Appeal No.	 EAT/876/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	           On 10 October 2002
Judgment delivered on 30 October 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR D G LEWIS
MR S M SPRINGER MBE

NOTTINGHAM CITY COUNCIL	APPELLANT

MS J E REDMOND	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J JUPP
(of Counsel)
Instructed by:
Nottingham City Council
Legal Services Division
The Guildhall
South Sherwood Street
Nottingham NG1 4BT	
For the Respondent	MR D JONES
(of Counsel)
Instructed by:
Messrs Irwin Mitchell
Solicitors
Imperial House
31 Temple Street
Birmingham B2 5DB	

JUDGE PETER CLARK

1	This is an appeal by Nottingham City Council (the Council) against a Reserved Decision of the Nottingham Employment Tribunal, promulgated with Extended Reasons on 7 June 2001, upholding the Applicant employee, Ms Redmond’s complaint of unlawful direct sex discrimination.  

Background
2	The Applicant commenced employment with the Council as a part-time youth worker in June 1990.  On 6 September 1993 she commenced additional employment as a social worker at the Thorneywood Unit, part of the Mapperley Hospital Group, operated by the Nottingham Healthcare NHS Trust, working in a multi-disciplinary team headed by Dr Leheup, a Consultant Child and Adolescent Psychiatrist.  The unit treated severely damaged children at risk from self-harm and family dysfunction.  

3	Between 1 July 1994 and 1 July 1995 she was absent from work through sickness.  In 1996 she became pregnant. During that pregnancy, between 29 April and 2 August, she was absent on three occasions for a total of six and a half days due to pregnancy-related sickness.  On 12 August she miscarried.  She was then off sick until 11 October 1996.  

4	Following her return to work she was seen by Michael Hedge a senior social worker about her sick absence record.  He decided to take no action because her recent absences were related to her pregnancy and subsequent miscarriage.  Dr Leheup was not informed of that interview, nor of the reasons for the Applicant’s absences.  

5	On 6 January 1997 the Applicant commenced a further period of sick absence.  She was admitted to hospital suffering from an acute reactive psychosis.  She was certified unfit for work until 7 April 1997.  

6	Meanwhile Dr Leheup was becoming anxious about the effect of the Applicant’s absences on the workload of fellow-team members.  On 31 January 1997 she met with Mr Hedge.  His note of the meeting recorded this:
“In view of [the applicant’s] history of absence and this present period of absence which may be quite prolonged Dr Leheup felt unable to continue to allocate work to [the applicant] in the future.  All the [applicant’s] current cases were discussed and were reallocated.”

7	On 12 May 1997 the Applicant was certified fit for work.  Dr Leheup would not have her back.  Management, in the shape of the Council’s District Manager, Ben Irons, asked Dr Leheup to reconsider her decision.  She took advice from the BMA, her professional body, and maintained her stance.  Unsuccessful attempts were made to re-allocate the Applicant to another team.  The matter dragged on.  Then, on 15 February 1999 the Applicant was involved in an incident in her work as a youth worker which led to her dismissal following a disciplinary hearing held on 12 July 1999.  She appealed successfully against that decision to the Council’s Appeal Committee.  The Committee, on 30 November 1999, directed that she be reinstated back to her post, but she was not permitted to return to Thorneywood.  Meanwhile a grievance had been taken out by the Applicant.  No determination was made due to her dismissal, but following her reinstatement the Assistant Director who had heard her grievance, Carolyn Caldwell, wrote to the Applicant acknowledging that there was an inherent injustice in a person subject to allegations of incapability being prevented from attending their workplace to carry out their contractual duties and being denied the opportunity of a fair hearing to respond to those allegations.  She understood the Applicant’s grievance; she did not find that separate complaints by Dr Leheup about shortcomings in the Applicant’s practice was backed up by adequate evidence.

