Appeal No.	 EAT/927/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 January 2000

Before
MR COMMISSIONER HOWELL QC
MR A E R MANNERS
MRS M T PROSSER

MS C THOMAS	APPELLANT

UNIVERSITY OF NORTH LONDON	RESPONDENT

Transcript of Proceedings

FULL HEARING

Revised

	APPEARANCES

For the Appellant	MR J CROSFILL
OF COUNSEL
INSTRUCTED BY:
MS ELAINE HESLOP
NORTH LAW CENTRE
161 HORNSEY ROAD
LONDON
N7 6DU	
For the Respondent	MR A HOWS
SOLICITOR
MESSRS LAWFORD & CO
102-104 SHEEN ROAD
RICHMOND
SURREY
TW9 1UF	

	MR COMMISSIONER HOWELL QC:-

1.	This appeal which comes before us today for full hearing following an earlier adjournment on 14th June 1999, is by Ms Cheryl Thomas against the decision of the London North Employment Tribunal incorporated in extended reasons sent to the parties on 15th June 1998, following a hearing on 30th April 1998, the decision and the reasons being set out in the appeal file at pages 8-19 inclusive. 

2.	The only issue before us on the appeal following the directions given at the Preliminary Hearing on 19th November 1998 is paragraph 6.2 of the original Notice of Appeal, found on pages 2-3 of the appeal file, contending that the Tribunal erred in law in the finding they made about the reason for the dismissal, this being a dismissal case involving a lady who had formerly taken maternity leave.  The precise is being expressed in the following terms:-

“6.2 Only a woman is entitled to take maternity leave, thus only a woman can be dismissed in circumstances where her employers think she has lost the right to return to work after taking maternity leave.  A man could not be treated in the same way.  Therefore the Respondents directly discriminated against the Appellant on the grounds of sex contrary to Section 1(1)(a) of the Sex Discrimination Act 1975.”

3.	That is an allegation of direct sex discrimination. Section 1(1)(a) of the 1975 Act is concerned exclusively with direct discrimination, thus being distinguished from section 1(1)(b) of the same Act which is concerned with issues of indirect discrimination where the requirements to be established to the satisfaction of the Tribunal are, of course, different.  

4.	The Originating Application submitted and making the original complaint to the Tribunal is at pages 20-25 of the appeal bundle.  It submitted on behalf of the Appellant by the law centre who act for her and has obviously been prepared professionally by a lady who we were told is actually an experienced solicitor at that law centre.  

5.	The complaints are identified in box 1 of the Application Form at page 20, as two specific complaints of unfair dismissal referring to sections 98 and 99 of the Employment Rights Act and two specific complaints of sex discrimination referring to sections 6(1) and section 1(1)(b) of the Sex Discrimination Act, the second of those provisions being concerned with indirect and not with direct forms of sex discrimination.  A document running to 14 sub-paragraphs was annexed to the Originating Application, setting out in the first 9 sub-paragraphs the facts on which the complaint was based sub-paragraphs 10-11 alleged indirect discrimination in the Respondent’s failure to adjust the Applicant’s working hours as single parent and sub-paragraph 12 alleged unfair dismissal.  Sub-paragraph 13 was an allegation of automatic unfair dismissal under section 99 of the Employment Rights Act 1996 on the ground that the Applicant’s dismissal had been for a reason connected with pregnancy because she had been sick due to postnatal depression, but the way the Tribunal dealt with that issue has not been pursued before us at this stage of the Appeal and no longer forms a ground of the Appeal before us, insofar as it ever did. 

6.	The final sub paragraph 14 was in the following terms:-

“14. Furthermore, the dismissal of the Applicant was an act of sex discrimination.  The Applicant can point to a male comparator who served a prison term and was then re-employed or reinstated by the Respondent in a more senior position.  Their treatment of the Applicant in the circumstances surrounding her dismissal was therefore less favourable.”

That was an allegation of what was capable of being direct sex discrimination but the allegation of discrimination based on that comparison, which was the only one put forward in the Originating Application, was withdrawn on behalf of the Applicant at the Tribunal.  That is recorded as having been accepted by Mr Crosfill who appeared on her behalf when this matter first came before this Tribunal at the opening of the full hearing of this appeal on 14th June, as noted in the judgment then given by His Honour Judge Altman at page 32 of the appeal file.

