United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR L VAN TIL Solicitor MESSRS GUY CLAPHAM & CO Solicitors 51-55 Weymouth Street London W1N 3LF


 


THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Stafford Knight Life Assurance Brokers Limited wish to make against a decision of an Industrial Tribunal given at London (South) following a hearing on 18 August 1998. The written reasons for the Tribunal's decision was entered into the register and sent to the parties on 1 September 1998. By their decision, they awarded the Applicant £9,000 on the grounds of unlawful discrimination on the grounds of her sex. We can take the facts shortly from the Industrial Tribunal decision.

The Applicant was employed by the Appellants as Secretary Office Administrator from April 1997 until around January 8 1998. She informed her immediate supervisor in October/November 1997 that she was pregnant. She was dismissed on 8 December 1997 after her supervisor, Mike Cass, had been informed of the pregnancy 3 days earlier.

The company was in difficulties because it ceased to be approved by the PIA (Personal Investment Authority) to renew its membership and to permit it to offer insurance services. At the time, there were 6 qualified financial advisers employed by the Appellant, who transferred to two other firms of insurance brokers. The Applicant was the only other employee. She has been told that she would be transferring to another entity and expected to do so. She was subsequently offered and accepted, I think, limited employment with that entity, but there was evidence before the Industrial Tribunal to the effect that the other transferee of the Appellant's business, Beckett Financial Services Group Limited, were prepared to take the Applicant on with continuity and on substantially the same terms of employment as any of the other employees who wished to transfer to it, and that the reason why that company did not employ the Applicant was because Mr Cass had informed the transferee that the Applicant would be remaining in its employment. In other words, having prevented the Applicant from moving across to the transferee, the Applicant contended that she had then been dismissed without the opportunity of continuing her employment.

At the hearing before the Industrial Tribunal, the Respondents did not attend nor were they represented. Having concluded that the burden of proof had been discharged by the Applicant, they calculated her losses, on the basis as we understand it, that but for the dismissal she would have transferred to the other entity and they assessed her loss in the total sum of £9,000.

By a Notice of Appeal, the company through Mr Van Til, to whom we would like to express our gratitude, raises two points. Firstly, the Industrial Tribunal was wrong to take into account the written witness statement of the Finance Director of the other transferee to whom we have referred without giving the company an opportunity to comment on it. It was argued that this was a breach of the rules of natural justice and that in any event, such witness statements should have been disclosed as part of the discovery of process. Secondly, it was argued that since the company, Stafford Knight, were not able to continue in trading anyway, the calculation of the loss was manifestly wrong.

It does not seem to us that either point is an arguable point of law. This is a case in which no orders for discovery had been made by the Industrial Tribunal, no directions had been given as to the way in which evidence was to be taken such as an exchange of witness statements.

It was the choice of Stafford Knight not to appear at the Industrial Tribunal and to ask that their case be considered in writing as it was. That does not prevent, as it seems to us, an Applicant from producing such evidence as she wishes at that hearing to prove her case including a statement from a witness which had been prepared for the purposes of the hearing

The statement of the witness was not a discoverable document in the technical sense, and it seems to us that it cannot matter in principle whether the witness provided the evidence in writing or has attended at the Tribunal to give oral evidence. When Stafford Knight decided not to appear, they took the risk, as it seems to us, that the Applicant would advance compelling evidence, either in written form or oral form to establish her case. In these circumstances, there was no duty on the Industrial Tribunal to grant an adjournment to a party who chose not to appear before it.

As to the second submission, it does seem to us that that is not justified, having regard to the evidence to which we have referred and the findings made by the Industrial Tribunal. It seems to us reasonably clear that the conduct of Stafford Knight in this case has deprived the Applicant, on the grounds that she was pregnant, of an opportunity of transferring her employment from them to one of the two transferees of their business, who would have been prepared to take her on but were deterred from doing so by one of the Stafford Knight supervisors. She therefore was entitled to be compensated on the basis that had she not been discriminated against on the grounds of her pregnancy, her employment would have continued. Therefore the award of £9,000, which includes an award of £2,000 for injury to hurt feelings, cannot be faulted.

Therefore neither point seems to us to be sustainable, although as we repeat, we are grateful to Mr Van Til for the clear and helpful way he presented his arguments. The appeal will be dismissed.