8	Meanwhile, on 29 September 1999 the Applicant had presented an Originating Application to the Employment Tribunal complaining of unfair dismissal and racial discrimination.  She is black.  She did not then complain of sex discrimination.  That complaint was later added, withdrawn and then restored.  Ultimately the original complaints were withdrawn, leaving sex discrimination as the only live issue for the Tribunal.  

The Tribunal Decision
9	The hearing before the Tribunal occupied some six days.  The Applicant appeared in person; the Council was represented by Mr Jupp of Counsel.  At the close of the evidence Mr Jupp presented detailed written submissions running to twenty two typed pages.  That document is instructive.  It shows how the issues in the case were formulated by the Appellant Council.  

10	At paragraph 16 of those closing submissions the following concession appears:
“It is accepted that if an employer, when deciding what if any action to taken [sic] as a consequence of absence from work, it is directly discriminatory to take account any period [sic] of absence owing to illness resulting from pregnancy or childbirth where that illness arises during pregnancy and continues into the protected maternity leave period.”

Reference is then made to the European Court of Justice ruling in Brown -v- Rentokill [1998] ICR 790 at 826 D-E.  That concession is recorded by the Tribunal at paragraph 10 of their Reasons.  

11	It was the Council’s case that absence during pregnancy (the six and a half days absence between 29 April and 2 August 1996) was not taken into account by Dr Leheup.  Had it been taken into account it would be automatically discriminatory (submissions, paragraph 15(a) ).  

12	The Tribunal rejected that submission as a matter of fact.  They found, Reasons paragraph 9, that Dr Leheup took all the Applicant’s absences into account in deciding not to allocate further duties to her. The Tribunal there refer specifically to an answer given by Dr Leheup to the Chairman in evidence; “All of them”.  That is taken from the Chairman’s Notes of Evidence, an extract of which is before us.  Under the heading “Absences taken into account” this answer is recorded from the witness;
“All of them.  I did not know the reason for the first absence.  The sick note was sent to social services.  Some absences were short and some were long.  I know she had abdominal pains.  I did not know the reason for the second absence.  I did not know the reason for the last period of absence.”

13	The Tribunal then, at paragraph 9 of their Reasons, go on to consider what they regarded as a leading question put to the witness by Mr Jupp in re-examination, namely whether she intended by that earlier answer to refer to the blocks of absences, to which she replied “Yes”.  The Tribunal considered that answer in the overall context of Dr Leheup’s evidence and concluded, finding as a fact, that she did take into account all absences, including the six and a half days of pregnancy-related sick absence.  

14	The Tribunal went on to find, contrary to the Council’s case, that the Council’s failure to persuade Dr Leheup to permit the Applicant back on to her team was a discriminatory act.  Specifically, they failed to inform Dr Leheup of the reason for the six and a half day absence, that is pregnancy-related illness.  Had they done so the Tribunal found (Reasons paragraph 3(uu) and 15), that Dr Leheup would have acted in a way that was non-discriminatory and permitted the Applicant to return to her team.

15	Thus, so the Tribunal found, the detrimental act of unlawful sex discrimination on the part of the Council was not Dr Leheup’s refusal to take the Applicant back, but its failure to prevent the Trust from refusing to allocate work to the Applicant from 31 January 1997 and in failing to take reasonable steps between January 1997 and May 2001 (when the matter came on for hearing before the Tribunal) to persuade the Trust to revoke that decision.

The Appeal
16	The original seven separate grounds of appeal have now been reduced to four.  The first three grounds may conveniently be grouped under the heading “Perversity”; the final ground raises a limitation issue.  

