United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR G PRICHARD (of Counsel) Messrs Andrew Maynard & Co Solicitors 11 Manvers Street Bath BA1 1JQ
For the Respondent	MR D TATTON BROWN (of Counsel) Messrs Stone King & Wardle Solicitors 13 Queen Square Bath BA1 2HJ


 


MR JUSTICE KEENE: This is an employer's appeal against a decision of an Industrial Tribunal that the Respondent, as she now is, was dismissed for a reason connected with her pregnancy and that such dismissal was accordingly unfair.

The Respondent had been employed by the Appellant as a sales order clerk and a VDU operator since 3 May 1994. She was dismissed on 12 March 1996, so she had had at that stage only 22 months employment with the Appellant and not the two years normally required for a claim of unfair dismissal to be brought. However, she alleged that she had been dismissed for an inadmissible reason in which case, of course, the two years' qualifying period is not required. She complained that she had been unfairly dismissed for a reason connected with her pregnancy on 12 March 1996, after she had informed the Appellant of that pregnancy.

The company admitted the dismissal but denied that its decision to dismiss, which it said was taken on 5 March 1996, was related to her pregnancy and indeed it gave evidence that the decision was made before the company had any knowledge of such pregnancy.

There was conflicting evidence about whether or not the Accounts Manager of the Appellant company, Mr George Jones, was told by the Respondent about her pregnancy before her dismissal. She knew of it by the end of February 1996. A doctor's certificate on the stated ground of "depression" was issued by her doctor for one week on 26 February 1996 and sent to the Appellant. A further certificate in similar terms for another week's absence from work was provided by her doctor on 4 March 1996 and again was sent to the Appellant.

The Appellant wrote a letter dated 5 March 1996 dismissing her and that letter was delivered by hand on 6 March by Mr Jones. He agreed that he was then informed by the Respondent of her pregnancy during the conversation which took place immediately after his delivery of the letter.

The Industrial Tribunal did not make an express finding as to when Mr Jones or anyone else on behalf of the Appellant company first knew of the pregnancy, but it seems to be implicit in the decision that the company did not know of her pregnancy at the date when the dismissal letter was written or at the time when it was handed to the Respondent. We say that with some hesitation, but we say it because the Tribunal seems to have accepted a statement by Mr Jones at paragraph 18 of the decision where the Tribunal says this, and we quote:

"18 Mr Jones fairly told us that if he had known that the applicant was pregnant she would not have been dismissed. In view of his earlier enquiry in that respect and the respondent's disciplinary procedure which provides for investigation and formal interview there is no doubt that the respondent should have been able to establish that the reason for the applicant's absence was her pregnancy."

Nonetheless, it is right that there are a number of references in the summary of the evidence to attempts at least having been made to inform the company of her pregnancy. The basis for the Tribunal's decision appears in paragraph 17 which we quote in full:

"17 We are satisfied that the applicant was not dismissed solely because she was pregnant but are unanimous in our decision that her dismissal, which was not in any way in accordance with the respondent's disciplinary procedures, was connected with her pregnancy in that it was a dismissal whilst she was on certificated sick leave for depression caused by her pregnancy. To have acted fairly the respondent should have investigated the reason for her absence and depression and been satisfied that she was not pregnant and was either wilfully absenting herself or incapable of sustained employment."

In other words, the Tribunal seems to have decided that the reason for dismissal was "connected with her pregnancy" because she was dismissed because of an absence from work which was, in fact, the result of her pregnancy, even though this was or may have been unknown to the Appellant. The Appellant's IT3 had stated that the reason for dismissal was "Numerous Absences". To some extent it may seem from the passage which we have quoted from the decision that the Tribunal was importing a doctrine of constructive knowledge into this area of the law on the part of the employer.

The relevant statutory provision being interpreted by the Tribunal was, at that time, Section 60(1) of the Employment Protection (Consolidation) Act 1978, which is now Section 99(1)(a) of the Employment Rights Act 1996. The subsection in the 1978 Act read as follows:

"(1) An employee shall be treated for the purposes of this Part as unfairly dismissed if the reason or principal reason for her dismissal is that she is pregnant or is any other reason connected with her pregnancy ..."

We need not read further for present purposes.

Neither party contends that the provision which now appears in the 1996 Act has in any way altered the force or meaning of the earlier statutory provision. The Appellant submits that a reason for dismissal can only be pregnancy or connected with her pregnancy if the employer is aware of that pregnancy. In essence, it is said that the employer must either know, or at least believe, that the employee is pregnant. In support of that proposition Mr Prichard relies on the decision in Del Monte Foods Ltd v Mundon [1980] ICR 694, a decision of this Appeal Tribunal.

