United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M SUTTON (of Counsel) Instructed by: Messrs Simmons & Simmons Solicitors One Ropemaker Street London EC2Y 9SS
For the Respondent	MR R THACKER (of Counsel) Instructed by: Messrs Bunkers Solicitors 7 The Drive Hove East Sussex BN3 3JS


 


HIS HONOUR JUDGE PETER CLARK

1. We have before us four appeals for full hearing in this matter which came before an Employment Tribunal sitting at London Central, under the chairmanship of Ms V Cook held to hear the Applicant's combined Originating Applications. By her first Originating Application dated 15 February 2001 she complained of unfair dismissal, wrongful dismissal, pregnancy related detriment, pregnancy related dismissal and sex discrimination on the part of her former employer, the Respondent, Visa International Service Association. By her second application dated 27 April 2001 she complained of victimisation by the Respondent contrary to the Sex Discrimination Act 1975 (SDA). In answer to the first application the Respondent raised a counterclaim.
2. On 26-27 July the Tribunal heard evidence and argument on the issue of liability in respect of all complaints. Following a meeting in private on 2 August the Tribunal promulgated their first decision (the Liability Decision) with Extended Reasons on 20 August 2001. The Applicant having succeeded in part a remedies hearing was fixed for 5 October 2001. Prior to that hearing taking place the Respondent (we shall continue the description of the parties used below) entered a Notice of Appeal against the Liability Decision (the first appeal EAT/1198/01) and the Applicant applied for a review of the Liability Decision.
3. On 5 October the same Tribunal heard the Applicant's review application and considered the question of remedy. Again they reserved their Decisions on both matters.
4. On 10 December 2001 the Tribunal promulgated two further Decisions with Extended Reasons; a Review Decision (the first Review Decision) and a Remedies Decision. The Respondent has appealed against both the first Review Decision (EAT/97/02) and the Remedies Decision (EAT/98/02) by Notices dated 17 January 2002. We shall refer to these appeals as the second and third appeals respectively.
5. Finally the Applicant made application for a review of the Remedies Decision. That application was dismissed by the Chairman alone on the grounds that it had no reasonable prospect of success by a Decision with Extended Reasons promulgated on 22 February 2002 (the second Review Decision). Against that Decision the Applicant appeals by a Notice dated 2 April 2002 (EAT/327/02; the fourth appeal).

