Appeal No. EAT/0673/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT COURT NO 70, THE ROYAL COURTS OF JUSTICE
THE STRAND, LONDON WC2A 2LL

	At the Tribunal
	On 21 September 2001

Before
MR RECORDER LANGSTAFF QC
MS S R CORBY
MR P A L PARKER CBE

CARSHALTON COLLEGE	APPELLANT

MRS H MORRIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR P WARD
(Of Counsel)
Instructed by
Mr H Patel
Messrs Levenes
Solicitors
Bedford House
125-133 Camden High Street
London
NW1 7JR	

MR RECORDER LANGSTAFF QC

1.	This is a Preliminary Hearing in an appeal from the Employment Tribunal sitting at London South.  In Extended Reasons promulgated on 9 April 2001 the Tribunal upheld the employee’s complaints that she had been unfairly dismissed.  The dismissal was constructive because she had resigned and had been discriminated against on the grounds of her sex.  They ordered compensation of £2,320.

2.	We think with some hesitation in one respect that this appeal raises grounds which are properly arguable.  Not all the grounds are however arguable and for that reason we shall say a little more about the basis for our decision.

3.	The complaint in respect of unfair dismissal is arguably not clearly dealt with by the Tribunal.  At the end of paragraph 14, the Tribunal finds that the “constructive dismissal of the Applicant was automatically unfair under this section as well.”  No obvious conclusion had been reached previously in the decision that there had been a constructive dismissal about which the employee was entitled to complain.

4.	It is certainly arguable that in a position in which the employee was free to return to the contract she had enjoyed before taking maternity leave with all its terms and conditions unchanged there was no constructive dismissal under what was then section 79(2)(c) of the 1996 Act.

5.	The principal arguments however may relate to a complaint of discrimination on the ground of sex.  Two points were taken by Mr Ward.  First,he says that the complaint was put in the originating application as one of indirect discrimination.  It was only during the hearing that the possibility of direct discrimination arose.

6.	He submitted in accordance with the notice of appeal that the consequence of this was that the Respondent was caught by surprise and had only a luncheon break in which to prepare resistance to the new thrust of the discrimination claim.

7.	We do not think that there is any arguable point in this procedural ground.  It was open to Mr Ward as he freely admits to apply for an adjournment if there was any realistic possibility of there being further evidence needed to meet the new way in which the application was now being pursued.  He did not do so.  He told us that he might have wished to argue that there had been no detriment.  In fact he also told us that he did so.  He was unable to point with any specificity to any particular fact which was missing from the Employment Tribunal’s determination in consequence of the case having been approached initially as one of indirect rather than direct sex discrimination.
 
8.	Accordingly, we decline permission for the appeal to go forward on this point.  It follows that the grounds of appeal set out at (c) and (d) are in our view not to be pursued further.  We have, however, with some hesitation been persuaded that there may be an arguable point in respect of the Tribunal’s conclusions that there was direct sex discrimination.

9.	The central issue there is whether the Tribunal were entitled upon the facts which they found to conclude that the imposition of the term that the employee would consent to evening working was one which occurred because of her sex.  A distinction has to be made between the term itself which is sex neutral and its imposition which the Tribunal conclude in paragraph 11 was linked to the matters they there set out.  The issue is whether the findings of fact justify the conclusion to which the Tribunal there came.
  
10.	We think that the argument in respect of the 2 issues which we have identified as suitable for further consideration between the parties will take half a day.  We think the case is Category B.   Skeleton Arguments restricted to those issues should be exchanged together with photocopies of any cases to be relied upon no less than 14 days prior to the Tribunal hearing.  We do not think it necessary for any further direction to be given nor do we think it necessary that the notice of appeal should be amended merely that the further hearing take place in accordance with this judgment.