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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Pankhurst (t/a Mopdoc’s Barbers) v Phillips [2009] UKEAT 0040_09_1006 (10 June 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0040_09_1006.html Cite as: [2009] UKEAT 0040_09_1006, [2009] UKEAT 40_9_1006

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APPEARANCES

 

For the Appellant	MR NICHOLAS ROBINSON (of Counsel) Instructed by: Messrs Curwens Solicitors Crossfield House Gladbeck Way Enfield Middlesex EN2 7HT
For the Respondents	MR T LOVETT (Representative)


 


SUMMARY

UNFAIR DISMISSAL: Automatically unfair reasons

PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity

The Appellant employed the Respondent as a hairdresser. Shortly after the Appellant became aware the Respondent was pregnant the Appellant dismissed her. The Respondent asserted, and the Employment Tribunal found, she was dismissed as a result of her pregnancy. The Appellant had asserted that she had dismissed all her staff at the same time and had done so on financial grounds (she was in an IVA). The Employment Tribunal did not deal with the dismissal of the other staff. Held.


 


HIS HONOUR JUDGE REID QC

1. This is an appeal by the Respondent below, the employer, against a decision of an Employment Tribunal held at Southampton on 10 September of last year. By its decision the Tribunal declared that the Claimant was unlawfully discriminated against by the Respondent on the ground of her pregnancy under section 3(A)(1)(A) of the Sex Discrimination Act 1975 and that she was automatically unfairly dismissed for a reason that related to her pregnancy under Section 99(1) and (3) within the Employment Rights Act 1996. A remedy hearing was listed but we are concerned with the appeal against the substantive decision.
2. The background to the case can be put in fairly short terms. The Claimant was employed by the Respondent, who traded primarily as Mopdoc's Barbers, in the Portsmouth naval base. The Claimant was a full-time employee. There were two other employees who worked either one or two days a week. It is not entirely clear whether each of them worked one or two days and if so which worked one and which worked two. The Claimant overstretched herself financially by starting another business, Beauty or the Beast, outside the dock area and as a result of that in December 2007 entered into an IVA requiring her, as is the norm in these cases, to make certain monthly payments.
3. In February the Claimant fell pregnant and became aware of her pregnancy in March. On the 28 March the Respondent dismissed the other two employees. The Claimant was at that time on holiday and she was dismissed the following Tuesday, 1 April, when she returned to work. The case that she made was that she had been dismissed because the Respondent had become aware that she was pregnant and was concerned that the financial consequences that would follow in relation to her statutory obligations to pay for maternity cover and for like. It was suggested that the other two were dismissed by way of cover and that one of those had subsequently been reengaged as a casual.
4. The Respondent's primary case was that at the time she formed the decision to dismiss she was unaware that the Claimant was pregnant. She says that she had formed the decision to dismiss on or about 18 March and that she decided that the convenient and proper time to do it would be at the end of the month. The reason that she did not tell the Claimant as well as the other two on the Friday at the end of the month was that she did not want to spoil the Claimant's holiday and the Claimant was away.
5. The Claimant said, and the Tribunal accepted, that she had informed the Respondent of her pregnancy on 27 March by handing a letter over to her. This the Respondent denied but the Tribunal preferred the Claimant's evidence. She was also, in any event, told that on the evening of 28 March when she dismissed one of the other two in the course of a telephone conversation about the pregnancy. The Tribunal did not deal at all with the dismissal with the other two members of staff. They made reference to the re-engagement of one, but there is a complete silence as to what was in fact supposed to happen with the business.
6. The Respondent's case was that having decided that she needed to retrench she dismissed all three because she was going to come back and work four days a week or full-time at Mopdoc's, devoting one day a week to Beauty or the Beast. In those circumstances she didn't need either the Claimant as a full-time employee or the others, though she was prepared to have any of them coming back as casuals, as she said she made clear when dismissing them, hence one of them coming back.
7. The Tribunal does not deal with the practical consequences of this wholesale dismissal if the reality of the matter was that all that was being done was a removal of the Claimant to avoid liability for her statutory maternity rights. It does not deal with the position of either of the other two or with what was supposed to be going to happen to the business thereafter, when (on, so far as one can tell, the Tribunal's view of the case) matters were intended to go on as before but without any of the staff who had previously been available.
8. The Tribunal was also distinctly unclear as to its findings as to when the decision to dismiss was made. They refer to the Respondent's evidence that she had decided to dismiss all three on 18 March but then go on to say, "However, there is no corroborative evidence to support the Respondent's evidence on when she actually made the decision to dismiss." It is more likely than not that what the Tribunal were doing is by inference rejecting that evidence, but they were rejecting the case that was being made, so far as we can tell, for the three reasons set out in paragraph 38 of the judgment.
9. These reasons were: firstly, that there was no adequate explanation as to the timing of the decision to dismiss given that the IVA was over three months previously (that by itself seems fairly thin); secondly, her knowledge of the Claimant's pregnancy at the time of the dismissal; and thirdly, the re-engagement one day a week shortly after the dismissal of one of the three employees.
10. Reference was also made to the suggestion made on behalf of the Respondent that there was a reduction in payroll and at paragraph 31 the Tribunal says this,

