United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR I SCOTT (of Counsel) ELAAS


 


MR COMISSIONER HOWELL QC: We are unanimously of the view that no reasonably arguable case can be made for allowing this appeal to go forward to a full hearing and accordingly we now dismiss the appeal.

1. The appellant is Miss Piper, a lady now aged 61, who was previously employed by the London Borough of Islington as a teacher and was dismissed by the Borough with effect from 31st December 1993.
2. The appellant brought a claim for unfair dismissal against the Borough also alleging that she had been discriminated against on the ground of her sex. That came before the Industrial Tribunal on 19th to 21st February 1996. By the tribunal's decision, incorporating extended reasons, sent to the parties on 29th February 1996, the tribunal unanimously dismissed the whole claim.
3. The only material issue on this appeal brought by Miss Piper's Notice of Appeal dated 10th April 1996, at pages 1 to 3 of the appeal bundle, is whether the tribunal misdirected themselves or otherwise erred in law in holding that she was sexually discriminated against in relation to the proceedings at or around her dismissal in 1993 and 1994.
4. I should say that the reason that was given by the Borough for dismissing Miss Piper and accepted by the tribunal, was that as a supplementary teacher in their employment the need for her post had reduced or had been eliminated and that she was, therefore, redundant.
5. The tribunal dealt with the issue of sex discrimination in paragraphs 25 to 27 of their decision where they noted that the allegation on which this ground of the appeal was based was that insufficient consideration had been given to Miss Piper in view of her suffering the affects of the menopause and in that way she had been discriminated against as a woman in relation to her dismissal contrary to s.6(2) of the Sex Discrimination Act 1975.
6. The tribunal rejected that submission on two grounds in paragraph 27 of their decision. The first ground was that since they found that the question of the effects of the menopause in relation to Miss Piper only arose at the hearing of a disciplinary appeal in 1994, after she had already been dismissed, it was impossible for a case to be mounted on the ground that her dismissal, which had necessarily preceded the disciplinary appeal, had itself involved discrimination and that no claim for discrimination in relation to the appeal can arise under s.6 in view of the authorities of Perera v (1) Civil Service Commission (2) The Department of Customs and Excise [1982[ IRLR 147 and The Post Office v Adekeye [1995] IRLR 297. The second ground was that in any case the tribunal were not satisfied that the allegation of sex discrimination was proved to have played any part at all in the dismissal of the appellant or the reasons that the Borough took that course.
7. This appeal which has had a rather long history in this Appeal Tribunal came originally before the tribunal at a preliminary hearing on 6th November 1996 when, after hearing Counsel, the tribunal ordered that the appeal should be adjourned pending the outcome of a then pending appeal against the decision of Adekeye referred to and relied on by the tribunal below.
8. Mr Scott who has very helpfully appeared for Miss Piper today under the ELAAS scheme agrees; and it appears to us to be indisputable, that the decision of the Court of Appeal in Adekeye, now reported at [1997] IRLR 105, has not materially altered the law as regards the Sex Discrimination Act in favour of the possible claim preserved for Miss Piper by the earlier Order of this Appeal Tribunal. Although in a more recent case, Coote v Granada Hospitality [1999] IRLR 452, it does appear that in cases, at any rate, where victimisation is in issue and the terms of the European Directive are relevant, a broader view may be taken of the meaning of 'employee'; it is clear from the decision of the then President of the EAT in that case, in particular, at page 455, that the Court of Appeal's decision still remains binding as regards the Sex Discrimination Act on this tribunal and should be followed. As he said "the doctrine of precedent requires us to follow it" and in a case where it is applicable he would have done so; and we think that that is the right course for us as well.
9. Mr Scott has not submitted that there was anything perverse or unlawful in the tribunal's finding of fact that the sex discrimination allegation played no part in the actual reasons for the appellant's dismissal in 1993 and since we consider ourselves bound to follow the Adekeye case and there is no other material ground of appeal, this appeal is dismissed.