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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Actionfort Ltd (t/a Brooknight Security) v. Benton [2001] UKEAT 1446_00_0905 (9 May 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1446_00_0905.html Cite as: [2001] UKEAT 1446_00_0905, [2001] UKEAT 1446__905

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APPEARANCES

 

For the Appellant	JOHN ELLIS (Adviser) Instructed By: Mr J Moys Managing Director Actionfort Ltd t/a Brooknight Security 254 High Street Croydon CR0 1NF


 


MS RECORDER COX QC

1. This is an appeal from the decision of an Employment Tribunal sitting at Newcastle promulgated on 27 October 2000. It comes before us today by way of a Preliminary Hearing.
2. The decision of the Employment Tribunal was that the Applicant employee (the Respondent to this appeal) was dismissed by reason of pregnancy and that she had therefore been discriminated against on grounds of sex. They also found that she had suffered an unlawful deduction from wages and an order was made for the payment of compensation.
3. In addition, the Employment Tribunal ordered that there should be an Order for costs made against the Appellant in circumstances which are dealt with in paragraph 17 and 18 of the Employment Tribunal's decision.
4. The Appellant contends before us that the Tribunal made errors of law in four respects. Firstly, it is contended that the Employment Tribunal misdirected themselves or arrived at a perverse conclusion in concluding that the Applicant was an employee and that they therefore had jurisdiction to hear the case.
5. The second ground is that the Tribunal perversely concluded that the reason for dismissal was pregnancy, in the face of what is contended was irrefutable and overwhelming evidence to the contrary.
6. The third ground is that the Employment Tribunal misapplied the rules for determining awards of compensation; and the fourth ground is that there was an error of law in the decision to make an award of costs against the Appellant, on the basis that there was no finding (as there should have been) as to whether or not the Appellant had acted frivolously, vexatiously or otherwise unreasonably, as required in Rule 12 of Schedule 1 to the 1993 Regulations.
7. Dealing with those contentions in turn, on the first matter, as to whether or not the Tribunal misdirected themselves in concluding that this Respondent was an employee, it is contended by the Appellant that there was no mutuality of commitment on the Appellant employer to offer the Respondent work or upon Mrs Benton, the Respondent, to accept it.
8. The key to the Tribunal's finding is in paragraph 10 of their reasons, where the Employment Tribunal set out the arguments made by the Appellant before us, as to whether or not the Respondent was an employee at all. They find that she had been issued with a statement of Main Terms of Employment, signed by both parties, which guaranteed her 40 hours work, that she was trained by the Appellant and that she was under the Appellant's direction.
9. Further, they found that the letter of dismissal referred to her employment by beginning with the words

"You were employed by Brooknight Security on 21 January 2000".

10. The Tribunal continue with a finding that they were satisfied that the Applicant was an employee, both in terms of the Employment Rights Act 1996 and the Sex Discrimination Act 1975.
11. We take the view that there is no arguable error of law made by this Employment Tribunal in arriving at that decision. We have heard Mr Ellis identify for us this morning the grounds for his contention that there was no mutuality and he concedes that there was, as he would describe it, a 'catalogue of mistakes' made, and all of which points, he accepted, were laid before the Employment Tribunal.
12. It is clear that on that issue they preferred the Respondent's case and set out their reasons in paragraph 10. We can see no basis for disturbing that very clear finding.
13. On the second ground, that there was a perverse decision, that the dismissal of this case was because of pregnancy, the Tribunal approached this matter on the basis which it set out in the decision and looking in particular at the authority of King v The Great Britain China Centre [1991] IRLR 513 and the way that Employment Tribunals are required to approach allegations of direct discrimination.
14. It seems clear to us that in paragraph 11 the Tribunal pointed out that the that the Respondent had been dismissed indicated that there was less favourable treatment in this case. They also recognise that she was pregnant at the time she was dismissed and that the Appellant was aware of the pregnancy at the time of the dismissal. That being so, they then regarded it as necessary for the employer to provide an explanation for the treatment that had been meted out to the Respondent, which they would then consider, in terms of its sufficiency and or its adequacy as an explanation.
15. They then set out clearly in paragraph 12 their reasons for finding the explanation which the Appellant offered to be unsatisfactory. It seems to us, particularly having regard to the earlier findings of facts set out fully in paragraph 9, and in particular their concern about the Appellant shifting their grounds of defence, that the Employment Tribunal were entitled to arrive at the conclusions that they did.
16. We remind ourselves that we can only interfere at this stage if we can detect an arguable error of law in terms of their legal direction to themselves as to the appropriate approach to take in cases of direct discrimination or if they have arguably arrived at a perverse conclusion.
17. However, we see no basis for disturbing the very clear findings in paragraphs 12 and 13. The Tribunal having rejected the explanation offered by the Appellant they were entitled then to draw the inference that the reason for this dismissal was pregnancy, which they clearly set out in paragraph 13. We therefore see no arguable case in relation to the second ground before us this morning.
18. However, in relation to the third and fourth grounds, namely the award of compensation and the award of costs, we do take the view that there is an arguable case; that there were errors of law made in the way this Employment Tribunal approached the question of calculation of compensation and the award of costs.
19. The grounds of appeal set out in relation to compensation at paragraphs 2-5, seem to us to be arguable grounds on the question of compensation and we are concerned that in paragraph 16 of their reasons this Tribunal did not set out clearly the basis upon which they arrived at their figures under the various heads of compensation. This, in our view, merits the matter being ventilated fully at a Full Hearing on appeal.
20. The one exception to this is paragraph 1 of the grounds under this head, which relates to the award for injury to feelings. This was a case where the Employment Tribunal found that there had been dismissal on grounds of pregnancy. They were therefore perfectly entitled to consider whether or not there should be an award for injury to feelings and, having heard all the evidence, to decide that there should have been and to award, what is acknowledged by Mr Ellis, to be a modest sum by way of injury to feelings in all the circumstances. We see no arguable error of law in respect of that award and that matter should not therefore form part of the appeal relating to compensation.
21. Finally, in relation to the award for costs, it is clear that the Employment Tribunal, in paragraphs 17 and 18 of their reasons, considered the question of costs but do not refer to or appear to direct themselves as to the power to award costs which is contained in Rule 12 of Schedule 1 to the 1993 Regulations. In particular, they make no findings as to whether or not there has been any conduct on the part of the Appellant which could fairly be described as frivolous or vexatious or unreasonable in defending the proceedings or in their conduct generally and we take the view that that too is a matter which ought to go forward for Full Hearing.
22. Therefore, in relation to those two grounds this is an appropriate matter to proceed to a Full Hearing but we would dismiss the first two grounds of appeal for the reasons we have given.