7.	The background to the hearing before the Tribunal can be conveniently summarised from the Tribunal’s own primary findings of fact set out in their extended reasons at pages 10A of the appeal file.  The Applicant commenced employment with the Respondent the (University of North London) on 30 March 1987.  She was employed on a part-time basis (for 15 hours per week) as an “Assistant Cook/Counter Assistant.”  She had throughout been employed to assist with the catering and in particular to assist with the provision of meals for students at the University of North London. This is necessarily work that must be done at certain particular times of the day so that adjustment of the hours when employees are able to carry out this work satisfactorily is necessarily and somewhat confined by the meal times when the provision of catering for the students is required.

8.	There was an adjustment to her total hours of employment in March 1988 to 20 hours a week on which nothing turns in this case. It was conceded that the basic terms of her employment a guide which set out the contractual provisions as regards maternity leave entitlement in the Applicant’s particular employment.   As the Tribunal recorded, the present proceedings arose “in the aftermath of a period of maternity leave taken by the Applicant in relation to the birth of her third child.”  The expected date of confinement for the birth of that child had been week commencing 7th October 1996 and under the terms of her employment she was entitled to a period of unpaid maternity leave of up to fifty-two weeks after the actual date of confinement.  

9.	The Tribunal recorded that she did, in fact, embark on her maternity leave for that pregnancy on  30th December 1996, having signed a document stating that she was intending to return to work one year after that.  (It is possible that that date, 30th December 1996 on page 10, is a misprint for September given the expected date of confinement recorded by the Tribunal earlier in the same paragraph, but nothing turns on the exact date when her third baby was born: as the Tribunal record, it was born in due course.)  However, unknown to the Respondent, during the period of maternity leave, she became pregnant once again and gave birth to a fourth child in August 1997, again apparently without the Respondents being aware that this had taken place.   

10.	In September 1997, she telephoned the Human Resources Manager of the Respondent indicating that she was having problems in making arrangements for child care and that as had matters then stood, it might be difficult for her to return to her previous job unless a change in the hours that she was required to work could be arranged.  Again as recorded by the Tribunal the Respondent took steps to address this request, and genuine attempts were made to address the issue of what adjustments could be made to accommodate her.  There was then a meeting which took place on 26th September 1997 at which the problems were discussed.  It was agreed that her return from maternity leave should be postponed to allow her an additional four weeks before she had to return and, as the Tribunal recorded, this took the date for her return to 29th October 1997 and that was recorded in writing by a letter between her employers and her.  That letter however made clear that if no suitable alternative arrangements could be made to suit the Applicant and the University, she would be expected to return to her previous position on 29th October 1997.  

11.	The Applicant did not return to her previous position on 29th October 1997, because two days before that she had visited her doctor and had been provided with a medical certificate certifying her as unable to return immediately to her employment as she had been found to be suffering from depression. There is no dispute that (perhaps understandably given the quick arrival of a further child so soon after the third child and the domestic difficulties she was no doubt having to cope with) she was at that time suffering from postnatal depression, and that that amounted to sickness which rendered it unreasonable for her to make an immediate return to her old duties.

12.	There was further correspondence in the light of the submission of the medical certificate which culminated in a warning by letter in November requiring her to return to her previous position as assistant cook.  The Applicant telephoned the University on 12th November and repeated that she could not do this because of the hours she would be required to attend, and the clashes with her own child care arrangements that this would involve.  It was then recorded in a file note by her Human Resources Manager that there was a further discussion with a view to attempting to resolve the difficulties but in fact no further contact took place.  Her absence by reason of depression covered by medical certificates continued, further medical certificates being in due course submitted to the Respondents as of course the Applicant was required to do to justify her continued absence from work on sickness grounds.  

13.	However before the expiry of the final medical certificate submitted, the matter was passed up one level in the Human Resources chain of management at the University. Legal advice was taken and a further letter was written to the Applicant purporting to make it clear that her employment had now ended.  This was done by a letter of 21st November 1997 which was in evidence before the Tribunal, stating that it was not possible for the hours of duty in the post held by the Applicant to be changed as she had asked, confirming that the Senior Manager was aware that the Applicant was not now well enough to return to work and that she had submitted a medical certificate and concluding:-

“Therefore you have in effect forfeited your right to return to work after maternity leave and the University is obliged to discontinue your employment with effect from today’s date ie. 21st November 1997.”

