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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Cook v Craig & Derricott [1998] UKEAT 957_97_0203 (2 March 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/957_97_0203.html Cite as: [1998] UKEAT 957_97_0203, [1998] UKEAT 957_97_203

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APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE BELL: This is an ex parte preliminary hearing in respect of an appeal by Miss Cook against the decision of an Industrial Tribunal sitting at Birmingham on 21st July 1997. The decision was entered in the Register on 31st July 1997.

The Industrial Tribunal dismissed Miss Cook's Originating Application which it took to complain of both unfair dismissal and sex discrimination in that Miss Cook claimed that she was dismissed for reasons connected with her pregnancy. Miss Cook's Originating Application accepted that she was absent from work "end of January to the beginning of February, due to the fact I was feeling low, and I had the flu". She had lost both her grandmothers. When she went back to work her supervisor, Mrs Seedhouse, took her in to see the production controller with shopfloor personnel responsibilities, Mr Bailey, who gave her a verbal warning. By her own account she was absent from work again from 20th March to 2nd April, she said because of swollen glands and tonsillitis. She was taken to Mr Bailey again. During their meeting, Miss Cook's Originating Application says, she told Mr Bailey that she pregnant. She was dismissed and she feels that she was penalised and discriminated against for her pregnancy. The order in which matters are laid out makes it look as if she was saying that she mentioned her pregnancy before she was actually told that she had been dismissed.

The employer's Notice of Appearance explains that the Respondent company manufactures industrial switchgear, Miss Cook worked as an assembler starting in February 1996. She worked well until September 1996, but thereafter her attendance was very poor. The Managing Director, Mr Jones, was very concerned about absenteeism generally. Miss Cook was given a verbal warning by Mr Bailey on 14th February 1997 and told that it was up to her to improve to keep her job. During February she lost 1½ days out of 20, but in March she absent for 7½ days out of 19. She was away from 19th March to end of March and returned to work on 2nd April after Easter. She was seen again by Mr Bailey, and only towards the end of the meeting did she say she was pregnant. Nevertheless, she was dismissed because of her persistent absences despite reassurances she had given on 14th February. The termination was not related to Miss Cook's pregnancy which was not known to the Company or management, and appeared to be only recently known to Miss Cook herself.

Miss Cook appealed to the managing director, Mr Jones, who on 11th April wrote to her upholding the termination of her employment.

We have set out the parties' written cases because the Industrial Tribunal's so-called "extended" reasons for its decision to dismiss Miss Cook's application, are, to say the least, laconic. They do include the statement:

"There was no dispute that she [Miss Cook] first told management of her pregnancy after the decision to dismiss her for absenteeism had been taken."

The first ground of appeal is that that was not so. The tribunal erred in stating that there was no dispute. The grounds of appeal say that the appellant gave evidence to the tribunal that she had told Mr Bailey of her pregnancy before he informed her that she was dismissed. She also said that in her form of application IT1.

That ground of appeal appears to us to accord with both Miss Cook's representations in her IT1 and the Company's representations in its own Notice of Appearance. It may be that Mr Bailey had decided to dismiss Miss Cook before he heard of her pregnancy, but the Notice of Appearance does not say so. It may be that he gave evidence to that effect to the Industrial Tribunal, but the short reasons for the decision, again, do not say that. In our view there is an arguable point arising out of ground 1.

The essence of the second ground of appeal is that Miss Cook was dismissed after a verbal warning only, whereas the disciplinary procedures are said to state that dismissal is the fourth step after a verbal warning, a written warning and a final warning. By the time of Miss Cook's appeal, her employers certainly knew of her pregnancy, and yet, it is said they "continued to disregard the disciplinary procedures and upheld the dismissal. The Tribunal failed to address its mind to this issue and accordingly erred in law."

It may be that that point would go more to unfair dismissal than sex discrimination, and Miss Cook was not eligible for a remedy arising out of any unfair dismissal. But in out view, the appellant should be allowed to argue that ground in harness with ground 1.

In the light of the challenge to the tribunal's finding that there was no dispute that Miss Cook first told management of her pregnancy after the decision to dismiss her for absenteeism had been taken, there being no evidence to that effect actually being rehearsed in the decision, we direct that the Chairman's Notes of both Miss Cook's evidence and Mr Bailey's evidence be available for the eventual hearing of this appeal.

We would put the time estimate at 1½ hours to be listed as Category C.