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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Atkins v Coyle Personnel Plc [2008] UKEAT 0206_07_0802 (8 February 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0206_07_0802.html Cite as: [2008] IRLR 420, [2008] UKEAT 206_7_802, [2008] UKEAT 0206_07_0802

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APPEARANCES

 

For the Appellant	MS A M BERRY (of Counsel) Instructed by: Messrs Coole & Haddock Solicitors 31 Chatsworth Road Worthing West Sussex BN11 1LY
For the Respondent	MR D M Craig (of Counsel) Instructed by: Messrs Davenport Lyons Solicitors 30 Old Burlington Street London W1S 3NL


 


SUMMARY

Unfair dismissal: Reason for dismissal including substantial other reason

Maternity Rights and Parental Leave

Unfair dismissal. Was the Claimant dismissed because he was on paternity leave and hence unfair, or was he dismissed because of a heated argument with his employer as to work he had arranged before going on paternity leave, but about which he refused to talk to his employer, even though had had agree to be contactable whilst on maternity leave. Perversity argument failed. No error in law in ET findings… Guidance given re appropriate test – (causative or something less) under s99 ERA and Regulation 29 Paternity and Adoption leave Regulations 2002.


 


THE HONOURABLE MR JUSTICE NELSON

1. This is an appeal against the decision of the Ashford Employment Tribunal which, by its decision of 15 February 2007, dismissed Gerome Atkins' claim that he was unfairly dismissed whilst he was on agreed paternity leave in March 2006. Other claims, for example sex discrimination were brought and dismissed but those do not form the subject matter of this appeal.
2. The Claimant contended that the reason or principal reason for his dismissal was a reason connected with the fact that he took, or sought to take, paternity leave. Thus under the provisions of section 99 of the Employment Rights Act 1996 and Regulation 29 of the Paternity and Adoption Leave Regulations 2002 he was to be regarded as having been unfairly dismissed. After hearing the evidence the Employment Tribunal rejected that contention. They found that the Claimant was dismissed on 10 March 2006 during the course of a heated argument which took place between him and his line manager, Mr Edwards, who was annoyed and frustrated at the Claimant's response to Mr Edwards seeking to contact him whilst he was at home when he had agreed to be contacted there. The Claimant's response, in an email sent earlier on 10 March 2006 had been to berate Mr Edwards for contacting him when he was tired and exhausted after the birth of his daughter, when as far as Mr Edwards was concerned he had being doing the Claimant a good turn in trying to ensure that he did not lose out on commission for a particular job. Whilst therefore the Claimant was on paternity leave when he was dismissed, the Employment Tribunal found that that fact had nothing to do with his dismissal.
3. There are three grounds of appeal. Firstly that the Employment Tribunal misapplied, misunderstood or misconstrued regulation 29 of the Regulations and section 99 of the ERA 1996. They should have found that the legislation should be given a purposive interpretation and that a claimant did not have to prove that his dismissal was 'caused by' him taking or seeking to take paternity leave, but only that it was 'associated with' him taking or seeking to take paternity leave, a looser and less stringent test. Reliance was placed upon Caledonia Bureau Investment and Property v Caffrey [1998] IRLR 110, Brown v Stockton-on-Tees BC [1988] 2AER 129 and Clayton v Vigers [1989] EAT 19/9 89. Secondly and alternatively it was contended that the decision was perverse on the facts and thirdly it was contended that the Employment Tribunal had failed to make the necessary findings of fact as to whether the Claimant stood to make financial gain from the commissions structure, and whether he had agreed to be contactable during his paternity leave or simply undertaken to do some work in his own time whilst away. Such findings were material to the conclusions which the Employment Tribunal had to reach.
4. The Respondent contended that the first ground of appeal, namely that the Employment Tribunal had wrongly interpreted and applied the law was a new point which had not been argued before the Employment Tribunal and should not therefore be permitted before the EAT. In any event, the Respondent submitted, the submission was incorrect as both the Act and the Regulations required a causal connection not merely an association. As to perversity, the Respondent submitted that the Employment Tribunal was entirely justified in reaching the conclusions that it did and that the decision was in no way perverse. Nor had there been any failure to make the appropriate findings.

