Appeal No. EAT/1458/01 SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 March 2003

Before
HIS HONOUR JUDGE ANSELL
MR K EDMONDSON
MR D J HODGKINS CB

MRS M A HAINES LEE	APPELLANT

RELATE BERKSHIRE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS NAOMI CUNNINGHAM
(Representative)
Instructed by:
Free Representation Unit
Peer House
4th Floor
8-14 Verulam Street
London WC1X 8LZ	
For the Respondent	MISS ELAINE BANTON
(of Counsel)
Instructed by:
Messrs Levenes Solicitors
Bedford House
125-133 Camden High Street
London NW1 7JR	

HIS HONOUR JUDGE ANSELL

1	This is an appeal from the decision of the Employment Tribunal held at Reading who by a unanimous decision promulgated on 18 October 2001 held that the Respondents had not discriminated against the Appellant by reason of her sex and also that she had not been dismissed for any reason connected with having given birth to a child.

2	Leave for this hearing was given at this court by Judge Peter Clark on 11 July 2002 in relation to one issue namely whether the Employment Tribunal had failed to address the issue as to whether the abbreviation of the Appellant’s probationary period by reason of her absence for pregnancy and maternity leave constituted a detriment and a detriment on the grounds of her sex.

3	The facts are that the Appellant applied for a part-time post as Appointments Secretary with the Respondent in January 2000.  She was interviewed on 3 February by amongst others Ms Ross (the Respondent’s Chief Executive).  She was offered and accepted the job telling Ms Ross at the time that she was pregnant.  Ms Ross replied this was not a problem.

4	The Respondent is a well-known charity specialising in counselling, therapy and personal relationships.  The Employment Tribunal found that all but three of their staff of about 40 were women, many of child-bearing age.  Some had in the past taken time off for parental or other domestic purposes.

5	She commenced work on 14 February with a six-month probationary period.  The last day of work before commencing maternity leave was 19 May followed by a week’s holiday commencing on 22 May and therefore effectively her maternity leave started on the following Monday, 29 May.  Ms Ross had sent her a letter confirming the position on 16 May, wished her luck with the baby and ended up with these words “hope you see you back later in the year.”  She intended to return to work in October 2000.  Her child was born on 6 June.

6	The probationary period was thus due to expire on 14 August and on 31 July she received a letter indicating that Ms Ross had reviewed her performance and had decided not to confirm her contract.  No reasons or further explanation was given for this decision.

7	There had been some concerns in relation to the Appellant’s performance during the three months she was working between February and May.  It was said that her manner was somewhat abrupt and unhelpful, both to public and staff.  She had refused to do some office tasks and there was also some confusion over expenses and overtime claims, although certainly by the time of the Tribunal hearing that issue was no longer being pursued.

8	In the main, these problems had not been put to the Appellant and certainly at that time (and there was considerable criticism of the whole scope of the way that the Respondents handled their, as it were, industrial relations at that time) there was no formal appraisals of probationary staff.  There was criticism of the personnel practice and the inadequate training for probationary staff.

9	Various reasons were given to her later on when she pursued the matter.  Initially, following her dismissal, it was said that her staff and client contact and office procedures had not been satisfactory and later on it was said her attitude and general conduct were not suitable for this position.  But these were all matters put to her only after she had left.

10	The Tribunal’s decision related in the main to the unfair dismissal claim.  It is said by way of general criticism that the Tribunal in their decision did not really address the detriment issue.  The way that that issue is put before us by Ms Cunningham, in very clear terms, is that because of this lady’s pregnancy and maternity leave she was effectively deprived of two months or so of her probation period.  Whilst the Tribunal did make findings that other staff had been dismissed during the probationary period (I refer to 7 (b) where they speak of one being dismissed at the end of the probationary period, two being dismissed during the period, both without prior warning and discussion) it is argued they were not proper comparators, because unlike those other cases where the decision had been made during a continuing probationary period, the decision to dismiss the Appellant was taken at a time when for two months this lady had not been working and therefore effectively had been denied the opportunity of properly proving herself.  The Appellant contends that the proper comparator would be that of a male who, although having problems within the organisation, was not dismissed at the end of a three-month period but who, unlike this lady, had remained working for a further two months and upon whom then a decision was made, presumably based on the whole of that five months of employment.

11	The need to look at the case in that way is, Ms Cunningham submits, the result of a proper consideration of the Act and in particular she refers us to paragraph L77 of Harvey where the matter is put in this way:

“A woman who is absent on maternity leave may miss out on advantages that are available only to those who are at work.  This is likely to constitute unlawful direct discrimination.”

12	Harvey then goes on to refer to GUS Home shopping Ltd v Green and McLaughlin [2001] IRLR 75 in which an employer paid a loyalty bonus to cover the moving of the work place.  Mrs McLaughlin did not receive any payment because she was absent from work on maternity leave throughout the whole of the relevant period.  The employers took the view that she was unable to meet the criteria because she had not been present at work to demonstrate commitment.  Mrs Green was absent from work for part of the period due to pregnancy-related sickness and maternity leave.  Her loyalty bonus was reduced to reflect the fact that she was present at work for only part of the period.

13	It was unsuccessfully argued on appeal that the bonus scheme could be seen as a self-contained plan and thus within the exceptional situation described by Lord Keith in Webb v EMO Air Cargo [1994] IRLR 482 (ECJ) and [1995] IRLR 645 (No.2 HL).  .  There could be justification where a woman’s absence because of pregnancy would have resulted in her being unavailable for the whole of the work which she had been engaged.  It might have been different had it been correct to analyse the loyalty bonus scheme as something quite separate from the contract of employment, but this was not how the Tribunal had seen it operating.

