Appeal No.UKEAT/0236/04/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 July 2004

Before
THE HONOURABLE MR JUSTICE MITTING
MR G LEWIS
DR K MOHANTY JP

MRS S D RAMDOOLAR	APPELLANT

BYCITY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ALASTAIR B HODGE
(of Counsel)
Instructed by:
Messrs Blue Star Universal Solicitors
20 Farnan Road
London SW16 2EX	
For the Respondent	MS C IHNATOWICZ
(HR Consultant)	

SUMMARY

Unfair Dismissal

Automatically unfair dismissal for reason connected with pregnancy requires knowledge of or belief in the fact of pregnancy by employer.

THE HONOURABLE MR JUSTICE MITTING

1.	On 14 October 2002 the Appellant began work as an Accounts Assistant for the Respondent, a company of clothing designers which also arranged for the manufacture of clothing, in Walthamstow.  She was dismissed on 10 January 2003.  She therefore had not worked for sufficiently long to bring an ordinary unfair dismissal claim.

2.	She claimed that her dismissal was automatically unfair under Regulation 20 of the Maternity and Parental Leave Regulations 1999 because it was for a reason connected with her pregnancy.  Her case was that she was diagnosed as pregnant on 15 November 2002 and told her employer on that day of that fact.

3.	The Respondent’s case was that at no time did she tell them that she was pregnant and at no time did they know or believe that she was.  They gave as the reason for her dismissal that she was simply unable or unwilling to perform the routine tasks required of her adequately and had also on occasion been late for work for which she had given an explanation other than pregnancy.

4.	The Tribunal was thus faced with a stark conflict of evidence.  It resolved it in favour of the Respondent.  It found on the critical issue as follows:

“20.	The Tribunal did not accept that, on the balance of probabilities, the Applicant told the Respondent of her pregnancy on 15 November 2002 or at all.”
and that:
“21.	…the Respondent did not know of the Applicant’s pregnancy….
22.	…  She was dismissed because the Respondent was dissatisfied with her work performance and concerned that she had no insight into the problems which had been referred to twice before the dismissal.”

5.	It appears that the case was presented to the Employment Tribunal and decided by it upon the proposition that for a dismissal to be automatically unfair it was necessary that the employer should know or believe that the employee was pregnant and dismiss for a reason connected with that knowledge or belief.  In fact the Tribunal were not referred to and did not refer in their decision to the Regulations.  They referred simply to section 99 of the Employment Rights Act 1996 under which the Regulations were made.

6.	Before this Tribunal Mr Hodge for the Appellant contends that the law is not, as was assumed by the Employment Tribunal to be, and as was stated in 1980 in Del Monte Foods Ltd v Mundon [1980] ICR 694, but should now be held to be as follows.  He submits that if an employer ought, by reason of symptoms or behaviour displayed by the employee, to have known that she was pregnant, then, if he dismissed her for a reason that in fact turned out to be connected with her pregnancy the dismissal is automatically unfair.  His submission involves a review of the law as laid down in Del Monte Foods Ltd v Mundon and as considered in subsequent authorities.

7.	In Del Monte Foods Ltd v Mundon this Tribunal, in a division presided over by Slynn J, at page 697 said this:

“It must be shown in this case that the dismissal was because of the pregnancy or for another reason connected with the pregnancy.  If this section is relied on, it seems to us essential that it be shown that the employers knew or believed that the woman was pregnant or that they were dismissing her for a reason connected with her pregnancy.  If they do not know of the pregnancy, or do not believe that the pregnancy exists, it does not seem to us that it is possible for the employers to have as their reason for dismissal that the woman was pregnant.  In a case where it is said that the reason for the dismissal is another reason connected with her pregnancy, not the pregnancy itself, it seems to us that the employers have to know the facts alleged by the employee as grounding the reason and also to know or believe that those facts relied upon are connected with the woman's pregnancy.
In summary it must be shown that the employers have either the knowledge of, or a belief in, the pregnancy, or knowledge of the facts, and their connection with the pregnancy, if there is some other reason than the pregnancy, which is the reason for the dismissal.”