The Employment Tribunal's findings.

5. The Claimant's partner, Michaela Scott was expecting the baby at the beginning of March 2006. The Claimant had agreed with a colleague, Nick Markwell, that Mr Markwell would cover for him whilst he was on paternity leave. On 6 March 2006 Miss Scott went into hospital and the Claimant went to see Mr Stewart, a line manager, to discuss his paternity leave. It was agreed between them that the Claimant would take a week's paid leave on condition that he remained contactable at home. Mr Edwards, the senior line manager, was not told of this agreement and, the Tribunal found, was somewhat disgruntled that he had not been, though he was not disgruntled about the arrangement itself (paragraphs 29 and 78). Nor did Mr Edwards know of the arrangement that Mr Markwell would cover for the Claimant. The baby was born on 7 March 2006 and the Claimant sent an e-mail to Mr Edwards and Mr Stewart that morning announcing the birth of his daughter. Mr Edwards sent an e-mail back to check what time the Claimant would be off and what arrangements had been made for his work that week and the Claimant replied that he would be between home and office but always contactable at home by land line or mobile. He said he would be back on Monday next but wanted to take some time so that his partner could recover a bit. "If that is not clear, let me know." Mr Edwards replied that the arrangement should be okay but wished to be kept updated and know about next week and when the Claimant felt that he would be back to full time. He sent his best wishes to 'all three of you'. The Claimant said that he would be back in Chelmsford the week after next.
6. The Tribunal found that from that exchange of e-mails that there was no indication that Mr Edwards was overtly opposed to the Claimant spending time at home. It was also clear that the Claimant planned to carry out work whilst at home on leave and that by stating that his home and mobile telephones were always on he was inviting contact to be made with him during that time.
7. On 8 March 2006 the Claimant carried out work duties by providing transport for a worker to a particular site and on 9 March 2006 he carried out telephone work for the Respondent from home whilst caring for his partner and baby. On 10 March 2006 Mr Edwards was informed by Miss Ketterer, who was employed by the Respondent, in administration that a client was calling with regard to a booking for two highways personnel. Mr Edwards decided to refer this to the Claimant as it appeared that the Claimant had been involved in that proposal initially. He telephoned the Claimant but was told by Miss Scott that the Claimant was asleep having had a particularly bad night with the new baby. They exchanged pleasantries and Mr Edwards asked Miss Scott to ask the Claimant to call him later. Mr Edwards then discussed the matter further with Miss Ketterer, who said that the Claimant might want to know sooner rather than later about the proposed booking as this might effect his commission. Miss Ketterer rang and spoke to Miss Scott and the Tribunal found that there was some pressure to wake the Claimant so that he could deal with the matter urgently.
8. The Claimant e-mailed Mr Edwards saying that he had had around three hours sleep, that he was not being paid for his leave (which the Tribunal found to be incorrect) that he had turned his phone off, had had enough and been pushed too far. He had had difficulties in looking after his partner and the new baby and ended by saying that he was sorry he had to write this but he was upset and tired.
9. Mr Edwards replied saying:

"So am I' 'If you have told a client you have men for Monday but don't [call] them back what do you want us to do? Tell them that you forgot/tired/fed up? If you ask somebody to deal with it for you we would not be calling you. As for being pushed too far, you decide. I wait your call."

