United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS SARAH MOOR (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE D M LEVY QC

1. By an Originating Application received by an Employment Tribunal on 25 October 1999, Miss Carol Simpson ("the Appellant") complained of sex discrimination, racial discrimination, unfair dismissal and equal pay by her employer Kensington Housing Trust ("the Respondent")
2. In the body of her complaint, that is in paragraph 11, having set out that there was a redundancy position, the Appellant said:

"My employers failed to notify me of my rights by failing to offer me suitable alternative employment"

and lower down,

"My employers also sent me an application form for a Housing Officers post. However confirmation was written to Unison, that KHT",

that is the Respondent:

"did not deemed this post to be suitable alternative employment. I was given 3 days to apply."

3. The Appellant's complaint was heard by a Tribunal at London North on 9, 10,11 May 2000. The Chairman and Members held that the Applicant's claim in constructive unfair dismissal was successful, as were her claims for unlawful sex discrimination. Her claim to have been unlawfully discriminated against, on the grounds of race, were dismissed.
4. The decision was promulgated on 13 June 2000. From that decision, Miss Simpson appealed by a Notice of Appeal dated 24 July 2000. There was a lengthy Notice of Appeal running to some 15 pages. Today Miss Simpson, who represented herself below, has had the advantage of Miss Moor, of Counsel, representing her under the ELAAS scheme, and Miss Moor has pointed us to what may have been a mistake in the judgment in this way.

Section 77(1) of the Employment Rights Act 1996, as it then, at the relevant time was, provided that where, in subsection (1) where there is a maternity leave period:

"it is not practicable, by reason of redundancy, for the employer to continue employment under an existing contract of employment"

By subsection (2):

"Where there is a suitable available vacancy, the employee is entitled to be offered …..alternative employment"

And subsection (3) deals with the type of contract of employment which was set out.

In subsection 99(1)(e) of the Act, in the form it then was, provided that:

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

(e) her maternity leave is ended by the dismissal, the reason …….is that she is redundant and section 77 has not been complied with"

5. In a judgement, which on a first reading was admirable, the Tribunal dealt with all the complaints raised by Miss Simpson, but did not deal with this point. Buried in the lengthy Notice of Appeal which Miss Simpson prepared herself, Miss Moor found a reference to this gap.
6. Thanks to the skill with which Miss Moor has examined the papers, she seeks to abandon all the points in the Notice of Appeal, and to substitute this one ground. Bearing in mind the point was taken in the Originating Application, it seems to us appropriate for that course to be followed.
7. We will therefore allow the appeal to go forward on this one ground; all the other grounds of appeal in the Notice, the Appellant abandons having received and very sensibly taken Miss Moor's advice.
8. Miss Moor has undertaken that an amended Notice of Appeal, with her assistance, will be lodged by the Appellant, today. Notice of this, of course, should be given to the Respondent for them to put in an amended response; the matter can then come up for hearing - Category C, under half a day.