THE
HONOURABLE LADY SMITH
Introduction
1.
This is an employer’s appeal from a judgment of the Employment Tribunal
sitting at Edinburgh, (Employment Judge Mr J D Young), registered on
2 March 2012 finding:
“1. The respondents discriminated against the claimant by
contravening s18(2) of the Equality Act 2010 and that the Respondents shall pay
to the claimant the sum of £5000 by way of compensation for that contravention.
2. The claimant was unfairly dismissed by the respondents but no
monetary award is made in that respect”
and also awarding her sums in respect of (a) arrears of wages,
and (b) holiday pay.
2.
We will, for convenience, continue to refer to parties as Claimant and Respondent.
3.
The Claimant was represented by Mr Egan of Unison before the Tribunal
and by Mr S Moffat, solicitor-advocate, before us. The Respondent
was represented by Mr K Limpert, HR Consultant, before the Tribunal
and before us.
Background
4.
The Respondent is a limited company and its managing director is
Mr A Clelland. It is engaged in the hairdressing business. The
company is a wholesaler of hair and beauty products and operates a hairdressing
salon in Livingston. Mr Clelland is rarely present at the salon. The Tribunal
made no findings of there being any director other than Mr Clelland. In
particular, there is no finding that the Claimant’s line manager, Ann Hendry,
who lived with Mr Clelland and “oversaw the salon business on a day to day
basis”, was a director.
5.
The Claimant began working for the Respondent as a stylist at the salon
on 8 March 2010. The Claimant was appointed salon manager in May 2010 and
Ann Hendry hoped to be able step back from her managerial role after that. The
Claimant then became pregnant. Her due date was in the week beginning 3 April 2011. On 12 August 2010, she suffered what her GP referred to as “early
bleeding”. Given her due date, she was about six weeks pregnant by then. She
was absent from work for 11 days. When she returned to work, she was due
to have a scan the following week to ascertain whether or not her pregnancy was
intact. She advised Mr Clelland and Ms Hendry of that position.
6.
The scan duly took place and showed that the Claimant was pregnant.
Accordingly, when Ms Hendry asked her if she was pregnant, she said
“yes”. She told other employees at the salon about her pregnancy and showed
them the photograph of her scan. There appears, however, to have been no
evidence that she or anyone else told Mr Clelland of the scan result and
the Tribunal do not find that he was told or otherwise knew of her pregnancy
prior to January 2011. Their approach – as exemplified by a passage in
paragraph 81(f) of their reasons – is to regard the Respondent as having
knowledge of the Claimant’s pregnancy because Ms Hendry was aware of it
from the time that the Claimant told her about the scan having confirmed that
she was pregnant.
7.
The Tribunal found that the Claimant made the following allegations
about the way she was treated after she returned to work following her absence
in August 2010:
“15……. “things had changed”….”I felt they were annoyed with me
at being pregnant.” I accept I was a spanner in the works. There was then an
atmosphere with me – not as chatty – not getting a “Good Morning”. No
conversation from staff. Felt uncomfortable. I thought perhaps it would go
away. I felt the atmosphere with AC (Andrew Clelland) – ignored – wages were
flung down. I was there to manage a team – I felt I was belittled and
intimidated.””
8.
They did not make any findings in fact as to whether or not those
allegations were well founded. They do no more than record the Claimant’s
perception.
9.
Otherwise, the Tribunal found that a receptionist was employed to assist
in the salon, that the Claimant agreed that it was a good idea to do so, that
the Claimant did not take part in the receptionist’s appointment (the relevance
of which is not apparent since they made no finding that her role entitled her
to do so), that after the receptionist took up post, the Claimant was no longer
given access to certain parts of the computer system (on the basis that she no
longer needed access to those parts), that she suffered a nosebleed one day at
which Ms Hendry said “oh no not the …..day”, that a stylist called Donna
McNeish gave evidence that the atmosphere towards the Claimant was a bit
“frosty” (but they make no finding as to whether or not the atmosphere was
frosty), that another stylist, Abigail Burke, gave evidence that there was “an
atmosphere” without further specification (but they make no finding as to
whether or not there was “an atmosphere”), and that there were certain
“reminder notes” relating to till shortages, a complaint about the Claimant
being on lunch when the salon was busy and about lights and water heaters being
left switched on. It was not clear whether or not the Claimant had been spoken
to about these matters nor what their relevance was to the issues that the Tribunal
had to consider.
