Caselaw@GLC
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Appeal No: EAT/637/01
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APPEARANCES
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For the Appellants |
Mr K R W Hogg, Solicitor |
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For the Respondent |
Mr I Nisbet, Solicitor |
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.