United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR WARBURTON (Representative)


 


JUDGE PETER CLARK: This is an appeal by the applicant before the Ashford Industrial Tribunal, Ms Worthington, against that tribunal's decision to dismiss her complaint of unlawful sex discrimination and automatically unfair dismissal for a reason relating to her maternity rights. Extended reasons for that decision are dated 30th June 1997.

The facts, so far as are material to the appeal, are these. The appellant commenced employment with the respondent, or its predecessor, in March 1987 as secretary to the managing director. In October 1989 she commenced training as a surveyor with a view to obtaining the ARICS qualification.

In Summer 1994 she became pregnant. She notified the respondent of that fact in July. It was arranged that maternity leave would begin in December 1994. On 5th February 1995 her son, George, was born. She intended to return to work at the end of August 1995. On 8th August she was called in to see Mr Fuller of personnel and, without prior consultation, was handed a letter of dismissal by reason of redundancy to take effect on 29th August 1995. She was paid until the end of the year.

It was the appellant's case before the Industrial Tribunal that the reason advanced by the respondent for dismissal, namely redundancy, was a sham. The selection process described by the respondent's witnesses as being based on a points matrix, was in fact completely subjective. The real reason for dismissal was connected with her pregnancy in that it was designed to preclude her from returning to work at the end of her maternity leave. It was therefore automatically unfair and in breach of the Sex Discrimination Act.

The tribunal rejected that case on the facts. It found that there was a genuine redundancy situation. The appellant had been properly selected for dismissal by reason of redundancy. It had nothing to do with her absence through pregnancy. the birth of her child nor her maternity leave. There was no alternative employment available for her within the meaning of the s. 81 of the Employment Rights Act 1996. The tribunal refused to draw an inference of sex discrimination, having been referred to Webb v EMO [1995] IRLR 645 and Rees v Appollo Watch Repairs PLC [1996] ICR 466. The only criticism made of the respondent, which was conceded, was the lack of consultation prior to dismissal. On that ground alone the tribunal found the dismissal to be unfair under s. 98(4) of the Employment Rights Act.

In this appeal Mr Warburton submits that the tribunal erred in finding that there was no direct discrimination in circumstances where the appellant was deprived of her right to return to work by a dismissal on grounds of redundancy when alternative work, performed by a temporary member of staff, Mr Watts, was available until 25th December 1995. Further, the appellant had suffered loss by reason of the fact that she needed the period 29th August - 25th December 1995 in order to complete her diaries for the purpose of qualifying as a surveyor.

We reject this argument. The tribunal found that the appellant was genuinely dismissed by reason of redundancy, not on account of her pregnancy. That is a finding of fact with which we cannot interfere.

As to the opportunity to complete her diaries, we bear in mind the tribunal's factual finding at paragraph 18(3) of their reasons, that they were not satisfied that the appellant had not received her diary from RICS until July 1994. The tribunal were satisfied that the respondent had acted without discriminating unlawfully by paying the appellant until the end of 1995.

In these circumstances, we take the view that this appeal raises no arguable point of law. The Industrial Tribunal decision must stand. The appeal is dismissed.