10.
The Claimant was absent from work from 28 October 2010 until
24 February 2011 when her employment terminated. Her GP certified that
the reason for her absence was work related stress/nervous debility.
Mr Clelland and Ann Hendry believed that her stress was not caused by the
workplace but by other factors in her life namely a house move, having to live
with her mother-in-law pending the move to a new house and financial matters.
The Tribunal, however, concluded that the Claimant’s GP was correct; her stress
was caused by the workplace. It is not clear why the Tribunal considered that
it was for them to determine which of these competing views as to the cause of
the Claimant’s stress was correct.
11.
On 13 December 2010, the Claimant received a form MAT B1 from her
GP which stated that her expected date of confinement was the week that
included 3/4/11. The Claimant asserted that she had sent it to the Respondent
on 13 December 2010. The Respondent disputed that; the Respondent’s
position was it had not been received until 18 January 2011. The Tribunal
did not resolve that conflict, taking the view that they did not require to do
so.
12.
The Claimant did not advise the Respondent of the date on which she
intended her maternity leave to begin.
13.
Mr Limpert, acting on behalf of the Respondent, wrote to the Claimant
by letter dated 31 January 2011 in which he stated:
“Your MAT B1 form suggests that you are expected to have a baby
in the week that includes 3rd April 2011. Unfortunately, with
the exception of a mention that you might be pregnant & then going off sick
for two weeks with early bleeding last August, this MAT B1 form is the first
notice that you have provided that you are actually pregnant at all.
The main terms under which you are employed can be found in the
“Guidelines on Terms and Conditions of Employment in Salons” booklet, and this
deals with maternity benefits at section 15; these conditions are in
accordance with the relevant laws that provide employees with maternity leave
& pay: Regulation 4 of the Maternity and Parental Leave etc
Regulations 1999 (as amended – see the Maternity and Parental leave (Amendment)
Regulations 2002) – see appendix 1 for an extract of the relevant laws.
As far as providing notification of your pregnancy is concerned,
apart from the MAT B1 form, you have provided absolutely no notification of this,
and given the expected week of childbirth, you would therefore not be entitled
to maternity pay or maternity leave, as notice would normally need to have been
provided no later than the end of the fifteenth week before your expected week
of childbirth. Based on my calculations, this would be no later than
26 December 2010, and as your MAT B1 form was signed on 13th December
2010, I can see no reason why this notice was not provided earlier; I therefore
have to conclude that you are not entitled to either maternity pay or maternity
leave.”
14.
The letter goes on to note the Claimant’s continuing absence, said to be
due to work related stress; it was necessary to consider whether or not she was
fit and able to perform the job for which she had been recruited. She was,
accordingly, being invited to a “disciplinary hearing” on 9 February
2011. She was warned that dismissal was a possible outcome.
15.
The Claimant replied by letter dated 8 February 2011 in which she refuted the assertion that she was not entitled to maternity pay/leave and stated
“I will be willing to attend a review meeting with you but I require fourteen
days notification”.
16.
Mr Limpert responded by letter dated 9 February 2011 in which he expressed the view that the Claimant had been given sufficient notice of the meeting
and that “if the meeting was adjourned until later this week or early next week
you would again decline to attend, delaying progress in this matter
unnecessarily”.
17.
By letter dated 11 February, Mr Limpert again advised the Claimant
that she was not entitled to maternity leave or maternity pay; even if she was
correct in her assertion that she had sent timeous notification, it was
incomplete as she had not given notice of when her maternity leave would start.
18.
The Claimant was dismissed. She was given a letter dated 17 February 2011 which stated:
“ …your attendance is impacting on your performance and this
remains unsatisfactory. For this reason my decision is dismiss you for serious
misconduct.”
19.
There was an appendix which stated that the conclusion was that she was:
“…not able to cope with the demands of this job….the role of
Manager at the salon is impacting on your health (and directly arising from
that your attendance or performance) in an adverse manner.”
20.
The Claimant appealed. She alleged she had been discriminated against
because she was pregnant. Her appeal was not successful. By letter dated 4 March 2011, she was advised:
“ …your pregnancy is entirely unrelated to your absences for
work related stress and therefore your pregnancy has no bearing on the decision
to dismiss.”
