United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE LINDSAY: We have before us a Preliminary Hearing in relation to the appeal of Miss M E Bruton in proceedings Bruton v Bethell & Parker (Motors) Ltd. There had been a one day hearing at Hereford under the Chairmanship of Mr B Lloyd on 14 July 1997 that led to Extended Reasons being promulgated on 6 August. The conclusion of that Industrial Tribunal was as follows:

"The unanimous decision of the tribunal is that the applicant fails to establish discrimination under the Sex Discrimination Act 1975 and also fails in her claim for unfair dismissal within the terms of Section 99 of the Employment Rights Act 1996."

Miss Bruton's appeal had for some period been conducted on her behalf by Shawcross & Co. Solicitors, of Ross-on-Wye, but there is now before the Industrial Tribunal a letter of 14 November received on 18 November from that firm indicating that they would not be appearing at this hearing and it went on "we do not know whether the Appellant herself intends to appear at the hearing or whether another firm will be instructed." In the event, no-one has appeared on Miss Bruton's behalf. It was listed to come on at 10.30 a.m. it is now 12.12 p.m. No contact has been made with Miss Bruton. We have had no message by telephone, fax, or in any other way suggesting that she is coming but is in difficulties on the journey, or anything of that order and so we must assume that, Shawcross & Co having dropped out, she has elected neither to replace them nor to attend on her own part.

The Respondent company, Bethell & Parker, ran a BP filling station. So far as concerns the conclusions of the Industrial Tribunal they said in their paragraph 2 as follows:

"The applicant worked the night shift on Wednesdays, Thursdays and Fridays. The respondent operates guidelines for security during night-time operations. We find that those guidelines were made clear to the applicant upon taking her employment in October 1996. They are that the premises shall be closed to the public from 11 pm at night and that all business after that time shall be conducted through the security panel in the station's shop premises. We find that the applicant was well aware of these rules but that despite her knowledge, she admitted unauthorised persons to the premises on at least three occasions. On 4 December 1996, January 1997 and 15 February 1997."

Evidence was given as to what had happened on each of those three dates and she was dismissed on 25 February 1997.

The Industrial Tribunal identified the question which was before them; at the beginning of their paragraph 5, they said this:

"The issue which this Tribunal has to consider is as follows. What was the principal reason for the applicant's dismissal on 18 February following a disciplinary interview?".....

The question was in particular was whether the principal reason, if there was more than one, was the Applicant's pregnancy. On that subject they directed themselves by referring to a number of sections and they concluded:

5. ..... We find that the principal reason for dismissal was the applicant's poor performance of her duties and her lack of regard for the policy and practice concerning security which had been laid down by the respondent and the franchisor, the BP organisation."

A number of defences were raised by Miss Bruton. She had raised the question of a need to provide extra cover when she was unwell. As to that, the Industrial Tribunal had that in mind, but nonetheless concluded that the principal reason was job performance and lapses in security. They say that in their paragraph 7.

As for her pregnancy, it was held that it would have come to the Respondent's notice before the end of January 1997. The Industrial Tribunal on that point said a view as to the Applicant's suitability had been formed by the Respondent in the early part of that month, quite independently of any knowledge of the Applicant's pregnancy. The Industrial Tribunal rather hammered that point home in their paragraph 9:

"We cannot accept that the applicant's evidence that she was dismissed because she was pregnant. We are reinforced in that finding by the fact that no representation was made by the applicant at the interview on 18 February concerning her pregnancy or any allegation that her dismissal was because of that pregnancy. Further there is no evidence that at the subsequent internal appeal hearing held by Mr Bruce of BP there was any representation made by the applicant concerning discriminatory conduct."

10. ..... We accept the respondent's evidence that its decision had been made on the basis of the employee's suitability based upon the applicant's conduct of her duties from about December 1996 to February 1997."

Apparently, and this was raised by Miss Bruton, there had been a job advertisement of her job in a local paper on 10 February 1997. That plainly was a matter that required to be considered by the Industrial Tribunal. They expressly dealt with that point in their paragraph 11. They held that:

"The applicant has called evidence that her job had been advertised in The Hereford Employment Centre on 10 February 1997. We find that had no connection with her pregnancy. A preliminary assessment of the applicant having been made in the early part of January 1997 plans had been laid to find a replacement. Mrs Parker sustained an accident on 1 February which interrupted those plans. [Mrs Parker was one of the Director's of the Respondent company.] This was one of the first matters that she attended to after her resumption of working. We accept that the purpose of advertising was at that stage not with a view to the dismissal of the applicant but rather to identify a suitable replacement if one was to be needed.

12. The tribunal find that there is no causative link between the applicant's dismissal and her pregnancy. The applicant's claim on both grounds fails and is dismissed."

We have the Notice of Appeal of 16 September 1997, which I think is the very last day of the six week period that is allowed for appeals. The Industrial Tribunal had referred itself to Section 99 of the Employment Rights Act 1996 which is headed "Pregnancy and Childbirth". They had referred themselves to Sections 1(1)(a) and 6(2)(b) of the Sex Discrimination Act 1975. They had referred themselves to the well-known case of Webb v Emo [1993] IRLR 645.

There is a complaint by Miss Bruton that they had failed to look at the EEC Directive 92/85. But that Directive is embodied in Section 99, so far as is relevant, and Section 99 had been referred to, so there is nothing in that complaint.

The Industrial Tribunal correctly looked to see what was the only or principal reason and they held that the principal reason for the Applicant's dismissal was unrelated to her pregnancy. That was a conclusion to which they were able to come on the facts and, looking to see if we can detect any error of law in that, we find none and accordingly we dismiss the appeal.