The facts

6. The Respondent is a well known provider of financial services. The Applicant was employed latterly in their Operating Regulations Services Department (the Department) as an administrator from 6 February 1989 until her resignation without notice effective on 23 January 2001.
7. The Department, situated in Kensington, London, was divided into two areas of work:(a) card design and (b) dispute resolution. Since about July 1998 the Applicant had worked mainly in the former but had expressed an interest in moving to the latter area at some time in the future. In September 1998 her manager and a personal friend, Frances Perry, sent her on a three day Chargeback course in Moscow, accompanying Kevin Hird, an Executive engaged in dispute resolution work, who was running the course.
8. In December 1999 the Applicant informed Maxine Gardner, an HR Consultant with the Respondent that she was pregnant and that her expected dated of delivery was during the week commencing 15 July 2000. She told Ms Gardner that she intended to return to work after the birth and that she would commence maternity leave on 2 June.
9. Prior to the Applicant going on maternity leave, in May 2000 the acting manager of the Department, Sandy Williams, together with Kevin Hird drafted a headcount application for approval by the relevant internal committee, the CMC. A factual issue as to whether that application was drafted by Ms Williams alone or in conjunction with Mr Hird was resolved in the Applicant's favour; Mr Hird, called by the Applicant, being preferred on this point to the evidence of Ms Williams. A further issue as to whether the application, for an additional post in the Department, related to a post in dispute resolution was also resolved in the Applicant's favour. Mr Hird's evidence that he thought the new post would be suitable for the Applicant was accepted; the Respondent disagreed as the Tribunal found they were entitled to do.
10. The Applicant commenced annual leave on 2 June 2000 prior to commencing maternity leave. On 8 June the CMC approved the headcount application. On 12 June Ms Perry returned from her own maternity leave which had commenced on 28 October 1999.
11. On 18 July Kevin Hird tendered his resignation, which took effect on 16 August 2000. His post was advertised internally on 24 July with a closing date of 4 August. There were no applications. In those circumstances Ms Perry decided to reorganise the department and to create two new posts, Operating Services Manager with responsibility for an Operating Regulations Analyst; those posts could be created to fill the vacancy left by Kevin Hird and the new post approved by the CMC. It was a central part of the Applicant's case that she ought to have been given an opportunity to apply for the Analyst post whilst on maternity leave but was not. Her son, George, had been born prematurely on 13 June 2000. Her additional maternity leave was due to expire on 8 January 2001 but it was agreed with Maxine Gardner that the Applicant could postpone her return to work after that date by taking parental leave.
12. Meanwhile the Analyst vacancy was advertised internally on 27 September 2000 with a closing date of 6 October. Two internal applications were made by employees without Operating Regulations experience. No decision was then made but the post was advertised in the Basildon & Southend Press, the Newcastle Evening Chronicle and the Metro, the free newspaper available at London Underground stations. The Applicant lives in Lindfield, West Sussex.
13. Following a recruitment exercise an external candidate, Julie Green, who had dispute resolution/chargeback experience with another employer was appointed to the Analyst post.
14. The Respondent's case in answer to the Applicant's complaint that she was not informed of the vacant Analyst post, for which she believed she was suited and was interested in, was twofold. First, she was not suited for the post; she did not have the necessary experience. Secondly, she had been told of the vacancy by Frances Perry, who was a near neighbour and friend and who visited her during the Applicant's maternity leave. The Applicant denied ever being told of this opportunity by Ms Perry. It was common ground that Ms Perry had visited her on six - eight occasions during her maternity leave but she contended that they had decided not to discuss work while she was on maternity leave. That was disputed by Ms Perry.
15. On the central issue of fact, the Tribunal, having carefully analysed the evidence given by both the Applicant and Ms Perry, preferred that of the Applicant. They found that Ms Perry did not notify the Applicant of the Analyst vacancy in the period August - October 2000.
16. The job offer was made to Julie Green on 5 December 2000. The Tribunal accepted that the Applicant first learned of the recruitment exercise at a meeting with Maxine Gardner on 7 or 8 December. Ms Gardner accepted in evidence that there was a duty on the Respondent to discuss significant operational changes in the department with staff absent on maternity leave. On the Tribunal's findings that was not done, contrary to the assertion of Ms Perry.
17. The Applicant was upset. She felt that her hopes of promotion when she had left on maternity leave had been thwarted by the failure to notify her of the Analyst vacancy, which would have represented a promotion in an area of work in which she was interested. The Tribunal found (Reasons paragraph 32) that she was not, in fact, shortlistable for the post given her lack of relevant experience.
18. By letter dated 13 December 2000 to Ms Gardner, the Applicant raised a grievance; her complaint was that she had not been given the opportunity to apply for a job for which she considered herself ideally qualified. She felt that she had been unfairly disadvantaged during her maternity leave. In her reply dated 3 January 2001 Ms Gardner told the Applicant that she had been made aware of the Analyst post by Frances Perry and that she was not considered for the role as she did not have the necessary experience. In these circumstances, the Applicant tendered her resignation by letter dated 22 January. On 24 January Ms Gardner replied; she invited the Applicant to reconsider her decision to resign, pointing out that if she did leave a discussion between them would be necessary as to recoupment by the Respondent of enhanced maternity benefit, received during her period of leave. Reference was made to the Respondent's terms and conditions of employment, and in particular this provision:

"In the event of your choosing not to return to work following maternity leave …..Visa reserves the right to recover all monies paid during the maternity leave/absence in excess of SMP"

(Statutory Maternity Pay)

The Tribunal Decisions

19. On these facts the Tribunal reached the following conclusions:

(1) Liability Decision

The Tribunal found that in failing to keep the Applicant informed of developments and job opportunities in her department during her maternity leave the Respondent was in fundamental breach of the implied term of mutual trust and confidence entitling the Applicant to treat herself as discharged (Reasons paragraph 55). She resigned within a reasonable time of learning of the breach (paragraph 33). She was constructively dismissed.

