Appeal No. EAT/0244/03/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 May 2003

Before
MR RECORDER LUBA QC
MRS R A VICKERS
MR G H WRIGHT MBE

MISS K RICHMOND	APPELLANT

DALE STEPHENSON LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	APPELLANT NEITHER PRESENT NOR REPRESENTED	

MR RECORDER LUBA QC

Introduction

1.	This is an appeal arising from a decision given by the Leeds Employment Tribunal in a reserved decision entered in the Register on 22 January 2003.  The unanimous decision of the Tribunal was that the Applicant’s claims of sex discrimination and victimisation failed and were dismissed but that her claim for unlawful deduction of wages succeeded and they made an award in a sum explained in their Extended Reasons.

2.	By her Notice of Appeal Ms Richmond contends that the Tribunal erred in its finding on the question of sex discrimination.  She does not seek, however, to upset the Tribunal’s adverse conclusion on the question of victimisation.  This Preliminary Hearing has been set down in accordance with the order of the Employment Appeal Tribunal given on 20 March 2003 (Mr Commissioner Howell QC).  That order set out directions for the Preliminary Hearing requiring the filing of certain documents including the Appellant’s skeleton argument.

3.	The order was followed subsequently by notice of today’s hearing.  The matter appears in our list and, until very recently, we were expecting the Appellant to appear and be represented.  On the matter being called before us this morning neither the Appellant nor any representative appeared.  We caused enquiries to be made with the Appellant’s solicitors.  Shortly thereafter we received by facsimile transmission a letter dated 15 May 2003 indicating that the Appellant would not be attending or be represented but inviting us to proceed with the Preliminary Hearing in her absence on the materials already available to us.  

4.	We should record that we have accepted that invitation and we will now deal with the matter on the basis both of the Notice of Appeal and the skeleton argument submitted in support of it.  It is right also to record that the skeleton argument had attached to it, helpfully, copies of the authorities referred to by the Appellant.

The Facts

5.	The factual background to the appeal can be shortly stated.  Ms Kimberley Richmond was employed by Dale Stephenson Ltd (and may still be employed by them).  She was, as a result of the absence through illness of an office manager senior to herself, invited to take up the office manager’s responsibilities in her absence.  In reflection of this, the hourly rate of pay to Ms Richmond was increased.  Subsequently, a different member of staff was recruited and employed by the employers to take over all or part of the office manager’s responsibilities. 

6.	Shortly thereafter, the employers reduced the hourly rate of pay received by Ms Richmond.  It was in those circumstances that she claimed that there had been an unlawful deduction from her pay.  As we have indicated the Tribunal accepted that complaint and no appeal arises from it on the part of the employers.  However, Ms Richmond brought a further complaint that the motivation for the reduction in her pay was the fact that she had disclosed to her employers that she was pregnant.  Her assertion was that, in all the circumstances, the reduction in pay was an instance of sex discrimination because it was prompted by, linked to, connected with, or the result of, the employer’s knowledge of her pregnancy.  

7.	The crisp issue for the Tribunal therefore was whether that was correct.  They had to reach a conclusion as to the circumstances in which the pay was reduced and to see whether there was a connection between the fact of Ms Richmond’s pregnancy and the reduction in pay.  The Tribunal, in their Extended Reasons, set out their approach to the material and evidence before them.

8.	In paragraph 3, which contains their relevant findings of fact, they make the following statement at paragraph 3(g):

“The Tribunal finds that a conversation took place between the Applicant and Mr Stephenson [we interpose, her senior manager] probably on 27 March 2002 when the Respondent’s intentions were relayed to the Applicant, namely that it was seeking someone with Sage accountancy experience and that the Applicant, understandably, assumed that her role would continue in its present form but with much less accountancy involvement.  The Applicant again assumed that her hourly rate would be maintained.  Conversely, Mr Stephenson assumed that the Respondent was quite entitled, in view of the reduced responsibility of the Applicant, to reduce her hourly rate to that which was payable prior to her promotion to the supervisory role.  Mr Stephenson clearly had in his mind that upon the appointment of a person into the new position that with effect from the date of that appointment the Applicant’s hourly rate would revert to £5.82 per hour.  That was a clear trigger in the mind of the Respondent for the proposed reduction in the hourly rate.  The Applicant became pregnant and the Tribunal cannot determine on what date that pregnancy came to the knowledge of anyone in the Respondent but it follows from the Tribunal’s findings above that the Applicant’s pregnancy was wholly irrelevant to the rationale of the Respondent for the proposed and then actual reduction in her hourly rate of pay.”

We commend the Employment Tribunal for the clarity with which they have expressed that conclusion on the primary factual dispute before them.

The Appeal

9.	By the Notice of Appeal, and the skeleton argument put forward in support of it, a number of points are taken in criticism of the finding and conclusion of the Employment Tribunal.  In particular, attention is drawn to the content of and existence of other documents which were plainly before the Employment Tribunal and which contain dates and other material from which the Tribunal might have drawn contrary inferences or conclusions.  It is suggested that the Tribunal erred in law in carrying into the body of their extended reasons their analysis of those documents, dates and other materials and reaching the conclusion that they did.  Further, it is suggested that the Extended Reasons fail to give the employee sufficient reasons for her to understand how the Tribunal concluded as it did.

10.	We have carefully considered those potential grounds of appeal and the content of the skeleton argument submitted in support of them.

Conclusion

11.	The issue before us today is whether there is material sufficient to satisfy us that this appeal ought properly to proceed to a full hearing before the Employment Appeal Tribunal.  We must be satisfied that there is at least some prospect that the appeal may succeed or, to put it another way, that the grounds of appeal disclose at least an arguable point of law.  It is our unanimous conclusion that that is not the case in respect of this appeal.  We are satisfied that the Notice of Appeal, and the skeleton argument, do not give rise to an arguable error of law on the part of the Employment Tribunal in this case.  

12.	It is not for us to find whether a particular Employment Tribunal should have carried into its judgment one or more factual background matters arising from other documentary evidence before it.  That is all the more so where the Tribunal has, on the face of its Extended Reasons, come to a considered conclusion for which rational and substantial reasons are given.  In all those circumstances, we will dismiss this appeal.  As the decision is being given in the absence of the parties we direct that a transcript of our judgment be sent to both Appellant and Respondent.