Perversity
17	Before embarking on this part of the appeal we remind ourselves of the limitations on our jurisdiction, recently emphasised by the Court of Appeal in Yeboah -v- Crofton [2002] IRLR 634.  Appeals to the Employment Appeal Tribunal are on questions of law only, not fact.  Employment Tribunals Act 1996 section 21(1).  In Yeboah Mummery LJ (paragraph 12) warned of the risk that a close examination of the evidence by the appellate body may lead to its substituting its own assessment of the evidence and overturning findings of fact made by the Tribunal.  The limitations on the perversity ground of appeal, identified in British Telecommunications PLC -v- Sheridan [1990] IRLR 27, para 34(CA), are repeated at paragraphs 92 - 93 of His Lordship’s judgment.  The need to first find that a finding of fact by the Tribunal is unsupported by any evidence is highlighted at paragraph 95.  

18	As the judgments in Yeboah make clear, it is incumbent on an Appellant relying on the perversity ground to fully particularise his case.  That Mr Jupp has done.  We therefore turn now to the first three grounds of appeal, taking them in a slightly different order.  

19	First, Mr Jupp attacks the Tribunal’s finding of fact at paragraph 3(j) and 9 of their Reasons, that Dr Leheup took into account the six and a half days of absence by the Applicant whilst pregnant in deciding to refuse to allocate cases to her in January 1997.  In our view that is precisely the exercise on which we cannot and should not embark.  The Tribunal, at paragraph 9 of their Reasons, refer to Dr Leheup’s evidence in answer to a question from the Chairman as to which absences she took into account.  That answer, beginning “All of them” is set out earlier in this judgment.  There was accordingly evidence to support that finding of fact.  That is an end to the point.

20	Similarly we are satisfied that the Tribunal’s finding that the Council failed to take reasonable steps to persuade the Trust to allocate cases to the Applicant after 31 January 1997 was one which it was open to it on the evidence.  That is the third ground of appeal.

21	It is the second ground of appeal which has exercised us and on which the discussion before us ultimately focused.  Here it is said that that there was no evidence to support the Tribunal’s finding at paragraph 15 of their Reasons that had the Council brought to Dr Leheup’s notice that it was unlawful to take into account the six and a half days pregnancy related absences the Applicant would have returned to the team.  That was the detriment which she suffered as a result of the Council’s failure to prevent the Trust from allocating work to the Applicant from January 1997 and its failure to take reasonable steps thereafter to persuade the Trust to revoke that refusal; those failures consisting specifically of failing to draw to Dr Leheup’s attention to the fact that six and a half days absence, out of the total period of five hundred and fifty seven and a half days, were attributable to pregnancy and thus could not lawfully be taken into account. 

22	Before looking to find any evidence or finding of primary fact to support that hypothetical conclusion we observe first that the six and a half days absence is not mentioned in either the Applicant’s Further and Better Particulars of her sex discrimination claim, nor in her witness statement.  Dr Leheup was never asked the question, “Would it, or might it have made any difference to your decision if you had been told that those six and a half days absence could not properly be taken in to account?”.

23	Turning then to the evidence before the Tribunal and the Tribunal’s findings of primary fact, the Tribunal found (Reasons paragraph 8) that the reason for Dr Leheup’s refusal to allocate work to the Applicant was her absences.  All of them.  Those absences consisted of three blocks; three hundred and sixty five days between 1 July 1994 and 1 July 1995, the period between 12 August and 11 October 1996 and thirdly 6 January to 12 May 1997, together with the three occasions totalling six and a half days between 29 April and 2 August 1996.

24	At the meeting on 31 January 1997 the Tribunal found (Reasons, paragraph 3(j) ) Dr Leheup explained to Mr Stone, Mr Hedge’s line manager, her concern about the Applicant’s history of absence and the present absence (which had begun on 6 January) which might be quite prolonged.  The then sick certificate ran to 7 April 1997.

25	In her letter to Mr Irons, the District Manager, dated 12 May 1997 Dr Leheup referred to all three “blocks” of absence, as earlier defined.  She did not mention the six and a half days.  She explained that she no longer felt able to take responsibility for the allocation of cases to a worker with what was then emerging as a long term pattern of absences which she described as jeopardising the safety of patients, interfering with the level of service and undermining the morale of the team.