It is further argued on behalf of the Appellant that the Tribunal's decision at the very least fails to provide clear and adequate reasons on the issue of whether the Appellant knew or did not know of the pregnancy at the time when she was dismissed. But the main criticism advanced is the one to which we have already referred and it is put by Mr Prichard on the basis that, in essence, the Tribunal confused the reason for the dismissal with the cause of the dismissal. He submits that a reason is, as it was put in the case of Abernethy v Mott Hay, and Anderson [1974] IRLR 213, a "set of facts known to the employer or it may be beliefs held by him". That is a proposition which has subsequently been given approval in the House of Lords in W. Devis & Sons Ltd v Atkins [1977] AC 931. So, Mr Prichard submits, a subjective element is indispensable to a reason for dismissal.

On behalf of the Respondent, Mr Tatton Brown argues that, while the employer must know of the pregnancy if the reason for dismissal is simply her pregnancy, there is no such requirement of knowledge or indeed belief, if the reason for the dismissal is simply a reason connected with her pregnancy. It is argued that there is nothing in the wording of the section which requires that element of knowledge or belief, and reliance is placed, on behalf of the Respondent, on a passage from the decision by the House of Lords in Brown v Stockton-on-Tees Borough Council [1988] ICR 410, where Lord Griffiths said that the provision in the 1978 Act in Section 60 should be "seen as part of social legislation passed for the specific protection of women and to put them on an equal footing with men."

Mr Tatton Brown seeks to distinguish the Del Monte Foods decision or at least to reduce its authority on three bases. First of all, he says that the case was concerned there with pregnancy and that that was the reason for dismissal, in contrast to the present case where the reason for dismissal was found to be one connected with pregnancy. Moreover, it is said that in that particular case, there was no evidence that the absences of the employee were, in fact, linked with pregnancy and so the issue of knowledge or absence of knowledge would not have been at the forefront of the Appeal Tribunal's mind.

Secondly, it said that that was a decision which is not binding upon this Appeal Tribunal because it is a decision only of this Appeal Tribunal itself. Lastly, in connection with the Stockton-on-Tees case, Mr Tatton Brown argues that that decision of the House of Lords has in effect changed the law in a way which could lead to the Del Monte Foods case being decided differently today.

In addition to those arguments about the construction of Section 60(1) a further argument is advanced on behalf of the Respondent to the effect that the Respondent's employment only terminated on 12 March 1996 or indeed subsequently, and that by then the company knew of her pregnancy. In short, it is said that by the expiry of the period of notice the employer knew that she was pregnant, and it is submitted that that is enough to satisfy the terms of Section 60(1). It is contended that the employer's subsequent knowledge of the connection between the absences from work and the pregnancy suffices. To support that argument reliance is placed upon the recent Court of Appeal decision in the case of Parkinson v March Consulting Limited, unreported, but of which we have seen a transcript of the decision dated 12 December 1996.

There are, in essence, two main issues raised by this appeal. The first is, whether an employer dismisses for a reason "connected with pregnancy" when the employer does not know of the pregnancy and does not believe that the employee is pregnant. In Del Monte Foods Ltd, to which we have referred earlier, this Appeal Tribunal presided over by Slynn J, as he then was, said at page 697 and we quote:

"It must be shown in this case that the dismissal was because of the pregnancy or for another reason connected with the pregnancy. If this section is relied on, it seems to us essential that it be shown that the employers knew or believed that the woman was pregnant or that they were dismissing her for a reason connected with her pregnancy. If they do not know of the pregnancy, or do not believe that the pregnancy exists, it does not seem to us that it is possible for the employers to have as their reason for dismissal that the woman was pregnant. In a case where it is said that the reason for the dismissal is another reason connected with her pregnancy, not the pregnancy itself, it seems to us that the employers have to know the facts alleged by the employee as grounding the reason and also to know or believe that those facts relied upon are connected with the woman's pregnancy."

That decision accorded with a number of other decisions dealing with the concept of a reason for dismissal, decisions which stress that the employer's reason for dismissal is something known to him at the time of the decision. That was the approach adopted in the well known House of Lords case of W. Devis & Sons Ltd v Atkins (ante) and, indeed, in the Abernethy case (ante).

In so far as the Respondent now seeks to distinguish or diminish the authority of the Del Monte Foods case, we say straightaway that we find those arguments unpersuasive. While it may be that in that particular case the reason was one of pregnancy rather than simply a reason connected with pregnancy, the statement of principle to which we have referred and which we have quoted earlier in this judgment is a very clear statement of principle by a strong Appeal Tribunal. It was dealing specifically not only with the case of pregnancy, but also with the case where the reason given is one connected with pregnancy.

