United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R KEARNEY (of Counsel) Instructed By: Mr D Nuttall Messrs Wolfson David Phillips & Partners Solicitors & High Court Advocates 101 Princess Road Moss Side Manchester M14 4RB
For the Respondents Amicus Curiae	MR T KIBLING (of Counsel) Instructed By: Messrs Browne Jacobson Solicitors 44 Castle Gate Nottingham NG1 7BJ MR J CAVANAGH (of Counsel) Treasury Solicitor Queen Anne's Chambers 28 Broadway London


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a full hearing the appeal of Miss T.A. Brannon in the matter Brannon against Wilkinson Hardware Stores Ltd. Today Miss Brannon has appeared by Mr Kearney, who had not appeared below. Wilkinson have appeared by Mr Kibling who, again, had not appeared below and we are grateful also to have in front of us, as amicus, Mr Cavanagh and, of course, there was no amicus below.

1. The history of the matter is as follows. On 5 August 1997 Miss Brannon lodged an IT1 claiming unfair dismissal against Wilkinsons. Her IT1 has all the appearance of an IT1 prepared by a claimant in person. There is no suggestion that she then had the benefit of any professional assistance. However generously one reads the IT1, it seems to have no reference to sex discrimination but it does speak of Miss Brannon having had a baby on 17 October 1996. It asserts that she started having health problems, that her doctor diagnosed them as post-natal depression and she says in her IT1:

"After thinking things over I feel I have been unfairly dismissed due to an illness related to my pregnancy."

On 27 August 1997 Wilkinsons put in an IT3 which, inter alia, asserted:

"From 27 February 1997 onwards, the Applicant was absent by reason of sickness, diagnosed as post-natal depression."

But they claimed that the dismissal was fair in all the circumstances.

2. There was then a hearing at the Employment Tribunal at Manchester under the chairmanship of Mr L. Gould on 26 November 1997 and 10 March 1998. Summary Reasons were given on 20 March 1998. I should add that Miss Brannon had appeared in person at the hearing before the Tribunal. It was held that she had been fairly dismissed.
3. On 24 March 1998 Miss Brannon's then Solicitors asked for a review. Either it was not answered or the review was declined; it does not appear in our papers what happened but Extended Reasons were then given on 28 April 1998. Unfortunately, neither the Summary nor the Extended Reasons make any reference whatsoever to Section 99 of the Employment Rights Act 1996 or to any argument that had been raised there under that section. Section 99 (1) begins:

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

(a) the reason (or, if more than one, the principal reason) for the dismissal is that she is pregnant or any other reason connected with her pregnancy."

And Section 99 (3) says:

"(3) An employee who is dismissed shall also be regarded for the purposes of this Part as unfairly dismissed …"

4. Then there are cases (a), (b) and (c) within that section that we do not need to read for immediate purposes and also, theoretically at any rate, conceivably of relevance would be Sections 66 or 77 or 79. We are not saying that those do, in fact, need consideration in this case but they are in the area but do not need to be read for immediate purposes.
5. It could have been that the Tribunal made no reference to Section 99 and any argument thereunder because they had not understood Section 99 to have been relied upon and that no argument was addressed under it. But Counsel for Wilkinsons, Mr Kibling, in whose interest it would have been to urge that the Section 99 points could not now be taken because they had not been taken below, advances no such argument. Indeed, given the plain case raised on Miss Brannon's IT1 and given the terms of Employment Tribunals Rule 9 (1), it could have been argued that the Tribunal would have erred in not enquiring into the effect of Section 99 (1) and the facts relevant to its consideration even if no one had indicated to the Tribunal that the Section was being relied upon, especially given that Miss Brannon was in person. One way or another, we must assume that Section 99 was in play below and yet, unfortunately, nothing whatsoever is said in relation to it. If, within the well known test postulated in Meek v City of Birmingham, Miss Brannon was to ask herself why she lost her case under Section 99 or if Wilkinsons pondered why they won it, no answer would be capable of being found however carefully one looks at the Summary or Extended Reasons of the Tribunal.
6. For a Tribunal to have remained totally silent on the material in an important part of a party's case is plainly an error of law. Unless we can say that no Tribunal properly instructing itself could, despite that error, have come to any conclusion other than that to which they did in fact arrive, then, as it seems to us, we have no real option save to remit the matter: see O'Kelly v Trusthouse Forte Plc [1983] ICR 728, at 764 C; at Dobie v Burns International Security [1984] ICR 812, at 818 G CA per Lord Donaldson, Master of the Rolls and Morgan v Electrolux [1991] IRLR 89 CA at paragraph 20, per Lord Justice Balcombe.
7. The question therefore becomes whether we can have that degree of assurance that notwithstanding that Miss Brannon's position under Section 99 was not mentioned in the Extended Reasons her argument under that section must necessarily have failed. Had the Tribunal's omission been only and purely in relation to the law, we could no doubt have paid regard to the powerful arguments laid in front of us by Mr Kibling and Mr Cavanagh on paper as to the construction and effect of Section 99.
8. Mr Cavanagh's argument is perhaps of particular force because, if we might so put it, it comes from not a partisan source but from an amicus. Especially powerful are the arguments that come from both Mr Kibling and Mr Cavanagh on paper that, in the light of the later case Brown v Rentokil [1998] ECJ 790, the earlier case Caledonia Bureau Investment v Caffrey [1998] IRLR 110 must now be regarded as wrongly decided.
9. But here the difficulties are not confined to law because there are no material findings of fact or, at any rate, in our view no sufficient material findings of fact and one can see that from even a brief look at Mr Kearney's skeleton. He asserts that Miss Brannon's daughter was born on 17 October 1996. No doubt we could have accepted that, but there is, strictly speaking, no finding as to that. More importantly, he goes on to assert:

"Shortly after the birth of her daughter the Appellant suffered post-natal depression"

And there is no finding as to that, either for or against. He continues:

"… which continued up to the date the Appellant returned to work on the 30th January 1997".

There may be a finding as to her return to work but there is no finding as to the continuation of a post-natal depression up to that date. He goes on:

"It is important to note that the Appellant returned to work whilst still suffering from post-natal depression as diagnosed by her own General Practitioner."

And there is no finding as to some elements of that. The skeleton runs on:

"As a consequence of this, the Appellant had to take an extended period of sick leave."

There is no finding, either way, as to the causative relationship suggested by the words "as a consequence". Later, the skeleton continues:

"Further, the Appellant's illness in this case was pregnancy related."

10. We cannot simply assume that a depression, assuming there had been a depression, which was post-birth, was in fact clinically regarded as a post-natal depression and there is no finding either way as to the causal nexus between the illness and the pregnancy. The skeleton goes on:

"… but the illness namely post-natal depression did not manifest itself until after the birth … and did not fully arise within the relevant period itself."

And there are no findings either way as to some parts of that.

11. Finally of the examples that we give from Mr Kearney's skeleton, it says that Miss Brannon informed both her GP and her Manager of the pregnancy related illness and, again, there are no findings either way on that.
12. What facts should have been found, if any should have been found, on such issues - cannot be guessed at by us, both in the sense that we have no right to guess facts and secondly, that we do not have sufficient material that could lead us to anything but total speculation, given that the documentary evidence, which is available, would plainly need to be tested or added to by way of oral examination in chief or cross examination. We must not usurp the fact-finding role of the Tribunal.
13. Mr Kibling, with some assistance from Mr Cavanagh, would argue that there is at least such a rump of fact found in the Extended Reasons in the Decision as would entitle us to take a view that Section 99 was manifestly inapplicable. But we are very loath to embark on such an exercise which could too easily turn into minute examination of what documents might, or might not, import and too easily lead to speculation as to what facts should have been found.
14. Mr Kibling expressly concedes that the Tribunal erred in law in respect of the claim made pursuant to Section 99 and concedes that it was raised below. Given that concession which we take to be rightly made, the total silence of the Tribunal on Section 99 and the argument relating to it and the absence of a number of findings of fact mentioned as relevant in the Appellant's argument, lead to a view that the only course properly open to us is to remit the matter.
15. We have invited both Mr Kearney and Mr Kilbling to address us on to which Tribunal the matter should be remitted, namely a fresh one or the same. There is no opposition that it should be remitted to the same. A more possibly disputable area is as to whether the Tribunal should hear fresh evidence.
16. We think it right that there should be no fresh oral evidence. Of course, the parties will be free to refer to documents which were laid before the Tribunal at the original hearing, just as would be done in the ordinary course of final speeches and, of course, reference can be made to the oral evidence that has already been given but there is to be no new oral evidence.
17. Another issue is as to whether a claim in sex discrimination can be made by Miss Brannon. Mr Kibling concedes that that subject, too, was advanced before the Tribunal hearing. Again, unfortunately, the Tribunal says nothing whatsoever on the subject. It had not been raised in the IT1 and given that it happened that the Extended Reasons made no mention of it, the likelihood had seemed to be that the subject had never been orally raised at all. However, the position is that there had been some form of written submissions below and that reference was made within those written submissions to a claim by way of sex discrimination and it is that that has led Mr Kibling to make the concession which he has made.
18. We do think it is right that the parties can argue sex discrimination, just as they can argue Section 99, on the basis that there was argument below and yet there is no mention whatsoever of the subject in the Decision of the Tribunal. But, again, there is to be no fresh oral evidence. Documents can be relied upon so long as they were laid before the Tribunal at the original hearing but that is all that can be done together, of course, with fresh submissions.
19. Accordingly, we remit both the subject of Section 99 and pregnancy related illness and so on and sex discrimination to the same Tribunal as before for them to hear submissions, for them to be pointed to oral evidence that they have already heard and to documents which they have already seen but not to any further oral evidence given.