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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lyons v DWP Jobcentre Plus (Sex Discrimination : Direct) [2014] UKEAT 0348_13_1401 (14 January 2014) URL: https://www.bailii.org/uk/cases/UKEAT/2014/0348_13_1401.html Cite as: [2014] UKEAT 348_13_1401, [2014] UKEAT 0348_13_1401, [2014] ICR 668 |
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At the Tribunal | |
Before
THE HONOURABLE MRS JUSTICE COX DBE
MR C EDWARDS
MR T STANWORTH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR DANIEL SILLS (of Counsel) Instructed by: Islington Law Centre 38 Devonia Road Islington London N1 8JH |
For the Respondent | MR SAUL MARGO (of Counsel) Instructed by: TSOL Employment Group 1 Kemble Street London WC2B 4TS |
SUMMARY
SEX DISCRIMINATION
Direct
Pregnancy and discrimination
The Claimant appealed against the Employment Tribunal's dismissal of her complaints of direct sex discrimination and/or pregnancy and maternity discrimination under ss. 13 and 18 of the Equality Act 2010. She was dismissed for periods of absence due to post-natal depression arising after her period of maternity leave ended and therefore outside the protected period. Consideration of the ECJ decisions in Hertz, Larsson and Brown v Rentokil and the EAT (Scotland) decision in Caledonia Bureau Investment v Caffrey (decided before Brown). The ET's decision to reject her claims was upheld.
A second ground of appeal concerned the ET's finding that there should be a Polkey reduction of 50%. The ET's decision was found to disclose no error and was also upheld.
THE HONOURABLE MRS JUSTICE COX DBE
Introduction
The relevant facts
The Tribunal's decision
(1) Unfair dismissal
"111. The Claimant's post-natal depression began in February 2010 although it was not diagnosed and treatment did not begin until July 2010. The diagnosis was of moderately severe post-natal depression. In the two months before she was due to start work (and had any contact with Ms Nawaz) she tried two different types of medication (Citalopram and Fluoxetine) but did not find them to be effective. The dosage varied between 20 and 40 mg.
112. At the beginning of November the Claimant's medication was changed to Amitriptyline (25 mg). In November the Claimant saw her GP on a number of occasions and complained about being stressed by the contact with Ms Nawaz and was diagnosed as suffering from anxiety. On 29 November the Claimant's GP wrote to the Respondent that her anxiety was being exacerbated by repeated requests from her line manager to keep them up to date. She also advised that the Claimant would benefit from some time to deal with her current problems. By the end of December the dosage of the Amitriptyline had been increased to 100 mg. There appears to be a correlation between the deterioration in the Claimant's condition at this time and the level and nature of the contact that Ms Nawaz had with her.
113. After 22 December Ms Nawaz had limited contact with the Claimant. On 14 January 2011 the Claimant told her GP that she felt that the Amitryptiline was helping and on the same day in the meeting with Ms Nawaz expressed for the first time an interest in returning to work and discussed it. Again, there appears to be a correlation between the improvement in the Claimant's condition and the diminution of the contact with Ms Nawaz.
114. The Claimant had a psychological assessment on 17 February and commenced therapy thereafter. Between February and July she had five sessions of therapy. She was last prescribed anti-depressants on 24 May 2011, when she was prescribed a month's supply. The Claimant's evidence was that she felt well enough to return to work in May 2011.
115. Having taken into account the above, we are satisfied that if Occupational Health advice had been sought earlier and if the face to face consultation had taken place earlier and Ms Nawaz had conducted the Keeping in Touch arrangements and the attendance review meetings fairly and properly, there is a likelihood, but not a certainty, that the Claimant would have been able to attempt to return to work earlier. Equally, if the face to face consultation with Occupational Health had been rescheduled and had taken place in early January, we are satisfied that there is a likelihood that the Claimant would not have been dismissed. Having carefully considered all the relevant factors and balanced them we considered that there was a 50% chance that the Claimant would still have been dismissed if the Respondent had acted fairly and reasonably."
(2) Discrimination
"Pregnancy/maternity discrimination
116 We concluded that by being subjected to the Respondent's Attendance Management procedures and by being dismissed for post-natal depression the Claimant was treated unfavourably for a pregnancy-related illness. However, such unfavourable treatment only amounts to discrimination under section 18 of the Equality Act 2010 if it occurs between the beginning of the pregnancy and the end of maternity leave. Section 3A of the Sex Discrimination Act 1975, which section 18 replaced, was enacted to give effect to the decisions of the ECJ on this issue. In this case, the unfavourable treatment of the Claimant took place after the end of her maternity leave and, therefore, it does not amount to discrimination under section 18.