10. The Tribunal found that Mr Edwards was annoyed at receiving the Claimant's e-mail berating him for contacting the Claimant, when as far Mr Edwards was concerned he was doing him a good turn and ensuring that he did not lose out on any commission for that particular job.
11. The heated telephone conversation between the Claimant and Mr Edwards then took place. The Tribunal found that the Claimant was suffering from lack of sleep and annoyed at having been woken and Mr Edwards was frustrated and annoyed at the Claimant's attitude given that he had been trying to assist him with regard to the particular job. Matters escalated and the conversation culminated in Mr Edwards telling the Claimant 'You're fucking sacked'. The Tribunal however said that it was satisfied that Mr Edwards had no intention of dismissing the Claimant and spoke in the heat of moment exasperated by the Claimant's attitude. Nevertheless the Tribunal found that the Claimant had been dismissed by Mr Edwards rather than, as the Respondent contended, had been deemed to have resigned. The Claimant took legal advice and a formal grievance was lodged by him by e-mail the same day. There was a brisk exchange of e-mails in which the Claimant sought confirmation that he had been sacked. He said that he and his partner were under medication from the doctor and that his doctor and solicitor had told him it would best if he did not contact Mr Edwards 'until I return to work'. On 24 March Mr Stewart wrote to the Claimant stating that as he had not contacted Mr Edwards by the end of 10 March, despite being asked to do so, the Claimant was in effect deemed to have resigned from his position. He was offered subcontract work. The hearing of his grievance took place on 26 April 2006.
12. Upon these facts the Tribunal found that, on balance, the Claimant had been dismissed by Mr Edwards on 10 March 2006 and that on that date he was on paternity leave. In stating their reasons for the dismissal the Tribunal stated as follows in paragraph 78 of their decision:-

"The Tribunal noted that the Claimant, whilst on paternity leave, had made it plain to his employer that he would be working during that leave and was available to be contacted during that leave both by telephone and e-mail. The Claimant had told the Tribunal that he had not told Mr Markwell, who was providing cover, of some of the work he carried out during his leave; in particular, in respect of the client he had dealt with on 10 March. The dismissal took place when the Claimant was on paternity leave, but the question for the Tribunal was whether or not the reason or principal reason for that dismissal was connected with the fact that the Claimant took paternity leave. The Tribunal concluded that there is no evidence to suggest that that was the reason. The Tribunal is satisfied that the reason was the frustration on the part of Mr Edwards which grew during the heated argument between him and the Claimant following the Claimant's e-mail on 10 March which did not accurately reflect his work situation. Whilst the Tribunal criticises Mr Edwards for allowing that telephone conversation to escalate to the point where both parties lost their temper and said things in the heat of the moment, the Tribunal concluded that there was no evidence to suggest that the reason for the dismissal was related to the paternity leave. It was clear from earlier correspondence that Mr Edwards had noted that the Claimant would be on leave and was satisfied with the arrangements that had been made. He had been disgruntled that he had not been told initially by Mr Stewart about the arrangement but he was not disgruntled about the arrangement itself."

13. Accordingly as the Tribunal concluded that the Claimant was not dismissed for a reason connected with his paternity leave the claim for unfair dismissal was dismissed. In the course of considering the sex discrimination claim the Tribunal noted that it was common knowledge that consultants would not wish to miss the opportunity of earning commission. No findings were made as to the previous relationship between Mr Edwards and the Claimant though the statements of the parties which were before the Tribunal as the evidence in chief showed that whilst Mr Edwards said that they were on good terms professionally and personally the Claimant said that he had had many run ins with Mr Edwards.

The Statutory Provisions

14. Section 99 of the Employment Rights Act 1996 states:-

"Leave for family reasons.

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if:

(a) The reason or principal reason for dismissal is of a prescribed kind, or

(b) The dismissal takes place in prescribed circumstances.

(2) In this section 'prescribed' means prescribed by regulations made by the Secretary of State.

(3) A reason or set of circumstances prescribed under this section must relate to –

(a) pregnancy, child birth or maternity;

(b) ordinary, compulsory or additional maternity leave;

..

(c) paternity leave

..

And it may also relate to .. other factors."

