Appeal No. EAT/1461/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 May 2001

Before
MS RECORDER COX QC
MR B M WARMAN
MR R SANDERSON OBE

EDWARD MELLOR & CO	APPELLANT

MRS M H LONERGAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr Martin West
(Representative)
Peninsular Business Services Ltd
Riverside
New Bailey Street
Manchester M3 5PB

MS RECORDER COX QC

1	This appeal, which we deal with today by way of a preliminary hearing, is an appeal from the Decision of an Employment Tribunal at Manchester promulgated on 11 October 2000 in which the Employment Tribunal held unanimously that the Appellants had discriminated against the Respondent to this appeal, on the ground of her sex, by subjecting her to the detriment of removing her post, by requiring her to do simple duties which were below her competence and by dismissing her.  

2	They also unanimously decided that the Respondent had been unfairly dismissed.  In fact the sex discrimination alleged in this case was pregnancy discrimination and in their Extended Reasons, from paragraph 5 onwards, the Employment Tribunal set out their findings of fact, many of which appear to have been common ground before the Tribunal. They then arrive at their conclusions and conclude in paragraph 38 that on all the evidence they have heard, they find that
“ it is clearly established that at a stage shortly after the applicant had announced her pregnancy”
to her employers, which occurred in July 1999
“ the respondents started to treat her as an employee who was no longer valued.”
It is clear from the Decision of the Employment Tribunal that they drew a distinction between acknowledged changes in the organisation of the employers, and changes in the Respondent’s role within the organisation.  They draw a clear distinction between those earlier incidents which they do not suggest constituted a detriment, as far as the Applicant was concerned, and subsequent events which took place after she had told her employers about her pregnancy.  These appear in paragraph 38.  They say that they were satisfied that her employers were treating her as:
“ an employee who was no longer valued …….on 31 August 1999, when they failed to assign the Applicant an office, having directed Ms Hudson to use the one which the applicant formerly occupied.  From that moment, or before,”
 they say, 
“we find they were treating the applicant as no longer of great value to them”
They also observed that:
“Mr Mellor was unable to explain satisfactorily to us why that should be the case on the basis of the decisions which he said had been taken by that time.”

They also criticise some of his answers as misleading and are satisfied that:
“replies to the questionnaire were not only evasive but misleading and wrong in a way which suggests to us that the respondents were reluctant to face the true position.”

They conclude that:
“in those circumstances we do infer that the applicant’s pregnancy caused the respondents to decide that she was no longer a valued employee.  We infer that the respondents were at least subconsciously of the view that because the applicant was pregnant and was going to take maternity leave, she was no longer a reliable employee and they took the opportunity of her illness and absence on leave to redistribute her duties or to reinforce the previous redistribution which it had been intended would have been reversed once the IT manager was in post.  We come to the conclusion that it was because of her pregnancy and therefore the inevitable maternity leave that they decided to redistribute those duties and to remove the post.  We are not satisfied that the removal of the post was a consequence of a decision not to pursue ISO accreditation.  We are not satisfied about the timing of that decision and that decision may have been a consequence of the removal of the post.” 
Finally they say that:
“We are satisfied that the respondents subjected the applicant to a detriment by removing her duties in relation to the procedures and changing her duties to temporary duties only and by requiring her to undertake menial tasks which were demeaning to her in the presence of former subordinates.  We are also satisfied as a result of our findings that the respondents discriminated against the applicant on the grounds of her sex by dismissing her because the removal of the post was, in their view, a consequence of the applicant’s pregnancy.”

3	In relation to her claim for unfair dismissal, they also conclude in paragraph 39 that 
“…..this dismissal was unfair within the meaning of Part X of the Employment Rights Act 1996.  Although we are satisfied that the respondents offered to the applicant some alternative positions which they had ……….we find that it was not reasonable for them to treat redundancy as a reason to dismiss because they had never listened to the applicant’s representations about the removal of her role with an open mind.  We are satisfied that they did not have an open mind because of their prejudice against her in view of her pregnancy.”

4	In their Notice of Appeal, the Appellants alleged that the Tribunal erred in law in that, although they refer to the need to draw inferences from primary facts, they do not set out with sufficient clarity the principles in King v Great Britain China Centre such as to permit an appellate court to determine if the correct test has been applied, having regard to what is well known and often referred to as the Meek principle. 

5	It is correct that there is no reference in the body of the Reasons to the case of King v Great Britain China Centre [1991] IRLR 513 or to the case of Zafar v Glasgow City Council [1998] ICR 120 or indeed to the case of O’Neill v The Governors of Thomas More School [1997] ICR 33.  However the principles established in those cases, which are the principles which apply when Employment Tribunals are to determine whether or not someone has been discriminated against on grounds of sex, or on grounds of pregnancy, were clearly articulated, it seems to us, in particular in paragraph 4 and then again in paragraph 38 of the Decision.  

6	They recognise in paragraph 4 that although many of the facts and events are agreed, the main point of dispute between the parties is what inferences they are entitled to draw from the primary facts, and they say again in paragraph 38 that:
“38   On the basis of those facts we have to decide what inferences we are prepared to draw about the Respondent’s reasons for their actions.”

7	They do, in paragraph 38 refer to the leading case of Webb v Emo Air Cargo (UK) Limited[1995] ICR 1021 and correctly recognise that that case establishes that since only a woman can be pregnant, and they have found that the reason for her treatment is pregnancy, the Appellants thereby discriminated against the Respondent on the grounds of her sex.  We take the view that this Employment Tribunal recognised that it was for the Applicant to make out her case.  They clearly accepted her evidence, and found that she had established, on the evidence they had heard, that she had been undervalued in the ways set out.  They therefore felt able to draw the inference that the effective cause of that treatment was her pregnancy, and they make that clear in the middle of paragraph 38 when they say that:
“We have come to the conclusion that in those circumstances we do infer that the applicant’s pregnancy caused the respondents to decide that she was no longer a valued employee.”

8	We therefore can detect no arguable error of law in the direction which the Employment Tribunal gave to themselves as to how they were to set about the task of deciding whether or not the Applicant had proved in this case that she had been discriminated against on the grounds of her pregnancy.  

9	Mr West, who has presented submissions to us this morning, has also sought to persuade us that the Employment Tribunal failed to recognise that many of the changes to the Applicant’s role and the disadvantages and the detriments which resulted predated their knowledge of her pregnancy, so as to render vulnerable to attack their findings, later on, that the treatment meted out to her was on grounds of her sex.  

10	However, having looked at those earlier paragraphs, and in particular paragraphs 7, 12, 14 and 15, it seems clear to us that although the Employment Tribunal were recognising that there had been some earlier changes in the Applicant’s role within the organisation, these had not impacted on her in such a way as to lead to her suffering a detriment, and they contrasted quite markedly with the position that existed once she had told Mr Mellor in July 1999 that she was pregnant.  Thereafter, they clearly set out in the subsequent paragraphs a number of areas where she was treated in such a way as to make her an undervalued employee in the organisation, and they make clear findings that that treatment was on the grounds of pregnancy.  That being so, we are unpersuaded that there is any arguable error of law in this Employment Tribunal Decision, and we therefore dismiss the appeal.