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27/11/1998

Abbey National Plc v. Ms Elvira Formoso

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Employment Appeal Tribunal

Sex discrimination existed where the employee was prevented from defending herself at a disciplinary hearing due to absence for pregnancy.
 
An appeal by the employer Abbey National against a liability decision on 29 August 1997 and the subsequent remedies hearing on 5 November 1997 at a Leeds Tribunal of the respondent employee's complaint of unlawful sex discrimination. The respondent had been employed by National Provisional Bank ('NP') from 5 September 1994. The respondent was awarded £12,043 for loss of past and future earnings and £5,000 damages for injury to feelings. She was dismissed on 31 July 1996 which was before she had completed two years' service and just before a merger between NP and the Abbey National. At the time of her dismissal the respondent had been on maternity leave. She had been offered another job in October 1995 and had spoken to her manager, Mr Holt, about it. She met him for a drink and he persuaded her to stay with NP. Another member of staff subsequently told a meeting that the respondent had claimed that the meeting with Mr Holt had gone further than a drink and that Mr Holt had suggested that they book into a hotel room together. Mr Holt spoke to the respondent about that rumour and she denied any knowledge of it. The allegation caused the respondent nervous anxiety and her doctor gave her a sick note. The respondent was pregnant at the time. Whilst she was off sick Mr Holt conducted an investigation into the allegations, but as he was personally involved Mr Hogarth took over the investigation. The respondent wrote to NP indicating that she wished to commence maternity leave on 22 July 1996. Mr Hogarth asked the respondent to attend a disciplinary hearing. The respondent's doctor advised that the respondent was unfit to attend the hearing and was likely to remain so until after her maternity leave. The hearing took place without the respondent and she was dismissed for gross misconduct. It was submitted on appeal that the tribunal had not addressed the question as to whether the pregnancy was the cause of her dismissal.

HELD: (1) The tribunal had taken a pragmatic approach in applying the principles in O'Neill v St Thomas More School (1996)IRLR 372 in finding that the pregnancy was an effective cause of the disciplinary hearing which had led to the dismissal, and that the pregnancy need not have been the sole cause. In extending the European Court of Justice ruling in Brown v Rentokil Ltd (1998) IRLR 445 sex discrimination existed where the employee was prevented from defending herself at a disciplinary hearing due to absence for pregnancy. The tribunal was entitled to have found that the employee had suffered a detriment for a pregnancy related reason. (2) In assessing special damage the tribunal had correctly applied the loss of chance principle in Ministry of Defence v Cannock (1994) ICR 918. However, the tribunal had applied the test of whether a reasonable employer, instead of whether this employer, would have dismissed the employee for misconduct had she not been pregnant and had attended the disciplinary and appeal hearings. A discriminatory dismissal was akin to the question posed in Polkey v A E Dayton Ltd (1988) ICR 142 and the chances of whether the complainant would have been dismissed had a fair procedure been followed should have been considered. Therefore, the case was remitted for rehearing solely on the assessment of loss of chance of the employee retaining her employment had there been no discrimination.

Appeal on liability dismissed. Appeal on damages allowed and remitted solely on the issue of loss of chance.

[1999] IRLR 222

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