United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS SALLY ROBERTSON (Of Counsel) Instructed by: McDermott Will & Emery 7 Bishopsgte London EC2N 3AR
For the Respondent	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


JUDGE PROPHET

1. Miss Annette Smith worked as a catering assistant in the canteen of the University Hospital in Durham from October 2001. She obtained that post through an employment agency but in December 2001 she submitted an application for a permanent post with Haden Building Management Ltd (hereinafter referred to as Haden) who were the contractors supplying catering services to the Hospital Trust.
2. She informed the Haden management that she was pregnant in the same month. There were some difficulties for Haden in obtaining satisfactory references in respect of Miss Smith. She was informed in March 2002 that Haden's had decided not to give her the permanent post for which she had applied.
3. In June 2002 she submitted an Originating Application to the Employment Tribunal in Newcastle complaining of sex discrimination and unfair dismissal. An Employment Tribunal sat at Newcastle on 30 September 2002 under the chairmanship of Mr Hargrove with Ms Dunn and Ms Menton as lay members to hear her complaints. Miss Smith was represented at that hearing by Mr Fletcher of Counsel and Haden by Mr T Smith. Mr T Smith is described in the Employment Tribunal reasons as a solicitor, but as the Notice of Appearance refers to Mr Timothy Smith as the personnel manager that could be incorrect.
4. It seems that the Tribunal spent two days in Chambers, that is on 29 November and 6 December 2002 reaching its decision which was promulgated on 20 January 2003.
5. The Employment Tribunal found unanimously that Miss Smith had never transferred from the agency to Haden and therefore could not have been dismissed by Haden. That effectively ended her unfair dismissal claim. However, so far as sex discrimination was concerned they found by a majority that that complaint against Haden was well founded. A hearing for remedies was ordered but that we understand that that has still not been dealt with.
6. The appeal by Haden has been set down for a full hearing at the Employment Appeal Tribunal at the direction of His Honour Judge Peter Clark and we are constituted today to conduct that full hearing. Miss Sally Robertson of Counsel represents the Appellant. No-one has attended to represent Miss Smith nor has she herself attended here today and we have decided to deal with the appeal in her absence. There is one preliminary matter to dispose of. Miss Smith's solicitors submitted a late answer to the appeal. Although there is no adequate explanation from those solicitors for that lateness Miss Robertson has indicated helpfully that it may be allowed. In fact it carries matters very little further because Miss Smith essentially relies on the grounds set out by the Employment Tribunal in reaching its decision.
7. Miss Robertson has helpfully refined her appeal against the sex discrimination finding to two grounds. The first is that the Employment Tribunal wrongly decided an issue that was not before the Tribunal in the Originating Application. She refers to the Court of Appeal's judgment in Ahuja v Inghams (Accountants) [2002] ICR 1485 which as Miss Robertson says, is Chapman v Simon [1994] IRLR 124 writ large.
8. However, having listened carefully to Miss Robertson's submissions on this point we are not able to accept that the Employment Tribunal fell foul of the principles enunciated in Ahuja. In her Originating Application Miss Smith says:

"I believe that Haden agreed to employ me as a permanent member of staff and that a verbal agreement had been reached. Haden Building Management Limited, in my opinion, failed to offer me the permanent Contract in writing because of pregnancy related illness.

I therefore believe that Haden Building Management Limited have discriminated against me."

9. That, we have concluded was sufficient to incorporate a sex discrimination complaint that a significant factor in her not being given a permanent employment by Haden was in relation to her pregnancy. No further amendment or refinement of the application was necessary for the employer to understand what was being alleged under the box 1 heading of 'sex discrimination'.
10. The second ground of appeal is that the Tribunal erred in law in drawing an inference of sex discrimination without primary facts being found to enable it to reach its conclusion. In that respect Miss Robertson refers specifically to paragraph 2(k) of the Employment Tribunal's reasons where there is no specific finding of fact as to the content of the conversation between Mr Sweeney and Mr Buchanan in respect of not offering Miss Smith a permanent appointment.
11. She refers also to paragraph 2(l) where the Employment Tribunal do not specifically say that they find as a fact that what Miss Smith alleged was said to her by Mr Buchanan was correct. Although the Employment Tribunal said later in their reasons (see paragraph 6(d)) that they did accept Miss Smith's evidence on that latter point, Miss Robertson says that the Employment Tribunal was at fault in reversing the burden of proof before first finding the necessary findings of fact (see section 63A of the Sex Discrimination Act 1975.) Miss Robertson also submits that the Tribunal made insufficient references to the evidence given by Mr Sweeney to the Tribunal.
12. It is clearly important that Employment Tribunals recognise, following the enactment of section 63A that they must carefully assess primary facts before moving to require 'adequate explanation' from an employer or a potential employer. However, it is also important that Employment Tribunals do not get bogged down in legal technicalities in respect of the interpretation of section 63A which as we understand it, effectively strengthens the position as established by King v Great Britain-China Centre [1992] ICR 516 a case well understood by employment lawyers.
13. The case we are hearing today is a good example. Essentially, Miss Smith was seeking a permanent employment with Haden. Following their receiving information from her that she was pregnant she did not obtain that appointment.
14. It is difficult to see why that should not form the primary facts which in turn required some explanation from Haden. Haden argued that the reason for that refusal was that they were not able to obtain satisfactory or suitable references. That was a perfectly proper attempt at an explanation. It was carefully considered by the Employment Tribunal which reached a finely balanced judgment by a majority that sex discrimination played a significant part in that refusal. That was a matter for their judgment. Accordingly, whilst thanking Miss Robertson for the well presented submissions which she has made to us today, we unanimously dismiss this appeal.
15. If it is correct that the matter of remedy has still not been dealt with by the Employment Tribunal at Newcastle (see para 5 above), no doubt that can now be expedited.