Appeal No. EAT/1002/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9th November 1995

	Before

	HIS HONOUR JUDGE P CLARK

	MR R N STRAKER

	MR A D TUFFIN CBE

MRS D JONES	APPELLANT

SPECIAL CROWN LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR PAUL JOHNSON
(Solicitor)
Oldham Law Centre
Prudential Buildings
79 Union Street
Oldham
OL1 1HL

For the Respondents	MISS E HAGGERTY
(of Counsel)
Messrs. R.F. Witkin & Co
Solicitors
Lloyds House
18 Lloyd Street
Manchester
M2 5WA

	JUDGE CLARK:   The appellant Diane Jones was employed by the respondent who are manufacturers of garments, as a machinist at their premises in Yorkshire Street, Oldham. Following a break in employment she began her last period of continuous service with the respondent on 20th July 1992. 

	On 17th September 1993 she had a conversation with Mr Hughes, the managing director, of the respondent, and informed him that she was expecting a baby which was due on 4th April 1994. She had already one child, a son. His reaction, the Industrial Tribunal found, was to say "you are mad". On 21st October 1993, the appellant was certified sick for two weeks by her General Practitioner with a back problem. 

	Whilst she was off sick her mother, Mrs Travers, also employed by the respondent was called to the office and told that the appellant was to be made redundant. Thereafter Mr Hughes telephoned the appellant and said "I have some good news for you, I am making you redundant, you can then stay at home, go on the dole and look after your son who is not a well child." He suffered from infantile eczema.

	The appellant was then dismissed with effect from 5th November 1993. 

	Following her dismissal, the appellant brought a complaint before the Industrial Tribunal alleging, first, that she had been dismissed for reasons connected with her pregnancy, and this amounted to discrimination on grounds of her sex. Secondly, she complained that she had not been given a written statement of her terms and conditions of employment, contrary to Section 1 of the Employment Protection (Consolidation) Act 1978. And further, she complained that she had not received itemised pay statements contrary to Section 8 of that Act.

	The right to refer those matters to an Industrial Tribunal lies in Section 11 of the Act and upon receiving such references the Tribunal has power to determine what particulars of the applicant's terms and conditions of employment ought to have been included in a statement, where none has been given, and where no pay statements have been provided, make a declaration to that effect and order payment of any un-notified deductions found by the Industrial Tribunal to have been made from the applicant's pay over the 13 week period preceding the application, to be paid to her by the respondent.

	The matter came before the Manchester Industrial Tribunal on 5th August 1994. By its decision the Tribunal dismissed the complaint of sex discrimination and went on to say this:

		" ... In her Originating Application the applicant also made reference to the Tribunal pursuant to Section 11 of the Employment Protection (Consolidation) Act 1978 that the respondent when her employer, failed to provide her with statements required by Section 1 and 8 (contract particulars and itemised pay statements) of that Act but no evidence in regard to these matters was deduced to the Tribunal nor were those matters pursued before it and therefore the Tribunal makes no order thereon."

	Against that decision, the appellant now appeals to this Tribunal, and Mr Johnson on her behalf attacks both the finding of no sex discrimination and the Industrial Tribunal's failure to make any order under the Section 11 references.

	We shall deal first with the Section 11 point. 

	In its decision the Tribunal states that no evidence relating to Section 11 references was deduced (we think that means produced) to the Tribunal, nor were those matters pursued before it, therefore no order is made. Mr Johnson having obtained the Chairman's Notes of Evidence, wishes to put before us his own notes of the evidence, in order to show the full extent of the evidence led in relation to those issues. We do not find it necessary to rule on that application. Contrary to what is said in the decision, there was on the Chairman's own notes evidence given by the appellant, both in chief and in cross-examination, about itemised pay slips. Further, the Industrial Tribunal found as a fact at paragraph 4(a) of the their written reasons, that:

		"... She had no written contract of employment nor any statement of particulars thereof. ..."

	It follows in our judgment, that there was evidence before the Industrial Tribunal on which it could determine the matters raised by the Section 11 reference. Absent withdrawal of that reference, which is not suggested, it was the duty of the Industrial Tribunal to make findings of fact, if it could, on the reference and determine it according to its powers under Section 11. Its failure to do so amounts to a clear error of law in our view, and thus the Section 11 reference, both in relation to a statement of terms and conditions of employment, and in relation to itemised pay statements, will be remitted to a fresh Industrial Tribunal to hear and determine in accordance with Section 11. Thus that part of the appeal with be allowed.

	We turn now to the claim of sex discrimination.

	Mr Johnson submits that in attempting to summarise the upshot of the lengthy litigation in Webb v EMO, most recently adjudicated on by the House of Lords for the second time on 19th October 1995, in paragraph 5 of its reasons:

		"The Industrial Tribunal has fallen into error by applying a comparison with a male."

	Before analyzing both the Industrial Tribunal's observations in that paragraph and the result in Webb v EMO, it is first necessary for there to be a connection between Mrs Jones' pregnancy and her dismissal.

	It was the respondent's case before the Industrial Tribunal that pregnancy had nothing to do with her dismissal. The reason for it, they claimed, was that she had a record of sick absences; that her two week period off sick through back problems in October 1993 was the last straw; that this was a busy period in the run-up to Christmas, and it was not fair on the other workers for the team to be one short. The Industrial Tribunal accepted the respondent's case, and found as a fact in paragraph 10 that:

		"... the respondent dismissed the applicant not for any reason connected with her pregnancy ..."

and went on to accept the reasons put forward by the respondent.

	Mr Johnson accepts that before the Webb principles come into play there must be a finding that the dismissal was connected with the pregnancy. He attacks the Industrial Tribunal's conclusion in paragraph 10 as a perverse one. He says that the Tribunal ought to have made a specific findings as to whether the back problem, suffered by the appellant, were connected with her pregnancy. Their failure to do so undermines their conclusion. We have consider the evidence led before the Tribunal and have decided that this complaint is not made out. No medical evidence was led to make the connection between the pregnancy and the back ache. Further, the appellant's own evidence does not make the link. In re-examination, she was asked by Mr Johnson: "When you were off with back trouble on 21 October, was that due to your positioning on the machine?" Her answer was: "It could have been. My first son Daniel was born on 15 June 1991 and I had some time off during that pregnancy." That is the high water mark of the appellant's evidence, and it seems to us that links the back ache to a poorly designed work station rather than her pregnancy.

	In these circumstances, we are unable to detect any error of law in this part of the Tribunal's decision, and accordingly this part of the appeal must be dismissed.