Caselaw@GLC









 

Appeal No: EAT/637/01
 
At the EMPLOYMENT APPEAL TRIBUNAL on 31 October 2001

 
Before:
THE HONOURABLE LORD JOHNSTON
 
MISS S B AYRE
DR W M SPEIRS
 
CALIFORNIA CAKE & COOKIE LTD
v
MRS MARGARET HAY

APPEARANCES

For the Appellants

Mr K R W Hogg, Solicitor
Of-
Messrs Allcourt
Solicitors
1 Carmondean Centre
Carmondean
LIVINGSTON EH54 8PT

For the Respondent

Mr I Nisbet, Solicitor
Of-
Govan Law Centre
47 Burleigh Street
GLASGOW G51 3LB

LORD JOHNSTON:

1. This is an appeal at the instance of the employer against the determination of the Employment Tribunal both that the respondent employee had been unfairly dismissed and also that she had been discriminated against in terms of the Sex Discrimination Act 1975, section 4. There was also a challenge to certain aspects of the monetary award.

2. For a number of years, the respondent had been employed as a supervisor with the appellants. In about the spring of 1999 the baking supervisor left and was replaced by a man called Scott Anderson. The appellants were required by their customers to appoint someone with the qualifications specified by them which resulted in the appellants having to pay Scott Anderson a salary considerably larger than was being paid to the respondent. She reacted by expressing her dissatisfaction with the state of affairs and sought a pay increase in April 1999. In the summer of that year she went on maternity leave with the matter not being resolved. Equal pay with Mr Anderson was not conceded by the respondents but eventually she was given a pay rise. However, on her return from maternity leave in February 2000, problems arose which are narrated by the Employment Tribunal, which ultimately led to her summary dismissal within a week of her returning to work.

3. The substance of the Employment Tribunal's decision is that her claim for a pay increase was properly to be regarded as a claim for equal pay in relation to the equal pay legislation and was, furthermore, a protected act in terms of the sex discrimination legislation and, in particular, section 4. They deal with this matter on pages 7 and 8 of their decision.

4. Against a background of that finding, the Tribunal went on to consider the circumstances surrounding the respondent's dismissal, into which they go in some depth before concluding on page 17 of their decision that it was not only unfair but also directed to the fact that she had brought a claim for equal pay and, thus, there was discrimination in respect of the protected act.

5. Mr Hogg, appearing for the appellants, attacked all three aspects of this decision. He submitted that the application for a pay increase should not properly be categorised as a claim for equal pay; that in any event it was false in terms of section 4(2), that the Tribunal had erred in law by categorising the act as a protected act. They had further erred in law by connecting those circumstances with the reasons for dismissal and, finally, had not properly assessed those reasons in the overall context, allowing their judgment to be coloured by their wrong conclusion in relation to the issue of a protected act in terms of equal pay.

6. By way of subsidiary points, Mr Hogg attacked the level of compensation for hurt feelings and also the award of loss of maternity pay.

7. In our opinion, a proper construction of section 4 of the Sex Discrimination Act 1975 does not require there to be a successful claim for equal pay, if that be the relevant context which was necessary to succeed, nor need it be necessarily correct, as long as it be categorised as such and not caught by subsection (2) with regard to motivation. That subsection is all- embracing and represents, in our opinion, not a wrong or incorrect claim but a false or improperly motivated claim which is a much different animal from simply a claim which might not succeed. By way of example, if an employee makes a complaint about discrimination during the currency of his or her employment to an Employment Tribunal which fails, that is still nevertheless a protected act as far as the future conduct of the employer in his relations with the employee is concerned. In other words, success for the claim in question is not the criterion to establish the protected act and we consider the same to be true in relation to section 4.

8. We consider the Tribunal were more than entitled to categorise the claim by the respondent for a wage increase as a claim for equal pay, having regard to the circumstances surrounding the new employee, even if he had different qualifications which might cause the claim to fail. Equally, we consider the Tribunal, as they obviously did, are entitled to resist the notion that the respondent was motivated by an improper motive. It is plain from their findings they consider that she was reacting in good faith with a genuine sense of grievance.

9. We also consider that the Tribunal were entitled to relate the causes or reasons for dismissal to the protected act, against the background, particularly, of the majority decision in Nagarajan v London Regional Transport [1999] IRLR 572. The majority view was that the connection does not have to be conscious provided an inference of such a connection can be drawn. Thus again, therefore, we would not criticise the reasoning of the Tribunal in this respect.

10. It follows also therefore we consider the Tribunal were entitled to reach the conclusions they did as to the basis for the employer's approach to the issue of dismissal and to categorise it in the circumstances as being both unfair and discriminatory for the reasons they give.

11. In these circumstances we consider the issues that were focussed by the Tribunal were evidential questions for them to determine and they had not misdirected themselves in law in reaching the conclusions they did.

12. We also consider there is no merit in either of the submissions relating to compensation. Under reference to Murray v Powertech (Scotland) Ltd [1992] IRLR 257, it is appropriate for the Tribunal to make an inference of hurt feelings even if the evidence in that respect is very limited. We do not consider in these circumstances the sum of £3,000 to be excessive.

13. Equally, we consider that the claim for loss of maternity pay was a natural result of the dismissal in fact and follows therefore as part of the claim.

14. In these circumstances and for these reasons this appeal will be dismissed.