Appeal No.	EAT/1146/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 February 1999

Before
HIS HONOUR JUDGE C SMITH QC
MR E HAMMOND OBE
MR J A SCOULLER

CENTURY INTERNATIONAL PLC	APPELLANTS

MRS A L DORAN-INGHAM	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR B McCLUGGAGE
(Of Counsel)
Mr J S Clement (ref:jsc/aw/c161/209)
Messrs Green & Rawlings
Vintner House
4 High Street
High Wycombe
Bucks HP11 2AZ	

	JUDGE C SMITH:	This is an application by the employers, Century International Plc, for leave to proceed to a full hearing of their Appeal against the decision of an Industrial Tribunal held at Manchester over a number of days in June 1998, of which extended reasons were given to the parties on 22 July 1998, whereby the Industrial Tribunal held unanimously that Mrs Doran-Ingham, the Applicant before them, had been dismissed on 14 October 1997 from her employment with the Appellants as a car rental receptionist because she was pregnant:  so that the dismissal was automatically unfair and by reason of the dismissal on such grounds she had been discriminated against on the grounds of her sex.

	The decision of the Industrial Tribunal, in our judgment, bears all the indications of having been very carefully considered and we take the view that it is generally a well expressed, clear and well laid out decision which largely speaks for itself.   The form it follows is self-explanatory therefore we must make it clear that the decision stands for itself and we do no more than summarise some parts of it.

	As is apparent from the decision the Industrial Tribunal first of all identified the issues which they had to determine.   That is to be seen at paragraph 4.   The factual issues were defined,  to the extent that there were any, because the Industrial Tribunal found there was broad agreement on many of the facts.   The legal issues were defined correctly, in our judgment, at paragraph 4.2 of the decision.   There is no point taken by way of appeal suggesting that the Tribunal did not correctly define the issues in that paragraph.

	Having made important comments on the evidence in paragraph 5, the Tribunal then proceeded to make detailed findings of fact over a large number of sub paragraphs in paragraph 6.   Those are self-explanatory.   In particular, though, it is clear that the Industrial Tribunal found that Mrs Doran-Ingham had told Mr Clarke that she was not proposing to open the branch until 10 am on 11 October 1997 whereas it should have been opened at 8 am.   The Industrial Tribunal further found as a fact that at no time on 11 October 1997 did Mrs Doran-Ingham - contrary to her evidence - advise Mr Clarke that she was suffering from any illness, pregnancy-related or otherwise.   So they were careful to find those facts in favour of the Appellants’ witnesses.

	The Industrial Tribunal made important findings which, once again, are self-explanatory and should be seen in their full context at sub paragraphs (xiii) and (xiv), at page 8 in our bundle, which we do not find it necessary to read out in extenso but we regard them as being important and significant findings.   The Tribunal thus found (at sub paragraph (xiii)) that when Mrs Doran-Ingham attended the office on 14 October 1997, that is to say a few days after her failure to open the branch on time on the 11th, she was told by Mr Clarke that Head Office saw her failure to open the branch at 8 am on 11 October to be gross misconduct and Mr Clarke dismissed her on the spot - on the findings of the Industrial Tribunal - giving her “no opportunity”, as the Tribunal put it in sub paragraph (xiii), “to answer the allegation or to explain matters”.   That was the finding of the Industrial Tribunal made there.   They also found that later on that day, in the course of a meeting, Mr Clarke told the Respondent’s husband, Mr Doran-Ingham, that: 

“...what had happened to the applicant was a travesty but that he had been instructed to dismiss her by Mr Kemp who had in turn liaised with Mr Bob Burrows, the Managing Director.”

	That is an unequivocal finding of fact by the Industrial Tribunal.

	It is also to be seen from the succeeding findings of fact that Mrs Doran-Ingham attempted to appeal under the Appellants’ written disciplinary procedure but this was refused although the Industrial Tribunal had found as a fact that Mr Kemp, the Regional Operations Manager, applied this written procedure to all employees irrespective of their length of service. On its findings of fact the Industrial Tribunal found that Mr Kemp could see no reason why it should not have been applied, in all its particulars, to the Applicant; that emerges from sub- paragraph (xix).

	The Industrial Tribunal found that Mrs Doran-Ingham was a good employee, see sub-paragraph (xx), and that she was known by relevant management to be pregnant at the time of her dismissal, see sub-paragraph (xxi).

	The Industrial Tribunal then (for some reason paragraph 7 of the extended reasons has gone missing, we simply point that out, it is of no other significance) , in paragraph 8 of the extended reasons recorded the submissions that were made to them and they then set out the law at paragraphs 9 and 10.   In our judgment they set out the law carefully and correctly, including reference to the leading case in the House of Lords, Zafar v Glasgow City Council and also the very recent case, as it was then, of Martins v Marks and Spencer Plc.  They also considered authority on burden of proof.   They then dealt with the burden of proof in paragraph 11 and concluded that the burden of proof lay on the Applicant to establish the reason for her dismissal.

	The Industrial Tribunal then went on, in paragraphs 12 to 14, to analyse the evidence and the submissions that had been made to them in great detail and reached their conclusion in paragraph 14, for the reasons that they had discussed and evaluated at paragraphs 12 and 13, that Mrs Doran-Ingham had proved to the requisite standard, i.e. on the balance of probabilities, that she had been dismissed because she was pregnant.   As the Industrial Tribunal unanimously put it in the final paragraph, paragraph 14, they concluded that the Appellants had:

“...seized on the situation it was presented with on 11 October 1997 to rid itself of a pregnant employee.”

	Accordingly they found the dismissal to be automatically unfair and, therefore, to amount to automatic sex discrimination.   That is a summary of the decision, and no more than a summary.   