"Further, in the document prepared by the Respondent in relation to her payroll (R1 pages 57 and 58), in relation to the gross salaries for March and April 2008 this only shows a difference of approximately £200 between the March and April 2008 payroll."

It did not go on to give any further analysis or explanation of those figures. In fact so far as the three employees in Mopdoc's there was something greater than a 25 per cent reduction in payroll between the two months and the Tribunal does nothing to take into account either the effect of Easter in the first of those months or the fact that the second of those months' payroll would be, so to speak, artificially enhanced because it would have had in it the notice and holiday pay paid to each of the three on their dismissal.

11. We have combed through the decision but the difficulty that we have is that we cannot see any explanation as to what the Tribunal thought was happening in relation to the other two employees. We do not feel that the decision gives any clear account of why it is the Tribunal came to the conclusions which they did. There is a detailed finding in relation to the handing over of the letter by which the Claimant says she told the Respondent she was pregnant, but apart from that, with all respect to the Tribunal, the finding are very thin indeed.
12. It was suggested to us in the course of submissions on behalf of the Respondent that if one looked at the position as a whole, where one had a case being made by the Claimant that there was no financial difficulty when in truth as the Tribunal found there clearly was, one had no dismissal of all three members of the team and no explanation in relation to two, and the general inadequacy of the reasoning that it was clear that the decision was perverse and that what we should do in relation to this was to reverse the decision of the Tribunal and hold that it was a decision that no properly directed Tribunal could have reached. It was said the only possible conclusion that could be reached was one that the Claimant failed and that dismissal was not by reason of pregnancy but was in fact by reason of redundancy on the effective removal of her post.
13. On behalf of the Claimant, the Respondent to this appeal, we were referred to Ramdoolar v Bycity Ltd UKEAT/0236/04/0DM, but that does not, it seems to us, assist us. That was a case in which the Employment Appeal Tribunal held that before there could be a dismissal which was automatically unfair because it was by reason of pregnancy, the employer had to know of the pregnancy. The point of course in this case is that that was cited below whilst the Respondent was arguing that she had, at the time of the dismissal, no knowledge of the pregnancy. It does not assist with the question of whether (where an employer does know of pregnancy) the dismissal is by reason of that pregnancy or is a dismissal for some other valid reason whilst coincidently the employee is pregnant.
14. We were referred also to Igen Ltd & Ors v Wong [2005] EWCA Civ 142 as revised and also to the more recent decision of Laing v Manchester City Council [2006] ICR 1519 in relation to the shifting of the onus of proof and as to what the Tribunal ought to take into account at each stage. It did not seem to us that we need to go into those authorities in this particular case because the difficulty that we have is that we have not found the reasoning to be adequate. It is neither adequate from the point of view of the Claimant as showing that the decision is one which can properly be upheld, nor is it adequate from the pint of view of the Respondent, the Appellant here, showing that the decision is manifestly perverse.
15. Although on the face of the Notice of Appeal there is no specific reference to inadequacy of reasons, what is usually called Meek compliance, it seems to us that the true position with this decision is that it is one which is unsafe but we cannot go so far given the inadequacy of the reasons as to say that it is one which is perverse. In those circumstances, rather than doing what the Respondent asked for in the Notice of Appeal and indeed in the skeleton argument, namely to substitute our own decision, it seems to us the matter, regrettably, has to go back and be reheard by a different Tribunal.
16. When that happens each side can raise all the points that it wishes to do so, can call whatever evidence it wishes to do so whether it is evidence which has been called on the earlier occasion or other evidence, and hopefully that will be the end of that, whichever way the decision goes. The remission does not automatically mean that there will be a different decision next time, but no doubt the Tribunal will be producing rather fuller Reasons. For those reasons we take the view that this appeal should be allowed and the matter should be remitted for rehearing for a different Tribunal.