Appeal No.	 EAT/797/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 November 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR P DAWSON OBE
MR K M YOUNG CBE

MS B GODSIKOWSKA	APPELLANT

MR & MRS BRYANT T/A ARCAID	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr R Downey (of Counsel)
ELAAS	

MR JUSTICE LINDSAY:
1	We have before us by way of preliminary hearing, the appeal of Ms B Godzikowska, in the matter against Godzikowska v Mr & Mrs Bryant t/a Arcaid.  There was a hearing of one day on the 6 May 1999.  The decision of the London (South) Tribunal was sent to the parties on the 12 May 1999.  The Notice of Appeal is the 18 June 1999.  

2	Ms Godzikowska had previously been represented in connection with the appeal by a friend of hers and the Notice of Appeal is not professionally drawn.  But, today, we have heard Mr Downey, under the ELAAS system, on behalf of the Appellant and we are grateful for the assistance that he has given us.

3	The decision of the Tribunal was unanimous; it is as follows:  

“The unanimous decision of the Tribunal is that the complaints set out in the Originating Application are dismissed”.

4	And then, under the heading of “Extended reasons, The Issues”, paragraph 1 said:-

“By her Originating Application, the Applicant complains of unfair dismissal and sex discrimination.  Both complaints arise out of the situation which followed upon a period of maternity leave taken by the Applicant from her employment with the Respondent”.

5	Added to those claims, by late amendment, there was a claim for redundancy payment.  An amendment to add a contractual claim was refused.  The case is concerned with Ms Godzikowska’s absence from work, in connection with her second pregnancy.  On a date in August of 1997 she found she was pregnant, the due date for the birth being the 22 January 1998.  She proposed to her employer that she should finish work on the 28 November 1998 for holiday leave.  She proposed to start maternity leave in January 1998 and later to come back to work, two half days a week, later increasing to three days a week.  More specifically, she proposed that she should work two half days a week in and from August 1998, building up to three full days a week from January 1999. In accordance with that she did indeed begin her leave on that proposed date, the 28 November 1998 and her child was born on the 28 January 1998.  

6	On the 16 June 1998, the employer wrote to Ms Godzikowska, inviting her in for a talk on the subject of scheduling her return to work.  They met on the 19 June 1998 and Ms Godzikowska said she could not give a date for when she would be ready to return to work.  She did not return to work in August 1998, as had been originally proposed, and there was no communication at all between the parties.   

7	In October 1998 the employer took on another employee full-time to do work which included that which Ms Godzikowska had done whilst she had been working.  On the 23 October 1998 she arrived unannounced at the employer’s premises and indicated she was ready to return to work in January 1999 on a three day week.  The employer said she had nothing for her and that she had taken on another to do her job.  

8	In November 1998 Ms Godzikowska asserted in writing that there had been an agreement at the outset of her maternity leave that she should return for a three day week in January 1999.  However, the Tribunal found that that letter was inconsistent with the evidence which Ms Godzikowska herself gave.  

9	On the 3 December 1998 the parties met again and it was unhappily made plain to Ms Godzikowska that there was no job for her from this employer.  The Notice of Appeal, some seven pages long is, as I mentioned earlier, not professionally drawn, but it makes a number of points.  Mr Downey, as one would expect, has concentrated on what we think is the best point, but it perhaps would be best if we dealt with the other points as well in order to demonstrate that the case has received attention.  

10	And the first point, and it is in fact the one Mr Downey has most concentrated on, is to be found at paragraph 8 on our page 2, it says:-

“We believe that a verbal contract to delay Barbara’s return to work indefinitely was formed between Barbara and her employer (Mrs Bryant) at their meeting on 19-6-1998”.

11	The Tribunal dealt with that meeting on the 19 June but they do not find there to have been any contract other than the earlier arrangement, which had consisted of the proposal to work as from August.  They don’t find the contract which is here suggested and it may be thought, perhaps, intrinsically unlikely, in a business context, for an employer to agree an indefinite ability for an employee to return to work.  The Tribunal, of course, is the master of fact and they do not find a contract of the kind which the Notice of Appeal asserts.  We cannot say there is an error of law in their failing to find that; it is for them to decide what the evidence they hear leads to.  

