Appeal No.	 EAT/519/89

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 March 1992

Before
THE HONOURABLE MR JUSTICE KNOX

MR J C RAMSAY

MS P SMITH

THE LEEDS PRIVATE HOSPITAL LTD	APPELLANTS

MISS T D PARKIN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	DR G LIGHTNING Ph.D
(Managing Director)
Knowle House
Sagars Road
Hadforth
Cheshire
SK9 3ED	
For the Respondents	MS ROS CAMPBELL
(Representative)
Citizens' Advice Bureau
Westminster Buildings
31 New York Street
Leeds
LS2 7DT	

	MR JUSTICE KNOX:  This is an Appeal by the Leeds Private Hospital Limited which I will call "the Company" against a Decision of the Industrial Tribunal sitting at Leeds on the 9th August 1989 which was sent to the parties on the 15th August 1989, that so far as relevant, the complaint of sex discrimination under the Sex Discrimination Act 1975 was well founded.  There was another claim under the Wages Act but there is no appeal in relation to that and we need not deal with that any further.

	The factual background was that the Applicant before the Industrial Tribunal, a Miss Parkin, was employed as a Cook at a private hospital run by the Company for a short period of time.  She began her employment on the 27th January 1989 and she was dismissed by a letter which was written on the 15th March by Dr Lightning, the Managing Director of the Company, which said this:
		"`Following working a normal day on Thursday 9 March 1989 you did not arrive for duty on Friday 10 March 1989.  Nobody telephoned us to say that you were not coming in and by doing so you repudiated your contract of employment with us and dismissed yourself from our employment.

		This note is to confirm therefore that your employment with us ended on Thursday 9 March 1989. ......'"

	The discrimination point arises out of the fact that Miss Parkin found on the 14th February 1989 that she was pregnant.  The hospital where she was working as a cook was day to day run by an administrator, a Mrs Haines and two Nursing Sisters, Sister Beech and Sister Thwaite.  Sisters Thwaite and Beech were told by Miss Parkin of her pregnancy.  The exact date of that is not found by the Industrial Tribunal but it clearly was before a meeting in early March 1989 where there was an interview between those two Sisters and Mrs Haines and Dr Lightning with Miss Parkin, which was concerned about the efficacy of her cooking and there were some criticisms made and suggestions that she might vary her repertoire somewhat.  There was no suggestion at that time that she was being warned that her future employment was, to quote the Industrial Tribunal, "in jeopardy".

	That interview was placed it would seem on the 8th March, because the actual finding was that it was some time between the 7th and the 9th.  On the 9th March a further meeting with just the two Sisters and Miss Parkin occurred in which Miss Parkin was told that her job was being advertised.  That distressed Miss Parkin because she thought that was an indication that she was going to lose her job, and she did find an advertisement in the "Yorkshire Evening Post" that evening for an experienced cook for a busy private nursing home, with further details including the telephone number of this particular hospital.  The next day, Friday 10th March, she went sick and she went to see her Doctor, she completed a self certificate for sickness for three working days which would have taken her into the middle of the following week, and the Industrial Tribunal found that she sent that to the Company which had no trace of its being received.  She did not remember to ring the Company or anybody at the hospital to tell them that she was not going to come in.  Dr Lightning was made aware of her absence on the Friday and he asked the administrator, Mrs Haines, to find out what was happening but there was no evidence before the Industrial Tribunal as to what action was taken about that by Mrs Haines, who was not in fact called as a witness.  Dr Lightning said on this score from the Notes of Evidence, that he had said to Mrs Haines "try to find out what has happened" and that he did not know what Mrs Haines had done about it, but he made a supposition about whether she had tried to `phone or not.

	On the following Wednesday, that is to say on the 15th, Miss Parkin still had not presented herself for work and Dr Lightning wrote the letter that I quoted at the outset of this Judgment.

	The question for the Industrial Tribunal was whether, so far as this Appeal is concerned, there was unlawful discrimination contrary to the provisions of the Sex Discrimination Act.  There are only two relevant subsections.  The first one is Section 1(1)(a) which reads:
		"A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -

		(a) on the ground of her sex he treats her less favourably than he treats or would treat a man"

and Section 6(2)(b) which reads in the relevant part:
		"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -

		(a) ..............

		(b) by dismissing her"

So that the question is within a fairly narrow compass as to whether or not the Company discriminated against Miss Parkin by dismissing her, the process of discrimination, involving treating her less favourably than the Company had treated, or would treat a man.  It was accepted, for practical purposes, that Dr Lightning was the person who decided what the Company did and therefore it was to what Dr Lightning would do, or had done, that the Industrial Tribunal, quite rightly, directed its attention.

	It found that Dr Lightning did know about Miss Parkin's pregnancy.  That is a finding which is made in the teeth of Dr Lightning's sworn evidence to the contrary, and it is one which, it is fair to say, that Dr Lightning has made it very clear to us in the course of this hearing, he feels very strongly about and claims that it was not only wrong but perverse.

