United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR WILSON (Husband) On behalf of the Appellant
For the Respondent	NEITHER PRESENT NOR REPRESENTED


 


JUDGE BURKE QC

1. This is an appeal by Mrs Wilson against part of a decision of the Employment Tribunal, sitting at Thornaby on Tees chaired by Miss Green and sent to the parties with extended reasons on 7 August 2002. Mrs Wilson has today been represented by her husband. The Respondent, Mrs Knight, has not attended. She has sent a letter saying that she will not be able to attend. We have of course proceeded in her absence in those circumstances and considered all the arguments that she would have wanted to put forward had she been here.
2. Mrs Wilson is and was at the material times in 2000 and 2001 the proprietress of a shop in Marton near Middlesbrough where she carried on business as Wilson's Greengrocers. The shop was in fact run by Mr Wilson as manager on behalf of his wife. In August 1999 Mrs Knight was employed by Mrs Wilson initially as a florist, to work in the Marton shop and subsequently her duties were extended to include work on the fruit and vegetable side of the business. She worked part-time for 18½ hours per week. Mrs Knight became pregnant. Her husband was at the time a University Student, a mature student, it seems, because Mrs Knight we are told already had three children; and so Mrs Knight was the sole family bread winner. She made arrangement with Mrs Wilson that she would take maternity leave at the appropriate time and would return to work thereafter.
3. On 1 December 2000, a few days before her maternity leave was due to start and after the dates both for the commencement of her leave and the ending of her leave had been agreed, she asked Mrs Wilson if, before she took her maternity leave, she could take accrued holiday. According to the findings of the Tribunal Mrs Wilson said that she would have to consult her accountant. We understand from Mr Wilson today, although this is not recorded in the Tribunal's decision and, therefore, we must make it clear that we are not finding facts so far as this is concerned, that what Mrs Knight wanted to do was to take 3 weeks holiday before her maternity leave and thus put off the commencement and the termination of her maternity leave proper by 3 weeks. Later that day Mr Knight phoned Mrs Wilson. Mrs Knight was not involved in this conversation, nor was Mr Wilson. The Tribunal found that the conversation was very heated. Mr Wilson's evidence on behalf of his wife, which does not appear to have been challenged, was that Mr Knight threatened Mrs Wilson. The police were called; and there were further calls from Mr Knight to Mrs Wilson which Mrs Wilson did not answer and which resulted in Mr Knight leaving phone messages on the answer-phone which, apparently, were recorded although, unfortunately, the recordings were not kept.
4. After a further 4 days work Mrs Knight left work as arranged. She took 3 weeks holiday and then had her maternity leave. In those 4 days Mr Wilson did not raise Mr Knight's conduct with Mrs Knight because of her condition, although the Tribunal record that he said in evidence that if she had not been pregnant he would have sought an explanation or an apology. When Mrs Knight phoned Mrs Wilson either at the beginning or just before April 2001 to discuss her return to work, Mrs Wilson informed Mrs Knight that there was a letter on its way enclosing a form which she had to complete. Mrs Knight did complete it; but at the end of April, when her return to work was imminent, Mrs Wilson sent her a letter saying that, due to a very sharp decline in the flower trade, her position had become redundant; and she was dismissed with effect from 4 May 2001.
5. Mr Wilson said in evidence to the Tribunal that the reason for the dismissal was not redundancy, as the letter purported to suggest, but was Mr Knight's conduct towards Mrs Wilson. On that basis the Tribunal found that there was no reason for the dismissal which fell within section 98(1) or (2) of the Employment Right Act and therefore the dismissal was unfair. Mrs Wilson's appeal against that part of the Tribunal's decision was dismissed at the preliminary hearing and is no longer before us.
6. The Tribunal went on to find that because Mr Wilson had said that if Mrs Knight had not been pregnant he would have sought an explanation or an apology from her, Mrs Knight had been dismissed for reasons connected with her pregnancy and therefore her dismissal was automatically unfair. At the preliminary hearing of this appeal Mrs Wilson's appeal against that conclusion was dismissed because, since her appeal against the finding of unfair dismissal under section 98 of the Employment Rights Act had been dismissed, it mattered not in any way whether Mrs Knight had also been unfairly dismissed under section 99 of that Act. Thus neither at the preliminary hearing nor indeed before us was there any investigation of the correctness of the Tribunal's conclusion under section 99 of the 1996 Act.
7. However Mrs Wilson was permitted to proceed to a full hearing of her appeal against the Tribunal's third conclusion which was that she had been guilty of sex discrimination. The Tribunal's decision on that issue was as follows. In paragraph 10 of their decision they correctly directed themselves that the Sex Discrimination Act 1975 makes it unlawful for an employer to treat a woman less favourably on the grounds of her sex than he would treat a man. They went, on in paragraph 11, to say that the question for the Tribunal was whether Mrs Knight would have received the same treatment but for her sex; and they referred in that connection to the decision of the House of Lords in James v Eastleigh Borough Council [1990] ICR 554.
8. Having thus directed themselves as to the law, the Tribunal then set out their conclusion on the sex discrimination claim in paragraph 20 of the decision in these terms:

"20 The Tribunal applied a similar test to that used above. 'Would the applicant have received the same treatment 'but for' her sex. The answer again was clearly 'no' and therefore the applicant's dismissal was contrary to the Sex Discrimination Act 1975."