12	A second head of complaint in the Notice of Appeal, concerns a job given to another employee called James Traeger.  He was employed part-time by the employer. His job overlapped with work which had been Ms Godzikowska’s when she had been there and working.  In August of 1998 he indicated to the employer that he wished to leave and it was agreed between them that he would leave so as to coincide, as conveniently as possible, with the employer’s then understanding that Ms Godzikowska would return to work, as had earlier been indicated, namely in August of 1998.  Ms Godzikowska was not told of this arrangement with Mr Traeger and the Notice of Appeal raises the query of why she was not told of Mr Traeger’s departure.  But the point is, as we see it, without significance and certainly it does not aid the Appellant.  If anything, the argument tends to reinforce the employer’s belief that Ms Godzikowska was going to return to work in August 1998.  There is not here anything that we can describe as an error of law.  

13	Then there is a long section in the Notice of Appeal which develops the complaint that Ms Godzikowska had unfortunately had very little time at the hearing before the Employment Tribunal to discuss with her representative just what the position was and also making the point that she was too upset and emotional to think matters through and that accordingly there were a number of issues not addressed at the Employment Tribunal that could have been and there were witnesses who could have been called but were not called.  

14	Well, we, of course, can have sympathy where such is the case but we have no power to deal with matters other than errors of law and nothing can be plainer than that a complaint which is tantamount to saying,  “On reflection and otherwise advised we could have done better”, contains no allegation of an error of law on the Tribunal’s part.  

15	Then the Notice of Appeal reverts to the assertion, the one which Mr Downey made central, that there had been an agreed indefinite extension as to the time for return to work.  The Notice of Appeal says:- 

“We argue that Barbara was led to believe by her employer that she had a contractual agreement to delay her return to work indefinitely beyond her extended maternity leave period”.

16	And a little later 

“We believe that this agreement superseded any statutory obligation”.

17	The statutory position is then described but the assertion founders, as we see it, because no such contract as at the 19 June sufficient to displace the October 1997 arrangement was found to exist by the Tribunal.  If one assumes a contract as at the 19 June, well, of course, then one has a stronger argument but there is no basis for that assumption.  The Tribunal speaks of the original agreement, meaning what was agreed in the earlier period, and the judgment that they give is consistent only with a finding that, in contractual terms, there was a promise to return to work in August 1998 and that nothing superseded that contractual position.  In their paragraph 29 the Tribunal says:-

“The position in August was therefore that the Applicant failed to return to work as she had promised”.

18	That is consistent only with them taking the view that the arrangements of the 19 June had not displaced the earlier arrangements.  

19	Finally, (and, needless to say, Mr Downey didn’t go into this, quite rightly) the Notice of Appeal talks about the immorality of the employer’s dealings here.  Unsurprisingly the Tribunal does not deal directly with moral questions.  In so far as there was any such attack on the employer below there was comment on it by the Tribunal.  They say in their paragraph 21:-

“Mr Sadler (the representative on the day before the Tribunal on Ms Godzikowska’s behalf) also alleged that Mrs Bryant was a very assertive woman who did not have children and saw this situation as a way of getting the Applicant out of the way.  Those were not allegations which were put to Mrs Bryant when he was cross-examining her, and we found them to be both offensive and unfounded, and indeed inconsistent with the evidence given by the Applicant herself about the long and friendly relationship enjoyed by the parties”.

20	There is nothing there that suggests that the Tribunal took any unpleasant view of the employer’s behaviour.  But, even supposing that the employer had acted immorally (and on that subject the findings provide no foundation at all) it would not assist the Appellant unless some material error of law were to be found in the Tribunal’s judgement.  We have looked for that, and we have looked for it also with Mr Downey’s assistance, but we have not been able to find any error of law that we could describe as having any arguable prospect of success. Accordingly, even having gone beyond the grounds ventilated orally and covering, we hope, all the grounds touched on in the Notice of Appeal, we are unable to find any arguable point of law, and accordingly we must dismiss the appeal, even at the preliminary stage.