Cromwell Garage Ltd v Doran

In pregnancy and maternity discrimination cases, the claimant need only provide evidence from which discrimination could be inferred. The burden then passes to the employer to prove the reason for the treatment or dismissal. An Employment Appeal Tribunal should not second-guess factual findings or inferences unless the decision is perverse.

For injury to feelings, medical evidence is not essential, although evidence of distress may assist. An award within the appropriate Vento band will rarely be disturbed merely because the appellate tribunal might have selected a different figure within that band.

Mrs Doran brought claims of unfair dismissal, automatic unfair dismissal connected with pregnancy or maternity leave, and direct sex discrimination after returning from maternity leave. The Employment Tribunal found that gender-related comments, the timing of disciplinary proceedings, and proposed changes to her working arrangements established facts capable of supporting discrimination. It rejected the employer’s explanations and awarded compensation, including £12,000 for injury to feelings.

Cromwell Garage Ltd appealed, challenging the burden of proof, the factual findings and inferences, the connection between dismissal and maternity, and the amount awarded.

1. Appeal dismissed. The Employment Tribunal had ample cogent material from which discrimination could be inferred. The employer’s comments about pregnancy, women combining work and family life, and the timing of the disciplinary proceedings were sufficient to shift the burden of proof.
2. Following Kuzel v Roche Products Ltd, where a claimant asserts a competing pregnancy- or maternity-related reason, the claimant must produce evidence capable of supporting that inference, but the employer remains responsible for showing the reason for dismissal. The Tribunal was entitled to reject the employer’s explanations as unpersuasive and incredible.
3. The Employment Tribunal’s findings on causation and inference were matters for it as the fact-finding tribunal. The high threshold for perversity identified in Yeboah v Crofton was not met. The chronology and the relationship between the disciplinary process and the return from maternity leave provided a proper evidential basis for the conclusions.
4. Ordinary unfair-dismissal considerations under section 98 did not determine liability where dismissal was found automatically unfair under section 99 or discriminatory under section 3A of the Sex Discrimination Act 1975.
5. Medical evidence is not a legal prerequisite to an award for injury to feelings. The claimant’s evidence, together with evidence of depression and distress, was sufficient. The award fell within the middle Vento band, as adapted in Da’bell v National Society for Prevention of Cruelty to Children, and was not manifestly excessive.

• Employment Appeal Tribunal: dismissed the employer’s appeal from the reserved judgment of the Employment Tribunal, registered with reasons on 13 April 2010.