Appeal No. EAT/813/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19 May 1994

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MRS M E SUNDERLAND JP

	MR G H WRIGHT MBE

MR S M STEWART & MR A GOWER T/A GOWERS	APPELLANTS

MRS A L MALE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	P R E L I M I N A R Y   H E A R I N G

Revised

	APPEARANCES

For the Appellants	NO ATTENDANCE BY THE 	APPELLANTS

	

	MR JUSTICE MORISON:   Following a hearing at an Industrial Tribunal held at Exeter on June 18 1993, it was unanimously decided that Mrs Male had been unfairly dismissed by her employers, an estate agency firm trading as Gowers in Yeovil Somerset.  She was awarded £2,135.  The written Decision of the Industrial Tribunal is dated June 24 1993 and was entered in the Register on that date.  On July 3 1993 the firm asked the Tribunal to review their decision and this application was refused for the reasons set out in their Decision which was entered in the Register on July 16 1993.  

	By Notice of Appeal dated July 23 1993 the firm wish to appeal against the original Decision.

	The purpose of this hearing is to determine whether the appeal discloses any arguable point of law.  This Court's jurisdiction derives from statute and when sitting as an appellate body we have jurisdiction only to hear appeals on points of law.  We cannot interfere with decisions because we disagree with them or because we have in some way tried to re-evaluate the evidence for ourselves.  We are not permitted to do that.  Where a notice of appeal appears not to raise any arguable point of law, as here, the matter is referred to a full court for decision.  

	We have carried out a careful review of the decisions of the Industrial Tribunal and the background papers.  We have given this case particular attention because we were told that the firm would not be appearing before us to-day and we have, therefore, not had the benefit of any oral submissions.  

	The brief facts are, as taken from the original Industrial Tribunal Decision, that Mrs Male had been employed by the firm since June 1986.  At the relevant time she worked with three others in the office.  Her principle role was negotiating sales and purchases and she remained in the office almost the whole of her time.  The firm was described by the Industrial Tribunal as a typical small business with employees being flexible as to their duties, turning their hands to tasks which had to be done, rather than being concerned as to whose job it was.

	In early 1992 Mrs Male became pregnant; she had a difficult time and was absent from work due to sickness from May 13 1992 to August 13 1992, apart from a two week period.  Having taken her annual leave from August 17 to September 2 she returned to work until she commenced her maternity leave on October 9.

	No doubt because of the difficulties caused to small businesses by extensive periods off work, for whatever reason, Parliament modified the law relating to the right of a pregnant woman to return to work after her confinement. To this end section 56A of the 1978 Act was passed which applies to small businesses where the number of employees, as here, does not exceed five persons.

	Subsection (1) of that section in effect permits an employer to refuse to take back a woman who has had time off for her confinement if it is not reasonably practicable for him to permit her to return to work or to offer her suitable alternative employment.

	The issue before the Tribunal was to ask themselves whether the firm had proved, on a balance of probabilities, the matters to which we have referred, set out in subsection (1) of section 56A.  Essentially the decision of an Industrial Tribunal on such an issue is purely one of fact.

	The Industrial Tribunal concluded that the firm had not made out their case on the evidence presented to them.  The essence of their decision was that as the partner had not consulted with the staff about their willingness to cover for her in her absence and then revert to their usual roles on her return, they were not prepared to accept the assertion that it was not practicable to make temporary arrangements to cover her absence, as had happened during her time off due to sickness.  Instead, having heard the partner's evidence they took the view that he had really decided in his own mind that being a small business it was up to him to say whether it was reasonably practicable to make temporary arrangements, without really considering the alternative possibilities, in particular, simply talking to the staff and seeing if they had difficulties with a temporary re-structuring as opposed to the long term restructuring which was put in place.  

	It is to be noted that the grounds for the review was that the partner had indeed spoken to the staff, he said, and they were not prepared to accommodate a temporary re-structuring.  As the Industrial Tribunal pointed out in the Decision refusing a review, this evidence was inconsistent with the evidence which the partner gave at the first hearing. The learned Chairman rightly said that a Decision could not be reviewed either because the applicant was asking for the evidence to be re-considered or because he wished to give different evidence.  A fortiori, a review would have been as inappropriate as this appeal on the basis that the partner wished effectively to change his evidence to rebut the crucial finding of fact made against him.

	We can find nothing wrong either with the approach of the Industrial Tribunal or its reasoning.  We have some sympathy with a small business which is faced with a long term absence of one of its employees.  Parliament has provided relief for them in relation to return to work after confinement.  However, employers have to do more than assert that it is not practicable to accommodate a return after a long absence.  In many cases, the "share and share alike" atmosphere in such a business will enable it to make room for women who often need to be able to return to work after having a baby, to pay for the normal things in life.  

	A balance has to be struck between the needs of the business and the legitimate expectations of women in the work place.  That balance is entrusted to the Industrial Tribunal and as they appear to us to have decided the matter correctly we dismiss the appeal as there is nothing in it.

	Before leaving this case, we must deal with a further point that was raised by the firm, namely, an accusation supported by an Affidavit of the partner, that the Industrial Tribunal was biased.  It seems to us, having reviewed the papers in relation to that allegation, that it was a scurrilous objection to have made.  It should not have been made and there is no substance whatever in it.

	We have read the comments both of the Chairman and the Lay Members in response to it and it seems to us that this demonstrates that the firm is not prepared to accept its responsibilities and accept the finding of the Industrial Tribunal which, in our view, they were entitled to make.  

	Accordingly, for the reasons we have given, we think this appeal is hopeless and we therefore dismiss it.