15. Regulations 28 and 29 of the Paternity and Adoption Leave Regulations 2002 provide as follows:-

"28 Protection from detriment

(1) an employee is entitled under section 47C of the 1996 Act not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer because –

(a) the employee took or sought to take paternity leave…

29 Unfair dismissal

(1) An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purpose of Part 10 of that Act as unfairly dismissed if –

(a) the reason or principal reason for dismissal is of a kind specified in paragraph (3)

…

(3) the kinds of reason referred to in (1)… are reasons connected with the fact that –

(a) the employee took, or sought to take paternity... leave."

The Submissions

The Appellant/Claimant's submissions

16. Miss Amy Berry submitted on behalf of the Appellant that the statute and regulations must be purposively construed. There is no disagreement between the parties as to this as the Respondent accepted that the legislation should be construed in accordance with its purpose of protecting employees against being treated detrimentally, including by being dismissed because they intend to take or do in fact take paternity leave. Miss Berry accepted that a temporal connection was not enough, in other words it could not be said that merely because an employee was dismissed whilst he was on paternity leave the dismissal must be unfair even though the dismissal was for some entirely other reasons such as gross misconduct. Nevertheless the words 'reasons connected with' did not require that a causal connection between the dismissal and the paternity leave had to be established; it was sufficient that the dismissal was 'associated with' the paternity leave. This was a less stringent test than causation, though Miss Berry was unable to define in what way it was something less than causation. She submitted that the decision in Brown v Stockton-on Tees , a pregnancy case decided under section 60(1) of the Employment Protection (Consolidation) Act 1978, the precursor of section 99 ERA supported her proposition and that the words in section 60(1) 'the reason or principal reason..' demonstrated that the test was not purely causative. More particularly she relied upon the case of Clayton v Vigers as direct support for the proposition that the words 'any reason connected with her pregnancy' in section 60(1) of the 1978 Act, should be read as 'associated with'. That case decided that the words should be construed widely. Caledonia Bureau Investment and Property v Caffrey also supported a wide interpretation, though she no longer relied upon that case to support the proposition that it was enough if the individual was on maternity leave at the time of the dismissal to make a dismissal automatically unfair. Harvey paragraphs 406 and 407 specifically support her argument, in relation to Clayton which the author treated as accepting the proposition that the words 'associated with' were the correct test.
17. As to whether this amounted to a new point Miss Berry submitted that it was foreshadowed at the Employment Tribunal and in her submissions there, but that in any event this was a case where the court should consider the submission as the circumstances were exceptional; it was a developing area of the law, a novel point and guidance was needed. Further, there would be prejudice to the Claimant whereas the Respondent would suffer only the additional burden of an extra hearing. The Respondent had not in any event initially challenged the first ground as a new point, but had only done so when new counsel had been instructed shortly before the hearing of the appeal.
18. As to perversity Miss Berry submitted that even if a causative link was required the evidence amply surpassed that and the decision was therefore perverse. The evidence was overwhelming and solely in one direction; there was in effect no other evidence of any reason for this dismissal apart from paternity leave. Even though the burden was upon the Claimant he had satisfied that burden.
19. The Employment Tribunal's findings at paragraphs 22 and 78 were inconsistent as to the state of Mr Edwards' knowledge and attitude. No account was taken of the fact that there was no complaint about any conduct nor was this a redundancy situation nor was there any other reason for the dismissal. Finding that the dismissal was not caused by paternity leave was perverse as the manner in which it was expressed demonstrates.
20. In any event the factual findings made by the Employment Tribunal as to the financial arrangements made for the paternity leave were inadequate.