From that stage onwards the Applicant had been treated as no longer in the employment of the Respondent.  That was the dismissal which founded the Applicant’s complaint to the Tribunal on the two main grounds that (1) in the circumstances the dismissal was unfair and (2) by the Applicant being required to attend at hours which as a lady with small babies she would find it inconvenient or impracticable to comply with there had been indirect discrimination against her as a woman, since a man would not have suffered similar difficulties.

14.	The Tribunal having heard evidence from the Applicant and from representatives of her employers concluded that she had indeed been unfairly dismissed in these circumstances, by the somewhat peremptory letter that had been sent to her on 21st November at a time when her absence from work was still covered by a sick note provided by her doctor.  They held, as they recorded on page 8 stating the result of their decision, that:-

(i)	The Applicant had been unfairly dismissed by the Respondent;
(ii)	She had not been dismissed for a reason connected with her pregnancy, t complaint in respect of that allegation being dismissed;
(iii)	She had not unlawfully been discriminated against by the Respondent on the ground of her sex, the complaint in respect of that allegation being also dismissed.

15.	The extended reasons then addressed the issues which the Tribunal understood to have been for their determination and on which they understood submissions to have been made to them, first as to the reason for the Applicant’s dismissal, and indeed, whether she had been effectively dismissed or not.  They recorded in paragraph 10 of their Extended Reasons that they found that her employment had been terminated without notice by the letter of 21st November 1997:  that had been a dismissal, and the effective date of termination for the purposes of the proceedings had therefore been the day on which that letter had been received, taken as the following day, 22nd November 1997.  

16.	They found in the following paragraph 11 that the reason given by the employer as the reason for dismissal (namely that she had overstayed her right to return to work after maternity leave with the result that she no longer counted as employed with them) was based on a mistaken assumption by the Respondent that she had not made a valid exercise of her right to return.  It had, in effect, ignored the continuation of the employment relationship without a break as a result of the submission of the sick note, so that for the period after the original right to return had expired, she was to be treated as still having been in the employment of the Respondent but absent by reason of sickness.

17.	While holding that the employers’ own reason had been thus mistaken, the Tribunal specifically rejected as a matter of fact that the real reason for her dismissal had in any way been for a reason connected with her pregnancy as envisaged by section 99 of the 1996 Act.  They recorded that in paragraph 13 of their extended reasons and as we have already indicated no appeal against the correctness of that conclusion is sought to be pursued before us.  

18.	They continued:-

“Indeed the Tribunal has already indicated that it finds the Respondents’ true reason for dismissal was a mistaken view, formed in the light of legal advice furnished to [the superior manager] that the University was obliged to discontinue the Applicant’s employment because she had “forfeited her right to return to work after     …”.  

19.	It followed, said the Tribunal, that as the Applicant’s dismissal was not for a reason connected with her pregnancy, her complaint under section 99 of the Employment Rights Act therefore failed and was dismissed.  They then proceeded to determine that the dismissal had been unfair in the way that it was carried out, as they recorded in paragraph 16 of their reasons: of course no complaint is made by Mr Crosfill on behalf of the Applicant against that conclusion and there is no cross-appeal in these proceedings.  They then addressed the allegations they understood to be front of them about sex discrimination in the following term in paragraph 17-18.

“Was the Applicant discriminated against on the ground of her sex?  The final issues all relate to the complaint of unlawful sex discrimination contrary to the Sex Discrimination Act 1975.  The complaint has been submitted on behalf of the Applicant as so called “indirect” discrimination as provided for by section 1(1)(b) of the 1975 Act.  The starting point has therefore been to ask whether the Applicant was subjected to a requirement or condition which although applied equally to men and women was such that the proportion of women who can comply is considerably smaller than the proportion of men who can comply with it.”

20.	They then referred to the submissions made on behalf of the Applicant as having been put on the footing that instence by the Respondent on the Applicant returning to her previous pattern of working hours constituted such a requirement or condition.  They pointed out that no evidence, statistical or otherwise, had been provided to the Tribunal to support the proposition that the organisation of working hours to require attendance at the times applicable to this Applicant (in the late afternoon and early evening periods when of course the students would want their evening meal) was such that the proportion of women who could comply was considerably smaller than the proportion of men who could comply with such an arrangement, and it had been conceded on behalf of the Applicant by her representative that he was unable to do so. 

