The claimant was employed as a carer for the respondent’s disabled son. Initially the claimant was employed by the Local Authority but this changed with the respondent, reluctantly, becoming the employer. There were problems with attendance and her attention to a number of duties, eventually culminating in an act of what could properly be constituted as gross misconduct when she left the son unattended. The respondent claimed that it was at this time that she decided she was going to dismiss the claimant; nevertheless the claimant continued to care for her son for a further 2 weeks, by which time relations between the claimant and respondent deteriorated still further, resulting in an argument whereupon the claimant announced that she was pregnant. The respondent sought advice from the Local Authority and her solicitor and wrote the claimant a letter terminating her employment. The claimant claimed sex discrimination, alleging that she had been dismissed because she was pregnant. The Employment Tribunal found that the respondent had not decided to dismiss the claimant after the gross misconduct incident, because the claimant continued to work for her. There would have been no reason at all why the respondent could not have dismissed the claimant, such dismissal being within the claimant’s 12 months qualifying period, and thus ruling out any consequential claims at the ET. They found that conduct was not the true reason for the dismissal, the respondent failed to discharge the reverse burden of proof and thus the claimant was dismissed unfairly on the grounds of her pregnancy. They also considered the application of the Statutory Dismissal and Disciplinary Procedures, but decided that a breach of the DDP had no application due to the claimant’s short service.

The respondent appealed on 4 grounds, including misapplication of the law and whether the ET judgment was Meek complaint. The EAT pointed out that the ET had agreed that the credibility of the respondent was never an issue, in which case the inevitable conclusion was that the decision to dismiss was taken before the respondent knew of the claimant’s pregnancy and therefore the Sex Discrimination claim should fail. If the credibility of the respondent had been in doubt, the issue about when the decision to dismiss was taken required a clear determination with reasons. The judgment was not Meek compliant because it did not provide a coherent and intelligible explanation as to why the respondent’s case was rejected.

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Appeal No. UKEAT/0183/09/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25 November 2010

Judgment handed down on 17 December 2010

Before

HIS HONOUR JUDGE PETER CLARK

MRS A GALLICO

MR H SINGH

MRS C E ROBERTS (APPELLANT)

MISS T E CARLIN (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MR MATTHEW DORS (of Counsel)

Instructed by:
Messrs C Nicholls Solicitors
71 Fore Street
Bodmin
Cornwall
PL31 2JB

For the Respondent
MR JAMES PALMER (of Counsel)

Instructed by:
Messrs Ralph & Co Solicitors
20 Cliff Road
Newquay
Cornwall
TR7 1SG

**SUMMARY**

PRACTICE AND PROCEDURE

Bias, misconduct and procedural irregularity

Appellate jurisdiction/reasons/Burns-Barke

Perversity

Appearance of bias – relevance of statutory DDP non-compliance to a SDA pregnancy complaint – Meek compliance – perversity. Appeal allowed on Meek ground only and remitted to fresh Employment Tribunal for re-hearing.

**HIS HONOUR JUDGE PETER CLARK**

1. The parties before the Truro Employment Tribunal were Miss Carlin, Claimant, and Mrs Roberts, Respondent. We shall so describe them. We have before us for full hearing the Respondent's appeal against the judgment of an Employment Tribunal chaired by Employment Judge M J R Griffiths, sitting with Mrs P Trevarton and Mr P Little, promulgated with Reasons on 11 February 2009, following a 2 day hearing held on 15-16 January. By that judgment the Employment Tribunal upheld the Claimant's complaint of unlawful sex discrimination and adjourned the question of remedy.

**Background**

1. The Respondent's 18 year old son, Bobby, is severely disabled. He suffers from cerebral palsy: he requires 24 hour care. That care is provided by rotating carers funded by the Local Authority Social Services Department. The Respondent worked as an entertainer, often in the evening and at weekends.

1. We are told that originally the carers were employed directly by social services: however a change occurred following which the Respondent became the employer of the carers who looked after Bobby.

1. The Claimant commenced employment with the Respondent as one of Bobby's carers on 2 February 2007. It was the Respondent's case that from October 2007 issues arose over the Claimant's time-keeping, failure to complete her duties and failure to notify the Respondent of her absences. The Employment Tribunal observed that these were never sufficiently material to justify formal disciplinary action (para. 6). The Claimant's employment was subject to a written statement of terms and conditions in a form supplied by the Local Authority. The grievance procedure (para. 11) informed the Claimant that if she had a grievance she should discuss the matter with her employer (the Respondent) and under the heading 'Disciplinary Rules' (para. 12) the principles of 'ACAS disciplinary practice will be followed'. The Claimant did not sign at the end of the document to acknowledge that the terms there set out constituted her contract of employment.

