Appeal No.  EAT/0499/00, 0388/00, 1443/99,  PA/1385/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 May 2000

Before
HIS HONOUR JUDGE PETER CLARK
MRS T A MARSLAND
MRS R A VICKERS

MISS C L PLOWMAN	APPELLANT

1) J & R DAVEY  2) FIRSTCASE LIMITED	RESPONDENTS

Transcript of Proceedings

JUDGMENT

FULL HEARING
Revised

	APPEARANCES

For the Appellant	MR RONALD KENTISBEER
Highcliffe
New Road
Teignmouth
TQ14 8UL	
For the Respondents	MISS PROOPS
(Counsel)
Messrs Trigg Read & Dart
103 Boutport Street
Barnstaple
Devon
EX31 1SY	

JUDGE CLARK

1	In order to place these appeals in context it is necessary first to set out the history of this litigation.

2	The Applicant, Miss Plowman, commenced employment with the Second Respondent, FirstCase Limited (Firstcase) as a Care Assistant at their Threave Nursing Home in Braunton in March 1998.  At that Home FirstCase employed Richard Davey as a Consultant, Julie Davey as an administrator and a Mr Allsebrook as Matron.

3	By an Originating Application presented to the Exeter Employment Tribunal on 23 December 1998 the Applicant sought, against (1) Julie and Richard Davey and (2) FirstCase damages for wrongful dismissal due to pregnancy/sex discrimination/unlawful deduction from wages/non payment of Statutory Sick Pay/ unfair dismissal.  She claimed that her employment had ended by dismissal on 31 October 1998.  The claims were resisted.

4	On 23 – 24 June 1999 an Employment Tribunal sitting at Exeter (Chairman:  Mr A D Puttick) considered only questions of liability.  By a reserved decision promulgated with extended reasons on 8 July 1999 (the liability decision) the Employment Tribunal found:
1.	That the Applicant had been dismissed by Mr Davey, acting on behalf of FirstCase, on 31 October 1998.
2.	That at that time the Applicant was pregnant and that one of the reason fir dismissal was related to her pregnancy and was automatically unfair under the former Section 99 Employment Rights Act 1996.
3.	That her dismissal by Mr Davey amounted to a breach of Section 1 Sex Discrimination Act 1975 and that first case was vicariously liable for the discriminatory act of Mr Davey and was in breach of Section 6 of the Act.
Questions of remedy were adjourned.

5	On 28 September 1999 the same Employment Tribunal held remedies hearing.  By a decision promulgated with extended reasons on 18 October 1999 (the remedies decision) the Employment Tribunal made the following awards in favour of the Applicant against FirstCase:
1.	Unlawful deductions from wages:
(a)	Statutory Sick Pay		£48.96
(b)	1 days wages			£24.40
(c)	8 days holiday pay		£94.20

2.	Unfair Dismissal
(a)	Basic award			Nil
(b)		Loss of future earnings 1 – 30 November 1998 less maternity allowance
							£484.70
(c)	loss of value of meals		£36.

3.	Sex Discrimination
		Injury to feelings		£2000

				Total		£2,788.26

6	By letter dated 26 October 1999 the Respondent’s representative, Mr Ronald Kentisbeer applied for a review of both the liability and remedies decisions.  On 21 October 1999 the Applicant applied for a review of the remedies decision only.  Her complaint was that the Employment Tribunal had not dealt with her application for costs.

7	By letter dated 11 November 1999 (the first review decision) the Chairman ruled on the respective review applications as follows;
1.	The Respondent’s application for a review of the liability decision was out of time and was refused.
2.	A review hearing in relation tot he remedies decision would be held.

8	By a Notice of Appeal dated 18 November 1999, received by Employment Appeal Tribunal on 23 November, the Respondent’s appealed against:
(1)	the liability decision
(2)	the remedies decision
(3)	the first review decision, insofar as the Chairman refused the Respondent’s application for a review of the liability decision.

9	Insofar as the appeal against the liability decision was, on the fact of it, out of time, that part of the appeal was given the number PA 1385/99.  The two further appeals were in time and have been given the number 1443/99.  (the Respondent’s first appeal.

10	In PA 1385/99 the Registrar considered the written representations of the parties as to whether time for appealing ought to be extended and concluded that is should not by an Order dated 24 February 2000.

11	Against that Order the Respondent appeals to me by a Notice date 28 February 2000 (the Registrar appeal).

12	Meanwhile, on 4 February 2000 the Employment Tribunal held a review hearing in relation to the remedies decision.  As a result by a second review decision promulgated with extended reasons on 8 March 2000, they varied the remedies decision in the following respect.  Under the head of loss of earnings for unfair dismissal they reduced the loss for he period 1 – 30 November 1998 to £66.83 and added further lost of future earnings for the period 24 January – 21 March 1999 in the total sum of £305.40.  Further, at paragraph 13 of their reasons, they rejected the Applicant’s claim for aggravated damages and at paragraph 14, rejected her application for costs.