21.	The Tribunal therefore concluded, as they stated in paragraph 20 of their decision, that:- 

“In the light of the evidence available to it, therefore, the Tribunal finds that the Applicant has not succeeded in showing that an insistence by the Respondent upon the pattern of working hours to which the Applicant was subjected operated so as to have the differential impact as between men and women which is required by section 1(1)(b) of the 1975 Act.”

22.	They then dealt with two further aspects of the indirect discrimination claim which it is not necessary to repeat here and concluded in paragraph 23:-

“For the foregoing reasons, therefore, the Tribunal finds that the Applicant has not been unlawfully discriminated against by the Respondent on the ground of her sex.  Her complaint under the Sex Discrimination Act 1975 fails and is dismissed.”

Having thus expressed their conclusions on the issues they understood to be the live issues before them on the Application, the Tribunal pronounced that the Applicant had been unfairly dismissed and then went on to refer to the question of remedies, to be dealt with at a subsequent hearing to be arranged.  

23.	The Tribunal’s reference to section 1(1)(b) and to the sex discrimination allegations in terms exclusively of indirect discrimination reflected the agreement recorded by the Chairman, as a result of what no doubt had been a discussion at the outset of the proceedings, as to what the issues for determination by the Tribunal in this case were to be.  As the Tribunal recorded in paragraph 3 of their extended reasons of page 9 of the appeal file:-

“At the outset of the proceedings it was agreed that the issues before the Tribunal were as follows.”
And there followed four defined issues relating to dismissal: then issues (5), (6) and (7) which were in the following terms:-

“(5)	  Was the Applicant subjected to a requirement or a condition which although applied equally to men and women was such that the proportion of women who can comply is considerably smaller than the proportion of men who can comply with it?
(6)	If so, was the application of that requirement or condition to the detriment of the Applicant because she could not comply with it?
(7)	If so, can the Respondent justify the imposition of that condition irrespective of the sex of the person to whom it is applied?”

23.	The Tribunal thus clearly recorded that the only issues of sex discrimination which were before them as a result of the discussion and, as was recorded agreement of the parties at the outset of the hearing, were those three issues; all of which are concerned exclusively with indirect discrimination and none of which is concerned with direct discrimination.  This was, of course, entirely consistent with the way in which the whole complaint on the ground of sex discrimination had been made by the grounds drafted on behalf of the Applicant in her Originating Application which (apart from the withedrawn sub-paragraph 14) had specifically referred only to the grounds of indirect discrimination under sections 1(1)(b) and section 6(1)(b) and 6(2) of the Sex Discrimination Act 1975.  

24.	In those circumstances we find it puzzling that paragraph 6.2 of the Notice of Appeal, clearly seeking to raise as a criticism of the Tribunal that they had failed to deal with an issue of direct sex discrimination which according to the record of the Tribunal’s proceedings had not been an issue before the Tribunal at all, should have been directed to proceed to a full hearing by way of appeal, without apparent enquiry whether that issue had been before the Tribunal at all.  As matters turned out, when this Appeal came for the Employment Appeal Tribunal at the outset of the full hearing on 14th June 1999, when His Honour Judge Altman, Mr Jenkins and Mrs Vickers formed the Tribunal, the point of course immediately arose: and it not being possible to dispose satisfactorily of whether this had been an issue before the original tribunal at all, the Employment Appeal Tribunal on that date ordered, as is shown by the order at page 29 of the Appeal file, that the Appeal should be adjourned and that the Chairman’s notes of evidence should be requested with a view to resolving as a matter of fact whether this had ever been in any real sense an issue before the Employment Tribunal or not.  The significance of that of course is that it is not normally even arguably an error of law for a Tribunal to omit to address an issue which is outside the defined issues which are put before it for its consideration in the pleadings submitted by the parties, and indeed in the definition of issues which appears to have taken place in this case in accordance with the very sensible practice adopted by this Tribunal in common with many others.