That dismissal was automatically unfair under section 99 of the Employment Rights Act 1996 (ERA). It was also unfair under section 98(4).

The Respondent's failure to notify her of these matters was a deliberate act amounting to a detriment for the purposes of section 47C ERA. No separate award to that for unfair dismissal would be made.

She was entitled to four weeks pay in lieu of notice.

The Respondent's counterclaim, seeking to recover enhanced maternity pay in the sum of £3,623 was dismissed on the basis that she left the employment in circumstances amounting to constructive dismissal. She did not leave of her own accord.

Finally, her complaint of victimisation was upheld on the basis that she had done a protected act, presenting her first Originating Application complaining of sex discrimination. The act of victimisation was the Respondent issuing its counterclaim in those proceedings. The Tribunal found that she had been less favourably treated than two actual comparators; women employees who had left the employment following maternity leave but who had not been pursued for enhanced maternity pay by legal proceedings (or at all) and who had not done a protected act. Directing themselves in accordance with the Court of Appeal decision in Chief Constable of West Yorkshire Police -v- Khan [2000] IRLR 324, the Tribunal found that "but for" the fact that the Applicant had presented her complaint of sex discrimination to the Tribunal, the Respondent would not have commenced legal proceedings to recover the overpayment claimed.

(2) The First Review Decision

The basis of the Applicant's application for review of the Liability Decision was that the Tribunal had omitted to deal with her separate claim of direct sex discrimination.

By their first Review Decision the Tribunal entertained that application and found that that complaint was also made out, the parties electing to deal with the point by way of submissions without further evidence being called.

Applying the old burden of proof the Tribunal held that the Respondent's failure to keep the Applicant informed of developments was not because of the friendship between the Applicant and Ms Perry (see Liability Reasons paragraph 30) but because she was on maternity leave. No comparator was required. See Rees -v- Apollo [1996] ICR 466, applying Webb -v- Emo (No 2) [1995] ICR 1021 (HL). The complaint of direct sex discrimination was also made out.

(3) The Remedies Decision

Recognising that there was some overlap between the various complaints, the Tribunal made no separate award in respect of the complaints of wrongful dismissal and breach of section 47C ERA.

Applying the principles laid down by Morison J in Ministry of Defence -v- Cannock [1994] ICR 918 they found that there was an eighty per cent chance that the Applicant would have returned to part-time (three day week) work and would have worked until she started a second period of maternity leave on 29 October 2001. She would then have taken leave until 5 August 2002. At that stage there was a fifty per cent chance she would have returned to work at the Respondent's Kensington offices and would have remained there for the next twelve months, looking for part-time work near her home in Sussex. In these circumstances her claim for future loss ended on 4 August 2003.

That loss was calculated on the basis of her salary as an Administrator, the Tribunal having accepted that there was no chance of her securing the new Analyst position. In carrying out their final calculation of financial loss the Tribunal deducted a figure said to represent the Applicant's childcare costs, allowing for a contribution to those costs by the Respondent and based on a three day working week. Their final total loss figure was £12,943.73 in respect of the direct sex discrimination claim found proven in the first Review Decision.

In addition she received two separate awards for injury to feelings; for direct sex discrimination £8000 and for victimisation £5000.

A contention by the Respondent that she had contributed to her dismissal was rejected, as was a "Johnson -v- Unisys" claim by the Applicant for damages for injury to feelings in the unfair dismissal claim.

