Appeal No.	 EAT/664/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 October 1997

Before
HIS HONOUR JUDGE H J BYRT QC
MR E HAMMOND OBE
MR P A L PARKER CBE

FERNEY AUTO ENGINEERING LTD	APPELLANTS

MISS M J PARDOE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR F KWIATKOWSKI
(Of Counsel)
Messrs Sharples & Co
Solicitors
108 Beaufort Street
London
SW3  6BU	

	JUDGE BYRT QC:   This is a Preliminary Hearing in an appeal against the decision of an Industrial Tribunal sitting at London (North).  Its decision was promulgated on 7 May 1997.  By that decision, it held that Miss Pardoe had been unfairly dismissed within the meaning of Section 60 of the Employment Protection (Consolidation) Act 1978 because of her pregnancy.  In view of the course we propose, I think I can really take this quite shortly.  

	Miss Pardoe had been employed by the Respondents, who are now the Appellants, as a used vehicle sales administrator, in November 1995.  It is apparent that Miss Pardoe had difficulty in coping with the job.  In February 1996 she tendered her resignation but her employers persuaded her to stay on with an assurance that she would be given further training.  At about that time, it was confirmed that she had become pregnant.  Thereafter it became apparent that errors were being detected in Miss Pardoe’s work.  These were beginning to cause a certain amount of problems for the Appellant company.

	Matters came to a head when on 24 April she had to leave work early.  She was sent home by one of the Directors because of a severe headache.  She did not return to work the day after.  On 26 April she was dismissed.  There was an issue before the Industrial Tribunal as to the reason why she was dismissed and at the end of the day the Industrial Tribunal came to a finding that she was dismissed because she was pregnant and it came to this conclusion because of what they found Mrs Mann, the Office Manager, had given as her reasons for dismissal at the time when Miss Pardoe was dismissed.

	Mr Kwiatkowski, who appeared on behalf of the employers below and before us to argue this appeal, says that the Tribunal’s decision was vitiated by the fact that the crucial words put forward by Miss Pardoe in chief as being used by Mrs Mann at the time of dismissal, were never put in cross-examination to Mrs Mann when she gave evidence or indeed to any other witness called on behalf of the employers.  Mr Kwiatkowski says that, at the close of submissions, he drew the Chairman’s attention to this fact.  He made no positive recommendation about what should happen but left it for the Chairman to decide what course would be appropriate.

	Ordinarily, one would have expected the Chairman to have required the recall of the appropriate witness so the matter could be put.  That did not happen.  It is on the basis that this crucial conversation had not been put in cross-examination that Mr Kwiatkowski asks for leave for this matter to go forward to a full hearing of this Tribunal.  

	We think that before an Order is made granting such leave, the matter in dispute in this appeal should be put to the Chairman who presided over the Industrial Tribunal.  We think that there are three questions which should be put to her.  First of all, did the Applicant’s Counsel cross-examine Mrs Mann on the terms of the conversation of 26 April between the Applicant and Mrs Mann to the effect that she was dismissed because she was having difficulty with her pregnancy?  Secondly, did the Respondent Counsel protest at the close of the evidence or submissions that the words relied upon by the Applicant had not been put to the employer’s witnesses?  Thirdly, if the Respondent Counsel did so protest and the Industrial Tribunal accepted there had been no such cross-examination, why was Mrs Mann not recalled so that the matter could be put to her?

	We think it would complicate matters were we to adjourn this hearing until such time as the Chairman has been able to return an answer.  We think the appropriate order to make on this occasion is no Order, with a direction that this matter be re-listed for a Preliminary Hearing before a differently constituted Tribunal when an answer is received from the Chairman.  

	The alternative is that we reconvene but I cease to sit here on 8 November and it is not certain that we will have an answer from the Chairman prior to that date.  I think it would give greater flexibility if this matter was heard before a differently constituted Tribunal.