25.	The way in which the matter was dealt with at the first hearing of this full appeal is apparent from the judgment of His Honour, Judge Altman, of which we have a transcript at pages 32 to 35 of the Appeal file here records that while the original application to the Employment Tribunal alleged sex discrimination in box 1, referring to four matters, the particulars of the allegation of direct sex discrimination were confined in paragraph 14 to differential treatment as against a specific male comparator.  As he recorded there:-

“Mr Crosfill accepts that that particular allocation was withdrawn before the Employment Tribunal. So that at that point as the matter came before the Employment Tribunal there was no particular rise to allegation of direct sex discrimination.”  

However, as he further records there was before the Employment Tribunal a skeleton argument submitted by Mr Crosfill in which in paragraph 3 the point was canvassed that:-

“In treating the inability of the Applicant to return to work at the end of her maternity leave as a reason for her dismissal the Respondent has treated her in a way that no male comparator could have been treated and has discriminated against her on the grounds of sex.  That actually commented Judge Altman is not quite what is now being said.  It was not the inability to return to work, it is the way in which they treated her failure to return to work which was now relied on.

26.	He then referred, as we have done, to the terms of the decision of the Employment Tribunal and in particular to paragraph 3 where it said at the outset of the proceedings it was agreed that the issues before the Tribunal were as follows, setting out matters of dismissal relating to pregnancy, unfair dismissal and indirect sex discrimination only. 

As Judge Altman’s then went on to say:-

“On the face of the documents therefore there was no evidence that the allegation of direct sex discrimination, as now particularised or any in particulars, was presented by the appellant to the tribunal, referred to in the course of the hearing or contained in their reasons.  That is based on examination of the documents.  That is not the only matter However.  Most of what happened before the Employment Tribunal was, we are told in relation to submissions made orally on legal issues in the case.  Mr Crosfill’s recollection is that he did raise this matter orally at the time.  Mr How’s recollection, for the respondents, is that this matter was not canvassed at all.”

27.	We should interpose that Mr Hows, who has appeared before us on behalf of the Respondents, has confirmed that Judge Altman has there accurately recorded what he told this Tribunal on that occasion on 14th June 1999 and he has further confirmed that his recollection is exactly as there stated:  that this matter, which is now sought be the subject matter of the appeal brought before us under paragraph 6.2 of the Notice of Appeal was not canvassed before the Employment Tribunal at all.  This Tribunal on 14th June then determined that they were unable, on the face of it, to resolve the issue of fact about whether this had been placed before the Employment Tribunal or not, and accordingly adjourned in order for an opportunity to be given, first for any necessary amendments to the grounds of appeal to be made to assert that the Employment Tribunal had failed to address the allegation of direct sex discrimination as thus reformulated before them by Mr Crosfill, and secondly in order that the Appellant should have an opportunity to establish that as a matter of fact it had been raised in the course of oral argument before the Employment Tribunal, bearing in mind that on the face of it all the documents pointed to the contrary.  As recorded by the Employment Tribunal on that occasion the position was uncertain: Mr Crosfill had been very candid in saying that it was his recollection but he was unable to be more specific about it.  

28.	Accordingly, the Employment Tribunal then resolved to adjourn the matter and directed that it should not be relisted without amendment to the Notice of Appeal but that amendment to the Notice of Appeal could only be made conditionally on the receipt by the Employment Appeal Tribunal of confirmation from the Employment Tribunal Chairman that this matter had indeed been raised before him.  In order to bring that about they made a request that the Chairman should investigate his own notes of the hearing and if possible his own recollection and that of the lay members and requested that a letter should be provided dealing with the question whether the issue had been raised before the Employment Tribunal and so far as relevant and practicable furnishing those parts of his notes which deal with the clarification of the issues.  

29.	Upon receipt of that letter it was directed that this appeal should be further listed and that is the way in which the matter comes before us. We have now the benefits, in addition to the recollections of Mr Crosfill and Mr Hows as there recorded, of the letter from Professor Neal who was the Chairman of the Tribunal on this occasion and his extensive manuscript notes of the proceedings and submissions in the course of the hearing, all of which are set out at pages 36-58 inclusive of the appeal file before us.