It followed that no separate award in respect of unfair dismissal was contained in the final award totalling £25,943.73 plus interest.

(4) The Second Review Decision

The basis of the Applicant's further review application in respect of the Remedies Decision was twofold. First, that the Tribunal had omitted to make a separate basic award of £2,300 in respect of unfair dismissal; secondly, that the Tribunal had erred in calculating the appropriate deduction for child care costs.

By her second Review Decision, summarily dismissing the application under Rule 13(5) Employment Tribunal Rules of Procedure 2001, the Chairmen held:

(i) that at the Remedies Hearing, although in a Skeleton Argument Mr Thacker had specifically referred to the basic award, he had acknowledged that some of the claims overlapped and had not pursued the question of a separate basic award in oral submissions. He could not now re-open that issue, and

(ii) the Tribunal pro-rated the Respondent's total maximum contribution to childcare costs, based on a full working five day week, totalling £3000, to reflect their assessment that the Applicant would be likely to return to work on a part-time (three day week) basis and not full-time.

The Appeals

20. It is convenient to deal with the issues raised in each of the appeals separately and in the order previously adopted in this judgment.

First Appeal

21. Mr Sutton challenges the following findings in the Liability Decision.

(i) Constructive dismissal

His first point is that the Tribunal mis-stated the Applicant's case on constructive dismissal. He submits that the case was that in failing to notify the Applicant while she was on maternity leave of the Analyst vacancy for which she would have applied had she been aware of it, the Respondent fundamentally breached the implied term of mutual trust and confidence entitling her to resign. However the Tribunal impermissibly widened the scope of that allegation by adding, in paragraph 1(i) of their Reasons, a re-organisation of the department of which she was not aware. He contends that that extension is not mere surplusage but introduces an element to the case which the Respondent was not required to meet.

We accept the principle that the Tribunal must not adjudicate on issues not placed before them by the parties (see e.g. Chapman -v- Simon [1994] IRLR 124, paragraph 45, per Peter Gibson LJ). However, we are quite satisfied that the reference to re-organisation in paragraph 1(i) of the Reasons did not permeate the Tribunal's actual finding of breach, which is clearly set out at paragraphs 33 and 55 of their Reasons. To pick on the use of the words "developments" and "job opportunities" in paragraph 33 is, in our judgment, to attempt to read the Tribunal's Reasons as if they were a statute. That is not the correct approach. In our view the Tribunal focused on the complaint put by the Applicant and upheld it on the facts as found.

Secondly he submits that no fundamental breach of contract by the Respondent was made out in circumstances where the Tribunal found as a fact that the Applicant was not shortlistable for the Analyst post. That, in our view, misses the point. Her complaint was not that she had not been informed of a job opportunity which turned out to be illusory. It was that she believed that she was suitable for the post and the Respondent's failure to notify her of that opportunity fatally undermined her trust and confidence in the Respondent after twelve years service. That case, upheld by the Tribunal, was not dependent on her losing the chance, in fact, of successfully applying for the post. The Tribunal's conclusion is, in our judgment, consistent with the formulation of the implied term to be found in the judgment of Browne-Wilkinson P in Woods -v- W M Car Services [1981] ICR 666 (EAT) at 670; and by the House of Lords in Mahmoud -v-BCCI[1997] IRLR 462, paragraph 8, where Lord Mackay formulated the implied term in this way:

"the employer will not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."

The Respondent's real difficulty in this part of the case is that it lost on the facts. It contended that the Applicant had been informed of the vacancy by Frances Perry but their evidence on that point was rejected. No reason for not informing the Applicant of the vacancy during her maternity leave was advanced; on the contrary Ms Gardner accepted that she should have been informed. That omission seriously damaged trust and confidence, so the Tribunal held. Constructive dismissal was made out.