The Respondent's submissions

21. It was submitted by Mr David Craig on behalf of the Respondent that the first ground was without question a new point. No argument that a lesser test than causal connection was made before the Employment Tribunal, and the Tribunal recorded that it was an agreed issue that they had to determine the reason for the Claimant's dismissal and whether it was 'because he was on paternity leave'. The cases of Jones v Governing Body of Burdett Coutts School [1999] ICR 38, Leicestershire County Council v Unison [2006] IRLR 810 and Secretary of State for Health v Rance UKEAT/0060/06/ZT supported the proposition that the Claimant should not be permitted to raise this point for the first time on appeal. There were no exceptional circumstances justifying hearing this point for the first time on appeal and if that did happen the matter would have to be remitted to the Tribunal for further evaluation.
22. In any event, Mr Craig submitted, regulation 29 required a causal connection. The Tribunal first had to ask what was the reason or principal reason for the dismissal and then assess whether that reason was connected with the fact that the employee took or sought to take paternity leave. There is no logical reason why protection from detriment under regulation 28 which clearly had a causative test because of the use of the word 'because' should be treated any differently from regulation 29 dealing with unfair dismissal. Although the wording was somewhat different the requirement of a causal connection was the same.
23. Ascertaining the reason or principal reason was a factual finding which required the Tribunal to enquire into the facts or beliefs held by the employer which caused them to dismiss.
24. Where an employer dismissed somebody who was absent from work because of their absence, and that absence was due to paternity leave the employee would be protected by the legislation. But if whilst on paternity leave an employee is dismissed for example, for misconduct or absence from work without authorisation, then the employee would not be protected.
25. None of the authorities cited support the Appellant's submission as to the appropriate test under the Act and Regulations. None suggest that there need not be any causal connection between the reason for dismissal and the fact that paternity leave was taken or sought. Brown v Stockton-on-Tees required a causal connection as Griffiths LJ referred to a direct and intimate connection with the pregnancy. (416E). He also said at 418C:-

    "It does not of course follow that, if a pregnant woman is dismissed as redundant, the effect of section 60 is to deem her dismissal to be unfair in all circumstances. There will be many dismissals on grounds of redundancy which cannot be said to be connected with her pregnancy; as for example if she is made redundant because her job ceased to exist and there is no possibility of offering alternative employment, or if she is selected for dismissal in a redundancy situation by the application of a criterion such as last in first out."

26. In Caledonia Bureau Investment and Property Johnson LJ used the words 'directly related to and clearly connected with her pregnancy' and 'direct cause of dismissal'. Nor did Clayton v Vigers find that 'associated with' was the correct test. The EAT was certainly of the view that the words 'any reason connected with her pregnancy' in section 60 of the 1978 Act, should be construed widely, but other than that, simply found as a fact that the dismissal was on the grounds of the employee's pregnancy within the meaning of the section. Contrary to what is stated in Harvey the EAT made no finding as to the precise nature of the test and appeared at 718D to conclude that the real reason for the dismissal was in fact pregnancy on the facts of that case. The 'but for' test cannot be appropriate on the basis of these authorities.
27. The Employment Tribunal found that the Claimant failed to inform Mr Markwell about a client he had chosen to deal with on 10 March 2006 and that when a query arose in relation to that client it was logical for the Respondent to make enquiry of the Claimant. The Claimant took exception to this and Mr Edwards was annoyed that he had reacted in this fashion as he had been doing the Claimant a good turn in ensuring that he did not lose out on potential commission. During the course of the heated argument which followed Mr Edwards dismissed him. The Tribunal asked itself what the reason was for the dismissal. It considered whether the fact that the Claimant was on paternity leave had in any way caused his dismissal. It held that it did not and found that there was no causal connection between the dismissal and the paternity leave. That is an unassailable finding of fact Mr Craig submitted, and one which it was open to the Tribunal to make.
28. Paragraph 78 had to be read together with, and in relation to, the other findings. Mr Edwards' frustration arose from the fact that that he was berated for contacting the Claimant when he was seeking to do him a good turn and making sure that he did not lose out on commission. He was disgruntled not because the Claimant was on paternity leave but because he had not been told by Mr Stewart or the Claimant about the arrangements which had been made. The Tribunal was entitled to find these facts having heard the evidence and were clearly satisfied that there was no connection between the dismissal and the fact that the Claimant was on paternity leave.
29. As to perversity Mr Craig submitted that the Claimant's submissions amounted to little more than an impermissible attempt to relitigate factual matters before the EAT based partly on the new argument as to the correct legal test to be applied. There was simply no basis for saying that the Claimant had made out an overwhelming case that the Employment Tribunal had reached a decision which no reasonable tribunal on a proper appreciation of the evidence and the law would have reached (Yeboah v Crofton [2002] IRLR 634). When the Employment Tribunal referred to 'no evidence' in paragraph 78, they clearly meant no sufficient evidence. A generous interpretation had to be given to the reason. There was no inconsistency in the judgment when properly read. Nor was there any failure to make proper findings. The facts were fully investigated by the Employment Tribunal and the evidence of the Respondent preferred as to the reasons for the dismissal.

