United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS R CRASNOW (of Counsel) Mr P De Haney Chesterfield Law Centre 44 Park Road Chesterfield S40 1XZ
For the Respondents	MISS D DAVIES (of Counsel) Messrs Kelly & Anderson Solicitors 71 Saltergate Chesterfield S40 1JS


 


MR JUSTICE MORISON (PRESIDENT): The conclusion of the Industrial Tribunal in this case was that the appellant/applicant had not been unfairly or unlawfully dismissed by her former employers.

The employers run a cheese and sandwich shop at Chesterfield Market. It is a family run business started by Simon Davidson's father. At the relevant time, he was assisted by a Mrs Cindrey, designated Assistant Manager, and one full-time employee and four part-timers. The tribunal said this:

"4. ... we find that the business was run on a family basis and all employees were friends who worked under the "motherly" influence of Mrs Cindrey."

Mrs Cindrey decided to resign in February 1996 and the Davidson family started to look for her replacement.

In due time, they hired Mrs Woodger, the applicant/appellant. She had what the tribunal described as "impressive experience in retail sales". She had worked in the Chatsworth Farm Shop; had attended courses in food hygiene and obtained a Diploma in Cheese and Milk Biology. After leaving Chatsworth, she worked for about three years in the hotel trade. Two years before she was actually recruited by the respondents, she had sought to work for them. She was related was to one of the part-timers. Therefore, when the family firm sought a replacement for Mrs Cindrey they had the applicant/appellant's name on their books and they contacted her. She was interviewed by Simon Davidson and offered, initially, a job as sales assistant on the basis that in due course she would be promoted to a supervisory role. In paragraph 7 of their decision the tribunal said this:

"7. Unfortunately the applicant did not settle into her new job in the way that had been hoped. She did not get on with the other staff and her approach was more abrasive and technical than they were accustomed to expect. The applicant also took a more rigid line on matters of hygiene and she did not seem interested in the personal nature of the customer relationships. It seems to us that she was adopting a "big store" approach when a "market stall" attitude would have been more appropriate."

During Simon Davidson's week's holiday in early June, his father returned to the shop and formed the view that the applicant was unsuitable and "he had voiced that opinion to his son". Although the precise date of this event is not clear, it would seem that the conversation must have taken place by the middle of June. The father had approached a former employee to see if she would be interested in returning to replace the applicant/appellant.

About the same time, that is the middle of June, Simon Davidson spoke to the applicant/appellant about his concerns as to her performance. The tribunal said this:

"9. ... He told her that she was not progressing as well as he had hoped and that she was causing some problems with the other staff. He told her that she did not appear to be "switched on" to the particular needs of the family business."

On 24th June 1996 Mr Simon Davidson's father was taken ill. At some time between that date and 10th July, having concluded that the applicant/appellant was no real help to him on the managerial side of the business "he decided that the applicant would have to go." On 10th July 1996 Simon Davidson consulted with his accountant about the firms legal obligations, and was advised that as she had less than two years service the respondents were only obliged to give statutory notice. "On receipt of this advice Simon Davidson made his own enquiries in an effort to find a suitable replacement for the applicant."

As we read the decision, it seems clear that on or about 10th July the respondents had decided to dismiss the applicant and to replace her. The reason for the dismissal related to their perception of her performance as an employee and had nothing to do with her gender.

In the following week there was an incident involving the lifting of heavy cheese, and on that occasion Mrs Woodger told Mr Simon Davidson that she thought she might be pregnant and wanted the following Monday off to go to the hospital.

The tribunal then found as follows:

"11. Simon Davidson was worried by this news. He thought that it might prevent him from dismissing the applicant. He asked Mr Howell [the accountant] for further advice and Mr Howell told him that as he was dismissing the applicant because she was unsuitable he was entitled to do so regardless of her pregnancy. On Tuesday 23 July Simon Davidson asked the applicant to wait until the other assistants had left the shop. He then told her that as she was unsuitable for the job he was giving her a week's notice. After a short discussion the applicant left the respondents' employment. About 10 days later the applicant wrote to the respondents ..."

They then refer to an exchange of correspondence which does not need to be set out in this judgment.

In paragraph 12 the Industrial Tribunal refer to s.99 of the Employment Rights Act 1996, which relevantly reads as follows:

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-

(a) the reason (or, if more than one, the principal reason) for the dismissal is that she is pregnant or any other reason connected with her pregnancy."

The tribunal then continued as follows:

"13. We have to say that at a superficial level the fact that the applicant was dismissed less than a week after disclosing her pregnancy suggests that that was the reason. However, having heard the impressive evidence of Mrs Gridlow, Mrs Cindrey and Mr Howell we have no doubt that the superficial view would be wrong. We find unanimously that the respondents were dissatisfied with the applicant's performance and that they had reached the conclusion that she was unsuitable for their needs. We accept that by 10 July Simon Davidson had decided that his father was right and that the applicant would have to go. We think that he delayed announcing his decision while he made enquiries about a replacement. We think that the applicant's pregnancy may have precipitated the final decision but we note that it coincided with the availability of an experienced sales assistant who was offered work in the applicant's place.

14. We have come to the unanimous conclusion that the reason for the applicant's dismissal was the fact that the respondents had decided that she was unsuitable for the job. We do not think that the applicant's pregnancy played any part in the decision to dismiss and we think that this was a case where despite the pregnancy the respondents proceeded with the dismissal."