Direct sex discrimination
117. The Claimant relies on the EAT decision in Caledonia which her counsel submits that we are bound to follow. The EAT distinguished that case from Hertz on the grounds that in Caledonia the pregnancy-related illness had arisen during the course of the maternity leave and had continued after the end of maternity leave whereas in Hertz it had arisen after the end of maternity leave. Caledonia was decided before Larsson and Brown v Rentokil.
118. In Larsson the pregnancy-related illness began before maternity leave started and continued during maternity leave and after the end of it. In that case the ECJ held that the Equal Treatment Directive did not preclude account being taken of the pre-maternity leave sickness absence when calculating the periods providing grounds for the dismissal and that it did not preclude dismissals which were the result of pregnancy-related illness, even where the illness arose during pregnancy and continued during and after maternity leave. Although in Brown v Rentokil the ECJ disapproved of the decision in Larsson insofar as it related to taking into account the absences due to pregnancy related illness before the start of maternity leave, it agreed that the absence after maternity leave must be taken into account in the same way [as] a man's absence in similar circumstances. It is, therefore, clear that European law does not make a distinction between pregnancy-related illness that arises during maternity leave and continues after the end of maternity leave and that which arises after the end of maternity leave. It is unlikely that the EAT in Caledonia would have reached the same conclusion had it been decided after the decisions in Larsson and Brown v Rentokil.
119. In those circumstances, we do not consider that we are bound to follow Caledonia and we rely on the ECJ cases decided subsequently that make it clear that the distinction made in Caledonia was not correct. We concluded that there was [no] direct sex discrimination."
The appeal
(1) Discrimination
Discussion
"13. Direct discrimination
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
…
(6) If the protected characteristic is sex—
(a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding;
(b) in a case where B is a man, no account is to be taken of special treatment
afforded to a woman in connection with pregnancy or childbirth."
"Pregnancy and maternity 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.
(3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave.
(4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.
(5) For the purposes of subsection (2), if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be regarded as occurring in that period (even if the implementation is not until after the end of that period).
(6) The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends—
(a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy;
(b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.
(7) Section 13, so far as relating to sex discrimination, does not apply to treatment of a woman in so far as—
(a) it is in the protected period in relation to her and is for a reason mentioned in paragraph (a) or (b) of subsection (2), or
(b) it is for a reason mentioned in subsection (3) or (4)."
"15. The Directive does not envisage the case of an illness attributable to pregnancy or confinement. It does, however, admit of national provisions guaranteeing women specific rights on account of pregnancy and maternity, such as maternity leave. During the maternity leave accorded to her pursuant to national law, a woman is accordingly protected against dismissal due to absence. It is for every Member State to fix periods of maternity leave in such a way as to enable female workers to absent themselves during the period in which the disorders inherent in pregnancy and confinement occur.
16. In the case of an illness manifesting itself after the maternity leave, there is no reason to distinguish an illness attributable to pregnancy or confinement from any other illness. Such a pathological condition is therefore covered by the general rules applicable in the event of illness.
17. Male and female workers are equally exposed to illness. Although certain disorders are, it is true, specific to one or other sex, the only question is whether a woman is dismissed on account of absence due to illness in the same circumstances as a man; if that is the case, then there is no direct discrimination on grounds of sex."
"It was precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 ….. provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. Article 10 of Directive 92/85 provides that there is to be no exception to, or derogation from, the prohibition of dismissal of pregnant women during that period, save in exceptional cases not connected with their condition: see, in this regard, Webb, [1994] ICR 770, 798, paras 21 and 22.
The Court then went on to spell out the law in clear terms, at paragraphs 23 to 27 as follows:
"23. In paragraph 15 of its judgment in Hertz, cited above, the Court, on the basis of article 2(3) of Directive 76/207, also pointed out that that Directive admits of national provisions guaranteeing women specific rights on account of pregnancy and maternity. It concluded that, during the maternity leave accorded to her under national law, a woman is protected against dismissal on the grounds of her absence.
24. Although, under article 2(3) of Directive 76/207, such protection against dismissal must be afforded to women during maternity leave ...Hertz, paragraph 15), the principle of non-discrimination, for its part, requires similar protection throughout the period of pregnancy. Finally, as is clear from paragraph 22 of this judgment, dismissal of a female worker during pregnancy for absences due to incapacity for work resulting from her pregnancy is linked to the occurrence of risks inherent in pregnancy and must therefore be regarded as essentially based on the fact of pregnancy. Such a dismissal can affect only women and therefore constitutes direct discrimination on grounds of sex.
25. It follows that articles 2(1) and 5(1) of Directive 76/207 preclude dismissal of a female worker at any time during her pregnancy for absences due to incapacity for work caused by an illness resulting from that pregnancy.
