between Section 60(1) of 1978 Act and Section 1(1)(a) of the 1975 Act. The sole question here is, did the Industrial Tribunal err in law in concluding that, on the facts as found, the appellant had failed to establish her complaint of direct sex discrimination?

Sex Discrimination

In order to put the tribunal's conclusions into context it is necessary to outline the progress through the courts of Webb v Emo.

WEBB V EMO

1. The primary facts were not in dispute. Mrs Stewart, a clerk employed by EMO discovered that she was pregnant and informed her employers. She was entitled to maternity leave. A replacement was sought, Ms Webb applied, and was recruited, initially to work alongside Mrs Stewart and then to take the latter's place when she left on maternity leave. Ms Webb then discovered that she too was pregnant. She informed the employer. She was told that there was no alternative but to dismiss her. She was then dismissed.
2. The Industrial Tribunal dismissed her complaint of sex discrimination. That decision was upheld by this Appeal Tribunal [1990] ICR 442. The matter then went to the Court of Appeal.
3. This Industrial Tribunal directed itself in accordance with the judgment of the Court of Appeal in Webb [1992] ICR 445. In summary, the Court of Appeal held that Ms Webb had been dismissed because she would have been unable to carry out the task for which she had been engaged, not because of her pregnancy and that she had not been treated less favourably by her employer than it would have treated a man. For the purpose of Section 5(3) of the 1975 Act it was necessary to compare her treatment with that of a hypothetical man whose circumstances were as close as practicable to hers. Carrying out that comparison, there was no discrimination on the grounds of sex.
4. In the House of Lords [1993] ICR 175, a question was referred to the European Court of Justice, namely whether it was sex discrimination contrary to Articles 2(1) and 5(1) of the Equal Treatment Directive (76/207/EEC) for an employer to dismiss a female employee in the circumstances of the Webb case when the employer would similarly have dismissed a male replacement who also required leave of absence for medical or other reasons. The ECJ answered in the affirmative [1994] ICR 771. The Court held that there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy, of performing the task which she was recruited with that of a man similarly incapable for medical or other reasons.
5. Accordingly, on the case returning to the House of Lords [1995] ICR 1021, it was held that Ms Webb's unavailability for work at a time when she was pregnant was a circumstance relevant to her case that could not be present in a man and her complaint of direct sex discrimination must succeed. Her appeal was finally allowed and the matter remitted to an Industrial Tribunal to assess compensation.

In the instant case the tribunal found that Miss Rees was not dismissed simply because she was unavailable for work through pregnancy. It is therefore distinguishable from Webb on its facts. However, Mr Saini submits that by extension where the background to her dismissal is her unavailability for work through pregnancy which leads to the appointment of a replacement whom the employer finds to be more efficient and acceptable than Miss Rees and for this reason she is dismissed, that constitutes direct sex discrimination since but for her pregnancy Mrs Turner would not have been engaged, the comparison between their respective performances would not have been made and Miss Rees would not have been dismissed.

Such an argument was advanced before the Industrial Tribunal and rejected. However, the tribunal did so by reference to the wrong test, namely, whether the employer would have treated a man differently were he in the same position as Miss Rees. Following the decision of the ECJ and the House of Lords in Webb (No.2) no such comparison may properly be made. It follows, in our judgment, that the effective cause of Miss Rees' dismissal was her absence on maternity leave and that is discrimination on the grounds of her sex.

In reaching that conclusion we reject the submission of Mr Giffin that there has been a break in the chain of causation. The immediate cause of her dismissal, as the tribunal found, was that Mr Pollock found Mrs Turner more efficient and acceptable than Miss Rees. That is a "gender neutral" reason in much the same way as the need to find a replacement for an employee herself absent on maternity leave, as in the case of Webb. However, the underlying reason is Miss Rees' absence on maternity leave. Since no comparison may properly be made with a hypothetical male we conclude that this Industrial Tribunal erred in directing itself, quite properly at the time, in accordance with the Court of Appeal decision in Webb.

Finally we are fortified in reaching our conclusion in this case by the policy behind the legislation. The protection afforded to women on maternity leave would be drastically curtailed if an employer was able to defeat a complaint of direct discrimination by a woman who, during such absence, discovers that the employer prefers her replacement, a state of affairs which has arisen solely as a result of her pregnancy and therefore of her sex.

In these circumstances we shall allow the appeal, substitute a finding of unlawful discrimination and remit the matter to a fresh Industrial Tribunal for consideration of remedies.