We note that there is no appeal against the Tribunal's finding that the dismissal as found was both automatically unfair under section 99 ERA (dismissal for a reason related to maternity leave; s 99(3)(b) and, if it were necessary, under the provisions of section 98.

(ii) The section 47C complaint

Section 47C(1) ERA provides:

"An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason."

By subsection (2) a prescribed reason includes one which relates to ordinary, compulsory or additional maternity leave.

At paragraph 56 of the Liability Reasons the Tribunal found that the Respondent knowingly failed to keep the Applicant advised of developments and this amounted to a detriment under section 47C.

Mr Sutton complains that it was no part of the Applicant's pleaded case, nor was it put to the Respondent's witnesses, particular Ms Perry, in cross-examination, that there had been a deliberate failure on the part of the Respondent to keep the Applicant informed of developments during her maternity leave.

There are, we think, two answers to that charge. The first is that it is clear from the first Originating Application that the Applicant was raising a complaint under section 47C(1): "pregnancy related detriment" (Box 1); the failure to keep the Applicant informed of recent developments concerning the new post (Particulars of Claims, paragraph 10 and the claim (paragraph 13a):

"That she suffered a detriment related to pregnancy and/or maternity leave contrary to section 47C …."

That pleading imports an allegation that the Respondent subjected the Applicant to a detriment by a deliberate failure to act.

Secondly, the Chairman was asked to comment on the contention in the first Notice of Appeal, paragraph 6.9, that at no time in the course of the liability hearing was it asserted by the Respondent that Mrs Perry had deliberately withheld information from the Applicant. In her reply dated 7 November 2001 the Chairman responded that to the best of her recollection, and that of her lay colleagues, the allegation that Ms Perry had deliberately withheld information from the Applicant was put to her.

That is not the recollection of Mr Sutton, nor was it noted by his instructing solicitor. Mr Thacker very fairly told us that he has no independent recollection as to whether the point was, in terms, put by him to Ms Perry.

We reminded Mr Sutton of the long-established practice in this jurisdiction. See Dexine Rubber Company Ltd -v- Alker [1977] ICR 434, 438-9. That practice was not followed in this case. The Respondent did not submit its criticism of the Tribunal's collective recollection to the Applicant's representative and then submit its criticism for the Chairman's further comment. In these circumstances we shall accept the recollection of the Tribunal.

In any event, we are not persuaded that the point is a good one. In our view the word "deliberate" is inserted into section 47C(1) to distinguish from an inadvertent or accidental failure to act. In this case the Tribunal was faced with a stark conflict of fact. Ms Perry claimed that she told the Applicant of the new post; the Applicant denied that she had been so informed. Having resolved that conflict in the Applicant's favour it is unsurprising that the Tribunal found that Ms Perry had acted, not inadvertently but intentionally in not informing the Applicant.

For these reasons we reject this ground of appeal.

(iii) Victimisation

Again, Mr Sutton takes a point on the formulation of the Applicant's case on victimisation, raised in her second Originating Application, where it is said:

"5. The reason that the Respondent has made a counterclaim against the Applicant for recovery of contractual maternity benefit is that the Applicant has issued proceedings, including those under the Sex Discrimination Act 1975, in the Employment Tribunal."

The Tribunal formulated this part of the Applicant's claim at paragraph 1(vi) of their Liability Reasons, as:

"A complaint of victimisation by the Applicant contrary to the Sex Discrimination Act being the Respondent's attempts to recover the overpayment of maternity pay, and the issuing of legal proceedings to enforce this."

At paragraph 59 the Tribunal conclude:

"We find that there was no act of unlawful victimisation in the Respondent's attempts to recover the overpayment when Maxine Gardner wrote on 24 January."

We have earlier referred to the relevant part of that letter in setting out the facts. It must be noted that that letter pre-dated the protective act relied upon by the Applicant, that is her presentation of her first Originating Application dated 15 February 2001. It could therefore not have been an act of victimisation to send that letter.