30.	In his letter, Professor Neal is cateogoric that the case was run exclusively on the basis of indirect discrimination only, argued by reference to an alleged requirement to work at fixed hours until 8 pm at night which it had been submitted was a requirement affecting more women than men.  He says it is not his recollection that an allegation of direct discrimination had been raised during the course of oral submissions and had that been the case a note would certainly have been made and the decision of the Employment Tribunal would have addressed the position under section 1(1)(a) of the 1975 Act.  He records that his own recollection supported by his written notes is consistent with the recollection of Mr Hows, recorded in the transcript of the proceedings before this Tribunal on 14th June 1999 to which I have already referred.  He continues:-

“I can thus inform you that it is my recollection confirmed by notes taken at the time that the issues set out in the decision of the Employment Tribunal at paragraph 3 (points 5-7) reflect the full extent of the basis upon which a claim of unlawful sex discrimination is put on behalf of the Applicant.  This claim was dealt with at paragraph 17 - 23 of the Decision and in the absence of any other claim, was addressed by the Employment Tribunal exclusively as a matter of “indirect” discrimination.  No allegation of “direct” discrimination against the Applicant ever form part of the proceedings before the Employment Tribunal.”

31.	That clear statement by the Chairman of the way in which the matter was put to the Tribunal is fully supported by the very clear and comprehensive, though abbreviated, manuscript notes at pages 38-58 inclusive which confirm his recollection and that of Mr Hows in that they contain no indication whatever of this allegation of direct sex discrimination having been raised as a separate issue before the Employment Tribunal in the course of the hearing.  

32.	That is the background against which Mr Crosfill on behalf of the Appellant seeks to pursue the appeal under paragraph 6.2 of the original Notice of Appeal, either in its original or in a modified form: the exact nature of the amendments is not material to consider for the present purpose.  

33.	He seeks to pursue the appeal before us today on the basis of two submissions which he made, first that as a matter of fact the issue of direct sex discrimination contrary to section 1(1)(a) of the Sex Discrimination Act 1975 had in fact been raised before the Tribunal in sufficiently clear terms to make it an error of law on the part of the Tribunal not to have recorded findings and a decision on that as a separate issue.  In particular, he referred this Tribunal as on the previous hearing on 14th June to a copy of the skeleton argument which he says and Mr Hows accepts, he used for the purposes of his submissions to the Employment Tribunal on 30th April 1998 (that is some considerable time ago now) and he points, in particular, to the third paragraph of that skeleton argument which is in the following terms:-

“In treating the inability of the Applicant to return to work at the end of her maternity leave as a reason for dismissal, the Respondent has treated her in way that no male comparator could have been treated and has discriminated against her on the grounds of sex of Lewis Woolf v Caulfield 1997 IRLR 432 at 436.”

34.	Mr Crosfill concedes that it is right for us to approach this issue of fact on the basis that that skeleton argument would not have been put before the Tribunal at the outset of the case when the issues to be considered by the Tribunal were being defined and would only have been used as he was making his closing submissions to the Tribunal as to the way they should determine the issues before them.  Nevertheless, he says, that paragraph, in particular, and the reference to the authority cited, raised on the face of his skeleton argument an issue of law which it was incumbent on the Tribunal to address and in failing to do so they erred in law in a way that justifies this Tribunal interfering to set their decision aside for failure to address a material issue.  

35.	We are not satisfied, on the basis of the material that has now been placed before us which appears to be all the available material that is ever going to be brought to light to enable a decision to be made on this issue of fact as to what happened at the hearing at the end of April the year before last).  That it has been established that this issue of direct sex discrimination was in fact raised before the Employment Tribunal in anything like a sufficiently clear way to warrant its being described as a separate issue for the consideration of the Tribunal in its own right; or to make it even arguably an error of law on the part of the Tribunal to have failed to address it specifically, make findings and express a decision about it in the decision document and extended reasons to which we have referred.