It is immediately apparent that paragraph 20, on the face of it, contains serious lack of reasoning because, within paragraph 20, the Tribunal do not expressly explain what was the reason or what were the reasons for the answer which they said was clearly a negative answer to the question, 'Would the Applicant had received the same treatment but for her sex?' However we regard it as right, having regard particularly to the use of the word 'again' in the sentence in paragraph 20 beginning "the answer again was clearly 'no'" to imply into paragraph 20 the reasons given by the Tribunal in paragraph 17 of their decision where they had answered a similar question in relation to the claim that there was automatically unfair dismissal under section 99, the question there reserved having been posed in paragraph 16 as, 'Would the Applicant have received the same treatment but for her pregnancy?' In paragraph 17 the Tribunal said that that question was answered by the evidence of Mr Wilson who had quite clearly stated that, had Mrs Knight not been pregnant, the matter would have been dealt with differently because an explanation or an apology would have been demanded and if one had been forthcoming then Mrs Knight would have come back to work. The logic elides the need to have established on the balance of probabilities whether an apology or an explanation would indeed have been forthcoming; but for present purposes that is immaterial.

9. The Tribunal having thus apparently reasoned to the conclusion which they expressed in paragraph 20, it is necessary for us to consider whether their approach was correct in law. Mr Wilson has appeared before us today and has argued with charm and frankness that the fact that Mrs Knight was pregnant made absolutely no difference to what happened because any employee working in a small organisation, such as that in which Mrs Knight and Mr Wilson, worked and which was owned by Mrs Wilson, whose husband or spouse or partner had spoken to the proprietor of the business in the way in which Mr Knight did speak to her could not really have expected either to stay on or to have been kept on; and he has submitted that had Mrs Knight been not pregnant or not a woman but a man it would have made absolutely no difference to the situation at all. The same thing would have happened.
10. However, it is important to make it clear that in a case where sex discrimination is alleged to have occurred in the context of pregnancy, the familiar approach in a discrimination case involving a comparison with what did happen or would hypothetically have happened in the same circumstances to a person of different gender or different race does not apply because no person other than a woman can be pregnant. In the case of what is alleged to be sex discrimination in the context of pregnancy the question which a Tribunal has to ask itself, where there has been for example dismissal as in this case is, 'Was the dismissal (or other detriment if other detriment is relied upon) caused by the pregnancy?'
11. In paragraph 10 as we have indicated, the Tribunal referred to the familiar process of comparing in a sex discrimination case the treatment of the woman allegedly discriminated against with the treatment of a man but that was in our judgment inappropriate for this case. Nevertheless the Tribunal did not in fact embark on a comparative exercise. What it did instead was to ask itself the question set out in paragraph 11 namely, 'Would Mrs Knight have received the same treatment but for her sex or but for her pregnancy?' That is the test which they plainly applied in considering the section 99 issue; and it is equally the test which they applied in approaching the sex discrimination issue. Indeed they said so in express terms in paragraph 20 of their decision, in the words 'Would the Applicant have received the same treatment but for her sex?'
12. In so directing themselves the Tribunal in our judgment erred in law. It has been established, in particular in the case of O'Neal v The Governors of St Thomas More School [1996] IRLR 372, that the test for causation in considering sex discrimination in the context of pregnancy is not the 'but for' test. It is not enough simply to show that 'but for' being pregnant a dismissal or other detriment would not have occurred. The correct approach is to ask whether pregnancy was the effective and predominant, though not necessarily the only or main cause of the pregnancy or other detriment. It is pointed out in O'Neal that, in principle, it would be possible for a Tribunal to say on the individual facts in some cases that the 'but for' test of causation might well be met while it would not be possible to conclude or a Tribunal applying the right test would not conclude on the same facts that the pregnancy was the effective and predominant cause, as opposed for example in this case to the behaviour of Mr Knight towards Mrs Wilson, of the dismissal or other detriment which the case involves.
13. For those reasons we are satisfied that, in relation to the sex discrimination claim the Tribunal reached its decision by applying a test for causation which was the wrong test in law. Mr Wilson has naturally and cogently sought to persuade us that, if the right test had been applied, the only possible result which could be achieved by a Tribunal applying that correct test would be that the dismissal in this case was not caused by the pregnancy. Regrettably we do not think having regard to our limited knowledge of the evidence and on the findings of fact which the Tribunal made that it is possible for us to say that it is so clear that that would indeed have been the result of an application of the correct test that no reasonable Tribunal could have come to any other result however much we think that Mr Wilson might in the end turn out to be right. For those reasons we see no alternative but to remit the sex discrimination claim made by Mrs Knight to the Tribunal for rehearing. We have heard from Mr Wilson that he was unhappy about the Tribunal's approach to his case and in the circumstances and having regard to the nature of the mistake which was made in this case we think it only just that the remission should be to a different Tribunal.
14. Accordingly the appeal is allowed to the extent that Mrs Knight's claim that she had been the victim of sex discrimination is remitted for rehearing to another Tribunal.