United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS H GREWAL (of Counsel) Messrs Fawcett & Pattni Solicitors Jerome Chambers 16a Bridge Street Walsall WS1 1EX
For the Respondents	MR JOHN BOWERS QC Messrs Herbert Wilkes Solicitors 41 Church Street Birmingham B3 2RT


 


JUDGE PETER CLARK: The problem facing the division of this Employment Appeal Tribunal presided over by Bell J at a Preliminary Hearing in this case held on 2 March 1998, we infer from the judgement given on that occasion, was the terseness of the Birmingham Industrial Tribunal's extended reasons for dismissing the Appellant's claim of unfair dismissal for reasons connected with pregnancy. Those reasons, promulgated on 31 July 1997, read in toto as follows:

"The applicant was dismissed and the effective date of termination of her contract was 2 April 1997.

The reason for dismissal was absenteeism.

The category of such reason for the purposes of the Act was conduct.

The applicant did not have sufficient service to enable the Tribunal to consider her claim for unfair dismissal.

She also claimed that she was dismissed for reasons connected with her pregnancy.

The applicant was about eight weeks pregnant when she was dismissed for absenteeism. There was no dispute that she first told management of her pregnancy after the decision to dismiss her for absenteeism had been taken. She supports her contention by saying that two fellow workers were aware of it and that Management "must have known" before the disciplinary hearing. Two people involved in the decision gave evidence that they were not aware of her condition and we accept that evidence.

The application is therefore dismissed."

The principal ground of appeal was that the Tribunal:

"...erred in stating that "there was no dispute that the Applicant first told management of her pregnancy after the decision to dismiss her for absenteeism had been taken." The Appellant gave evidence to the Tribunal that she had told Mr Bailey of her pregnancy before he informed her she was dismissed. She also stated this in her form of application IT1."

The second ground of appeal was that the dismissal was in breach of the Respondents' disciplinary procedure; that at the internal appeal stage Mr James, the Respondents' managing director who heard the Appellant's appeal, was aware of her pregnancy, and yet upheld the dismissal in breach of the company's procedure. That matter, it was contended, was not considered by the Industrial Tribunal.

In the circumstances, having considered the pleadings in the case, the matter was allowed to proceed to this full appeal hearing. A direction was given that the Chairman be asked to produce his Notes of Evidence. Although strictly limited to the evidence of the Appellant and Mr Bailey, the production controller responsible for dismissing the Appellant together with Mrs Margaret Seedhouse, the assembly supervisor immediately responsible for the Appellant, we have the complete Notes, together with witness statements of Mr James, Mr Bailey and Mrs Seedhouse which were read to the Industrial Tribunal and formed the main part of their evidence-in- chief.

Background

The Appellant commenced employment with the Respondents, a company manufacturing industrial switch gear on 5 February 1996. The evidence of the Respondents was that from about September 1996 the Appellant had an unacceptable level of absence from work. She admitted most of those absences in evidence. On 14 February 1997 Mr Bailey gave the Appellant a written warning concerning her absences during the previous six months.

In her form IT1 the Appellant states that she was absent from work from 20 March to 2 April 1997. On her return she was asked by Mrs Seedhouse to accompany her to Mr Bailey's office, where she was asked "what was wrong with you this time?" and she replied that she was absent from work with swollen glands and tonsilitis.

It was common ground that during the course of that meeting the Appellant was dismissed and that she told Mr Bailey and Mrs Seedhouse that she was pregnant. The evidence which the Tribunal received as to the order of those events was as follows:

In his witness statement Mr Bailey said:

"As a result of further absences I again saw Miss Cook in the presence of Margaret Seedhouse upon her return to work on the 2nd April 1997. I pointed out to her that she had been warned previously about her days off and I again pointed out to her that such absences caused great difficulties to the continuation of production as it required persons to be moved from one production area to another in order to cover. After hearing explanation I decided that her employment should be terminated forthwith..."

and he gives as his reason, "persistent absences...from September 1996 to April 1997". He adds later:

"It was only towards the end of the meeting that Miss Cook actually told me that she had just found out that she was pregnant. The dismissal was nothing to do with the pregnancy."

In his further evidence-in-chief to the Tribunal he said:

"We decided to dismiss before she told us she was pregnant"

and, in answer to the Industrial Tribunal at the close of his evidence, he said this:

"Decided to dismiss before her pregnancy was advised just before announcement of decision she said she was pregnant."

Mrs Seedhouse said, in her witness statement:

"On the 2nd April I was at the meeting with Mr Bailey and Miss Cook when she was asked why she had again been absent from work. She stated that she had had tonsillitis. She was then questioned by Mr Bailey with regard to her being seen at her mother's house.

