United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BURTON (FRU Representative) Instructed by: Free Representation Unit Fourth Floor Peer House 8-14 Verulam Street London WC1X 8LZ


 


MR RECORDER LANGSTAFF QC

1. Because we propose in this Preliminary Hearing on appeal from the Employment Tribunal (London Central) to give permission for the case to be argued before a full Employment Appeal Tribunal we shall be brief as to our reasons and we shall attempt to identify the two bases upon which we think the case is arguable although we say nothing about the prospect of success.
2. First, at paragraph 17 the Employment Tribunal found:

"as a fact on the evidence, that Mrs Gbokoyi was dismissed by reason of"

and they quote the section in relation to conduct and capability and add:

"Clearly, the relationship between Mr Bennett and Mrs Gbokoyi had broken down for whatever reason."

There is no clear material suggestive of a lack of capability contained elsewhere in the findings of fact. The precise conduct which the Tribunal declared themselves satisfied about is not identified. The use of the words "for whatever reason" might suggest uncertainty about it.

3. There may be an inconsistency or a failure to appreciate the force of a letter of 6 March and this we think gives rise to the second arguable basis for this appeal to go forward in which Mr Bennett responding to the Appellant and her allegations of dishonesty against him makes two points as the basis for suggesting that the relationship has broken down so that her position is untenable.
4. The first of these points is that he considered her dishonest in agreeing to accept a permanent position knowing that she was pregnant and would only be able to work for three months. It may be of significance that the words "pending satisfactory completion of your probationary period" are in bold type and certainly one reading of this paragraph is that had the employer known that the employee was pregnant he would never have appointed her in the first place and that this knowledge and the view that he had been tricked into employing her may have played a part in his view that the relationship was no longer tenable. This construction, we can see, is supported by the word "furthermore" which introduces his reference to her recent conduct in the office suggesting therefore that there were two reasons for the breakdown of the relationship as he saw it.
5. We do not necessarily conclude that this is the only way in which this letter can be read but coupled with the paucity of any description by the Tribunal as to what they thought the conduct was and bearing in mind the lack of expressed recognition in their decision that a discriminatory reason only has to be an effective reason and does not have to be the main or only reason for an action leads us to think that this Appeal is at least arguable.
6. On that basis we give leave, the grounds being in accordance with this judgment. We reject the suggestion made by Mr Burton that there is any force in his third ground which is essentially that the Tribunal should have looked behind the reason for non payment. This is simply unarguable. Nor do we think that the first ground which deals with the proper cause or test is a ground on its own. It has to be linked, we think, to the Tribunal's reasoning and the letter as we have described it.
7. The case will take no more than two hours. Skeleton arguments must be supplied dealing with the issues as we have described them, two weeks in advance. Any cases to be relied on one week before the hearing.