The Tribunal conclude, at paragraph 59:

"We are not convinced by the Respondent's reasons for not issuing legal proceedings against the two comparators. We are satisfied that "but for" the fact that the Applicant had presented her complaint of sex discrimination to the Tribunal, the Respondent would not have commenced legal proceedings to recover the overpayment claimed. The Applicant's complaint of victimisation succeeds"

22. Mr Sutton submits that had the Respondent understood that the Applicant's complaint was about the Respondent's judgment to bring legal proceedings to recoup the additional maternity pay they would have conducted their case differently.
23. We are unable to accept that submission. First, because the nature of the victimisation claim was clearly set out in the Originating Application; secondly, it was made equally clear when Mr Thacker opened the case to the Tribunal; the Chairman's Note reads:

"Victimisation S.4 - presentation of counterclaim. 2 other people who left who did not seek to recover".

24. Thirdly, it is clear from paragraph 46 of the Tribunal's Liability Reasons that there was discussion between Counsel about the nature of Mr Thacker's cross-examination, which Mr Sutton felt might trespass on the principle of legal professional privilege. That questioning related directly to the Respondent's decision to issue the counterclaim.
25. In our judgment the Tribunal found in favour of the Applicant on a basis advanced on her behalf, and rejected a basis of claim (the 24 January letter) which was not so advanced. The Respondent can have no complaint in these circumstances.
26. Next, Mr Sutton complains that the two named comparators were not proper comparators because the Respondent had made no request for recoupment of maternity benefit from them, whereas a claim had been made against the Applicant prior to proceedings being issued by way of counterclaim.
27. Again we reject that submission. The Tribunal was entitled to take, as comparators, women who had not returned to work after childbirth; had not done a protected act and had not been pursued for additional maternity pay by way of legal proceedings. The distinction went further than whether a claim had been made other than by way of legal proceedings.
28. We repeat; it was not the Applicant's claim that the letter from Maxine Gardner amounted to a request for recoupment amounting to an act of victimisation, there having been no earlier protected act. In any event, the letter refers only to a discussion about recoupment, not a demand for repayment.
29. Those were the grounds of appeal raised by the Respondent in respect of the victimisation finding. During the course of argument we raised with Mr Sutton one further matter, not previously advanced. It was whether the Tribunal was correct in applying the "but for" test in relation to victimisation, sanctioned by the Court of Appeal in Khan, but subsequently disapproved by the House of Lords in that case. See [2001] IRLR 830, paragraph 29 per Lord Nicholls.
30. Mr Sutton warmed to that theme, submitting that there was no evidential basis sufficient to support the Tribunal's conclusion that the protected act caused the less favourable treatment he complained of, that is the issuing of the Respondent's counterclaim.
31. Mr Thacker took objection to that line of argument. It had not been raised before the Tribunal, where the case proceeded on the basis of the Court of Appeal guidance in Khan. It was not raised in the Notice of Appeal, the Respondent's Skeleton Argument nor in oral submissions until raised here by the Court. An opportunity to amend the Notice of Appeal at the preliminary hearing in this case, held on 4 July 2002 (Khan was decided in the House of Lords on 11 October 2001) had not been taken. It was too late to raise the point now. That would not be fair to the Applicant. Further findings of fact by the Tribunal would be necessary. Remission for that purpose was impermissible (see Jones -v- Governing Body of Burdett Coutts School [1990] IRLR 521) and disproportionate; the victimisation claim resulted in an award of £5000 for injury to feelings only.
32. Having considered those submissions and Mr Sutton's response, that the finding of victimisation had been challenged in the Notice of Appeal (although not, we are satisfied, on this causation point); that no further findings of fact were necessary and that the EAT will consider a point where the law has been revealed differently by a higher Court since the Tribunal hearing, we concluded that it would not be just to allow Mr Sutton to advance a new point which we ourselves had raised, interesting though it was. So interesting that close analysis of a possible tension between the House of Lords authorities in James -v- Eastleigh Borough Council [1990] ICR 554 and Nagarajan -v- London Regional Transport [1999] ICR 877 on the one hand and Khan on the other would have further prolonged this appeal hearing beyond the two days allotted, thus further adding to the cost. In these circumstances we did not permit Mr Sutton to take this new point. In so deciding we directed ourselves in accordance with the guidance given by Peter Gibson LJ in Miriki -v- General Council for the Bar [2002] ICR 505, 517, paragraph 28.