	We have had very able argument from Mr McCluggage today, he having also appeared at the Tribunal for the Appellants, and we have reminded ourselves that he only has to establish an arguable point of appeal in order to be allowed to proceed to a full hearing.   As we understood his arguments, his first submission was along the lines that the Industrial Tribunal had failed to follow the approach in the case of Zafar v Glasgow City Council where it was held by the House of Lords that when a Tribunal is considering whether a person has been treated less favourably than other persons, within the meaning of the definition of discrimination in the Race Relations Act, it is wrong and irrelevant to consider the conduct of a hypothetical reasonable employee since if the alleged discriminator is not, as the House of Lords held, a reasonable employer, he might well have treated another employee in just the same unsatisfactory way as he treated the complainant;  in which case he would not have treated the complainant less favourably for the purposes of the Act.  

	In our judgment the Industrial Tribunal here did not make any such error.   The Industrial Tribunal undoubtedly had in mind the decision of Zafar v Glasgow City Council, to which they expressly referred themselves and to which they were referred by Counsel, but in this particular case the issue before the Industrial Tribunal was:  what was the true reason for the dismissal?   Was the reason gross misconduct, in failing to open the office on time on 11 October, as the employers contended, or was the true reason because the employee was pregnant?   In our judgment that is a different situation from that which the House of Lords had to consider in the case of Zafar and, in our judgment, although, of course, the Industrial Tribunal had to take care not to judge the employers’ conduct entirely or exclusively by reference to the conduct of a reasonable employer in judging what the true reason for the dismissal was, they were fully entitled to look at how a reasonable employer would have behaved in reaching their conclusion as to the reason for the dismissal.   We can see no fault or error of law in the approach of the Industrial Tribunal in this regard.   What the Industrial Tribunal were doing was to subject the process which the employers here had followed to a close analysis in order to see whether or not the Applicant had established, on the balance of probabilities that the reason put forward by the employers was really the true reason.   In our judgment that is about the only way in which such a matter as this can be properly evaluated.   In our judgment, accordingly, it was a proper approach for the Industrial Tribunal to ask themselves the questions which they did at the end of paragraph 13 of their decision, namely:

“If it saw the applicant’s conduct as so serious, why did the respondent not address the matter with her as its own procedure allowed?   Why summarily dismiss in the circumstances it did?   Why fail to allow an appeal?    Why fail to explain why no appeal was to be allowed?   Why treat the applicant in a way which is so different to the treatment by Maurice Clarke of the employee Mr McGibbon in not dissimilar circumstances?”

	In our judgment those were all matters which the Industrial Tribunal were entitled and, indeed, bound to take into account in deciding whether or not the employers’ ostensible reason for the dismissal was the true reason for the dismissal.   Further, they were entitled to take into account the evidence which they referred to at sub-paragraph 12.1 relating to what they found to be the:

“...confusion in the minds of the respondent’s witnesses as to whether what the applicant did on 11 October amounted to gross misconduct.”

	In our judgment the Industrial Tribunal were entitled to conclude that there was a considerable degree of confusion in the minds of the relevant managers of the Appellants.   Again, in our judgment, in addition to looking at what the employers had actually done and the process which they had actually followed it was legitimate, for the reasons we have already attempted to state, for the Industrial Tribunal to consider the matter from the point of view of a reasonable employer which we accept they did to an extent and, in our judgment, carefully and properly, in sub-paragraph 12.2 of their decision.

	In our judgment the approach the Industrial Tribunal took was a proper approach and did not disclose any error of law and, additionally, did not disclose any lacuna or gap in their reasoning.   The Industrial Tribunal were entitled to draw inferences from the shortcomings, the gross shortcomings, as they found them to be, in the way in which the disciplinary process against Mrs Doran-Ingham had been followed.   They were entitled to infer from that that this was not the true reason for the dismissal.   In our judgment, in reaching such an inference the Industrial Tribunal were following the guidance in the well known, leading case of King v Great Britain China Centre.   For those reasons we do not think there is any arguable point that the Industrial Tribunal misconstrued Zafar or failed properly and correctly to apply the relevant principles of law in deciding what the true reason for the dismissal was.

	Secondly, it was submitted that the Industrial Tribunal reached perverse conclusions with regard to the effect of the evidence of Mr Clarke.   In our judgment, particularly in sub-paragraphs (xiii) and (xiv), the findings which the Industrial Tribunal made relating to Mr Clarke’s evidence were entirely within their discretion and were legitimate findings of fact open to them as an industrial jury and we cannot see a separate or arguable point on this particular ground.

	Next it is submitted that although the Industrial Tribunal paid lip service to the burden of proof and correctly stated that the burden of proof was on the employee, on the balance of probabilities, the submission was made to us that they did not, in fact, correctly apply the burden of proof since, it was submitted, their conclusions relating to the shortcomings in the process that was followed did not allow them to draw the inference that Mrs Doran-Ingham had established, on the balance of probabilities, that the reason for her dismissal was her pregnancy.   But here again, there is no good reason for us to go behind the way in which the Industrial Tribunal put the matter.   The Industrial Tribunal carefully evaluated where the burden of proof lay.   They correctly reminded themselves again, in paragraph 14, that the burden was on the Applicant before them to establish, on the balance of probabilities, that the reason for her dismissal was her pregnancy.   In our judgment it was essentially for the Industrial Tribunal to decide, as an industrial jury making their assessment of the demeanour of the witnesses in front of them, looking at the way the employers’ managers had acted and then reaching a conclusion, as to whether the burden of proof had been discharged in a common sense manner.   That, in our judgment, is exactly how this Industrial Tribunal proceeded.

	Accordingly, we have concluded, at the end of the day, that no arguable grounds of appeal have been shown and this application will have to be dismissed.