26	Thereafter a number of attempts were made by Council staff to persuade Dr Leheup to change her mind, without reference, it should be said, to the reason for the six and a half days absence.  In evidence she said that the Applicant was not a priority for her.  She was not prepared to expose patients to another round of upheavals.  

27	We have reviewed the state of the evidence and the Tribunal’s findings, not to reach any conclusion as to whether the Tribunal’s finding that had Dr Leheup been informed of the reason for the Applicant’s six and a half days absence she would have reversed her decision was a permissible option, but to see whether there was any evidence to support that finding.  Mr Jones submits that the frequency of the Applicant’s absences during pregnancy could have been a material factor in Dr Leheup’s decision which, on knowing of the true position, might have been reversed.  He reminds us that we did not see the witnesses, particularly Dr Leheup, nor hear the evidence and has drawn attention to the observations of Lord Hoffmann on this topic in Piglowska -v- Piglowska [1999] 1 WLR 1360, 1372 D.  He submits that the Tribunal was entitled to infer the answer which it gave to the hypothetical question, would it have made a difference to Dr Leheup’s decision had she known of the reason for the six and a half days absence.

28	We return to the Tribunal’s findings at paragraph 15 of their Reasons.  The Tribunal there conclude that had the Council properly raised the issue of the six and a half days pregnancy related sick absence the Applicant would have returned to the team.  In our judgment that critical finding is not only unsupported by any evidence it is wholly contrary to the evidence which was before the Tribunal.  It is clear from Dr Leheup’s letter of 12 May 1997 that on the basis of the three blocks of absence (no mention being made of the six and a half days) she would not have the Applicant back in the interests of patients and other team members, a stance which she maintained at subsequent meetings with the Council’s management and in oral evidence before the Tribunal.  In these circumstances, on the evidence before the Tribunal, the answer to the question, but for the six and a half days absence would you take the Applicant back, the answer could only have been “No”.  

29	We have characterised that finding as critical to the Tribunal’s Decision.  It is so in two respects.  First, on the issue of liability; it was that finding that constituted the detriment for the purpose of section 6(2)(b) Sex Discrimination Act, thus completing the statutory tort.  In this respect we adopt the observations of Burton J in Pearce-v-Mayfield School [2001] ICR 920 para  20, which are unaffected by the subsequent Court of Appeal decision in that case [2002] ICR 198.

30	Further, based on that finding the Tribunal proceeded to compensate the Applicant for unlawful discrimination in a subsequent remedies decision dated 1 August 2000 on the basis that she had suffered a devastating impact on her career from May 1997 to November 1999, as is more particularly set out at paragraph 8 of their remedies reasons.  For the reasons which we have given we conclude that there was no evidence to support that finding.  It led to the Tribunal awarding the Applicant the sum of £21,000 compensation for injury to feelings together with interest.  

31	In these circumstances we have concluded that this Decision cannot stand.  Not on the basis that the relevant finding by the Tribunal was simply an impermissible option, to use one of the epithets collected by Mummery J in Stewart -v- Cleveland Guest (Engineering) Ltd [1994] IRLR 440 para 33, but on the basis that it was unsupported by evidence.  

32	Having so concluded it follows that this appeal must be allowed and the Tribunal’s Decision reversed.  The Applicant’s complaint of unlawful sex discrimination fails and is dismissed.  

LIMITATION
33	Finally, Mr Jupp challenged the Tribunal’s finding, at paragraph 19 of their Reasons, that the Council’s failure to take reasonable steps to persuade the Tribunal to revoke the decision taken by Dr Leheup on 31 January 1997 not to take the Applicant back on to her team constituted a continuing act within the meaning of section 76(6)(b) Sex Discrimination Act, rendering the complaint within time.  In the light of our principal finding in the appeal the point is now moot.  Had it been necessary to decide it we should have upheld the Tribunal’s finding, applying the guidance of the House of Lords in Barclays Bank Plc -v- Kapur [1991] 2AC 355.