United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S ROSE (Representative)
For the Respondents	MR J NIMMO (Solicitor) Messrs Cooper Nimmo Solicitors 237 Church Street Blackpool FY1 3PB


 


JUDGE PETER CLARK:

1. The appellant, Mrs Peplow, commenced employment with the respondent firm of solicitors as a cashier on 9th December 1996. Her employment terminated on her resignation effective on 15th November 1997. It follows that at termination she had completed less than one year's continuous service.
2. On 11th December 1997 she presented a complaint of unfair dismissal to the Manchester Employment Tribunal. By a letter from her then solicitors, Dickson Haslam, the nature of her case was further explained. It was alleged that she had been dismissed by reason of her pregnancy and subsequent childbirth and that such dismissal was automatically unfair for an inadmissible reason under s. 99 of the Employment Rights Act 1996. Further, she complained of sex discrimination under the 1975 Act. The letter concluded in this way:

"There is no longer a qualifying period required to unfair dismissal in that dismissal is connected with pregnancy and childbirth. Our client's contention is that both cases should lie (S.108(3)(b) ERA 1996)."

3. We note that that letter, dated 15th December 1997, was written in response to a letter from the Employment Tribunal dated 11th December 1997. We have not seen that letter but understand from Mr Rose that it was the standard form letter pointing out that the appellant had not completed the statutory two year qualifying period for unfair dismissal protection. We would add that she had not completed one year's service for the purpose of a stay pending the outcome of the Seymour-Smith litigation. See Davidson v City Electrical Factors Ltd [1998] ICR 443.
4. The case came on for hearing before a full Employment Tribunal chaired by Miss A F W Woolley sitting at Manchester on 1st June 1998. By a reserved decision with extended reasons promulgated on 17th June 1998 the tribunal dismissed the complaint. Their reasons for doing so may be summarised in this way. The appellant proved not to be a satisfactory employee. She made too many mistakes. In early 1997 she discovered that she was pregnant and informed one of the two partners in the respondent firm, Mrs Cooper. On 1st August 1997 she commenced paid maternity leave. She returned to work, by agreement, as a receptionist on 10th November 1997, but at a reduced rate of pay to which she did not agree. The tribunal found that it was that unilateral reduction in pay by the respondent, amounting to a repudiatory breach of contract, which caused the appellant to resign on 17th November 1997. She was constructively dismissed.
5. The next question was what was the reason or principal reason for dismissal? After carefully considering the evidence and making detailed findings of primary fact, the tribunal concluded that the reason did not relate to the appellant's pregnancy or childbirth. It was, as Mrs Cooper had contended in evidence, due to lack of the appellant's competence as a cashier leading to her being given the job of receptionist at a lower salary. Accordingly her claim of automatically unfair dismissal under s. 99 of the 1996 Act failed.
6. Similarly, the tribunal rejected her complaint of sex discrimination.
7. Against that decision the appellant appealed by a Notice dated 22nd July 1998 and prepared by her lay representative, Mr Steven Rose. The grounds of appeal served with that Notice are not entirely easy to follow.
8. The appeal was listed for an ex parte preliminary hearing before a division presided over by Lindsay J on 4th December 1998. On that occasion the appellant was represented by Mr Rose.
9. The appeal was allowed to proceed to a full appeal hearing. Looking at the judgment delivered by Lindsay J on that occasion it appears that the point on which the matter was permitted to proceed was this; although the tribunal had dismissed the complaint of unfair dismissal based on an inadmissible reason under s. 99 of the Act, the tribunal had then failed to go on to consider "ordinary" unfair dismissal, that is, whether the respondent had made out a potentially fair reason for dismissal, based on the appellant's performance as a cashier, and if so, whether the dismissal for that reason was or was not fair under s. 98(4). Leave was given to amend the Notice of Appeal to take that point, it not having been taken by Mr Rose. The judgment further indicated that no other point would be allowed to be taken without the leave of the division hearing the full appeal. Ourselves.
10. There is no mention in the judgment of the fact that the appellant had not completed the two-year period of continuous service required under s. 108 for ordinary unfair dismissal protection. Further, in the absence of the respondent at the ex parte preliminary hearing, there is no indication whether on that occasion this Court considered whether ordinary unfair dismissal had been argued before the Employment Tribunal.
11. Both these points were taken in the respondent's answer to the amended grounds of appeal dated 6th December 1998.
12. Today, Mr Rose again appears on behalf of the appellant. He has sought to re-open the issue of automatically unfair dismissal under s. 99. That was not the basis on which this case was allowed to proceed to a full hearing. The issue of the reason for dismissal was resolved, as a matter of fact by the tribunal in favour of the respondent. In these circumstances, we shall not give leave to allow this point to be pursued.
13. As for the point on which the case was allowed to proceed, for the two reasons advanced by the respondent, we are satisfied that it is unarguable. The point was not argued below and cannot be taken now. Jones v Burdett Coutts School [1998] IRLR 521. In any event, the appellant had not completed two year's service. She was not entitled to ordinary unfair dismissal protection under s. 98 of the Act.
14. In these circumstances, we must dismiss this appeal.