United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS ANYA PALMER (Of Counsel) Old Square Chambers 1 Verulam Buildings Gray's Inn London WC1R 5LQ
For the Respondent	MS ELIZABETH ANDREW (Of Counsel) Instructed by: Messrs Michael Conn Goldsobel Solicitors 24 Queen Anne Street London W1M OAX


 


MR RECORDER UNDERHILL QC

1. The Respondents are a firm of solicitors. The Appellant was employed by them as a legal secretary with effect on 28 September 1998. She was dismissed on 28 May 1999. The letter giving the reasons for her dismissal dated 2 June 1999 is in the following terms:

"The reasons for your dismissal are as follows:-

1. Your work was becoming increasingly careless over the last few months of your employment here. Letters/documents typed by you contained numerous errors of a typographical nature and I have a selection of examples which I have retained. Generally, your typing was not up to the required standard.

2. Your time keeping was somewhat unsatisfactory, given that your working hours were 9.15 am to 5.15 pm. On a number of occasions you would arrive late and even though you explained that this was due to problems on trains, I am sure that you appreciate that allowances need to be made by travellers on the public transport system. However, I am not suggesting this was, by any means, the main reason for your dismissal but one of a number of factors I had to take into account as set out in this letter.

3. You appear to have been spending considerable time during office hours on private telephone calls which I assume were, primarily, related to your matrimonial situation and mortgage and property arrangements. I believe that this contributed to you failing to give due priority and concentrate on the work at hand.

4. Your spelling, punctuation and general grammar left a lot to be desired. I am sure that you understand that in the legal profession the use of the English language is extremely important and I would reasonably expect a secretary to have better command of the use of English than you showed during your time with us.

Finally I feel that I gave you a reasonable time in which to try to improve your standards but came to the conclusion that this could not be achieved. In those circumstances, I felt it appropriate and necessary to terminate your employment with this firm.

2. At the date of her dismissal the Appellant was pregnant. The Respondents had known that she was pregnant since some time in mid February. In June 1999 she brought proceedings in the Employment Tribunal alleging that her pregnancy was the reason for her dismissal. Her IT1 identifies her complaint in Box 1 as:

"Unfair Dismissal

Sex Discrimination"

In Box 11,where details of her complaint appear, she sets out her account of the facts leading to her dismissal and concludes:

"I consider that I was unfairly dismissed and discriminated against because of my pregnancy and I am seeking compensation."

It is common ground that she was making both (a) a claim for "automatic" unfair dismissal under Section 99 of the Employment Rights Act 1996 (a claim for "ordinary" unfair dismissal could not of course be brought because she did not have sufficient length of service) and (b) a claim that her dismissal constituted discrimination on the ground of sex, i.e. so called direct discrimination contrary to Section 6(2)(b) of the Sex Discrimination Act 1975.

3. By their Notice of Appearance the Respondents denied that pregnancy was the reason or principal reason for the Appellant's dismissal or that she had been discriminated against because of her pregnancy. They asserted that the reason for dismissal was incompetence and set out more or less verbatim the contents of the letter of 2 June 1999 which we have already set out.
4. By Extended Reasons sent to the parties on 1 February 2000 the Tribunal dismissed both claims. Its decisions and reasons appear at paragraph 7 of the Reasons which is in the following terms:

"The Applicant has to establish that the reason, or if more than one the principal reason, for dismissal was her pregnancy and she also has to establish sex discrimination, i.e. that as a woman who was pregnant she had been dismissed or subjected to some other detriment because she was pregnant. We listened carefully to the evidence. We preferred the evidence of the Respondents to that of the Applicant. We were satisfied from the evidence of Messrs Rose, Cooper and Lathbury that there were serious deficiencies in the Applicant's work which had lasted over a period of time and which the respondents were entitled to call into question. We accept the evidence of Messrs Rose, Cooper and Lathbury on this point. It is clear that there seems to have been some deterioration in the work after the date on which the Applicant became pregnant, a matter which the Respondents admitted they had knowledge of from sometime in February, but we do not consider that this necessarily means that the reason for her dismissal or the principal reason was one associated with her pregnancy. Our view is that we should dissociate the fact of pregnancy from the deterioration in the work. No evidence was given to us which would show that the reason for the deterioration in the work was one connected with the pregnancy of the Applicant. Our view is that the two matters ought to be kept separate. Our finding is that it was not demonstrated from the evidence which was given to us that either the deterioration in the work was wholly or mainly due to the Applicant's pregnancy or that the evidence showed that this was the position. We also accept that there was a deterioration in the Applicant's work. This is not therefore a case where as there is no convincing evidence to suggest another reason for dismissal we should draw inferences. In these circumstances, therefore, we cannot find that the reason, or if there was more than one the principal reason, was the Applicant's pregnancy. We find that the reason was the deterioration in her work of which the Respondents were entitled to take notice and in respect of which, finally, the Respondents dismissed her. Equally, we cannot find on these findings that there was any sex discrimination of the Applicant by her being treated unfavourably because she was a pregnant woman. Consequently, the Applicant's claims fail and are dismissed."

5. We consider first the grounds of appeal advanced by the Appellant at paragraph 6.1 – 6.3 of the Notice of Appeal. These are in the following terms:

6.1 The Tribunal erred in law in failing to set out or apply the test that the Appellant would have to meet to succeed on her complaint of sex discrimination. The Applicant's complaint as set out in paragraph 1, and the test that she would have to meet, was a complaint of automatic unfair pregnancy dismissal. It was argued for the Applicant that she had an alternative claim for sex discrimination, for which a different test applied. The Tribunal was referred to O'Neill v Governors of St Thomas More School [1996] IRLR 372, in which the Employment Appeal Tribunal held that to establish sex discrimination a woman does not need to show that her pregnancy was the only cause, or even the main cause, of her being dismissed; it is enough if it was an effective cause. The Tribunal failed to state whether it accepted this principle, or even to refer to the case of O'Neill in its decision.

6.2 The Tribunal misdirected itself that the Appellant had to establish both the test for automatic unfair dismissal and the test for sex discrimination. At paragraph 7 of the decision it states:

"The Applicant has to establish that the reason, or if more than one the principal reason, for dismissal was her pregnancy and she also has to establish sex discrimination, i.e. that as a woman who was pregnant she had been dismissed or subjected to some other detriment because she was pregnant."

6.3 It is submitted that the Appellant needed to establish only one test or the other; she did not satisfy both. This was put to the Tribunal, and the Tribunal was referred to Lewis Wolf Griptight v Corfield [1997] IRLR 432, a case in which the applicant succeeded on her claim of sex discrimination even though her pregnancy was not the principal reason for her dismissal (and therefore the claim for automatic unfair dismissal failed). The Tribunal made no mention of this argument, and it is submitted that the Tribunal failed to ask whether the Appellant's pregnancy was an effective cause, albeit not the principal cause, of the dismissal."