14	The ECJ had previously held in Ciasse Nationale D'Assurance Vieillesse Des Travailleurs Salries v Thibault that there is a breach of Articles 2.3 and 5.1 of the Equal Treatment Directive when a woman is excluded from being assessed at her work because she had been absent on account of maternity.  This was a detriment to her because it affected her chances of promotion.  The court said that the principle of non-discrimination meant that a woman who continued to be bound to her employer by her contract of employment during maternity leave should not be deprived of the benefit of working conditions which apply to both men and woman and were the result of that employment relationship.  It would be equally discriminatory if in the circumstances a woman received a bad assessment because of her absence.

15	Ms Cunningham particularly relies on the ECJ case to say that in this case the Appellant was being denied the opportunity of being properly assessed for that further period of two months because of her absence on account of maternity and that was a sex-based reason and would bring it within the Sex Discrimination Act 1975.

16	She submits that this is not a case where the decision to dismiss had in fact been taken at or shortly after the time when this lady had gone on maternity leave, but for various administrative reasons had not been communicated to her until some weeks later.  The Tribunal’s findings on that issue (and she refers us particularly to the finding at 3 (m) on page 5 of the decision) are found when they dealt with the letter of 31 July:

5	(m)	“Prior to sending the letter, we were told (and accept) that Ms Ross had consulted Mr Hulme, Head of Personnel for National Relate which is the central charity of the Relate federation of charities.  His advice was that it was in order to dismiss the Applicant, notwithstanding that she had been absent on maternity leave for a good deal of her initial six month probationary period.  Ms Ross told us, and we accept, that at the end of July 2000, she had been aware that the Applicant’s probationary period was about to come to an end; that she spoke to Mr Edmonds and subsequently other members of staff and counsellors; that it was their expressed views that gave rise to the Applicant’s dismissal and that, to use Mr Edmonds’ phrase, there were “too many negatives” about the Applicant’s performance.”

17	The clear inference from that passage is that it was a decision that was taken well into the period when this lady was at home and thus it cannot be argued that the die was cast from the moment that she left work and the decision was taken at that time.  This adds strength to Ms Cunningham’s submission that this lady was therefore denied the opportunity of further proving herself during June and July up to the time when Ms Ross came to make the decision.
18	The Respondents argue that there is enough in the Tribunal’s decision for us to come to a view that they had considered these issues and held that there was not a detriment, less a sex-based detriment, in this case.

19	We are conscious of our role that we must not conduct too fine an exercise and look at each individual word and phrase, but we must take a global view of the decision.  However, we are unable to find that the Tribunal in this case had in any sense made their views clear on this subsidiary issue of detriment.

20	Indeed, the matter is further complicated because as a result of the Preliminary Hearing the views of the Chairman were sought on this particular issue and in a letter that he sent to the Reading Tribunal to clarify these issues.  He said at the bottom of page 50 of our bundle, dealing with the detriment point:

“In relation to the point raised in paragraph 7 of the EAT’s judgment, and insofar as it is not dealt with in the Tribunal’s decision, my view (for what it is worth) is that we certainly accepted that abbreviation of the probationary period constituted a detriment but, applying the overall logic of our decision, not one to which the Applicant was subjected on the grounds of her sex.”

21	Ms Cunningham submits that this is a very curious paragraph because in a sense once a detriment is shown here, in other words the curtailing of the ability for this lady to prove herself during those further two months, the inevitable conclusion must be that that was on the grounds of her pregnancy and therefore on the grounds of a sex-related reason.

22	Miss Banton, in her usual eloquent attempts to justify the Tribunal’s decision, also referred us to the final conclusions that the Tribunal came to when they said this:

9	“We have come to the firm and somewhat reluctant conclusion that there was nothing special or significant or unusual in the Respondents’ treatment of the Applicant.  In other words, there were other employees, as was confirmed in the evidence, who the Respondents would appear to have dismissed unfairly either during or at the end of their probationary periods, without explanation or, possibly, justification.  Whilst that hardly reflects well on the management of an organisation that seeks to promote communication and mutual tolerance and co-operation, it does not in our view render the Respondents guilty of the discrimination alleged. “

23	However, in that paragraph the Tribunal have again failed to address the point that is raised in this case.  True, as we have already indicated, persons were dismissed during the probation period; but they had the opportunity of working up to the time when that decision was taken.  The difference in this case is that she had not been given the opportunity because of her pregnancy of working up to that time.

24	We are left in no doubt that the Tribunal failed to deal with the issue properly or indeed at all.  There is therefore that defect in their decision.

25	The issue arises as to whether we should send the matter back or substitute a finding that there was less favourable treatment on the grounds of sex and therefore remit the matter purely for a remedies hearing.  We have decided to take the latter course for this reason; that there is nothing within the Tribunal decision that, in our view, could explain the reasons for the two-month delay on administrative grounds.  Indeed, the paragraph to which I made reference from the facts suggested that the decision-making process did not take place until the end of July.  Therefore on the facts clearly found by the Tribunal she was, in our view, deprived of that two-month period.

26	For these reasons, therefore, we do not propose to remit the matter back for a re-hearing, but simply having substituted a finding that there was less favourable treatment on the grounds of sex within the meaning of section 1 of the Act, remit the case to the same Tribunal for a remedies hearing.