The Second Appeal

33. Mr Sutton takes no point on the Tribunal's decision to review their Liability Decision to consider the Applicant's complaint of direct sex discrimination upon which they had simply failed to make a determination in that Decision. In our view he was right to take that course.
34. The substantive complaint which he makes in relation to the Tribunal's finding on sex discrimination in their first Review Decision is as follows. No further evidence was heard at the first review. The question of sex discrimination was determined on the Tribunal's findings of fact made in their Liability Decision and on the submissions of Counsel. He points to paragraph 30 of the Liability Reasons where the Tribunal found that it was Ms Perry's reluctance to express her opinion, that the Applicant did not have the appropriate experience to be shortlisted for the new Analyst position, that was the reason for her not mentioning it to her friend, the Applicant, before the decisions in relation to that post had been implemented.
35. In these circumstances, submits Mr Sutton, it was not open to the Tribunal to find, in their first Review Decision, paragraph 15, that the Respondent's failure to keep the Applicant informed of the new post was not because of friendship but because she was on maternity leave. Such a finding on causation was contrary to their earlier finding of fact. Mr Sutton contends that the occasion for the act complained of was the Applicant's maternity leave, but the cause was the friendship between Ms Perry and the Applicant. See O'Neill -v- Governors of St Thomas More School [1996] IRLR 372, paragraph 40, per Mummery P.
36. Mr Thacker points out that a finding of no sex discrimination by the Tribunal would have been inconsistent with their conclusion in the Liability Decision, paragraph 55, that the dismissal was automatically unfair under section 99(3) ERA, a finding which is not challenged on appeal. Further, he submits that the issue in the sex discrimination claim was whether the fact that the Applicant was on maternity leave was an effective cause of the less favourable treatment complained of. Provided it was an effective and predominant cause, not necessarily the sole cause, the complaint is made out. Mummery P op cit. Rees -v- Apollo [1996] ICR 466.
37. We prefer the approach taken by Mr Thacker. In our judgment the Tribunal made clear, in their first Review Decision Reasons, paragraph 15, that the effective cause was the Applicant's absence on maternity leave; the friendship between the Applicant and Ms Perry was not. That was a finding which was open to them.

The Third Appeal

38. Mr Sutton takes a number of points in relation to the Tribunal's findings on remedy. We are satisfied, based on Mr Thacker's response, that with one exception these matters raise questions of fact only. Our jurisdiction is limited to correcting errors of law.
39. The exception is a matter of common ground in this appeal. It is that in calculating the Applicant's loss of earnings the Tribunal proceeded on the basis of her gross income; instead they ought to have used her net income. This is the sole ground on which we shall allow this appeal by consent. We leave it to the parties to agree the appropriate net figure, failing which the matter must be formally returned to the same Employment Tribunal to re-calculate the Applicant's loss of earnings on a net basis.

The Fourth Appeal

40. Having taken no point on the Tribunal's Decision to carry out the first review hearing, Mr Sutton contends here that both matters raised by the Applicant in her second review application, the basic award and childcare costs points, ought to have been dealt with by way of appeal to the EAT (or cross-appeal in the third appeal) and not by way of review by the Tribunal and that consequently the Applicant's appeal against the second Review Decision is procedurally defective.
41. We find that submission deeply unattractive in circumstances where permission was granted to the Applicant to proceed to a full hearing on this appeal at the preliminary hearing. However, more substantively, we reject Mr Sutton's submission on the basis, first that the review procedure was appropriate in both instances and secondly because, in our judgment, the Tribunal Chairman was wrong to refuse to entertain the review.