36.	The fact that the authority Lewis Woolf v Caulfield appears to have been referred to on the face of Mr Crosfill’s skeleton argument (as he points out, that case and the page reference their cited stand as authority on a point concerned with direct discrimination) appears to us not to take the matter forward in any significant way.  It is clear from paragraph 1 of the same skeleton argument by Mr Crosfill that he was also relying on the same case with a different page reference for a different proposition on the part of the argument that was dealt with by the Tribunal and that does appear clearly recorded in the Chairman’s note.   That issue was the question of whether the Applicant’s contract of Employment has subsisted up to and including the date of the letter dismissing her on 21 November 1997.  The proposition advanced perfectly rightly by Mr Crosfill in paragraph (1) of his skeleton argument before the Employment Tribunal was that the question of whether a contract subsists during a period of maternity leave is a question of fact for the Tribunal applying ordinary common-law principles.  Three authorities are cited for that proposition, one of which is the case of Woolf v Caulfield citing the page reference [1997] IRLR 432 at 435.  Reference to that case itself confirms that it dealt with those two separate points and in paragraph 25 under the heading “Contractual Position” it does, indeed, everybody a proposition supporting what was said in the first paragraph of Mr Crosfill’s skeleton argument (the critical question in every case where the statutory right to return has been lost, as here, is whether the contract of employment ends on expiry of the statutory right to return or whether it continues until determined by either party or by agreement: the answer will depend on the facts).

37.	The deployment of that authority to support that proposition can be picked up in the Chairman’s note of the argument at pages 52-53 of the appeal bundle where his notes relating to that point are set out, and it is clear that it was that point and the issue of whether the contractual relationship continued that was being expressly addressed.  However, it also clear that when the same note further down page 53 goes on to record the arguments submitted about sex discrimination, the whole of the argument related to questions of indirect discrimination as expressly recorded by the Chairman; and that the proposition for which Woolf v Caulfield was relied on in paragraph 3 of Mr Crosfill’s skeleton argument was not so far as the record goes advanced at all.  In those circumstances, we cannot be satisfied that there was any error of law on the part of the Tribunal in failing to address issues of direct sex discrimination, which moreover were never dealt with in the evidence it in the way that they should have been had such an allegation been put forward as an issue to be dealt with by the Tribunal at all.  

38.	The second way in which Mr Crosfill seeks to pursue this appeal is by way of an alternative argument to the effect that issues of direct sex discrimination arise so obviously from the facts of this case, and the way that the case was put on the basis of indirect sex discrimination, that any reasonable Tribunal should and indeed must have addressed the question of whether there had been unlawful direct sex discrimination in this case, almost regardless of the way the issues had been defined at the outset of the hearing, or agreed at that stage of the proceedings by the parties.  The case of Langston v Cranfield University [1998] IRLR 172 was relied on by Mr Crosfill in this context as showing that there are some issues which arise so inevitably as a result of the particular kind of complaint that the Tribunal has a quasi-inquisitorial duty to address them and consider them arising quite independently of the issues specifically raised by the parties themselves.  Consequently, he said it was a breach of duty on behalf of this Tribunal to have failed to address the issues of direct sex discrimination regardless of whether the Tribunal understood them to have been expressly raised by the parties in their pleadings or their submissions or in course of the hearing at all.  

39.	We pressed him to define, for the purposes of this aspect of the appeal, the exact proposition which in his words was so trite and obvious that the Tribunal had erred by failing to address it of their own notion regardless of the submissions made to them by the parties.  As he stated the proposition in the course of his argument, it was this:-

“That any dismissal because she is pregnant or because she has taken maternity leave will amount to direct sex discrimination.”  

That was the, “trite and obvious” proposition which, in his submission, the Tribunal had wrongly ignored in this case since it, to put it collaquially, had leapt out of the page so obviously as an issue that need to be addressed that any reasonable Tribunal must and should have pronounced upon it.  

40.	We reject Mr Crosfill’s submissions that there is ground for criticism of the course taken by the Tribunal under this head, and we accept the submissions of Mr Hows that such a proposition by no means stood out “obviously and tritely” as an issue needing to be addressed in this case.  In the first place, as paragraphs 11 and 13 of the Tribunal’s reasons make explicit and clear, the reason for the termination of the Applicant’s employment, (whether that put forward by the employers themselves or any alternative that the Tribunal themselves might of taken into account as being the real reason) was not in fact, as Mr Crosfill put it, because she was pregnant or because she had taken maternity leave.  It was, as stated in paragraph 11, so far as the employer was concerned, because she had wrongly failed to return to work having taken her maternity leave. Although the Tribunal indicated in paragraph 13 that they considered that was a mistaken view and went on to deal with the case on the basis that it had not been so and her dismissal had been unfair, that did not alter the objective fact that so far as the Tribunal’s findings are concerned, the actual reasons for the Applicant’s dismissal in this case had not been within the formulation that Mr Crosfill advanced before us as being the “obvious” proposition that should have been considered. 