6. We accept that the case of O'Neill referred to in paragraph 6.1 of the grounds of appeal establishes that it is unnecessary for a claimant alleging sex discrimination to establish that the act complained of was caused mainly, let alone wholly, by the alleged discrimination: it is enough that the discrimination is an effective cause. As applied to the present case, that means that the Appellant had only to show that her pregnancy was one of the substantial reasons for her dismissal. We accept that it follows that the test is in principle less demanding than that under Section 99 of the 1996 Act which requires that pregnancy or a reason connected with it be the principal reason for her dismissal.
7. In our view it is quite clear from paragraph 7 of the Reasons that the Tribunal appreciated that it was dealing with two distinct claims. We do not accept the contention to the contrary contained in paragraph 6.2 of the grounds: to suggest that the Tribunal believed that the Appellant had to establish both claims in order to succeed on either is putting a quite unrealistic and over literal weight on the phrase "and she also". But there is much more force in the contention that the Tribunal did not appreciate that the tests of causation under the two claims were not identical. It certainly does not explicitly make that point in paragraph 7 of the Reasons, and the language in which it expressed its conclusions at least suggests that it believed that its finding that the principal reason for her dismissal was the deterioration and the quality of her work was dispositive not only of the claim under Section 99 but also of the claim under the Sex Discrimination Act. We are inclined to think that the Reasons do show an error of law on this ground; but it is not necessary for us to reach a definitive conclusion in view of our decision of the Appellant's further grounds to which we now turn.
8. At paragraphs 6.5 – 6.7 of the grounds of appeal the Appellant sets out a number of failures on the part of the Tribunal to deal fully or at all with factual issues which were raised before it. As deployed in the Notice of Appeal, those criticisms are relied on only in support of a submission that if the primary grounds are established this is a case which will have to be remitted to the Employment Tribunal. But Ms Palmer, who appears for the Appellant as she also did in the Tribunal, now seeks to deploy these points as an additional primary ground of appeal relying on the recent decision of the Court of Appeal in Anya v University of Oxford [2001] EWCA Civ 405 [2001] ICR 847; and Mrs Andrews, who also appears here and appeared below for the Respondents, has sensibly not submitted that she is not entitled to do so.
9. In essence, Ms Palmer's argument is as follows. The Tribunal had to resolve the issue whether the reason given by the Respondents for dismissing the Appellant was their true reason and whether, as they contended, the fact of the Appellant's pregnancy did not form even part of that reason. In order to resolve that ultimate issue it was, Ms Palmer submits, necessary for the Tribunal to consider the matters relied on by the Appellant as indicators that the Respondents' stated reason was not their true reason and therefore that the true reason, in all or substantial part, was her pregnancy; and that if in order to do so they had to resolve an issue of primary fact they should make the necessary findings on that issue. The reasoning up to this point seems to us to be sound and necessarily to follow from the decision in Anya.
10. In the instant case it is common ground that the Appellant relied on several such indicators, as is apparent from Ms Palmer's written closing submissions in the Employment Tribunal which we have seen. In particular:

(1) She relied on two conversations which she says took place with Mr Rose, the partner who took the decision to dismiss her. Her account of one of those conversations is set out in her IT1 as follows:

"On Friday 21st March 1999 Mr Rose, Litigation Partner, told me I had made a few errors and that my work had deteriorated and because I was pregnant it was getting worse. He also said he had spoken to Mr Cooper and that the relationship would not improve because I was pregnant and having time off to go to the hospital for routine check ups."

In the other conversation on which she relied she claims to have been told that time off for check ups related to her pregnancy would have to come out of her annual leave. We have no doubt that if these conversations did indeed take place they would be highly material to the issue of the Respondent's reasons for dismissing her.

(2) She said that although there had indeed been a time when because of her personal problems she did spend some time on personal phone calls using her own mobile telephone, and had been spoken to about that, that episode had been several months previously and the problems had since been resolved. She apparently produced in the Tribunal records of the use of her mobile phone which she claimed supported her case. The fact that this, as she alleged, stale episode was being relied on as a ground for dismissal in May 1999 was relied on by her as evidence that the reason for dismissal did not relate to her conduct but to her pregnancy.

(3) She denied that her performance as a secretary, and in particular her typing, had got any worse in the period leading up to her dismissal or was worse than that of other staff. Both parties apparently referred to documents which they claimed assisted their cases on this point. Again, the Appellant's argument was that the allegation of a non-existent deterioration was in fact evidence that the true reason for her dismissal was for something else, namely pregnancy. Her case was that once she had become pregnant the Respondents were looking for evidence of poor work as a means to get rid of her. As she put it in her IT1:

"Mr Rose then started keeping copies of errors however small in order to build up a case for dismissal: I did not receive any written or final warnings."