21.
The contract of employment under which the Claimant was employed
included the following provisions:
“15.4 You are entitled to Maternity Leave providing you have
submitted to the Employer a Certificate of Confinement (issued by your doctor
or midwife) by the fifteenth week before the expected date of birth that
confirms your pregnancy and the expected week of childbirth and when you wish
to commence the Maternity Leave ……….
15.4.3 The Maternity Leave will commence: -
15.4.3.1 In accordance with the written notice given by you to
the Employer to comply with this Section 15.4 ………”
Read together, we are satisfied that these terms make it clear
that notification of the three matters referred to (fact of pregnancy, due date
of confinement and date that the employee wishes to commence maternity leave)
requires to be given in writing.
The Tribunal’s Reasoning
22.
The Tribunal’s reasons are complex and we have not found them easy to
follow. The following, however, seems clear.
23.
First, the Tribunal considered whether or not the Claimant was
discriminated against by being treated unfavourably because of her pregnancy (Equality
Act 2010 s.18(2)(a)). They concluded that she was and that that was
because of:
·
The Claimant having said that she was regarded as a nuisance ;
·
The Claimant having said that she was someone who had “thrown a
spanner in the works” was supported by the ‘upset to the Respondent’s plans’;
·
The Claimant’s responsibility having been eroded;
·
The Respondent having denied that the Claimant’s absence was
workplace stress;
·
The Respondent’s denial of the fact of the Claimant’s pregnancy;
·
The Respondent’s denial of statutory maternity leave (to which
she was entitled) “based on that false denial”;
·
The Respondent’s denial of statutory maternity pay (to which she
was entitled) “based on that false denial”;
·
The belief that matters should be dealt with as misconduct
requiring a disciplinary hearing;
·
The Respondent’s refusal to adjourn the disciplinary hearing;
and
·
The Respondent’s failure to engage with the Claimant.
24.
In the light of those factors, the Tribunal concluded that the Claimant
had made out a prima facie case that she had been discriminated against because
of her pregnancy. Although the Tribunal do not so state, we assume that, at
paragraph 82, they are considering whether or not there are facts from
which they could decide in the absence of any other explanation that the Respondent
contravened the prohibition against discrimination in s.18(2)(a) of the 2010
Act, as required by s.136(2).
25.
The Tribunal then proceed to reject the Respondent’s explanation that
the reason for the Claimant’s dismissal was that she had been absent from work
for a lengthy period (111 days absence in total). Trying to understand
the reasoning process of the Tribunal as best we can, that seems to have been
because Mr Clelland was deemed to have knowledge of the Claimant’s
pregnancy once Ann Hendry knew of it, because he knew that she was being told
she had no right to maternity pay/maternity leave when that was not right,
because he knew that there had been no engagement with the Claimant, because he
knew that she had been refused an adjournment of the hearing and because
overall there had been deliberate disengagement.
26.
Turning to s.18(2)(b) of the 2010 Act, the Tribunal required, for the
purposes of that sub-section, to consider whether or not the Claimant was
discriminated against by being treated unfavourably because of illness suffered
by her as a result of her pregnancy. They appear to have had those provisions
in mind at paragraph 86. There they state:
“While the respondents maintained that the absence from work was
the real reason for dismissal and even accepting that, the Tribunal
could not accept that this was divorced from the fact of the claimant’s
pregnancy.” (Our emphasis)
27.
They then conclude that if the Claimant had not become pregnant her
employer’s attitude to her would not have changed, she would therefore not have
suffered workplace stress, she would therefore not have been absent from work
and she would therefore not have been dismissed. Thus:
“Underlying the eventual dismissal and at the root of it was the
claimant’s pregnancy.”
28.
It followed from that, according to the Tribunal, that the Claimant had
suffered discrimination. That is, the Tribunal adopted a causative approach to
the issue they had to determine. For the purposes of s.18(2)(b) they do not
appear to have rejected the Respondent’s explanation of their reason for
dismissing the Claimant. Indeed, as we note above, they appear to have been
content to proceed on the basis of a hypothesis that it could be accepted that
the Respondent’s reason for dismissing the Claimant was her long term absence
from work.