Conclusions

30. It is clear from the Claimant's closing submissions and supplemental closing submissions before the Ashford Employment Tribunal that it was not there contended that a causal connection was unnecessary, and that it was sufficient that a dismissal was merely 'associated with' paternity leave. There is no such reference in those submissions and indeed in the supplemental submissions at paragraph 7.8 it is said that the effective and predominant cause of the dismissal was paternity leave. This is consistent with the agreed issues set out at paragraph 3.2 of the Employment Tribunal's reasons namely 'was he dismissed and if so, what was the reason (in particular, was it because he was on paternity leave)'.
31. The nature of the test, i.e. causal or less strict, is a new point which on the authorities of Jones, Leicestershire County Council, and Secretary of State v Rance, should not be raised for the first time on appeal except in exceptional circumstances. There are not in our view any such circumstances present in this case even though this is a relatively novel area, which would justify a departure from the normal rule. It is accepted that if this Employment Appeal Tribunal found that a less stringent test was applicable the matter would have to be remitted to the Employment Tribunal to reconsider the facts in relation to that different test. That would create additional cost to both parties and the further expenditure of time by the Employment Tribunal. There is prejudice to all parties arising from such further hearing. We do not in the circumstances give permission for this new point to be formally raised and determined in this appeal.
32. On the basis upon which it was argued before it cannot be contended that the Employment Tribunal approached the law incorrectly. It stated at paragraph 78:-

"The dismissal took place when the Claimant was on paternity leave, but the question for the Tribunal was whether or not the reason or principal reason for that dismissal was connected with the fact that the Claimant took paternity leave."

That question was properly posed in accordance with the agreed issues set out at 3.2 of the reasons, and for the reasons which we shall hereafter set out, was the correct approach in any event.