11. This may not be an exhaustive list of the "indicators" relied on by the Appellant, but it will suffice for our purposes. Ms Palmer's point is that none of them was considered properly in the Reasons. In the case of the two conversations (point (1)), they are simply not mentioned at all, despite the fact that they were of fundamental importance to her case, as is evidenced by the fact that one of them is explicitly put in the centre of her IT1. As to (2), the time spent by her on the telephone is briefly alluded to in the Tribunal's recitation of her evidence; but the crucial point (whether or not accepted by the Respondents) that that episode was several months in the past is not mentioned or considered. As to (3), the alleged deterioration of the quality of her work, paragraph 7 of the Reasons does contain a general finding that there was such a deterioration; but there is neither there nor in any part of the other Reasons any examination of the competing arguments or evidence.
12. In these circumstances Ms Palmer submits the Tribunal has not satisfied the duty clearly spelt out in Anya to give a reasoned decision on the primary facts on the basis of which they were being invited to draw an inference of discrimination. It is true that paragraph 7 contains a general statement that:

"We listened carefully to the evidence. We preferred the evidence of the Respondents to that of the Applicant. We were satisfied from the evidence of Messrs Rose, Cooper and Lathbury that there were serious deficiencies in the Applicant's work."

But Ms Palmer points out that the decision in Anya makes it clear that a generalised finding of this kind, without any application to the particular issues, is insufficient. At paragraph 24 in the judgment of Sedley LJ the Court approved the judgment of Morison J in Tchoula v Netto Foodstores Ltd in the following terms:

"A bald statement saying that X's evidence was preferred to Y's is, we think, implausible and unreasoned and therefore unacceptable; and it might appear to have been included simply to try and prevent any appeal. It seems to us likely there will be a great deal of background material which is non-controversial. There is no need to recite at length in the decision the evidence which has been received. What a tribunal should do is state their findings of fact in a sensible order (often chronological), indicating in relation to any significant finding the nature of the conflicting evidence and the reason why one version has been preferred to another. It is always unacceptable for a Tribunal to assert its conclusion in a decision without giving reasons."

This point is further developed in paragraph 25 of the judgment of Sedley LJ.

13. In our judgment Ms Palmer's argument on these points is well founded. We have borne very much in mind the point, of which we were forcefully reminded by Mrs Andrew, that this was a fairly short case, lasting only two days, turning on what certainly ought to have been a straightforward factual issue as to the Respondents' motivation. We are acutely conscious that it would be an unreasonable burden on Tribunals to expect them to address and resolve every minor factual issue between the parties. Likewise we accept that when a Tribunal does resolve a disputed factual issue it will often not be necessary to give its reasons in any elaborate form. Often there will be little to say except that the evidence of a given witness on the point seemed more truthful or reliable or plausible than the evidence of another. There can be no rules about this. It must be a matter for the informed reasonable discretion of the Tribunal precisely what factual issues do need to be explicitly determined and the degree of detailed reasoning that is necessary or appropriate as regards the issue in question. The Court of Appeal in Anya expressly rebutted the suggestions that it was seeking to impose an unrealistic or onerous duty on Tribunals. But the fact is that in the present case the Reasons do not seem to us to meet even that minimum standard. They are extremely short and consist mostly of a recitation, arguably not a very accurate recitation, of the evidence. The only attempt to address any factual issues appears in paragraph 7 which we have set out above. Key factual issues which were clearly central to the ultimate issue which the Tribunal had to decide were either not addressed at all or addressed so sketchily that the Tribunal's reasons for its decision simply do not appear.
14. It must follow that this appeal must be allowed and the case remitted for hearing by another Tribunal. There was some discussion of whether it would be appropriate to refer it to the same Tribunal, but we were then informed that the Chairman, has retired which makes it impracticable even if it were otherwise it is appropriate for that course to be taken.
15. This is an unhappy result. It is obviously not satisfactory that, unless the parties are able to reach some compromise, the issues raised by this case will have to be examined again so long after the event. The Respondents will no doubt feel aggrieved that it faces this prospect only because the Tribunal failed to spell out its reasoning adequately and will feel that if it had done so the results would have been the same. But that is inevitable in these cases. The Appellant was entitled to a fully reasoned decision and she did not get one.