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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Parry & Co v Sumpter [1999] UKEAT 1396_98_1502 (15 February 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/1396_98_1502.html Cite as: [1999] UKEAT 1396_98_1502

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APPEARANCES

 

For the Appellants	MISS J LEVY (of Counsel) Messrs David Parry & Co. Solicitors 9 Palmers Avenue Grays Essex RM17 5TX


 


JUDGE PETER CLARK: This is an appeal by the Respondent firm of solicitors before the Stratford Employment Tribunal against that Tribunal's assessment of compensation in favour of the Applicant, Mrs Sharon Sumpter, suffered as a result of their admitted unlawful sex discrimination. The Tribunal's decision with Extended Reasons, following a hearing held on 14 September 198, was promulgated on 6 October 1998.

The Applicant commenced employment with the Respondent on 30 April 1997. She was secretary to the Principal of the firm, Mr Lygoe. In November 1997, she became pregnant and in January 1998 she developed a pregnancy related medical condition, that was, bleeding with a lowered placenta. She was at risk of losing her unborn child. Her doctor ordered bed rest until the bleeding stopped. As a result she could not go to work.

On 10 February 1998, Mr Lygoe telephoned the Applicant and told her that her absence was causing difficulty for the firm and also he thought embarrassment to her as she had to keep telephoning about her continued absence. However the Applicant did not understand from that conversation that he was saying that her employment was to end.

On the following day, Mr Lygoe sent a letter to the Applicant in the following terms.

"Dear Sharon

I enclose a cheque in the sum of £212 .91 in respect of the four weeks you have now been away from the office as shown on the attached memo.

In view of our telephone conversation this week when you informed me that the Doctors are insisting that you do not return to work for the foreseeable future I think it is probably fair to both of us if we regard your employment as being terminated from today until either your health allows you to work or until you have had the baby and are willing to return to work full-time when we can discuss the latter again.

It is clearly important for you to take every precaution to ensure the health of the baby and I wish you both well.

Do contact me again when the situation changes. I enclose your P45 card."

The Tribunal accepted that that letter, which is plainly a letter of dismissal caused the Applicant considerable distress. There was a subsequent telephone conversation between the Applicant and Mr Lygoe which the Tribunal found did not alleviate her distress. In that conversation he said that she could return to the firm when she was fit although he indicated that he would have to employ a substitute in her post. The Applicant never did return to the Respondent and had not worked up until the date of the Tribunal hearing.

Based on the Respondent's admission of unlawful sex discrimination, the Tribunal considered and assessed compensation for that statutory tort. They made the following findings material for the purpose of this appeal.

1. That in view of the terms of the dismissal letter, it was reasonable for the Applicant not to return to work with the Respondent.
2. She made reasonable efforts to find alternative work elsewhere and as a result they assess compensation for loss of earnings and loss of maternity pay in the total sum of £3,944.01. No award was made for future loss of earnings, the Tribunal considered that the Applicant would be able to find employment between the date of the hearing and the time when she was able to work again. They also made an award for injury to feelings in the sum of £1,000.

In this appeal, Miss Levy takes three points. First, in relation to the finding that it was not unreasonable for the Applicant not to return to work with the Respondent. She has taken us to some of the evidence which was given, particularly by an employee of the Respondent as to the telephone conversation which followed the letter of dismissal. It seems to us that what Mr Lygoe said during that conversation, apart from the possibility of the Applicant returning to work part time rather than full time, did not alter the position as it was set out in the dismissal letter.

Miss Levy complains that it was the Applicant's evidence that the reason that she did not go back to the Respondent was because she thought that there would be an unpleasant atmosphere. That it seems to us was something for the Employment Tribunal to assess and adjudicate on, in considering the question whether it was reasonable for her not to return to work with the Respondent.

Given that evidence and given the fact of the unlawful dismissal, we are unsurprised at that Tribunal's conclusion, however we need say no more than that it was plainly a permissible finding on the part of the Tribunal.

Secondly, in relation to mitigation of loss, Miss Levy submits that there was little evidence as to the efforts which the Applicant had made to find alternative employment. Some evidence was given in chief by the Applicant but she submits that the evidence as to efforts to find other work was unsatisfactory. The Applicant was unable to provide complete names of the employers who she had approached for work, or to give evidence in relation to the details of those job applications. Again, it seems to us that that was a matter for the Tribunal to consider and evaluate, having heard the Applicant give evidence and be cross-examined. There are no grounds for this Tribunal to interfere with that finding.

Thirdly, it is said, that the Applicant, having presented her Originating Application dated 13 March 1998, one month after her dismissal, then sat back and made no effort to obtain any work. Again, no doubt that point was pressed before the Tribunal, but did not find favour.

It seems to us that this appeal is wholly misconceived. It is an attempt to reargue factual questions which were heard and permissibly determined by the Employment Tribunal. This appeal is dismissed.