29.
The Tribunal considered the conflicting decisions by this Tribunal in
the cases of Larner and Fraser, to which we refer
below, and concluded that an employee’s failure to give notice of desired leave
dates
was not fatal to a claim for holiday pay in respect of leave not taken in the
year before the year in which employment is terminated. The award of holiday
pay was in respect of three weeks’ leave not taken in 2010. In making the
award, the Tribunal had regard to the fact that the Claimant had been absent
through illness from October 2010.
30.
Turning to SMP, although there was no claim for SMP included in the Claimant’s
form ET1 and although no such claim appears to have been made on her behalf at
the hearing, the Tribunal decided that she had been entitled to SMP, that it had not been paid to her in full (she had apparently received some payments directly
from the DWP) and that the balance amounted to unpaid wages. That was because
the definition of “wages” in section 27(1)(b) of the Employment Rights
Act 1996, includes SMP.
31.
The reason why the Tribunal considered that the Claimant was entitled to
SMP was that, in their view, the Claimant had not required to give notice in
writing to the Respondent of the three matters set out in reg 4 of the
1999 Regulations, that Ann Hendry had been told of the Claimant’s pregnancy
before the fifteenth week before her due date of confinement and that although
the Claimant had not advised anyone of the date she intended to start her
maternity leave, that did not matter, because reg 4(4)(a) provided an
exception to the reg 4(4)(1)(a)(iii) requirement. The Tribunal’s
conclusion thus seems to have been that timeous intimation of the date when the
employee intends her maternity leave to begin was not a pre-requisite to
entitlement either to the right to SML or, accordingly, to the right to SMP.
The Relevant Law
Statutory Maternity Leave and Statutory Maternity Pay
32.
Provided a woman in employment complies with the requirements of the Maternity
and Parental Leave Regulations 1999 (“the MPL Regulations”) she is entitled
to take maternity leave (“SML”)
and she may be entitled to receive maternity pay (“SMP”).
33.
Insofar as relevant, the MPL Regulations provide:
“4(1) An employee is entitled to ordinary maternity leave
…..provided that she satisfies the following conditions –
(a) no later than the end of the
fifteenth week before her expected week of childbirth, or, if that is not
reasonably practicable, as soon as is reasonably practicable, she notifies her
employer of –
(i) her pregnancy;
(ii) the expected
week of childbirth; and
(iii) the date on
which she intends her ordinary maternity leave period to start,
and
(b) if requested to do so by her
employer, she produces for his inspection a certificate from
(i) a registered medical
practitioner, or
(ii) a registered
midwife,
stating the expected date of
childbirth.
……………..
(2) Notification under paragraph (1)(a)(iii) …..
(a) shall be given in writing if the
employer so requests……
……………
6(1) Subject to paragraph (2), an employee’s ordinary maternity
leave period commences with the earlier of –
(a) the date which ………she notifies to
her employer in accordance with regulation 4 as the date on which she intends
her ordinary maternity leave period to start…….and
(b) the day which follows the first
day after the beginning of the fourth week before the expected week of
childbirth on which she is absent from work wholly or partly because of
pregnancy.
(2) Where the employee’s ordinary maternity leave period has not
commenced by virtue of paragraph (1) when childbirth occurs, her ordinary
maternity leave period commences on the day which follows the day on which
childbirth occurs.”
34.
Thus, maternity leave normally starts on the date provided by the
employee to her employer. If, however, she is absent from work wholly or
partly because of her pregnancy at any time during the four week period prior
to her due date of confinement, her maternity leave must start from that date.
That will be so irrespective of whether the date previously intimated by her as
her chosen start date is later than that. For example, if her due date of
confinement is 1 March and she has intimated to her employer that she
intends to start her maternity leave on 14 February but then she is absent
due to pregnancy related illness on 7 February, her maternity leave starts
from that date. Similarly, if childbirth occurs earlier than the date
intimated to her employer as the start of her maternity leave, the same
approach applies. Thus, if, for example, she has intimated to her employer
that she intends her maternity leave to begin on 14 February but her baby
is born early, on 1 February, her maternity leave will start on
2 February irrespective of her intimated start date. Reg 6 does not
provide an exception to the requirement for a woman to give notice under
reg 4(1)(a)(iii) of the date she intends to start her maternity leave. It
does not mean that an employee who fails to comply with that requirement to
give notice gets the benefit of a ‘second bite at the cherry’ in the
circumstances referred to in reg 6(1)(b) and (2). Rather, these
provisions give the employer the benefit of there being imposed on the employee
a start date earlier than that which she previously chose if she is absent
through pregnancy related illness within four weeks of her due date of
confinement or gives birth earlier than that intended date.