	What the Industrial Tribunal had, by way of evidence, apart from Dr Lightning's evidence which they rejected, was first of all that Miss Parkin had told the two Sisters and that there had been conversation between Dr Lightning and the Sisters about Miss Parkin's performance as a cook.  They drew the inference, which can only be an inference, that the question of Miss Parkin's pregnancy may have arisen as a possible explanation for any deterioration in her cooking performance.  Secondly, they said that they thought that no reasonable employer would have moved to dismiss an employee for misconduct in such a short space of time, which we interpose, was not one day as was suggested in argument, but the interval between the Friday and the Wednesday when the letter was written by Dr Lightning, without giving the employee an opportunity of explaining.  Thirdly, and this they recognised as being a much stronger factor in their reaching the conclusion they did reach, there was the insertion of the advertisement, which they rejected as being what Dr Lightning had said to them it was, namely, not an advertisement aimed at obtaining a cook to replace Miss Parkin, but an advertisement aimed at getting another cook additional to the cooks that Dr Lightning and the companies he controlled had available to them.  They took the view that the existence of that advertisement was to replace Miss Parkin and in that connection they said this:
		"It seems to follow that the employers had in mind the possibility of dismissing the applicant and took advantage of her absence to do so.  We find that there was involved in that dismissal the fact that she was pregnant."

It will be convenient to deal with one argument that was addressed to us on that, and that was this, that Dr Lightning submitted that that was not a finding, that the reason for her dismissal was her pregnancy, because of the way in which the phrase was put by the Industrial Tribunal in that sentence which I have read.

	We are not satisfied about that, it seems to us that the clear intention behind that sentence was that a factor in the decision to dismiss was the fact that Miss Parkin was pregnant.  Any other construction of that sentence seems to us to fly in the face of practicality. 

	It is trite law that this Tribunal has only a statutory jurisdiction which is to be found in Section 136(1)(b) in this case, which reads:
		"An Appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of, the following Acts -

		...........

		(b) the Sex Discrimination Act 1975;

		............"

We do not have jurisdiction to interfere with the decision of an Industrial Tribunal on fact unless a question of law arises, and the two classic cases where a factual decision can be infected by an error of law are, one, the case where there is simply no evidence upon which the finding could be made, two, what is usually compendiously described as perversity, the case where no Industrial Tribunal, properly instructed, could reach the conclusion that it has reached.  This is a subject which has received many examinations and different formulations over the years but that state of affairs is one which is now very well established and we have to apply the law as we find it, which is that Parliament has only given us those very limited powers.

	We are not satisfied that there was no evidence upon which the Industrial Tribunal could reach the conclusion that Dr Lightning knew about Miss Parkin's pregnancy.  The Industrial Tribunal has in fact set out the primary facts from which they drew that inference, and although Dr Lightning has the greatest difficulty in accepting that this is a possible process, far less an admissible one, they simply did not accept what he said to them although it was on oath.  An Industrial Tribunal, it hardly needs saying, are not bound to accept what the witnesses say to them, albeit on oath.  In many cases of course, there is an acute conflict of evidence and it is impossible to accept what everybody says, but even where there is no positive evidence the other way, there is nothing to compel an Industrial Tribunal to accept the sworn evidence of any witness who appears before them and the fact of the matter is, distasteful and unpalatable though it may be to Dr Lightning, that there was some material upon which these inferences could be drawn before the Industrial Tribunal and they did reject his evidence and in those circumstances there is no possibility of our rejecting their acceptance of the fact or their finding of the fact, that he did know about Miss Parkin's pregnancy.

	I interpose in passing, that we rejected an application during the hearing for further evidence to be called, there was no attempt to raise that issue in the Notice of Appeal and there was nothing to indicate that the very stringent conditions by which any such application has to be judged would have been met, notably that the evidence which it was sought to adduce could not have been adduced at the time of the hearing before the Industrial Tribunal.

	I turn therefore, to the more difficult question of the finding of discrimination.  The point that has been raised and argued cogently by Dr Lightning on behalf of the Company, is that the comparison that the Industrial Tribunal made with the treatment that Dr Lightning would have accorded to a man is not supported by any evidence before the Industrial Tribunal, and is therefore not a conclusion of fact which can stand in this Tribunal.  What the Industrial Tribunal said was this:
		"The tribunal will endeavour to follow the guidance given in the decision of the Employment Appeal Tribunal in the case of Hayes v. Malleable Working Men's Club and Institute [1985] IRLR 367.  We readily accept from Mr Lofthouse that a dismissal for pregnancy is not per se sex discrimination."

I interpose that Mr Lofthouse appeared on behalf of the Company
		"What has to be shown is that the applicant has been treated less favourably than a man in analogous circumstances (such as a sickness disability) would be treated.  Now as a fact the tribunal is not prepared to accept that the respondent would have treated a man with a known sickness disability who became absent without explanation in a similar way to the way Miss Parkin was treated.  We are reasonably satisfied that Dr Lightning, who makes the point to us that he is a fair minded employer, would seek to ascertain why the male employee was absent particularly having regard to the known disability.  We bear in mind the particular circumstances and the nature of the respondents business.  The tribunal has unanimously concluded that it is reasonable for us to draw from the known facts the conclusion that the applicant was sexually discriminated against by the respondent."