26. However, where pathological conditions caused by pregnancy or childbirth arise after the end of maternity leave, they are covered by the general rules applicable in the event of illness (see, to that effect, Hertz, paragraphs 16 and 17). In such circumstances, the sole question is whether a female worker's absences, following maternity leave, caused by her incapacity for work brought on by such disorders, are treated in the same way as a male worker's absences, of the same duration, caused by incapacity for work; if they are, there is no discrimination on grounds of sex.
27. It is also clear from all the foregoing considerations that, contrary to the Court's ruling in Case C-400/95 Larsson v Føtex Supermarked [1997] ECR I-2757, paragraph 23, where a woman is absent owing to illness resulting from pregnancy or childbirth, and that illness arose during pregnancy and persisted during and after maternity leave, her absence not only during maternity leave but also during the period extending from the start of her pregnancy to the start of her maternity leave cannot be taken into account for computation of the period justifying her dismissal under national law. As to her absence after maternity leave, this may be taken into account under the same conditions as a man's absence, of the same duration, through incapacity for work."
"Turning to the question of sex discrimination, which raises a wholly separate issue, Miss McLachlan, under reference particularly to [Hertz], submitted that, for the purposes of sex discrimination, if an illness which may have been consequent upon childbirth arose subsequent to the expiry of the period of maternity leave, then there were no grounds for any suggestion of discrimination on the basis of sex or gender because such was simply an illness, and it was to be presumed that a man who was suffering from obviously not a pregnancy-related illness but any other illness would be treated in precisely the same way by the employer. She recognised, however, that in [Webb] the European Court of Justice had held that dismissal of a woman on grounds of pregnancy constituted direct discrimination on grounds of sex if effected during the period of maternity leave.
Mr Murphy, for the applicant, seized upon this distinction and sought to argue that in the present case, since the illness, which was post-natal depression and therefore pregnancy-related, arose during the period of maternity leave, that was sufficient to exclude [Hertz] and was in any event consistent with a purposive approach to both the Equal Treatment Directive…and Council Directive 92/85/E.E.C. which deals with prohibition of the dismissal of female workers during the maternity leave period. He informed us that in Brown v Rentokil Ltd the House of Lords had apparently made a reference to the European Court of Justice against the background of this distinction, for clarification as to whether it was a valid one, which matter was as yet unresolved.
For present purposes, we are prepared to affirm that, in terms of the sex discrimination legislation, when a woman is dismissed by reason of an illness which is related to having given birth, or being pregnant, or both, which illness arises or emerges during the course of the maternity leave period albeit the dismissal takes place after the expiry of that period, it is still a discriminatory dismissal against a female, upon the basis that at the time of dismissal she suffered from an illness from which a man could not suffer, and thus she is being treated differently from her male counterparts. That is a classic definition of discrimination and, accordingly, the finding that the industrial tribunal has made will be upheld, albeit for these rather more elaborate reasons. This approach seems to us to be entirely in accordance with the general aims of protection being given to female employees consistent with their right to bear children."
"If as a result of the childbirth or the earlier pregnancy the woman suffers an illness which extends beyond the period of the maternity leave then the employer is entitled to take into account the absence after maternity leave and compare that period with any period of sickness of a man."
(2) Polkey
"The question is not whether the tribunal can predict with confidence all that would have occurred; rather it is whether it can make any assessment with sufficient confidence about what is likely to have happened, using its common sense, experience and sense of justice."
"The following principles emerge from these cases:
(1) In assessing compensation the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.
(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the Tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future.)
(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.
(4) Whether that is the position is a matter of impression and judgment for the Tribunal. But in reaching that decision the Tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.
(5) An appellate court must be wary about interfering with the Tribunal's assessment that the exercise is too speculative. However, it must interfere if the Tribunal has not directed itself properly and has taken too narrow a view of its role.
(6) The s.98A(2) and Polkey exercises run in parallel and will often involve consideration of the same evidence, but they must not be conflated. It follows that even if a Tribunal considers some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely.
(7) Having considered the evidence, the Tribunal may determine
(a) That if fair procedures had been complied with, the employer has satisfied it - the onus being firmly on the employer - that on the balance of probabilities the dismissal would have occurred when it did in any event. The dismissal is then fair by virtue of s.98A(2).
(b) That there was a chance of dismissal but less than 50%, in which case compensation should be reduced accordingly.
(c) That employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself, as in the O'Donoghue case.
(d) Employment would have continued indefinitely.
However, this last finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored."
"the post-natal depression seemed related to the strain of the new baby on her relationship with her partner, the accident when she was 8 months' pregnant, low self-confidence in [her]ability as a mother, social isolation, and OCD. She was put on a waiting list as a priority for Cognitive Behavioural Therapy."