United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M RUDD (Of Counsel) Zoi & Co Solicitors 48 Barking Road Greengate London E13 9JU


 


MR JUSTICE MAURICE KAY

1. This is the preliminary hearing of an appeal by Messrs Zoi & Co who were the employers of the Respondent. She had begun to work for the Appellants from the 3^rd May 1999 as an assistant solicitor. She worked in the immigration department of the firm until her employment ended in July 2000. That termination of employment occurred very soon after she had commenced a period of maternity leave. The issues before the Employment Tribunal were succinctly stated as follows

"The first issue for the Tribunal was whether the Applicant had been dismissed and, if so, what the reason for dismissal was. If the reason for dismissal was, as the Applicant argues, for a reason connected to her pregnancy, it was automatically unfair. If the reason was, as the Respondents argue, for a reason related to redundancy, the Tribunal would have to consider whether the dismissal was fair or unfair under Section 98 of The Employment Rights Act 1996. Furthermore, if the reason for dismissal was one connected to pregnancy, it also followed that it would amount to sex discrimination contrary to The Sex Discrimination Act 1975. Finally, there were issues about the Applicant's entitlement to a period of notice and payments received during that period, and commissions to which she was entitled under her contract".

The decision of the Employment Tribunal was that there had been a dismissal on the 5^th July 2000, the principal reason for which was a reason connected to her pregnancy, and that the dismissal was therefore unfair. That led to an inevitable finding of sex discrimination. The Employment Tribunal also held that the Respondent was entitled to damages for breach of contract and damages in respect of the failure to pay her commission and the matter was adjourned for a remedy hearing.

2. Before us today Mr Rudd on behalf of the Appellants has sought to establish an arguable ground of appeal. He has abandoned much of the Notice of Appeal but has sought to put an appeal on a number of remaining bases. Before we deal with those bases, it is important to set out the way in which the Employment Tribunal came to its decision. Having found that there had been a dismissal, it went on to consider the reason for the dismissal and came to this conclusion

"The Tribunal considered all the evidence in respect of this aspect of the case. Although the Tribunal do accept that it is likely that there was some reorganisation with the respondent firm, that seemed to have been ongoing for some months. What is crucial evidence in this case is the time of the dismissal. The Tribunal cannot accept that the reorganisation or redundancy was the principal reason for the Applicant's dismissal at this time. The only explanation for the Applicant to be dismissed at this point was for a reason connected to her pregnancy, namely that she had just commenced maternity leave. This is because the Respondents' own evidence was that they had considered the need to reduce the immigration department at the beginning of 2000 and during May and June and there could be no other reason for the Applicant not to be told of the reorganisation until the time she was, other than the fact of her pregnancy and maternity leave. For these reasons, the Tribunal is entitled to infer and believes that the principal reason for the Applicant's dismissal was connected to pregnancy and that therefore it is automatically unfair under Section 99".