35.
We turn to the matter of SMP. Since April 2005, overall responsibility
for the administration of SMP has been with Her Majesty’s Revenue and Customs
(“HMRC”). The responsibilities passed to HMRC included those formerly
conferred on the Board of the Inland Revenue under the Statutory Sick Pay
and Statutory Maternity Pay (Decisions) Regulations 1999 (“the 1999
Regulations”) the provisions of which include:
“2. – (1) An application for the determination of any issue
arising as to, or in connection with, entitlement to statutory sick pay or
statutory maternity pay may be submitted to an officer of the Board by –
………..
(b) the employee concerned.
(2) Such an issue shall be decided by an officer of the Board
only on the basis of such an application or on his own initiative.
3.– (1) An application for the determination of any issue
referred to in regulation 2 above shall be made only in writing, in a form
approved for the purpose by the Board, or in such other manner, being in
writing, as an officer of the Board my accept as sufficient in the
circumstances.
(2) Where such an application is made by an employee, it shall –
(a) be delivered or sent to an office
of the Board within 6 months of the earliest day in respect of which
entitlement to statutory sick pay or statutory maternity pay is in issue;
(b) state the period in respect of
which the entitlement to statutory sick pay or statutory maternity pay is in
issue; and
(c) state the grounds ( if any) on
which the applicant’s employer has denied liability for statutory sick pay or
statutory maternity pay in respect of the period specified in the application.”
36.
The 1999 Regulations were considered by this Tribunal in the case of Taylor
Gordon & Co Ltd v Timmons UKEAT/ 0159/03/RN where a tribunal had
decided that there had been an unlawful deduction from wages because, in their
assessment, the employee had been entitled to statutory sick pay which he had
not received. Mr Recorder Luba QC concluded that the tribunal had had no
jurisdiction to do so:
“43. I am quite satisfied that the submissions made by Mr Brennan
for the Appellant Company are correct. An analysis of the statutes and
regulations relating to SSP shows that the appropriate authorities for the
determination of disputes as to entitlement are the statutory authorities, i.e.
the officers of the Board of the Inland Revenue (and on appeal the
Commissioners). The jurisdiction they have is, in my view, an exclusive or
exhaustive jurisdiction. I accept the submission that the inference to be drawn
from the words of section 8(1) of the 1999 Act is that that Act prescribes
a complete code for the determination of such disputes. I further accept the
submission that it would lead to potential inconsistency and otherwise
unsatisfactory consequences if first instance decisions on entitlement to SSP were to be made by Employment Tribunals rather than by the single statutory authority, the
Board of the Inland Revenue. The possibility for inconsistency in
decision-making is obvious and it is highly unlikely that the legislature
envisaged that there would be two parallel schemes under which disputes as to
entitlement to Statutory Sick Pay might be resolved.
44. Accordingly, I find that the Tribunal Chairman erred. He
had no jurisdiction to entertain this employee’s complaint that he was not
being paid his Statutory Sick Pay.”
37.
We note that the respondents sought a review of the tribunal’s decision
and one of the grounds on which they did so was that the tribunal had erred in
determining the claimant’s entitlement to SMP as they had no jurisdiction to do
so. The tribunal did not accept those submissions. One of the reasons they
gave was that the 1999 Regulations “….did not enable an appointed officer of
the Board to make an award against the particular employer in the way in which
a Tribunal can issue an enforceable award.”
However, a compulsitor does exist. Under and in terms of s.113A(6) of Social
Security Administration Act 1992, an employer who refuses to pay SSP or SMP after the appointed officer has made a decision, is liable to suffer a penalty up to a
current maximum of £3,000. On the issue of jurisdiction, we agree with
Recorder Luba QC. For the reasons he gives, it seems plain that Parliament
cannot have intended that HMRC’s jurisdiction be other than an exclusive one.
