United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR GARY MORTON (of Counsel) Instructed by: Mr T Reid Messrs Ashurst Morris Crisp Solicitors Broadwalk 5 Appold Street London EC2A 2HA


 


JUDGE PETER CLARK:

1. This case raises a host of issues which we are satisfied should proceed to a full hearing.
2. The facts, briefly, are that the applicant, Ms Ducasse was employed by the respondent from 12th December 1994 until 19th May 1998 as manager of their shop based in Terminal One, Heathrow Airport. The shop was open from 6 a.m. to 9.30 p.m. 364 days a year. Staff worked on a shift system. The applicant worked from 9 a.m. to 6 p.m. on five days a week.
3. In March 1997 she informed the respondent that she was pregnant. She took maternity leave and her daughter was born on 2nd November 1997. She gave notice of an intention to return to work on 1st June 1998. Due to childcare difficulties, compounded by the fact that she could not drive and was reliant on public transport, she asked if she could change her hours to 8 a.m. to 4 p.m. After discussion the respondent indicated that that arrangement was not acceptable, alternatives were advanced but did not suit the applicant. Accordingly she did not return to work, but presented a complaint to the Employment Tribunal on 20th July 1998.
4. The matter came on for hearing before a full tribunal sitting at London (South) over four days, with a fifth day spent in Chambers in deliberation.
5. In a reserved decision, promulgated with extended reasons on 26th April 1998, the tribunal reached the following conclusions on the issues placed before them:-

(1) The claim of direct sex discrimination was dismissed.

(2) As to indirect sex discrimination the tribunal found:

(a) that during her employment the respondent imposed a requirement or condition on the applicant, namely that she work until 6 p.m. on her return to work.

(b) that taking the relevant pool as all those persons in the national labour force, that requirement or condition had a disproportionate impact on women.

(c) that the applicant could not comply with the requirement.

(d) that the respondent's rejection of the rota proposed by the applicant was justified, but the respondent's requirement that she worked until 6 p.m. on days when the rota provided for two other people to work in the shop until 6 p.m. was not justified.

On these findings the tribunal concluded that the respondent had not made out the justification defence.

(3) As to unfair dismissal:

(a) the applicant's contract of employment remained in force under the provisions of s.79(2) of the Employment Rights Act 1996.

(b) she was dismissed by the respondent. She was in anticipatory breach of contract by refusing to return to work on her original terms; the respondent accepted that breach and thus dismissed her.

(c) the reason for dismissal was some other substantial reason.

(d) dismissal for that reason was unfair under s.98(4) of the Act because the applicant had been given no warning that failure to return to work on her old terms and conditions as to hours of work would lead to her dismissal.

6. The respondent appeals against the findings of the Employment Tribunal, both in relation to indirect discrimination and unfair dismissal.
7. As to indirect discrimination Mr Morton submits:

(1) that at the relevant time the contract of employment was in suspense and that the applicant was not an employee for the purpose of the protection of the Sex Discrimination Act 1975.

(2) he challenges the finding as to a requirement or condition being imposed on the applicant and has drawn attention to an apparent conflict between the decisions of this tribunal in Home Office v Holmes [1984] ICR 678 and Clymo v Wandsworth London Borough Council [1989] ICR 250. He refers also to the Northern Ireland Court of Appeal decision in Briggs v North Eastern Education and Library Board [1990] IRLR 181.

(3) he challenges the pool selected by the tribunal as perverse. He submits that a narrower pool should have been employed.

(4) he attacks the finding on justification, in circumstances where the tribunal found that the requirement, if it be a requirement, that the applicant work until 6 p.m. was partly justified and partly not.

(5) he submits that on the facts the applicant could, in practice, comply with the requirement as found.

8. So far as the finding of unfair dismissal is concerned. First, he submits that there was no dismissal in this case. The applicant effectively withdrew her notice of intention to return to work when she indicated that she would not return on her pre-maternity terms and conditions of employment.
9. Alternatively, if he is wrong on that point, he accepts that this is not a case of self-dismissal. But if the tribunal was right in finding that the employee was in anticipatory breach of contract, then acceptance of that breach by the employer amounted to a dismissal for the purposes of the 1996 Act. But if so, he quarrels with the finding that the dismissal was unfair. Even if it can be said that an employer's insistence on maintaining existing terms and conditions of employment amounts to some other substantial reason for dismissal, he points to the dialogue between the parties and attempts to negotiate a new rota in seeking to argue that the tribunal's finding that the dismissal was unfair under s.98(4) was a perverse finding.
10. We repeat that, in our view, there are a number of issues which ought properly to be argued at a full appeal hearing. For that purpose, we shall direct that the case be listed for one day, Category B. There will be exchange of skeleton arguments not less than 14 days before the date fixed for the full appeal hearing. We emphasise that direction. There are experienced Counsel engaged in this case and their skeleton arguments will be of particular value to the lay members of the tribunal which finally hears this appeal when pre-reading. The Chairman's Notes of Evidence are not sought and, in our view, are not necessary in this case. Accordingly, we make no direction in that respect.