United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R HAIGH (REPRESENTATIVE)


 


HIS HONOUR JUDGE H WILSON: This is a Preliminary Hearing in the proposed appeal by the Appellant who was the Applicant before the Employment Appeal Tribunal against the Tribunal's decision that she was not dismissed contrary to the provisions of the Sex Discrimination Act. The Tribunal however, did find that she had been unfairly dismissed by the Respondent. There is no cross-appeal and the facts of the matter may be shortly stated.

The Respondents run a residential care home and in May 1998 were facing acute staffing difficulties. The Principal of the residential home, Mrs Bower, had considerable misgivings about employing the Appellant as she had not been impressed by her performance when she had worked for her previously. These are facts found by the Tribunal and stated in paragraph 3. At the time of the prospective employment in question, the Appellant was pregnant and the issue arose whether she would be able to cope with the hard, physical work involved in looking after the elderly and particularly, lifting. The Appellant assured the Principal that she would be capable of doing the work and she began to work on a temporary basis to see whether she could fulfil her assertions. After working 3 shifts, she ceased to work because she was not assisting in any lifting and was confining herself to helping residents who were mobile and able to do most things for themselves.

There then followed an application by the Appellant alleging sex discrimination and unfair dismissal. So far as the complaint under the Sex Discrimination Act was concerned the Tribunal directed itself concerning the law and in particular, concerning the judgment of the European Court of Justice in Webb -v- Emo Air Cargo UK Ltd [1994] IRLR 482. They distinguished that case because it was limited to the dismissal of a woman who had been recruited to work for an unlimited term. She was, in fact, employed on a permanent Contract of Employment and at the time she was perfectly fit and able so to do. In this case, the Tribunal found that the dismissal had come about because the Appellant, who had assured Mrs Bower that she would be able to perform her contract despite her pregnancy was, nevertheless, unable to do so because of pregnancy. As the Tribunal found in connection with the unfair dismissal complaint the Appellant's inability and/or unwillingness to do the lifting of residents required by the Respondents was the principal reason for her dismissal. Under Section 99 they found that that was an unfair dismissal because it could not be argued that it was unconnected with her pregnancy. However, for the purposes of the Sex Discrimination Act, had there been a comparator of a male who, for health reasons or otherwise, was asserting willingness and ability to lift but who then demonstrated an inability or unwillingness to lift, it is quite clear that a male similarly, would have lost his employment with the Respondent home as well. Therefore, we find no reason to differ from the finding of the Industrial Tribunal so far as the Sex Discrimination Act is concerned and we think that to progress to full argument would have no prospect of success and accordingly, the appeal is dismissed.

In conclusion, we observe that this Appellant had, in fact, been taken on and had worked only two or three sessions and had been taken on with complete openness and on the understanding both by her and by the home that it was to be a proving period as to whether she could fulfil her assertion. Had she been able to fulfil her assertion, then no doubt, the full contract would have followed. As it was, she could not and therefore no full contract resulted and we think it right to observe that we do not consider that this was the sort of situation to guard against which the legislation was passed.