Further, we cannot see that any distinction fall to be drawn between SSP and SMP. The code for determination of disputes must apply as much to SMP as it does to SSP and it is one which excludes the jurisdiction of the Employment Tribunal.
We would add that the fact that, for the purposes of considering whether or not
there has been an unlawful deduction from wages the term “wages” is defined by
the 1996 Act as including SMP does not show that jurisdiction exists. It means
that an issue as to whether or not an employee did in fact receive SMP from her employer can be decided by an Employment Tribunal. It does not, however, mean that
the separate issue of whether or not, under the relevant social security
legislation, a woman was in fact entitled to SMP in the first place, can be
decided in that forum.
Equality Act 2010 (“the 2010 Act”)
38.
As we have already observed, the Tribunal required to apply the
provisions of sections 18 and 136 of the 2010 Act, the provisions of
which, insofar as relevant, are:
“18 – Pregnancy and Discrimination: Work cases
(1) This section has effect for the purposes of the application
of Part 5 (work) to the protected characteristic of pregnancy and maternity.
(2) A person (A) discriminates against a woman if, in the
protected period in relation to a pregnancy of hers, A treats her unfavourably
–
(a) because of the pregnancy, or
(b) because of illness suffered by
her as a result of it.
……
136 Burden of Proof
(1) This section applies to any proceedings relating to a
contravention of this Act.
(2) If there are facts from which the court could decide, in the
absence of any other explanation, that a person (A) contravened the provision
concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did
not contravene the provision.”
39.
The term “court” includes the Employment Tribunal.
40.
In Martin v Lancehawk Ltd UKEAT/0525/03 Rimer J, as he
then was, considered the relevant predecessor provisions of the Sex
Discrimination Act 1975 and reviewed the authorities. Having done
so, at paragraph 12, he observed that the critical issue that a tribunal
required to consider, when determining whether or not a woman was dismissed “on
the ground of her sex”, was “why” the woman was dismissed and at
paragraph 22, he said that it was “essential to enquire why the
employer acted as he did” because once answered, that question “will usually
show whether or not there has been any unlawful discrimination”. These
observations can, we consider, equally be applied to the provisions of
section 18(2) of the 2010 Act. It follows that it is not enough to show
that there is a causal chain linking the employee’s pregnancy and her
dismissal. It must also be shown that the employer’s reason for dismissing the
woman (conscious or unconscious) was either her pregnancy or an illness
suffered as a result of her pregnancy.
Holiday Pay
41.
Is a dismissed employee entitled to holiday pay for leave which she
could but did not take (or request) in the leave year prior to that in which
she was dismissed? If such an employee was prevented from taking her paid
annual leave because she was sick, the answer is now clear; she is entitled to
receive payment on termination of her employment for the paid annual leave
which she had, for that reason, been prevented from taking: NHS Leeds v
Larner [2012] EWCA Civ 1034 in which Mummery LJ, at paragraph 1,
stated the issue under consideration by the Court of Appeal as being:
“In what circumstances is a worker, who has not taken paid
annual leave in the relevant leave year because of absence from work on
long-term sick leave, entitled to a payment in lieu?”
Furthermore, her entitlement does not depend on whether or not
she has given notice under reg 15 of the Working Time Regulations 1998.
42.
In Larner, the Court of Appeal resolved the doubt that had
arisen as to what was the correct answer to that question: Fraser v Southwest London St George’s Mental Health Trust UKEAT/0456/10; NHS Leeds v
Larner [2011] UKEAT/0088/11. The ratio of Larner
does not, however, apply where the employee was not prevented from taking her
paid annual leave by sickness. Counsel for Ms Larner conceded in the Court of
Appeal that where a sick worker recovers and returns to work a reg 15 notice be
served to trigger the leave entitlement (paragraph 87). The circumstances in Larner
were that claimant had been absent due to sickness for the whole of the
previous leave year. Mummery LJ seems to have proceeded on the basis that the
concession was correct. The position thus seems to be that if the worker or
employee was at work during the relevant leave year for a period which at least
matched her annual leave entitlement and had not requested leave during that
period, then no entitlement to holiday pay arises after the end of that leave
year.
The Appeal
Entitlement to SMP/SML
43.