While this Appeal Tribunal is not bound by that decision, it is, as has been acknowledged by Mr Tatton Brown, a decision which we will treat as persuasive authority and we do that. Lastly, on the Del Monte Foods decision we cannot see that its authority has been weakened by the proposition from the Stockton-on-Tees case to which we have referred. That proposition about the objective of the legislation does not to our mind in any way undermine the Del Monte Foods decision. To adopt the approach urged upon us by the Respondent, which is to disregard entirely the presence or absence of any knowledge or belief on the part of the employer and simply to see whether in fact the reason for dismissal was one which could subsequently be seen to have been connected with pregnancy, would put an employer in a very difficult position. If he were held to have dismissed an employee with automatic unfairness, when he dismisses for prolonged absenteeism, even when he does not know or believe that she is pregnant, it would mean that any employer who was dismissing bona fide for absenteeism would always be at risk of it being subsequently shown that those periods of absence were connected with her pregnancy. That seems to us to run counter to the many decisions which stress the importance of the subjective element in the identified reason for dismissal.

We can therefore see no reason to regard the Del Monte Foods decision as wrongly decided or as overtaken by subsequent legal events. In so far, therefore, as the Tribunal below proceeded on the basis that the employer did not have to know of the pregnancy, it was in our view wrong in law. We put the proposition that way because we are bound to say that we find the Tribunal's decision obscure on this issue of whether or not the employer knew or believed in the pregnancy. At the very lowest, that decision seems to us to be one which fails to give clear reasons on this critical matter. That was a vital issue and, because the Tribunal did not express clearly a finding on a matter of such importance, this decision would, in any event, have to go back to the Industrial Tribunal on that footing, unless we were to be persuaded by the other argument, raised particularly by Mr Tatton Brown's submissions. It is to that finally that we now turn.

That raises the issue of whether knowledge by the company of the pregnancy before the notice of dismissal took effect would satisfy Section 60(1) or its recent re-enactment in Section 99 of the Employment Rights Act 1996.

We have set out the argument already which is advanced on behalf of the Respondent. The basic position in law is that the reason for dismissal is the one which operated on the employer's mind at the time when the decision was made to dismiss. That follows from the case of Devis v Atkins to which we have earlier referred and it can also be seen in the decision of Monie v Coral Racing Ltd[1980] IRLR 464.

Substantial reliance is placed in this connection by the Respondent on the Court of Appeal decision in the Parkinson case to which we have referred earlier. We note that that was a case where, at the top of page 14 of the transcript, Evans LJ, giving the majority decision of the Court of Appeal said:

" ... If the reason was unjustified at that time, [and we interpolate that that was the time at which the notice took effect] then it was immaterial that justification may have existed when the notice was given."

That decision seems to us to be focusing, not on what the reason actually was for dismissing the employee, but on the justification for the reason and on the fairness of it. In that connection it may be appropriate, in certain circumstances, to look at events occurring between the giving of notice of dismissal and the date when the notice takes effect. But that decision, as we understand it, was not dealing with the identification of the reason or reasons for dismissal. In particular, the Parkinson case turned on the fact that the Court of Appeal there found that the reason given by the employer at the time when notice was given was not the true reason. But it was not dealing with the problem of identifying the reason for dismissal at the time of the notice. It was indeed part of its decision that, having identified the reason for dismissal, that reason might even then be shown to be unjustified by subsequent events.

In the present case we are concerned with identifying what was the reason for the dismissal. In particular, the question which has to be asked is: was the reason why the employer decided to dismiss one which was "connected with pregnancy?". That does not leave room for attributing to the employer knowledge subsequently acquired in such a way that one would change the nature of the reason for dismissal from being one unconnected with pregnancy to being one which was so connected. To do that seems to us to be a wholly unjustified restrospective action. We cannot see that such subsequently acquired knowledge or belief can convert the reason why the decision was made to dismiss into one connected with pregnancy when it was not so connected at the time when the decision was taken.

We do not find therefore that there is any way in which the Tribunal's decision could be upheld on that basis, although we should add that it does not seem to us that that was, in any event, the basis for the Tribunal's decision.

In all the circumstances, for the reasons which we have given, this appeal must be allowed and the matter must be remitted to the Industrial Tribunal for it to be reconsidered. We also take the view that the remission should be to a differently constituted Industrial Tribunal.