3. The first ground which Mr Rudd seeks to advance before us relates to the evidence of a witness Gabriel Gabman. He had been a trainee solicitor and immigration case worker in the firm and he had supplied two witness statements prior to the hearing. He gave evidence-in-chief on the first day of the three-day hearing but did not reappear for cross-examination on the second day. His evidence was concerned in part with two conversations which he said he had had with Sharon Zumuryot, who is the sister of the senior partner in the firm and was herself the practice manager. One is properly described as a conversation, being a face to face discussion between Mr Gabman and Miss Zumuryot, concerning the position of the present Respondent. The second was not so much a conversation or discussion, as a message which according to Mr Gabman was left on his answerphone the night before the commencement of the hearing and which amounted to an inducement to him not to attend the Tribunal at all. Mr Rudd rightly says that these pieces of evidence might be classified as prejudicial to the present Appellants and complained that because of the lack of attendance by Mr Gabman on the second day of the Tribunal, he was not subjected to cross-examination and this rebounded unfairly upon the Appellants. Moreover he complains that in the course of the Extended Reasons of the decision, the Employment Tribunal do not make it clear what weight if any they attach to Mr Gabman's evidence.
4. It is pertinent to observe that no application for an adjournment was made when Mr Gabman failed to materialise on the second day. The Tribunal, in their Extended Reasons, do specifically refer to his failure to attend on the second day. It is true that they do not set out anything that could be described as a measurement of the weight if any which they attach to his evidence although they do say in paragraph 8 that they considered "all the evidence in respect of this aspect of the case". Because the evidence on behalf of the present Respondent was given first and that included the evidence of Mr Gabman, the evidence of the present Appellants was not given until a later date, the Tribunal having adjourned from the first day, which was 10^th Novemner 2000, until the second and third days which was 27^th and 28^th February 2001. Miss Zumuryot could, and did, give evidence on those occasions, no doubt giving her account of what, if anything, had transpired between herself and Mr Gabman.
5. What strikes us as really important, so far as this aspect of the case is concerned, is that on any basis it was not Mr Gabman's evidence which clinched the case for the Applicant before the Employment Tribunal. That is apparent from paragraph 8 of the decision which we have already set out where they refer to "crucial evidence" as being the time of the dismissal. The Employment Tribunal were at liberty to attach importance to Mr Gabman's evidence if they so wished and to give it such weight as they saw fit. The fact that they did not specifically measure that weight in the course of their Extended Reasons, nor indeed indicate whether they had had much regard to it at all does not seem to us to be arguably a point which undermines their decision, and in our judgment this ground of appeal is doomed to fail.
6. Of the other grounds advanced by Mr Rudd, three are essentially connected and amount, in one form or another, to a criticism of the finding that the principal reason for dismissal was connected to pregnancy. It is suggested that the finding, based as it was on the timing, was perverse, that the Employment Tribunal did not direct itself as to the statutory definition of redundancy and failed to consider fully whether there was any other substantial reason for the dismissal.
7. We are of the clear and unanimous view that there is really nothing in this approach to the case at all. The findings of fact included one finding which was undoutedly damaging to the present Appellant's case. One of the partners in the firm had given evidence of a meeting between himself and the present Respondent having taken place in June at which she had indicated that she accepted that there was no work in the immigration department and that she might prefer to take on conveyancing work. There was an issue as to whether that meeting had ever taken place and the Employment Tribunal found as a fact that it had not. That, it seems to us, is a point which undoutedly played a part in the findings which the Employment Tribunal made in the passage which we have set out at length. It seems to us that the Employment Tribunal saw this case, and were entitled to see this case, as being somewhat uncomplicated. They attached significance to the fact that no meeting of the kind described by Mr Aziz having taken place. The present Respondent had not been at risk of dismissal for redundancy or reorganisation reasons earlier in the year and that is why they came to the conclusion that it was "crucial" that the present Respondent, having given notice some time in May of her intention to take maternity leave from the first week in July, then heard no more about it until she was handed a letter by Mr Zoi the day after the commencement of her maternity leave which simply stated

"Please accept this letter as your formal four weeks' notice of termination of your position as assistant solicitor in our immigration department. Your termination date is therefore 1^st August 2000".

That letter did not put forward a reason for dismissal and the Employment Tribunal was perfectly entitled to infer, having regard to the facts which they found, and particularly the ones which it emphasised, that the present Respondent was being dismissed and that the principal reason for that dismissal was connected to pregnancy. We can find no legal fault, even on an arguable basis, in relation to that finding.

8. That simply leaves the final ground of appeal which relates to an alternative basis of decision advanced by the Employment Tribunal. Having made the findings to which we have referred, they went on to say that if they had decided that the principal reason for dismissal had been redundancy for some other substantial reason, they would nevertheless have found the dismissal to be unfair. In the event, as Mr Rudd frankly concedes, that alternative basis to the decision does not arise as we find the primary grounds of appeal related to the pregnancy point are not susceptible on an arguable basis to challenge in this court. It follows from all that, that we do not consider there is an arguable appeal in this case and accordingly it will be dismissed.