Mr Limpert had two submissions in relation to SMP and SML. First, the Tribunal were wrong to make an award of SMP. They had no jurisdiction
to determine whether or not the Claimant was entitled to it or indeed whether
or not she was entitled to SML. Even if they did have jurisdiction, their
interpretation and application of the relevant provisions of the MPL Regulations
was erroneous; they failed to take account of the fact that the Claimant’s
contract required her to give written notification of the three matters
specified in reg 4(1) and they misunderstood reg 6 which did not
provide an exception to the rule about notification. Secondly, since they had
no jurisdiction to determine these issues, the Tribunal had erred in
approaching their determination of the discrimination issue on the basis that
the Respondent had wrongly denied the Claimant SML and SMP. That had been a
key issue in their thinking when determining whether or not there had been
discrimination.
44.
In common with all his submissions, Mr Moffat’s response on this
matter was very limited, very brief and failed to engage with the points at
issue. He suggested that the reference in the narrative part of
paragraph 5.2 in the Claimant’s ET1, to the Claimant having been informed
that she was not entitled to SMP and SML amounted to a claim for SMP and, that being so, the Tribunal were entitled to determine it. He did not make any
submissions in respect of the Taylor Gordon case save to state
that it concerned a claim for SSP not SMP. He said he could not give any
specific reason as to why we should depart from the reasoning of Recorder Luba
QC.
Sex Discrimination
45.
The Tribunal had failed to address and answer the question of why the Respondent
dismissed the Claimant in circumstances where it had been made clear that they
said that the reason was her long term absence from work. It was not enough
that they had determined that there were circumstances which were indicators of
discrimination. The Respondent had provided a non-discriminatory explanation
but the Tribunal did not deal with that.
46.
Mr Limpert referred to the fact that one of the matters that had
influenced the Tribunal when deciding the discrimination issue was that the Respondent
had denied the Claimant’s request to adjourn the disciplinary hearing.
However, on their own findings and a consideration of the letters referred to,
she had not made a request for adjournment. This point was not pressed by Mr
Limpert and he was, we think, right not to do so. Whilst one reading of the
letters supported the view that no adjournment was actually sought, the sense
of the correspondence does seem to have been to the effect that the Claimant
was looking for the hearing to be at a later date and one of which she would be
given fourteen days notice.
47.
Mr Limpert also referred to the Tribunal having approached matters
on the basis that Mr Clelland knew of the Claimant’s pregnancy prior to
January 2011 but there was no evidence on which that finding could be based.
48.
Mr Moffat submitted that the Tribunal were entitled to conclude as
they did, on the evidence before them. He did not address the specific issues
raised.
49.
Regarding the adjournment point, nothing, he said, turned on that.
Holiday Pay
50.
Mr Limpert submitted that the Tribunal had fallen into error. They
had misdirected themselves as to the relevant law. Whilst the Court of Appeal
in Larner had decided that where an employee is unable to take
annual leave because sickness has prevented them from doing so, they are
entitled to holiday pay when their employment is terminated, this was not such
a case. The Claimant began working for the Respondent in March 2010 and had
had time available to her when she was not sick during which she could have,
but did not, take annual leave.
51.
Mr Moffat submitted that the Tribunal had properly directed
themselves. They had been entitled to rely on the Court of Appeal’s decision
in Larner.
Perversity
52.
Mr Limpert submitted that there were perverse features to the Tribunal’s
judgment. First, there was, he said a contradiction between the Tribunal
approaching matters on the basis that the Claimant had become unwanted once she
had become a “spanner in the works” because, given that she had not given the
requisite notice to entitle herself to SML, she would not be absent from work
due to pregnancy. He referred to the Tribunal having said that they were not
sure why the reminder notes were referred to in the evidence but their purpose
had been explained during the evidence. He finally relied on the Tribunal
having proceeded on the basis that Mr Clelland knew of the Claimant’s
pregnancy despite their own findings about the rarity of his visits to the
salon.
53.
Mr Moffat said there was nothing wrong with a manager wanting to
step back from direct involvement. On being specifically asked about the
matter, he accepted that the knowledge of a manager is not the same as the
knowledge of a corporate employer, but it was, he said, inconceivable that
Ms Hendry had not told Mr Clelland about the Claimant’s pregnancy.