8.	Doubt was cast upon that passage by another division of this Tribunal presided over by Lindsay J in H J Heinz Co Ltd v Kenrick [2000] IRLR 144.  The case was a disability discrimination case so the observations were, as Lindsay J accepted, obiter.  At paragraph 24 he observed:
“24	Thirdly, O’Neill adopted the reasoning in Del Monte Foods v Mundon [1980] IRLR 224 which states that for there to be a dismissal having as its only or principal reason a reason connected with woman’s pregnancy the employer would have to know … “… the facts alleged by the employee as grounding the reason and also to know or believe that those facts relied on are connected with the woman’s pregnancy”.  The observation was obiter as in Del Monte the reason for the dismissal was pregnancy and not a reason connected with it but, in any event, the conclusion was, it seems to us, less than obvious.  The 1978 Act that was being construed in Del Monte did not provide that the connection between the pregnancy and the dismissal should be adjudged subjectively, through the eyes of the employer, so presumably it was to suffice if, objectively regarded, there was such a connection, whether or not it featured in the employer’s mind.  If a woman was, for example, sacked for repeatedly falling faint one morning over the machinery at which she worked or over her food production line, would she not, objectively regarded, have been dismissed for “a reason connected with her pregnancy” if she was able to demonstrate at the hearing that it had been her pregnancy that had made her faint, even if both she and the employer had thought at the time that she had fainted because she had been out clubbing too late the night before?”

9.	The editors of Harvey have noted that the observations of the Tribunal in Del Monte Foods Ltd v Mundon require reconsideration in the light of Lindsay J’s observations and developments in employment law that have occurred since 1980.  One of those developments has been, of course, the enactment of the Disability Discrimination Act 1995 which gives rise to its own particular problems of interpretation.  For present purposes, it is enough for us to say that nothing in the regime under that Act directly, or by close analogy, requires us to interpret the pregnancy provisions in a way so as to correspond with the interpretation of section 5 (1) (a) of the Disability Discrimination Act 1995.

10.	The statutory scheme is as follows.  Section 99 of the 1996 Act provides:

“(1)	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -
(a)	the reason or principal reason for the dismissal is of a prescribed kind, or
(b)	the dismissal takes place in prescribed circumstances.
(2)	In this section “prescribed” means prescribed by regulations made by the Secretary of State.
(3)	A reason or set of circumstances prescribed under this section must relate to –
(a)	pregnancy, childbirth or maternity,
(b)	ordinary, compulsory or additional maternity leave,
(ba)	ordinary or additional adoption leave,
(c)	parental leave, 
(ca)	paternity leave, or
(d)	time off under section 57A;
and it may also relate to redundancy or other factors.
…
(5)	Regulations under this section may -
(a)	make different provision for different cases or circumstances.”

11.	The Maternity and Parental Leave Regulations 1999 were made pursuant to that statutory power.  They cover a number of topics.  Included within the topics are maternity leave, parental leave, protection from detriment in certain circumstances and unfair dismissal.  Regulation 4 makes provision for maternity leave.  Under Regulation 4, which it is not necessary for present purposes to set out in full, a pregnant employee is entitled to ordinary maternity leave provided that she notifies her employer no later than the end of the 15th week before her expected week of childbirth, or, if that is not reasonably practicable, as soon as it is, of her pregnancy.

12.	Regulation 19 protects from detriment at the hands of her employer a woman who is subject to the conditions set out.  It provides:

“(1)	An employee is entitled under section 47C of the 1996 Act not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer done for any of the reasons specified in paragraph (2).
(2)	The reasons referred to in paragraph (1) are that the employee -
(a)	is pregnant;
(b)	has given birth to a child;
(c)	is the subject of a relevant requirement, or a relevant recommendation, as defined by section 66 (2) of the 1996 Act;
(d)	took, sought or availed herself of the benefits of, ordinary maternity leave;
(e)	took or sought to take -
(i)	additional maternity leave;
…
(ee)	failed to return after a period of ordinary or additional maternity leave in…”

certain cases, and there are other connected circumstances.

13.	Regulation 20 provides:

“(1)	An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if -
(a)	the reason or principal reason for the dismissal is of a kind specified in paragraph (3)
…
(3)	The kinds of reason referred to in paragraphs (1) and (2) are reasons connected with -
(a)	the pregnancy of the employee;
(b)	the fact that the employee has given birth to a child;
(c)	the application of a relevant requirement, or a relevant recommendation, as defined by section 66 (2) of the 1996 Act;
(d)	the fact that she took, sought to take or availed herself of the benefits or, ordinary maternity leave;
(e)	the fact that she took or sought to take - 
(i)	additional maternity leave;
…
(ee)	the fact that she failed to return after a period of ordinary or additional maternity leave…”

in certain cases.  The right not to be dismissed for a reason connected with pregnancy therefore forms part of a much more extensive statutory scheme.