13	By a further appeal dated 24 March 2000 (0338/00) the Respondent’s appealed against the second review decision (the Respondent’s second appeal) and the Applicant, by a Notice dated 19 April 2000 (0499/00) appeals against the Employment Tribunal’s refusal to order costs in the second review decision and, by an amendment for which we have granted permission, against the Employment Tribunal’s decision on review not to award aggravated damages (the Applicant’s appeal).

14	The Appeals
It is convenient to deal with the appeals in the following order:
	
15	The Registrar appeal
The Respondent’s Notice of Appeal against the liability decision was 96 days out of time-

16	Mr Kentisbeer had indicated that he does not wish to attend the hearing today, but relies on his written representations.  The Applicant is represented today before us by Ms Proops of Counsel.  For the purposes of this appeal I have read and considered the Original Notice Appeal and Mr Kentisbeer’s letter dated 18 November 1999 applying for an extension of time;  the Applicant’s solicitors letter dated 9 February 2000 opposing an extension being granted;

17	The Respondent’s Notice of Appeal against the Registrar’s Order dated 28 February 2000, and the written and oral submissions so far as they were necessary of Ms Proops on behalf of the Applicant.

18	The principles on which an extension of time will be granted are set out in the judgment of Mumery J in United Arab Emirates –v- Abdelghafar (1995) ICR 65, 72C.  What is the explanation for the default: Does it provide a good excuse for the default: Are there circumstances with justify the Employment Appeal Tribunal taking the exceptional step of granting an extension of time?

19	The explanation apparently tendered for the failure to appeal the liability decision in time is that new evidence emerged from the Applicant at the remedies hearing on 28 September which in some way affected the validity of the Employment Tribunal’s findings on liability.  Having looked at the Employment Tribunal’s findings contained in the remedies decision reasons I can find no inconsistency between those factual findings and the findings of fact on which the liability decision was based.  I therefore reject that purported explanation for the Respondent’s default in appealing against the liability decision.  In the absence of any proper explanation for that default I can see no grounds for extending time for appealing against that decision.  The Registrar was correct.  The Appeal against her Order is dismissed.

20	Having her dismissed that appeal, Ms Proops has applied for the Applicant’s costs in that appeal under Employment Appeal Tribunal Rule 34(1).  I have some sympathy with that application.  The appeal, is in my view, without merit.  I therefore have a discretion to award costs if I see fit.  I have looked at the position globally.  I am not satisfied that this appeal is materially increase the Applicant’s costs.  Ms Proops was bound to attend today in any event in order to prosecute the Applicants appeal.

21	The argument if the Registrar appeal was fully canvassed in the Applicant’s list at letter of  9 February 2000.  In these circumstances I shall not make an Order for the Applicant’s costs.

22	The following decision are those of the four division hearing these appeals by way of preliminary hearing.

23	The Respondent’s First appeal
This falls into two parts
(a)	the appeal against the first review 
(b)	the appeal against the remedies decision

24	As to the first review decision; the application for review of the liability decision was made outside the fourteen-day period provided for the Rule 11(4).  The Chairman has a discretion to extend time under Rule 15(1); however no grounds for an extension are set out in the Respondent’s application for review dated 26 October 1999 other than, by implication, the suggestion that new evidence emerged at the remedies hearing which bore on the Employment Tribunal’s factual findings central to the liability decision.

25	For the reasons which I gave for dismissing the Registrar appeal, we are of the view that nothing in the findings made by the Employment Tribunal in the remedies decision affect the findings in the liability decision.  Accordingly the Chairman was entitled to refuse to entertain the review application insofar as it related to the liability decision on the ground that it was out of time.  Accordingly we shall dismiss this part of the Respondent’s first appeal.

26	As to the Respondent’s appeal against the remedies decision, it is convenient to consider that appeal in conjunction with the Respondent’s second appeal against the second review decision.

27	The Remedies Decision and its review

In the remedies decision the Employment Tribunal calculated the Applicant’s loss of earnings attributable to her unfair dismissal on 31 October 1998 by reference to the period 1 November to 30 November 1998.  She would then have commenced 14 weeks maternity leave in respect of which she was not entitled to any statutory maternity allowance.  The loss during that period was based on her working a seven-day week (£732.40) less maternity allowance at the rate of £57.70 per week (£247.30).

28	On review it was common ground that the Employment Tribunal had been wrong to calculate the loss of earnings during November 1998 on the basis of a seven-day week; it ought to have been based on a three-day week.  Accordingly the figure of £732.40 was reduced pro rata to £314.13.