33. We consider that when the decision of the Employment Tribunal is read as a whole it can be seen that the issues, the evidence and the law were approached correctly. Paragraph 78 could have been more fully expressed but when it is read in the context of the decision as a whole and in particular with paragraphs 22, 23, 27, 31, 34 and 37 the reasoning is clear. The Tribunal essentially accepted the evidence of the Respondent's witnesses, and in particular Mr Edwards as to the reasons for the dismissal. The Claimant had agreed to be contacted whilst on leave but took exception to being contacted by Mr Edwards about a client he had not referred to Mr Markwell and for whom the Respondent thought he would be able to earn commission. The Tribunal accepted Mr Edwards' evidence that he was frustrated and annoyed by the Claimant's response when he was seeking to do him a good turn on commission and as a consequence, in the course of the heated argument which followed, lost his temper and dismissed him. On the face of it such frustration and annoyance and the response to it could have arisen irrespective of the Claimant being upon paternity leave and this is what the Tribunal found, concluding that there was no evidence to suggest that the reason for the dismissal was related to the paternity leave. As the Respondent submits, both on this occasion and earlier in paragraph 78 the Tribunal meant no 'sufficient' evidence. Whilst they considered that Mr Edwards had been disgruntled that he had not been told initially by Mr Stewart about the arrangement for paternity leave he was not disgruntled about the arrangement itself.
34. This is not a case where the EAT should conclude that the Employment Tribunal's decision was one which no reasonable tribunal could reach. The basis for the conclusion was the acceptance of Mr Edwards' evidence as to what was in his mind and how he responded to the situation which developed with the Claimant. The Tribunal accepted Mr Edwards' evidence and the EAT cannot substitute its own views on Mr Edwards' evidence for those of the Employment Tribunal. We are satisfied that the decision was not one which was perverse but one which was open to the Tribunal on the facts which it found.
35. We do not consider that there is any merit in the argument that the Tribunal failed to make proper findings of fact. We are satisfied that they considered all material matters to their decision and the third ground of appeal cannot succeed.
36. We have therefore come to the conclusion that none of the grounds of appeal can succeed and the appeal must therefore fail.
37. As the matter was argued before us on a de bene esse basis, at the invitation of the parties, and because this matter may be taken further, we express some brief and tentative views on the issue of whether the appropriate test under section 99 of the Act and Regulation 29 of the 2002 Regulations is a causal test or some less stringent test. None of the cases cited to us approached the interpretation of similar legislation on any other basis than causation. When Griffiths LJ refers in Brown to 'direct and intimately connected with her pregnancy' in considering section 60 of the 1978 Act he is in our view applying a causation test. The reference to 'direct cause of dismissal' in the case of Caledonia Bureau Investment and Property also demonstrates that Johnson LJ was applying a causation test when considering section 99 ERA. We are satisfied that the case Clayton v Vigers does not conclude that the words 'any other reason connected with her pregnancy' must mean 'associated with', a non causal test as opposed to 'causally connected with'. That case determines that the words should be construed widely and that on the facts of that case the necessary connection was established.
38. The EAT in Del Monte Foods Limited v Mundan [1980] ICR 694 and Grimsby Carpet Co. Limited v Bedford [1975] ICR 975 both approached the section 60 test as involving causation. Section 60 of the 1978 Act includes the word 'because' which indicates a causation test, as does Regulation 28 of the 2002 Regulations. We see some merit in the Respondent's submission that although the word 'because' does not appear in Regulation 29 there is no reason why it should have been intended that protection from detriment and unfair dismissal should have a different test.
39. The Tribunal has to ascertain on the facts what the reason or principal reason for dismissal was and then ascertain whether such reason was connected with the fact that the employee took or sought to take paternity leave. As was rightly conceded before us a time connection alone cannot suffice as otherwise nobody could be fairly dismissed even if gross misconduct occurred during paternity leave or was discovered during such leave.
40. The fact that the words 'connected with' might on the dictionary definition be taken to mean 'associated with' does not mean that a causal connection is not necessary between the dismissal and the paternity leave. 'Associated with', without more, is a very vague concept, so wide and vague that it could on its face include a simple time connection, in other words it would be enough merely because the employee was on paternity leave at the time he was dismissed. Such an interpretation cannot have been intended and for the same reasons nor can a 'but for' test or a causa sine qua non test.
41. We are satisfied that 'connected with' in Regulation 29 means causally connected with rather than some vaguer, less stringent connection, though in a sense the debate is both sterile and semantic as the task of considering the facts and determining whether the reason or principal reason found is such that it is connected with the fact that the employee took or sought to take paternity leave is a fact finding task which like, any finding on causation or otherwise, has to be performed. The legislation must, in our view, be given a wide purposive interpretation and the application of the test must, as on any causation issue, be approached in a pragmatic commonsense fashion on the facts of the individual case.
42. We would therefore, had it been relevant to do so, have concluded that the first ground must fail. In the event however, it did not fall to be determined as part of this decision, and, the appeal is dismissed upon the basis that the grounds which did fall to be properly argued have all been dismissed.