41.	We accordingly accept that as Mr Hows submitted, it was by no means obvious in the way the matter came before the Tribunal that the issue thus formulated required to be addressed regardless of the express way in which the case was put before them by the parties.  In the first place the Originating Application as we have already indicated contains no indication that the issue, as thus formulated, was being put before the Tribunal by the Applicant.  That Originating Application was a detailed document, as Mr Hows submitted, arguing complex points of law and filed on behalf of the applicant by the law centre which has continued to act for her.  It does not raise the point now advanced by Mr Crosfill. If such a point had been obvious, one would have expected it to do so.  

42.	Secondly is clear, from the record of the proceedings contained in the Chairman’s extended reasons at paragraph 3 and also from his own recollection reported in his letter and manuscript notes, that this “plain and obvious” issue had not been raised by or on behalf of the Appellant at all when the parties were asked at the outset of the hearing to outline the issues for decision and thus for the Tribunal’s consideration.  Again if this issue had been such a plain and obvious one, then it is astonishing that it was not brought out into the open at the outset when the issues for consideration by the Tribunal were being defined in very specific and identified ways, as recorded in paragraph 3 of the Extended Reasons.  Thirdly it is apparent we think, from the Chairman’s note that even if the reference in the skeleton argument document was to   the issue now had sought to be defined as plain and obvious, it was not in fact raised, and in particular was not raised in the course of oral argument at the end of the Tribunal proceedings when submissions were being made on the issues on which the Tribunal was being required to give a decision.  Again, we find it astonishing that if the proposition had been such a trite and obvious one as is now suggested that there should be no indication that it was ever raised in oral argument at that stage of the proceedings.  

43.	As Mr Hows pointed out it has not been suggested that it was raised in any other way than then mention which we have already referred in the written skeleton argument, no doubt prepared as a basis for Mr Crosfill’s closing submissions to the Tribunal. We accept Mr Hows submission that it is reasonable to infer from the fact that it was not recorded in the oral submissions at all and only appears in paragraph 3 of the skeleton argument that it was not being pursued by Mr Crosfill a separate point in any identifiable form at that stage of the proceedings.  We do not accept that the potential issue of direct race discrimination sought to be now identified for us by Mr Crosfill is in any way analogous to the questions being considered by this Tribunal in the case of Langston v Cranfield University.    What was there in point was a question of the reasonableness of a dismissal which had taken place by reason of redundancy, when the Tribunal is of course required to form an objective view on whether a particular dismissal has in fact been carried out in a reasonable or unreasonable manner and in the words of this Tribunal [1998] IRLR 172 at 175 paragraph 30:-

“Where an applicant complains of unfair dismissal by reason of redundancy we think that it is implicit in that claim, absent to agreement to the contrary between the parties, that the unfairness incorporates unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer.”

44.	In the context of the kind of issue before an Employment Tribunal in that case it is easy to see that those issues are necessarily implicit in the nature of the complaint being made, but we think the present case is very far from being a comparable case. The whole basis on which the complaint of indirect discrimination was put before the Tribunal in this case was very different from the kind of case now sought to argued by Mr Crosfill by reference to the direct discrimination allegation he suggests should have been regarded as added in by way of a “portmanteau”  with the allegation of indirect discrimination which was all that was in fact made.  
45.	We conclude by referring to what was said by the Employment Appeal Tribunal in paragraph 32 of the same case that:-

“It is desirable that at the outset of the hearing before an Employment Tribunal, the live issues are identified by the Industrial Tribunal.”  

It appears to us that the Tribunal in the present case did exactly that and carried out their duty to clarify the issues for consideration in an entirely admirable way in accordance with rule 9 of the Employment Tribunals’ rules of procedure, in schedule 1 to the Employment Tribunals’ (Constitution and Procedure) Regulations 1993 SI No. 2687.  We are quite unable to see that there is any arguable error of law in the way the Tribunal went about the task of defining and deciding the issues before them in this case and for those reasons we unanimously dismiss this appeal.