The applicant appealed against the tribunal's decision and the matter came before a panel of the Employment Appeal Tribunal on 21st July 1997, when she was permitted to argue at a preliminary hearing two points of law, namely that:

(1) The tribunal erred in law in that they failed to consider or apply the affect of recent case law on the question of causation and, in particular, the decision of this Court in O'Neill v Governors of St Thomas More RCVA Upper School [1996] IRLR 372; and

(2) the conclusion of the Industrial Tribunal, that the applicant was not discriminated against on the grounds of sex, was perverse, having regard to the finding of fact at paragraph 13 that the appellant's pregnancy may have precipitated the final decision.

For the purposes of this appeal, it is common ground that the Industrial Tribunal did not refer to the O'Neill decision and that that authority is the governing authority on the issue of causation in a case such as this. The relevant passages are to found at paragraphs 39, 40 and 56 of the report:

"39 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 subject mental processes of the respondents, ie 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 the relevant question is:

'Would the applicant have received the same treatment but for her sex?'

See James v Eastleigh Borough Council [1990] IRLR 288 at paragraphs 11, 30 and 39.

40 (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 v Eagle Star Insurance Co Ltd [1995] 2 WLR 607 at 62011-621E. 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. The relevant principles are these:

(i) The tribunal's approach to the question of causation should be

'... simple, pragmatic and commonsensical.'

(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 complex of facts before the tribunal, is the 'effective and predominant cause' or the 'real and 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 of 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' (p.621C).

56 The result

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

(1) Our conclusions do not mean that every women 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 1975 Act. It would be on some other ground."

It seems to us that there is in reality only one point, which is whether the tribunal have erred in law in their approach to causation, and that that question, in turn, really centres on what interpretation should be put upon the two paragraphs of the decision to which our attention has been drawn during the course of argument.

We pay tribute to the quality of the arguments which have been presented to us on either side in this appeal; they have been shortly and succinctly presented in a helpful way.

It is rightly stressed in argument that if gender or sex is an effective cause, even if not the only cause, then liability is established. It is also obviously common ground that the dismissal of a woman because she is pregnant amounts to direct discrimination on the grounds of sex.

It is submitted to us in amplification of the points of appeal, that the Industrial Tribunal have confused the question of causation; that they have made a finding that the applicant's pregnancy may have precipitated the final decision, without in a sense, carrying that through into their final analysis as to whether pregnancy was an effective cause of the dismissal.

It is pointed out in a submission on behalf of the applicant, that the tribunal may have confused the evidence as to the availability of an experienced sales assistant and the coincidence that they noted with that availability and the timing of the communication of the decision to dismiss.

On the other hand, we have had a compelling submission that the tribunal did not in paragraph 13 make any finding that pregnancy did precipitate the final decision. The word "may" is significant it is submitted; and, as to the factual background as to the availability of replacement staff, we have had various points in the evidence drawn to our attention.

Against that background we can state our conclusions relatively shortly.

We can see the force of the point that there appears at first sight to be some conflict between paragraphs 13 and 14. But despite that, we are persuaded that there is no such conflict and that its overall meaning is relatively clear. We bear in mind in our approach very much that it would be correct to adopt what we will call a reasonably generous approach, a reasonably wide margin of appreciation to the tribunal decision and its interpretation. This approach is sometimes expressed negatively as a refusal on the part of the Employment Appeal Tribunal to construe Industrial Tribunal decisions as statutes, or through the eyes of a pedantic conveyancing lawyer.

On this approach, it is clear, we think, that the tribunal were and must have been making a finding that pregnancy played no part in the decision to dismiss. There was ample evidence upon which they were entitled to reach that conclusion. As we understand the facts, the decision had been made before Simon Davidson had discovered that the applicant was pregnant. He was concerned about the effect of her pregnancy on the decision he had arrived at and he then implemented the decision. If the dismissal had been implemented between 10th and 17th July there could have been no successful claim. We consider that that stark observation may be one lesson which the respondents can learn from the facts of this case. It seems to us that common decency and fairness requires that where an employer has decided that an employee should be dismissed, he should communicate that fact to the person concerned as soon as possible. He owes it to his staff to behave in that way, even if the consequences may be that there is going to be a gap between the dismissal and the opportunity to recruit a new employee. To that extent, we consider that the respondents have brought this case largely on their own heads by failing to behave in that way.

As we understand what has happened in this case, the implementation of the decision to dismiss was postponed by the employers for their own reasons, so that they could see if they could secure in advance of the dismissal a suitable replacement for their small business.

We, like the Industrial Tribunal, speculate that the pregnancy may have influenced the timing of the decision to dismiss, but we are persuaded by Counsel's argument on behalf of the employers, that in paragraph 13 the tribunal were not finding that the applicant's did precipitate the final decision. They were expressing, as we read that paragraph, a thought that that might have been behind it. Read in that way, we do not see any conflict between the two paragraphs of the decision. We consider that paragraph 14 is the real decision in this case which rejects completely the suggestion in its entirety that the applicant's pregnancy played any part in the dismissal.

The question therefore that is raised in this appeal can be answered in this way. The Industrial Tribunal did not err in law in their approach to the question of causation. Although they did not refer to the case of O'Neill, we would not be willing to make any assumption that they were unaware of it. It was reported in the July volume of the IRLR, and would have been readily available in this region to all Chairmen who sit in the tribunals. We deplore any suggestion, which was not made in this case, that a failure to mention an authority is some kind of indication that it has not been considered.

Secondly, we do not accept the submission that the conclusion which was arrived at in paragraph 14 was in any way perverse or corrupted by what had been said in paragraph 13 for the reasons we have shortly tried to explain.

Accordingly, despite the able submissions which have been made to us on her behalf, it is our view that this appeal should be dismissed.