United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J JUPP (of Counsel) Instructed by: Nottingham City Council Legal Services Division The Guildhall South Sherwood Street Nottingham NG1 4BT


 


JUDGE D PUGSLEY

1. This is a case in which Mr Jupp seeks to argue that there are identifiable areas of law which merit the consideration of the full Tribunal from his appeal against the Decision of the Tribunal sitting at Nottingham which decided that:

"the respondent unlawfully discriminated against her on the ground of her sex by subjecting her to a detriment when failing to prevent the Nottingham Healthcare NHS Trust from refusing to allocate work to her …."

2. We have been assisted considerably more by Mr Jupp's oral arguments than by the Skeleton Argument, albeit that the Skeleton Argument was very full. Those who have been involved in a case as an advocate, have a deep knowledge of particular issues and their context. Where one comes to a case in an appellate capacity, it is very much easier to follow issues that are shortly and succinctly stated in a Skeleton Argument.
3. We have listened carefully to the arguments that have been put and we do not apologise for condensing those quite dramatically. In terms ground one of the appeal is that all far too great a weight was given to the six and a half odd days absence and that the Tribunal reached a decision not open to them, on the basis of misunderstanding the evidence that was before them. Perversity is an extremely task to establish, but we have come to the view, having heard all argument, that there is at least an arguable case for that ground.
4. The second ground of appeal is a more difficult issue, but we have come to the view that it is at least arguable that the finding that if Dr Leheup had been informed of the part of the absence was related to pregnancy then she may not have taken the course that she did is unsupported by evidence. We have to say that we think that that matter is at least arguable.
5. As far as ground three is concerned, we consider that it is arguable that the Tribunal did not take into account, on the evidence before it, the steps the Respondent did take.
6. Argument four and five is an interesting argument which centres around the decision of making findings that there were steps that could be taken. Pearce -v- Governing Body of Mayfield Secondary School [2000] ICR 920 at 935 is cited.
7. It is argued that before making a finding of discrimination there should be a finding that the steps that could have been taken which have been causally significant. The status of Pearce after the Scottish case of MacDonald -v- Ministry of Defence [2001] 1 A11 ET 620, (Scottish EAT) where European authorities are reviewed, is a matter that would merit further argument. We consider these grounds are arguable.
8. As far as ground six is concerned, that has been withdrawn. We have to say that that was probably a very wise decision.
9. So far as ground seven is concerned, we are not at all sure that we accept the basis on which Mr Jupp is putting that matter. However, we think that in view of the juxtaposition of Dr  Leheup and the particular facts of this case, it is a matter which is just arguable. We have reservations but have come to the view that that is a matter that merits more consideration.
10. In our papers is a document drafted by Counsel in which he seeks to exculpate himself from the criticisms made by the Tribunal as to the way he acted in this case. We do not consider it is a matter to which we think we should give any adjudication upon. It is not a matter that calls anything into issue which we have to decide.

We have given leave for Mr Jupp to provide a schedule of matters which require Chairman's Notes. If on receipt of those notes the Respondent, Ms Redmond, wishes to continue with her application for Chairman's Notes set out in the letter of 5 November 2001 she may apply for the Chairman's Notes.

This is a Category C case with a time estimate of half a day.