She was told that her employment would be terminated and it was at that stage that she stated that she had just found out that she was pregnant."

In answer to the Industrial Tribunal, Mrs Seedhouse said:

"Bailey and I took the decision to dismiss. We had decided to dismiss just before she said she was pregnant."

In evidence-in-chief the Appellant said: "When I said I was pregnant it was right at the end of the meeting".

The dismissal was confirmed by letter from Mr Bailey to the Appellant dated 2 April 1997. The reason given for dismissal was expressed thus:

"The decision was based on your failure to improve on your attendance at work despite the reassurances you made at your disciplinary hearing on the 14th February 1997."

She was informed of her rights of appeal to Mr James. The Appellant appealed by letter dated 4 April. The only reference to her pregnancy was this:

"Then in March I learnt I was pregnant. I made the decision not to tell anyone at work until I was completely sure that everything was fine."

At the appeal hearing held on 10 April the Appellant was represented by a staff committee member, Mrs Ward. Notes were taken by a Mr Patel. Those notes make no mention of the Appellant's pregnancy being raised.

It was Mr James' evidence to the Tribunal that although by that appeal stage he was aware of the Appellant's pregnancy, that had nothing to do with his decision.

The first suggestion that the Appellant's pregnancy may have influenced the decision to dismiss came in the Originating Application, where the Appellant said:

"I told Mr Bailey and Margaret Seedhouse that I was pregnant, and Mr Bailey said that he was sorry. As I was going out of the office Mr Bailey said that he knew of me being pregnant. I think I was penalised for that, and discriminated against it."

She further claimed that before going into the appeal hearing Mrs Ward had said, when they were both alone, that what might go against her was the fact that she was pregnant.

By their Notice of Appearance the Respondents contended that the first management knew of the Appellant's pregnancy was when she announced it to Mr Bailey and Mrs Seedhouse at the dismissal interview on 2 April 1997, and that her dismissal was purely due to her poor attendance.

The Appeal

Ms Grewal, on behalf of the Appellant, submits that the Industrial Tribunal's reasons are defective in failing to make findings of fact as to

(1) Whether the decision to dismiss was made before or after the Appellant informed Mr Bailey and Mrs Seedhouse that she was pregnant and

(2) When the decision to dismiss was made, that is to say, before or during the meeting held on 2 April.

As to the latter point, Mr Bowers no longer contends that there was evidence before the Tribunal that the decision to dismiss was reached before the interview commenced on 2 April, and that is borne out by the extracts from the evidence to which we have referred.

Ms Grewal further submits that it was necessary for the Industrial Tribunal to find the chronological order of the following events, first when the decision to dismiss was made, second when that decision was communicated to the Appellant and third, when she informed Mr Bailey and Mrs Seedhouse of her pregnancy.

Upon a proper analysis of the evidence she submits it would have been open to the Industrial Tribunal to find that the decision was at any rate communicated after the Appellant informed Mr Bailey and Mrs Seedhouse of her pregnancy and then to infer, bearing in mind that the company was in breach of their own disciplinary procedures, that the reason or principal reason for dismissal was pregnancy or a reason connected with it and thus was automatically unfair under the provisions of section 99(1)(a) of the Employment Rights Act 1996.

She further contends that the Tribunal were wrong to find that there was no dispute that the Appellant first told management of her pregnancy after the decision to dismiss her for absenteeism had been taken. She submits that that was a matter that was very much in dispute.

We confess that we are somewhat dismayed by the lack of reasons given by the Industrial Tribunal. None of the background as we have related it is set out. The Industrial Tribunal have effectively gone straight to their conclusions. However, the question is whether those reasons are so inadequate that they fail to comply with the requirements of Rule 10(3) of the Industrial Tribunal Rules of Procedure, or to use the classic test, whether from those reasons the parties may be said not to know why they have won or lost.

We are unable to so conclude. What the Industrial Tribunal explained in their reasons, shortly, was that they accepted the evidence of Mr Bailey and Mrs Seedhouse that the decision to dismiss was reached before the Appellant told them of her pregnancy, and that they had no other knowledge of the pregnancy before she told them. That was really an end of the case. Pregnancy, or a reason connected with it, cannot be the reason for dismissal if it was not known of by the employer when the decision to dismiss was taken. Del Monte Foods Ltd v Mundon [1980] ICR 694. Thus no question of inference arising from the failure to follow the company's disciplinary procedures can arise in these circumstances.

Accordingly we have concluded that there are no grounds in law for interfering with the Industrial Tribunal's decision and, our jurisdiction being limited to correcting errors of law, this appeal must be dismissed. We should only add that fuller reasons by the Industrial Tribunal might have obviated the feeling of dissatisfaction on the part of the Appellant which no doubt led to this appeal.