United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J CROSFILL (of Counsel) Instructed by: Ms Elaine Heslop Solicitor North Islington Law Centre 161 Hornsey Road London N7 6DU
For the Respondents	MR A J HOWS (Solicitor) Messrs Lawford & Co Solicitors 102-104 Sheen Road Richmond Surrey TW9 1UF


 


JUDGE ALTMAN: This appeal comes before us only on the ground set out in paragraph 6.2 of the Notice of Appeal, which is that:

"Only a woman is entitled to take maternity leave, thus only a woman can be dismissed in circumstances where her employers think she had lost the right to return to work after taking maternity leave. A man could not be treated in the same way. Therefore the Respondents directly discriminated against the Appellant on the grounds of sex contrary to Section 1(1) of the Sex Discrimination Act 1975."

The point is taken by the respondents that this was never part of the proceedings before the Employment Tribunal.

1. Whilst the original application to the Employment Tribunal alleged sex discrimination in Box 1, which referred to four matters, the particulars of the allegation of direct sex discrimination were confined in paragraph 14 to differential treatment as against a specific male comparator. Mr Crosfill accepts that that particular allegation was withdrawn before the Employment Tribunal. So that at that point as the matter came before the Employment Tribunal there was no particularised allegation of direct sex discrimination. There was before the Employment Tribunal a skeleton argument, in which in paragraph 3 the point was canvassed that:

"In treating the inability of the Applicant to return to work at the end of her maternity leave as a reason for her dismissal the Respondent has treated her in a way that no male comparator could have been treated and has discriminated against her on the grounds of sex."

That actually is not quite what now is being said. It is not the inability to return to work, it is the way in which they treated her failure to return to work which is now relied upon.

2. Even so, we have looked at the decision of the Employment Tribunal and in paragraph 3 it said:

"At the outset of the proceedings it was agreed that the issues before the Tribunal were as follows: …"

The three matters set out in that paragraph are dismissal related to pregnancy, unfair dismissal and indirect sex discrimination.

3. On the face of the documents, therefore, there is no evidence that the allegation of direct sexual discrimination, as now particularised or in any particulars, was presented by the appellant to the tribunal, referred to during the course of the hearing or contained in their reasons. That is based on an examination of the documents. That is not the only matter however. Most of what happened before the Employment Tribunal was, we are told, in relation to submissions made orally on legal issues in the case. Mr Crosfill's recollection is that he did raise this matter orally at the time. Mr How's recollection, for the respondents, is that this matter was not canvassed at all.
4. We are unable, on the face of it and at the moment, to resolve that issue. But even if it were raised, we would find considerable difficulty in dealing with the argument because the Employment Tribunal has not set out findings of fact with that issue in mind. That presents a real difficulty because the letter which is at the heart of this allegation is the letter in which the employer said that the appellant had forfeited her right to return to work after maternity leave. Whether that was an act of direct sexual discrimination does require preliminary findings of fact, which though similar in ambit to those relating to dismissal for pregnancy under section 99, may have led to different consequences. What was in their mind at the time? To what extent was this employee still being looked at? Even though this took place in the course of the appellant's ordinary employment, to what extent was she still being looked at, as it were, as someone who had been away on maternity leave and therefore in a different position to a man and treated therefore differently?
5. Accordingly, it seems to us that if Mr Crosfill is right, the first thing that would have to be done before this appeal could be argued is for us to accept the proposition that this issue was not dealt with by the Employment Tribunal. It seems to us that that would require an amendment to the grounds of appeal to include an allegation that the Employment Tribunal failed to address the allegation of direct sex discrimination arising from the proposition that the appellant was dismissed in circumstances where her employers think she has lost the right to return to work after taking maternity leave so as to amount to sexual discrimination.
6. Therefore, we have decided as follows. First, on the evidence before us today, we are not satisfied that this matter was raised before the Employment Tribunal and it is right that the appellant should have an opportunity to establish that, bearing in mind that on the face of it all the documents point to the contrary. The position is uncertain. Mr Crosfill has been very candid in saying that that is his recollection but he is unable to be more specific about it. We are reluctant to terminate this appeal at this stage on that ground. This is a matter that requires further investigation. On the other hand, we would feel inhibited hearing this matter in full.
7. We have resolved therefore to adjourn this matter and say that the matter should not be relisted without amendment to the Notice of Appeal. Secondly, we give conditional leave to amend the Notice of Appeal and the condition, precedent to the Notice of Appeal, is the receipt by the Employment Appeal Tribunal of confirmation from the Employment Tribunal Chairman that this matter was raised before him. In order to bring that about, we would request that the Chairman investigate his own Notes of the hearing and, if possible, his own recollection and that of the lay members. We request that he then write a letter dealing with the question as to whether or not this issue was raised before the Employment Tribunal and, insofar as it relevant and practicable, to furnish those parts of his Notes which deal with the clarification of the issues. Upon receipt of that letter directions will be given for the further listing of this appeal.