Appeal No. EAT/955/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 13th January 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MRS R CHAPMAN

	MR E HAMMOND OBE

MS N MORGAN	APPELLANT

PIZZA HUT (UK) LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	(In Person)

	

	MR JUSTICE MUMMERY (PRESIDENT):  This is the Preliminary Hearing of an Appeal by Ms Nishal Morgan against the Decision of the Industrial Tribunal held at London (South) on the 11th April and 26th July 1994. 

	The Tribunal notified its Reasons to the parties on the 22nd August, stating that the unanimous Decision of the Tribunal was that Ms Morgan was not dismissed by her employers, the Respondents Pizza Hut (UK) Ltd, but had terminated her employment by failing to return to work on the 12th October 1993.  They also decided unanimously that she had not been subjected to detriment in the form of her purported dismissal on the grounds of sex.  For those reasons, Ms Morgan's claims for unfair dismissal and sex discrimination failed.

	Ms Morgan was dissatisfied with the Decision and has appealed to this Tribunal by Notice of Appeal dated 29th September 1994.  In the Tribunal, Ms Morgan was represented by her husband.  On the hearing of the Appeal she has conducted her own case with the help of a clear Skeleton Argument explaining why she wishes to appeal the Decision.

	We have explained to Ms Morgan that the purpose of the Preliminary Hearing is to decide whether her appeal raises a question of law.  It is not sufficient for Ms Morgan to express her dissatisfaction with the way that the facts have been found by the Tribunal.  It has to be shown that there is an arguable legal point arising from the way that the Tribunal has interpreted or applied the law to the facts that they found on the evidence given by the witnesses. 

	In order to see whether there is any legal error, it is necessary to look at the background of the dispute.  Ms Morgan presented her application to the Tribunal on the 3rd February 1993.  She had been employed by Pizza Hut (UK) Ltd, first, as a trainee manager and then as a assistant manager.  She had begun her employment in January 1990.  She claimed that her employment had terminated on the 5th January 1993.  

	Her complaint was that her employment had been unfairly terminated on the grounds that, according to the company doctor, she was unfit to work, even though the company doctor had not checked her pulse, "to talk of at the least" as she put it.  She said that the reason why she was dismissed was because of her pregnancy.  That is the essence of her point on the appeal.  Her case is that she has been subjected to sex discrimination by virtue of her dismissal. 

	The issues between the parties became clearer when the Respondents put in their Notice of Appearance to the claim.  Their case was that Ms Morgan's employment had ended, not on the 5th January 1993, as she said, but on the 8th December 1992.  They set out the following facts in resisting the application.  They said that Ms Morgan had become ill on the 8th July 1992, had subsequently become pregnant and was absent from work.  The medical advice they received was that she was unfit to work.  They dismissed her on the 8th December 1992.

	She appealed against the dismissal by letter of the 16th December.  The Operations Manager, Mr Rowley, conducted the appeal hearing.  The result of the appeal hearing was that she was re-instated in her job at the Putney Pizza Hut.  Her baby was due about 8 weeks later, so she was unable to work because of pregnancy.  So she did not go to work.  She gave notice at the end of April 1993 that she would return to work on the 12th October 1993 and made a request for transfer to Birmingham.  But it was not practical for Pizza Hut to agree the transfer request.  She failed to return for work on the date notified or at all.

	She had a statutory right to return to work under the Provisions of Section 45 of the 1978 Employment Protection Act, but in fact failed to return to work.  In those circumstances, the Pizza Hut, Respondents denied that there was discrimination, denied that Ms Morgan had suffered any loss and therefore denied that she was entitled to compensation.

	Those were the issues between the parties for Decision by the Tribunal.  The case was heard by the Tribunal.  The conclusions of the Tribunal were reached after hearing evidence, including evidence from Dr Slattery, who had given medical advice to the company; also evidence from Mr Rowley and from Mr Hanna, the former area manager, who had dismissed Ms Morgan on the 8th December.  The conclusions reached by the Tribunal was that they did not accept that her employment had terminated on either the day that she had said, or on the date that Pizza Hut had said.  They said that her employment had terminated when she failed to return to work on the 12th October 1993, as notified by her.

	That is beside the point for the purposes of this Appeal.  The main point we are concerned with is the sex discrimination claim.  It was Ms Morgan's argument that she was dismissed because of her pregnancy and in order to avoid payment of statutory maternity pay.  The Tribunal referred to decisions that less favourable treatment of a woman because of pregnancy is sex discrimination.

	The Tribunal examined, in relation to the sex discrimination complaint, the crucial issue that is, what were Pizza Hut's explanations for its action in dismissing Ms Morgan on the 8th December 1992.  They refer to the relevant test laid down by the House of Lords and said in paragraph 20 of their Decision:

		"It appeared to the Tribunal appropriate in the Applicant's case to decide whether "but for her pregnancy" the Applicant would have been dismissed.  The Tribunal is satisfied that she would have.  It notes the evidence of Mr Hanna and his belief that Dr Slattery had told him that the Applicant was unfit to work and it was not clear when she would be fit to return and that the unfitness was not related to her pregnancy."

	That refers to an earlier part of the Decision in which the Tribunal accepted the evidence of Dr Slattery that he genuinely believed that her illness was not related to her pregnancy, that Dr Slattery had communicated with Mr Hanna on this and that Mr Hanna was acting on the opinion of Dr Slattery.  