He did not, however, point to any finding in fact that she had done so or to
any reference by the Tribunal to there having been evidence to that effect.
Discussion and Decision
54.
We are readily persuaded that we should uphold this appeal.
55.
The following were essential building blocks in the Tribunal’s
reasoning: (i) that the Respondent had wrongly denied that the Claimant’s
illness was “workplace” stress; (ii) that the Respondent had falsely denied
having knowledge of the Claimant’s pregnancy prior to receipt of the form MATB 1 in January 2011; (iii) that, based on that false denial, the Respondent denied that the Claimant
was entitled to SML when she was so entitled; (iv) that based on that false
denial, the Respondent denied that the Claimant was entitled to SMP when she was so entitled.
56.
However, regarding (i), on their own findings, the Respondent did not
deny that the Claimant was ill and that her illness was stress related. What
was not accepted was that the cause of that illness was the workplace.
57.
Regarding (ii) the Tribunal imputed Ann Hendry’s knowledge to
Mr Clelland. They erred in so doing. She was not the ‘mind’ of the
company; there are no findings that she was a director. Nor were there any
findings to the effect that she told Mr Clelland that the Claimant’s
pregnancy had been confirmed or that he was present when she showed the image
of her scan to other employees – to the contrary, they found that he was rarely
at the salon.
58.
Regarding (iii), for the reasons we explain above, the Tribunal had no
jurisdiction to determine whether or not the Claimant was in fact entitled to SMP. We also conclude that the Claimant was required by her contract of employment to give
notice in writing to her employer of the three matters referred to in
reg 4(1) of the MPL Regulations; its terms are plainly to that effect.
The Tribunal were, accordingly, in error in proceeding on the basis that the Claimant
did not have to give written notice. Further, we consider that they fell into
error in their analysis of reg 6 of the MPL Regulations. The correct
interpretation of those provisions is, we consider, as explained in the
“Relevant Law” section above. They cannot be relied on so as to relieve an
employee of the consequences of not having given timeous notification.
Regarding (iv) the same considerations apply.
59.
We are satisfied that these matters were regarded as so fundamental to
the Tribunal’s reasoning that their conclusion that the Claimant was
discriminated against cannot stand. Further, their conclusion that the claim
was well founded insofar as based on section 18(2)(a) was not, on their
findings, open to them at all. The reason for that is that to discriminate
against a person because of their pregnancy, the alleged discriminator requires
to have knowledge of the pregnancy and, as we have explained in paragraph 57
above, the Tribunal were not entitled, on their findings in fact, to conclude
that Mr Clelland had the requisite knowledge.
60.
We would add that we cannot be satisfied that the Tribunal actually got
to the stage of addressing section 136(3) certainly in relation to the
section 18(2)(b) part of the claim. Whilst it seems clear that they considered
that there were factors from which an inference of discrimination could be
drawn, the Respondent’s explanation that the dismissal was simply because of
long term absence is not dealt with. In particular, it is not rejected as, for
instance, lacking in credibility or reliability.
61.
Turning to holiday pay, the Tribunal’s award cannot, we consider, stand
either. Whilst their approach to the issue of whether or not an employee who
is wholly absent from work on account of sickness must give notice of leave
dates so as to secure a right to holiday pay if the employment comes to an end
is correct, this was not a case where, throughout the leave year in respect of
which the award was made, the Claimant was unable to take annual leave due to
sickness. On the Tribunal’s findings in fact, there were almost seven months
available to her during which she was not unable to take leave due to sickness
absence but did not do so. Thus, we agree with Mr Limpert that Larner
did not apply.
Disposal
62.
We will pronounce an order upholding the appeal. We have given careful
consideration to the question of whether or not we are able to determine the
Claimant’s claims rather than order a remit. Whilst, once the Tribunal’s
erroneous considerations are removed from their list of factors pointing to
discrimination, that which is left would appear to be but a thin case, it would
not be appropriate for us to decide whether the necessary discriminatory
inference can be drawn. There is also the problem of proper consideration not
having been given to the Respondent’s explanation of the reason why they
dismissed the Claimant. In these circumstances, we are satisfied that there
does require to be a remit and also that, in all the circumstances, it ought
not to be to the same tribunal. Our order will, accordingly, provide for a
remit to a freshly constituted Employment Tribunal.
