United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS NAOMI CUNNINGHAM (Of Counsel) Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ


 


JUDGE PETER CLARK

1. By an Originating Application presented to the Reading Employment Tribunal on 7 November 2000 the Applicant, Mrs Haines Lee, brought complaints of unfair dismissal and sex discrimination against her former employer, the Respondent Relate Berkshire. The matter came before an Employment Tribunal chaired by Mr R E Barrowclough over 2 days. Following a meeting in Chambers the Employment Tribunal promulgated their decision with the Extended Reasons on 18 October 2001. Both claims were dismissed. Against that decision the Applicant now appeals.
2. The facts, briefly, were these. The Applicant applied for a part-time post as Appointments Secretary with the Respondent in January 2000. She was interviewed on 3 February by among others, Ms Ross, the Respondent's Chief Executive. She was offered and accepted the job, telling Ms Ross at that time that she was pregnant. Ms Ross replied that this was not a problem. The Respondent is a charity specialising in counselling and therapy in personal relationships. The Employment Tribunal found that all but 3 of their staff of about 40 were women, many of child bearing age. Some had in the past taken time off for parental or other domestic purposes.
3. The Appellant commenced work on 14 February 2000 with a 6 month probationary period. Her last day of work before commencing maternity leave was 19 May. She intended to return to work in October 2000. Her child was born on 6 June.
4. Whilst still on maternity leave her 6 month probationary period was due to expire on 14 August. The Respondent was not happy with her performance whilst at work. Ms Ross took advice from the Head of Personnel, National Relate. As a result she dismissed the Appellant by letter dated 31 July.
5. In summary, the Employment Tribunal were unimpressed by a number of features of the Respondent's Personnel practices; they found that the Appellant had received inadequate training; there were no appraisals carried out during the probationary period. Specific complaints about the Appellant's performance were not raised with the Appellant herself. There were other matters of concern.
6. Nevertheless, the Employment Tribunal concluded that the real reason for the Appellant's dismissal was not related to her pregnancy, nor was it on the grounds of her sex. The claims failed.
7. In this appeal Miss Cunningham, now appearing on behalf of the Appellant although she did not appear below, takes a single point; namely whether the Employment Tribunal failed to address the question whether the abbreviation of the Appellant's probationary period by reason of her absence on maternity leave constituted a detriment and, if so, whether this was a detriment to which the Appellant was subjected on grounds of her sex.
8. In her statement of particulars of complaint attached to the Originating Application it is said:

"I feel that I have been both unfairly dismissed and discriminated against by Relate and their management. I only worked 3 months of my 6 months probation period because of my maternity leave. This means that I was denied my full probationary period on which I was assessed for reasons relating to my pregnancy. I was dismissed for unsubstantiated reasons which according to the letter dated 8 September were allegedly at least partly on concern raised by members of the work force."

And a little later she says:

"I was dismissed without a final performance appraisal because I was on maternity leave."

9. The Employment Tribunal rejected the complaint of unfair dismissal and sex discrimination by reference to the fact of dismissal itself. They rejected the Appellant's case below that the dismissal was manufactured by reason of her being on maternity leave. There is no appeal against that conclusion.
10. Before considering the point now taken by Miss Cunningham we have this concern. Was the point taken in these terms below; we bear in mind particularly the guidance of the Court of Appeal in Mensah v Hertfordshire NHS Trust [1998] IRLR 531. It seems to us that the proper course at this stage is to adjourn this Preliminary Hearing with a direction that the Appellant or her adviser who appeared below should file an affidavit setting out the case that a complaint made below was not adjudicated on by the Employment Tribunal.
11. Upon receipt of that affidavit a copy will be sent to the Chairman, Mr Barrowclough for his comments by reference if necessary to his notes of evidence and argument. The papers will then be returned to me for a direction as to whether it will be necessary to obtain an affidavit from the Respondent or whether the case should be re-listed for Preliminary Hearing or go directly to a full inter partes hearing. On that basis the appeal is adjourned. A copy of this judgment should go to the Chairman and the Respondent.