Pimblett and Sons Ltd v Owen

Permission to appeal requires both a question of law arising from the tribunal’s decision and a real prospect that the appeal will succeed. An appellate tribunal need not remit a case merely because the employment tribunal omitted a specific factual finding, where its existing findings make that issue immaterial to the result.

For constructive dismissal, an employee may rely on a genuine and reasonable belief induced by what the employer’s representatives said; the tribunal need not find that the employer’s policy existed in precisely those terms. The constructive dismissal of a pregnant employee may constitute direct sex discrimination where pregnancy was the effective reason for the dismissal. No comparison with a man is required.

Mrs Angela Owen brought claims for constructive unfair dismissal, sex discrimination and disability discrimination against her former employer, Pimblett and Sons Ltd. Her claims arose after she was absent with tenosynovitis and could not undergo the proposed operation because she was pregnant.

The Employment Tribunal upheld all three claims and awarded compensation of £7,283.22. The Employment Appeal Tribunal dismissed the employer’s appeal. The employer renewed its application for permission to appeal, arguing that the tribunal had failed to resolve whether dismissal after 26 weeks was the employer’s policy and what proportion of Mrs Owen’s duties involved heavy lifting.

The central issues were whether those omissions raised arguable questions of law with a real prospect of success, and whether the tribunal had properly addressed constructive dismissal, direct sex discrimination and disability discrimination.

1. Application refused. The employer failed to show a question of law arising from the Employment Tribunal’s decision with a real prospect of success before a full court.
2. On constructive dismissal, the tribunal found that Mrs Owen genuinely and reasonably believed that she had been told that employees absent through illness would normally be dismissed after 26 weeks. That finding was sufficient. The tribunal was not required to determine whether the representatives had in fact stated that the policy existed in those terms. The belief was objectively connected with what the employer’s representatives had said and was not merely subjective.
3. The tribunal was entitled to find direct sex discrimination. A pregnant woman is directly discriminated against where she is expressly or constructively dismissed and pregnancy is the effective reason for dismissal. No comparison with a man is required. The fact that illness might also have kept a man away from work did not answer the pregnancy-based reason why Mrs Owen could not obtain treatment and return to work.
4. The alleged failure to determine whether heavy lifting represented 10 per cent or 60 per cent of Mrs Owen’s duties did not raise a question of law requiring remission. The tribunal had found that the employer adopted a rigid approach, required Mrs Owen to be completely fit, failed to consider adjustments to her daily tasks, and acted contrary to the medical evidence. The omitted detail could not affect the outcome on those findings.
5. The tribunal had correctly directed itself on constructive dismissal by reference to Western Excavating (EEC) Ltd v Sharp. Lord Justice Sedley agreed with Lord Justice Mummery’s judgment.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was refused.
• Employment Appeal Tribunal: The employer’s appeal against the Employment Tribunal’s decision was dismissed. The judgment was sent to the parties on 1 May 2002.
• Employment Tribunal, Liverpool: The claims for constructive unfair dismissal, sex discrimination and disability discrimination were upheld, with compensation of £7,283.22. Extended reasons were sent on 8 February 2001.