	So far as the appropriate test to be applied is concerned the Industrial Tribunal, not surprisingly, guided itself by the Decision in Hayes v. Malleable Working Men's Club and Institute.  There is more modern and more authoritative decision, which was not available to the Industrial Tribunal because it had not occurred, in Webb v. EMO Air Cargo (UK) Ltd [1992] IRLR 116, in the course of which Lord Justice Glidewell said this, at paragraph 35, on p.121:
		"I therefore conclude that Mr Pannick's argument, which follows the decision of the EAT in Hayes and the opinion of Ms Smith in Turley, is correct.  In my judgment, if a woman is dismissed from employment for a reason arising out of the pregnancy, and claims that she was discriminated against in breach of the Act of 1975, it is necessary for the IT which hears her complaint to decide whether a man with a condition as nearly comparable as possible which had the same practical effect upon his ability to do the job would, or would not, have been dismissed.  I therefore conclude that dismissal of a pregnant woman for a reason arising out of, or related to, her pregnancy can in law be, but is not necessarily, direct discrimination under s.1(1)(a)."

	The strength of Dr Lightning's submission seems to lie principally in the exiguous amount of evidence that there was about how a man would have been treated.  So far as the woman is concerned, that is to say Miss Parkin, there is the finding of the Industrial Tribunal which needs no repetition that she was dismissed for a reason that included her pregnancy.  
	So far as a man is concerned the Decision of the Industrial Tribunal is contained in that paragraph which I have read and need not repeat, and when one looks at the Notes of Evidence with which we have been supplied and looks to see what the state of the evidence with regard to how a man would have been treated was, one finds only this, that Dr Lightning said in chief:
		"If I had a male employee who went absent from work because he had gone into hospital without telling me I would deal with him the same.

		I regard myself as a fair minded employer."

The cross-examination did not specifically challenge that evidence, so far as the record goes.  On the other hand it is clear, beyond any sort of doubt, that the Industrial Tribunal, just as it did not accept what Dr Lightning had said to them about his knowledge of Miss Parkin's pregnancy, did not accept what he said to them with regard to the way in which he would have treated a man with a known sickness disability.  

	It is also evident, if not self evident, that it would be in the highest degree improbable that there would actually be positive evidence available to an applicant, such as Miss Parkin, about how men had been treated in the past in relation to absence from work for a comparable period, from Friday to Wednesday, with a disability which can be treated as comparable with the disability that goes with pregnancy.

	The question of law that does, we think, arise is whether in the context of Section 1(1)(a) it is permissible ever for an Industrial Tribunal to form a conclusion about how a male employee would be treated in the absence of positive evidence about how a male employee actually had been treated.  We bear in mind that the Act deals separately with actual treatment and hypothetical treatment, I refer to the words:
		"he treats her less favourably than he treats or would treat a man"

The reference to how the person in question would treat a man is obviously in contradistinction to how he does treat a man and involves a hypothesis.  We have come to the conclusion that when one is dealing with what is necessarily a hypothetical state of affairs it is unrealistic to regard the Act as requiring positive evidence of some similar event in the past and that an Industrial Tribunal with this type of problem before it has to take all the evidence that is led before it and forms its conclusion on that evidence.  

	We do not regard this process as involving a burden of proof being shifted from the Applicant to the Respondent.  Some guidance has been given to us by King v. The Great Britain China Centre [1991] IRLR 513 CA, on the question of how far it is helpful to try to analyse the processes of reasoning that an Industrial Tribunal has to follow in the difficult questions that arise in dealing with sex, or indeed as in King's case, race discrimination cases.  In that case Lord Justice Neill said this:
		"It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof.  At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts.  They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

	So far as evidence is concerned, there might conceivably have been a possibility of the Company calling evidence to show that men had been equally badly treated.  I say equally badly quite deliberately because on the face of it the dismissal to which Miss Parkin was subjected was summary on the facts as they then appear to have been known to Dr Lightning. It is possible, but it did not happen, that the Company could, as I said, have adduced evidence of similarly bad industrial relations treatment.  But there was no such evidence.  In those circumstances, in our view, the Industrial Tribunal was entitled, if not indeed in the light of the Webb v. EMO Air Cargo (UK) Ltd case bound, to draw its conclusion from such evidence as it had and that included their disbelief of Dr Lightning's evidence and the fact that they took the view that the treatment that was accorded to Miss Parkin was, it would not I think be too strong to say, deplorable.  They concluded that it was a proper inference to draw that a man with a known sickness disability would not have been so badly treated.

	We cannot find that that is an impossible conclusion.  It is a conclusion of fact and unless we were satisfied that it was an impossible one it is not within our powers to interfere with this Decision and we do not.

	The Appeal will be dismissed.