(i) Basic award

The Applicant's schedule of loss before the Tribunal included a claim for the basic award for unfair dismissal under section 119 ERA. In his written submissions prepared for the purposes of the remedies hearing Mr Thacker included that head of claim at paragraph 36(b). At paragraph 37 he acknowledged that some of the claims overlapped and at paragraph 39 he submitted that lost earnings could be claimed under the head of sex discrimination, or if not, under section 123(1) ERA, the compensatory award. Nowhere does he concede that the sex discrimination claim overlapped with the, quite separate, basic award for unfair dismissal.

The Tribunal did not mention the basic award in their Remedies Decision or Reasons. When raised by the Applicant by way of a review application the Chairman took the view that the Applicant was estopped from now raising the question of a separate basic award when such a claim had not been advanced in oral submissions at the remedies hearing.

We cannot accept that reasoning. It is clear to us that in his written closing submissions Mr Thacker rightly drew a distinction between the basic award and the claim for lost earnings which might be met either by way of an award for sex discrimination or as part of a compensatory award for unfair dismissal, but not both. That proposition is not disputed, as a matter of law, by Mr Sutton.

In these circumstances we consider the Tribunal's omission to deal with the basic award in the Remedies Decision as no different from their failure to deal with the sex discrimination claim in their Liability Decision. Both were properly reviewable. Trimble -v- Supertravel Ltd [1982] ICR 440. The Tribunal ought to have reviewed their Remedies Decision. Had they done so they were bound to find that no concession had been made on behalf of the Applicant that the basic award, as opposed to the compensatory award for unfair dismissal, overlapped with the heads of compensation claimed for sex discrimination; there was no estoppel. Accordingly the basic award, agreed between the parties at £2,300, ought to have been added to the overall compensation awarded on review.

(ii) Childcare costs

We are persuaded by Mr Thacker that the Tribunal made a simple error in calculating the deductible childcare costs for which the Applicant was required to give credit.

42. The Tribunal found (Remedies Decision, paragraph 12) that the Respondent had a policy of contributing fifty per cent of childcare costs up to a maximum of £3000 p.a. They further found that but for the discriminatory dismissal there was an eighty per cent chance that the Applicant would have returned to work on the basis of a three day (as opposed to a five day) week. They found that the Applicant's likely childcare costs over a three day week would be £5,212 p.a. Fifty per cent would be £2,606 p.a; below the Respondent's maximum of £3000. However, instead of deducting that figure the Tribunal proceeded to pro-rate the employer's maximum contribution of £3000 to £1800, supposedly representing the Applicant's three day week. We are satisfied that there was no evidential basis for taking that step. The evidence of Ms Gardner did not distinguish between full and part-time staff. The maximum contribution by the employer was £3000. If fifty per cent of the actual cost fell below that figure then the Respondent would contribute the other fifty per cent.
43. In her second Review Decision Reasons the Chairman repeated the Tribunal's earlier error, pro-rating the employer's maximum contribution and expressed the opinion that in these circumstances a review would be unlikely to have any prospect of success. In our judgment a properly conducted review would have reached precisely the opposite conclusion.
44. In these circumstances we shall allow this appeal. The Remedies Decision will be varied to add a basic award of £2,300; the childcare costs deduction will also be varied. The parties should agree the revised figure, with liberty to apply on paper within twenty one days of the handing down of this judgment.

Conclusion

45. For these reasons we shall dismiss the first and second appeals by the Respondent; allow the Respondent's third appeal to the extent that net loss of earnings figures shall be substituted for gross figures and allow the Applicant's appeal, the fourth appeal, as indicated above. Any further consequential applications are to be made on paper within twenty one days of the date of this judgment.