29	On review, the Respondent took the point raised in FirstCase’s Notice of Appearance but not apparently pursued at either the liability hearing or the remedies hearing, that the Applicant was not entitled to take maternity leave provided for in Section 71 Employment Rights Act because she had not complied with the requirements set out in Section 74 - 5 of the Act.  The Employment Tribunal rejected that argument for the reasons given in detail in paragraphs 4 – 10 of the second review decision.  That finding is challenged in the Respondent’s second appeal.

30	We should set out the material findings of fact by the Employment Tribunal.  The Applicant became pregnant in early April 1998.  A maternity certificate dated 25 August 1998 certified her expected week of childbirth (EWC) to include 2 December 1998.  That certificate was lodged, the Employment Tribunal found with the Respondent on a date between 25 August and 9 October 1998.  She informed Mr Allsebrook in August 1998 of her pregnancy.  On 2 October 1998 she wrote to Mr Allsebrook indicating that she intended to take her 14 weeks ordinary maternity leave, commencing on 30 November 1998.  On 8 October she went off sick with a pregnancy related illness.  She was signed off for three weeks.  On 22 October she spoke to Mr Allesbrook on the telephone and discussed the possibility of returning to work, from sickness on 23 October.  The following day she spoke to the trained nurse of duty at the home, telling her that she would in fact return on 31 October.  On that day she did return and was, on the Employment Tribunal’s findings, then dismissed by Mr Davey.

31	The argument advanced on behalf of the Respondent at the review hearing and repeated in the Respondent’s second appeal, is that the Applicant’s letter of 2 October 1998 did not amount to proper notice of her intention to commence maternity leave for the purposes of Section 74 of the Act.

32	The submissions contained in Mr Kentisbeer’s skeleton argument can best be described as discursive and ill organised.  We have had no opportunity to test those submissions in oral argument.

33	Doing the best we can it seems that Mr Kentisbeer is submitting that because the Applicant’s letter of 2 October 1998 contains no information about EWC that letter cannot constitute a Section 74 Notice.

34	However, as the Employment Tribunal found, the Applicant provided the statutory maternity certificate dated 25 August to the Respondent between 25 August and 9 October 1998.  That certificate referred to the EWC including 2 December 1998.  That is a finding of fact with which we cannot interfere.

35	Section 74, as then drafted, required the Applicant to notify the Respondent not less than 21 days before the date on which she intended to commence her maternity leave of that commencement date.  In her letter of 2 October she indicated the commencement date to be 30 November.  Thus notice was given more than twenty-one days before the commencement date.

36	It appears to be argued that maternity leave must commence on the first day after the beginning of the sixth week before EWC (see references in Section 72(1) and Section 72(4)).  That is not correct.  It is open to a woman to commence her ordinary 14 weeks maternity leave at any time up to childbirth and subject to the requirement to give notice as we have earlier indicated.

37	In short, we can discern no error of law in the Employment Tribunal’s approach on this question.  This aspect of the Respondent’s second appeal must fail.

38	Compensation for Injury to Feeling/Aggravated Damages
The Respondent challenges the award of £2000 compensation for injury to the Applicant’s feelings.  Reliance’s placed on Ministry of Defence –v- Hunt and Others (1996)ICR 554.  The question of the Employment Appeal Tribunal on appeal by the Respondent is whether the Employment Tribunal’s award is a wholly erroneous estimate of the damage suffered by this Applicant.  Skyrail Oceanic Ltd –v- Coleman (1981) ICR 864, 872a, per Lawton LJ.  In our judgment it is not.  We dismiss the Respondent’s appeal against that award.

39	By amendment to appeal no. 499/00 (the Applicants appeal) Ms Proops argues, first that the Employment Tribunal reached a perverse decision in concluding that no additional award of aggravated damages was appropriate in this case and secondly the Employment Tribunal have failed to provide adequate reasons for that conclusion.

40	This head of claim is dealt with at paragraph 13 of the review decision.  In our judgment the Employment Tribunal has adequately explained that on the facts as found this case did not, in his judgment fall into the category of cases where an award of aggravated damages was appropriate.  That was a permissible finding in our view.  Accordingly we reject that part of the Applicant’s appeal.

41	As to the refusal to award costs, we bear in mind the very full written submission placed before the Employment Tribunal at the review hearing by the Applicant’s solicitor in support of the application for costs.  The Employment Tribunal considered those submission but concluded, in the exercise of the their wide discretion, that this was not a case for costs.  Whilst having sympathy with the position in which she finds herself, having achieved something of a Pyretic victory at the end of the day, we cannot say that an arguable perversity case is raised on this aspect of the Applicant’s appeal.

42	In these circumstances all appeals are dismissed.  This litigation is at an end.