United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A B WILSON (Representative)


 


HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by Mrs Wilson, the Respondent before an Employment Tribunal sitting at Thornaby on Tees on 19 June 2002, against that Tribunal's decision, promulgated with Extended Reasons on 7 August 2002, upholding the Applicant, Mrs Knight's complaints of unfair dismissal and unlawful sex discrimination.
2. The background is that the Respondent owned a small greengrocer shop in Marton, Middlesbrough, at which the Applicant was employed as a florist from 21 August 1999. The Applicant became pregnant and went on maternity leave on 5 December 2000.
3. On 1 December, shortly before starting her maternity leave, she asked the Respondent if she could take holidays owed to her before her maternity leave. The Respondent did not immediately reply to that query and said that she would consult her accountant. Later that day the Applicant's husband telephoned the Respondent. The Tribunal described that conversation as very heated. In argument before us today Mr Wilson describes it as a tirade directed at his wife.
4. At all events, the police were called and subsequently the Applicant returned to work for four days followed by three week's holiday before her maternity leave started. When the time came for her return to work she got in touch with the Respondent but was told by letter that due to a very sharp decline in the flower trade the Applicant's position was redundant.
5. Following her dismissal the Applicant presented her complaint to the Employment Tribunal. The Tribunal found that the reason for dismissal was not redundancy but that it was solely caused by the behaviour of the Applicant's husband during the telephone conversation with the Respondent on 1 December.
6. Having made that finding the Tribunal then addressed three questions of law. First, whether the dismissal was unfair under the ordinary principles contained in section 98 of the Employment Rights Act 1996. As to that the Tribunal found that no potentially fair reason, in particular redundancy, had been made out by the Respondent and consequently the dismissal was unfair. Having heard Mr Wilson on this part of the case we are not persuaded that any arguable point of law arises in relation to that finding.
7. It follows that in relation to the second finding by the Tribunal that the dismissal was also automatically unfair under the provisions of section 99 of the Employment Rights Act 1996, that is that the reason for dismissal was connected with pregnancy becomes academic. It is unnecessary for us to express a view on that finding.
8. However, the third finding by the Tribunal relates to the complaint of unlawful direct sex discrimination. It is at this point that we think the appeal raises an arguable point of law. The Tribunal directed themselves correctly that the question was whether the Applicant would have received the same treatment (that is dismissal) but for her sex.
9. The Tribunal's answer to that question is no. We are not clear why. Having found that the sole reason for the dismissal was the Applicant's husband's behaviour in the telephone conversation of 1 December we are persuaded that it is at any rate arguable that the Applicant's sex, and indeed pregnancy, had nothing to do with the dismissal.
10. It is in these circumstances that the question of unlawful direct sex discrimination will be permitted to proceed to a full appeal hearing with both parties present.
11. For that purpose we shall direct that the case be listed for one and a half hours, Category C. There will be exchange of Skeleton Arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those Skeleton Arguments to be lodged with this Appeal Tribunal at the same time. There is no requirement for Chairman's notes of evidence. No further directions arise at this stage.