14.	Mr Hodge for the Appellant concedes that in all of the relevant instances in Regulation 19 and in all of the relevant instances covered by Regulation 20, other than pregnancy, actual knowledge or belief on the part of the employer is required of the circumstances before the dismissal can be treated as automatically unfair.  Thus, for example, as must obviously be the case, an automatically unfair dismissal under Regulation 20 (3) (b) requires actual knowledge, or conceivably actual belief, of the fact that the employee has given birth to a child.  He concedes, correctly in our view, that for the employee to be subjected to a detriment under Regulation 19 (2) (a) the employer must know that the employee is pregnant or at least believe that she is.

15.	We therefore observe that in a statutory scheme which, in all other contexts, requires knowledge or belief, it would be curious to find anomalously one significant provision that did not require such knowledge or belief.

16.	Further, we are mindful of the practical problems that would be caused, both for employers and pregnant employees, if Mr Hodge’s construction of the Regulation was right.  His construction would require an employer, at a minimum, to take steps to find out if an employee was pregnant in circumstances in which she would know that she was.

17.	His construction requires the employer to have knowledge of the symptoms of pregnancy and an ability to distinguish between them and the symptoms of other conditions such as illness.  For example, if the employee was repeatedly late for work or performed her work below standard at certain times of day, in particular in the morning, then her condition could be due to pregnancy – it could be due to other conditions.  If Mr Hodge’s argument is right, the employer would be obliged to undertake enquiries and to make a judgment which he might not be able to make easily about whether or not the condition was due to pregnancy.  The obvious enquiry which he might make would be to ask her whether or not she was pregnant.

18.	Ms Ihnatowicz for the Respondent submits that such an enquiry might well be viewed as offensive by a female employee, whether or not she was pregnant.  It might indeed be regarded as offensive by somebody displaying some of the symptoms of pregnancy who is not in fact pregnant.  We can well understand that a female employee in those circumstances might reasonably regard such an intrusion into her private life as a detriment under Regulation 19.  The employer might, in consequence, be caught by an unavoidable dilemma: to make a complaint under Regulation 19 if he acted; and under Regulation 20 if he did not.

19.	Furthermore, to impose a burden upon an employer of making enquiries about a matter of which in ordinary circumstances the pregnant employee will herself be aware, seems to us to impose an unrealistic burden upon the employer.  It is not difficult for an employee, if she wishes, to tell the employer that she is pregnant.  Once she does so, then, if the employer dismisses her by reason of an inability to perform work connected with her pregnancy, the dismissal will be automatically unfair.

20.	In our view, the law should hesitate long before imposing such unrealistic obligations upon employers and also should hesitate before, in practice, requiring employers to intrude into private matters that a pregnant employee has every right to keep private.

21.	Consequently, for reasons both of statutory construction and of practicality, we are of the view, subject to one possible qualification, that the law as stated by this Tribunal in Del Monte Foods Ltd v Mundon, is still valid.

22.	We of course are mindful of the observations of Lindsay J in HJ Heinz Co Ltd v Kenrick, to which we have referred, but we observe that it does not appear that his attention was drawn, before he made those observations, to the statutory scheme, to which we have referred in some detail.  If he had been, then it is possible that he would not have expressed himself as he did.  Be that as it may, we are not bound to follow the observations which he has made and we choose not to do so.

23.	For a dismissal to be automatically unfair under Regulation 23A it is therefore necessary for the Tribunal to be satisfied that the employer knew of, or believed in, the existence of the pregnancy.  It is not enough that symptoms of pregnancy existed which arguably or in fact he ought to have realised meant that the employee was pregnant.

24.	To that bald statement of principle we add one possible qualification.  It is conceivable that circumstances will arise in which an employer, detecting the symptoms of pregnancy and fearing the consequences, if the employee is in fact pregnant, but neither knowing nor believing that she is, simply suspecting that she might, dismisses her before his suspicion can be proved right.  In such circumstances it may well be that a dismissal would be automatically unfair.  If such circumstances arise they should be judged as and when they do.

25.	For those reasons this appeal is dismissed.