	The Tribunal went on to say this:

		"Where a question of illness arises, the European Court has held in Hertz v Aldi Marked KS that dismissal for absences which originated from pregnancy or confinement and which occur after the period of maternity leave are not precluded by Article 119. The Tribunal is conscious that in the Applicant's case, the absence through illness was before the Applicant went on maternity leave, but it notes the comments of the European Court at paragraph 17, "female and male workers are in fact equally exposed to illness.  Although it is true that certain problems are specifically linked to one sex or another, the only question is whether a woman is dismissed for absence due to illness on the same conditions as a man: if that is the case, there is no direct discrimination on grounds of sex."  The Tribunal is satisfied that such a rule applies by analogy to an illness derived from pregnancy which arises before maternity leave."

They referred to the example given of two men dismissed because of illness.  And said:

		"The Applicant was unable to challenge that these men had been treated in any way differently from herself and in those circumstances the Tribunal is satisfied that the purported dismissal by Mr Hanna on the 8th December 1992 did not arise because of the Applicant's pregnancy."

	They dealt with the allegation that she was dismissed because of a wish to avoid statutory maternity pay.  They dismissed that complaint.  The Tribunal therefore concluded that neither claim of sex discrimination was established and the complaint was dismissed.

	In her Notice of Appeal, Ms Morgan referred to the fact that she appealed against the dismissal and she applied to the Industrial Tribunal for compensation, because she wished to be re-instated in Birmingham or otherwise received compensation.  She claimed that her employer dismissed her in September 1992 and that forced her to leave London and travel to Birmingham, and was pregnant at that time.  She was subject to a detriment on the grounds of sex.  

	The grounds stated in the Notice of Appeal are not as clear as the Skeleton Argument which Ms Morgan has read to us this afternoon. 

	She submits in the Skeleton Argument that the Decision of the Tribunal was perverse in rejecting her complaint of sex discrimination.  It was a Decision which no reasonable Tribunal would have reached.  It was obviously wrong.  She sets out the dates relevant to her argument that she was off work sick from the 8th July, and provided a sick note from her doctor stating she was ill with abdominal pain and should remain off work until the 19th October.  

	She discovered she was pregnant on the 23rd July.  That explained the problems from which she had been suffering.  Due to her continued absence from work, she was seen by Dr Slattery, on behalf of Pizza Hut, in September 1992.  Dr Slattery did know her and did not physically examine her.  It is admitted by him in the evidence to the Tribunal that he concluded that her illness was unrelated to pregnancy.

	Contradictory evidence was presented to the Tribunal in a letter from Ms Morgan's own GP who knew her and her medical history.  He concluded that the sickness and abdominal pain were related to her pregnancy.  She made a full recovery after the birth of her baby.  
Dr Slattery concluded that it was his impression that she would be fit for employment within the next six months, which was about the time her baby was born.

	She considered that Mr Hanna had treated her badly in dismissing her.  He knew that she was having problems during pregnancy and could not carry out normal duties as a result.  He refused to offer her light duties until the baby was born, and would not listen to what she had to say.  Her case was that Mr Hanna had used the ambiguous reports of Dr Slattery as an excuse to dismiss her when she was pregnant.

	She emphasised a point that Mr Rowley, who had heard her appeal, following the decision to dismiss her, took the view that the company were dismissing her because of her inability to work.  But he was satisfied that she was being dismissed due to the fact that she was pregnant, and that was one of the reasons why he re-instated her.

	The re-instatement, although it wiped out the original unfair dismissal, did not wipe out the act of sex discrimination.  She had suffered detriment due to her sex.  She was dismissed due to pregnancy.  That had caused her stress and worry at a crucial time.

	The substance of Ms Morgan's case is that this was a case of sex discrimination and the Tribunal had reached the wrong Decision in holding that her dismissal did not arise because of pregnancy.  Her summary concludes, "I was clearly dismissed on the grounds of my sex.  My argument is that the Tribunal's decision was perverse in that no reasonable tribunal could have reached it."  She asks us to allow the case to proceed to a Full Hearing.

	We have considered those arguments and also the answers which Ms Morgan gave to questions put by Members of the Tribunal.  We have come to the conclusion, that 
Ms Morgan's appeal is not on a point of law.  It is against the facts found by the Tribunal.  The fact found by the Tribunal, having heard the evidence of Mr Hanna and Dr Slattery, was that the reason why Miss Morgan was dismissed in December 1992, was not because she was pregnant or not because she was in a condition related to her pregnancy.  They found as a fact that the reason for her dismissal was that she was unfit to perform her duties and that was not related to her pregnancy.

	That is a finding of fact against which there is no appeal.  The Tribunal had come to that conclusion of fact, having heard evidence from the witnesses mentioned.  They found that Dr Slattery's belief that her illness was not related to pregnancy, was a genuine one and that Mr Hanna acted on what he had been told by Dr Slattery.

	In those circumstances, the Tribunal were entitled to come to the conclusion that there was no sex discrimination.  If they had formed a contrary view of the evidence, say along the lines that Mr Rowley had indicated, that Ms Morgan was dismissed because of pregnancy, she would of course have won the case.  

	The reason for the Tribunal's Decision was based on a view formed of the facts and the evidence.  There has been no error of law.  The Tribunal correctly referred to the provisions of the Sex Discrimination Act [1975] Sections 1 and 6.  They correctly referred to the principles of sex discrimination laid down by the House of Lords and in the Decisions of the European Court.

	They made no error in the interpretation of those legal provisions or in the application of them to the facts of the case.  As Ms Morgan has told us, she is still firmly of the belief that she was dismissed due to her pregnancy.  The difficulty is that, although she may hold or be correct in that belief, the Tribunal, having heard the evidence, did not form the same view.  We are not in a position to interfere with the conclusion reached by the Tribunal, because it was a factual conclusion, for which there was sufficient evidence to justify their conclusion.

	The Appeal will be dismissed.