1. The Employment Tribunal record that on 6 December 2007 a meeting took place between the Respondent and Claimant, attended by another carer, Jane Perring, who took notes of the meeting. The upshot was that the Claimant agreed to a 4-week trial period in order to resolve absence issues and to try to improve her attention to a number of duties. The Claimant told the Employment Tribunal that she agreed to the trial period in order to appease the Respondent, whom she felt was "getting at" her. We note from the written evidence of Jane Pickles, a community support co-ordinator employed by the Local Authority, admitted by the Employment Tribunal, that the Respondent had telephoned Ms Pickles on 4 December to say that she had been having a particularly difficult time with the Claimant and that after the meeting with the Claimant the Respondent reported the outcome; a 4-week monitoring period after which the position would be reviewed.

1. Thereafter matters improved, according to the Respondent, subject to the Claimant's sick absences about which there was, the Employment Tribunal found, a lack of evidence from the Respondent and Ms Perring, until Christmas Eve, 24 December, when the Claimant came to work in the morning (she was then staying in a caravan with her partner owned by the Respondent) got Bobby out of bed and then apparently left without informing the Respondent, who was herself ill in bed. The Employment Tribunal observed that if that is what happened the Claimant's actions could properly be considered as gross misconduct.

1. The Employment Tribunal record (para. 16) the Respondent's evidence that at that point she decided to dismiss the Claimant on the grounds of poor performance and gross misconduct. The Claimant nevertheless continued to care for Bobby over the Christmas and New Year period until 6 January (it is common ground that the Employment Tribunal's reference to 5 January is an error).

1. The Employment Tribunal found the following sequence of events then to have occurred:

"18. On 5 January, the Claimant was with her partner in the yard alongside the Respondent's premises. She and her partner had been living in a caravan owned by the Respondent on those premises, in an effort to improve her attendance. The Claimant, on seeing the Respondent and having just discovered that she was pregnant, so informed the Respondent. For reasons that are unclear, the quality of the discussion deteriorated and the Respondent stormed off. The Claimant asserts that the Respondent said to her that she would never work with Bobby again. The Respondent denied saying any such thing. The fact is, however, that she never returned to work for the Respondent because a very short time later Ms Perring telephoned to the Claimant and informed her that she was suspended. No reason was given for the suspension.

19. The Respondent then sought advice of the Local Authority Social Services Department and her solicitors. Consequent upon the advice that she received and her instructions to her solicitors, her solicitors wrote a letter to the Claimant on 8 January terminating her employment: it gave no reason for the termination. It also evicted her and her partner from the caravan."

**The Employment Tribunal decision**

1. Based on that factual background the Employment Tribunal directed themselves in accordance with the Court of Appeal guidance in Igen v Wong [2005] IRLR 258, to which the Judge referred during the hearing although not expressly in the Reasons, as to the burden of proof provisions in s63A Sex Discrimination Act 1975, as amended (SDA). The Employment Tribunal's self-direction is at para. 20, where they said this:

"20. Those are the facts. We directed ourselves to consider those facts in the following way. We are firstly to consider the evidence of the Claimant and decide whether or not there are facts which, in the absence of an explanation from the Respondent amount to a potential act of discrimination the grounds of the Claimant's sex. We are then to consider the Respondent's explanation for the events and decide whether or not, on the balance of probabilities, the explanation is sufficient to displace the potential discrimination."

1. The Employment Tribunal then record Mr Dors' 'helpful submission' (para. 21) that all the Respondent had to do was show that the reason for the dismissal was not the alleged discrimination (related to the Claimant's pregnancy) implying that unless the Respondent and her witnesses were lying their assertion that it was something else (the Claimant's conduct and performance) was sufficient to displace any findings the Tribunal might make on facts established by the Claimant.

1. Having recorded that submission the Employment Tribunal then turned their attention, looking at the scheme of their reasoning, to the application of the statutory dismissal and disciplinary procedures (DDP) and the contractual procedures (assuming the incorporation of the ACAS disciplinary procedures to be contractual); pointing out that although the Claimant had not completed 12 months continuous service (for the purposes of qualifying for 'ordinary' unfair dismissal protection under s108(1) ERA 1996) the Claimant was entitled to the protection of both statutory and contractual disciplinary procedures to ensure that an employer took the time and effort to properly consider any issues before taking a decision to dismiss. They also took into account (para. 24) the Respondent's lack of desire to become an employer; that was due to the change in arrangements by the Local Authority, which had previously employed the carers. Whilst expressing sympathy for the Respondent's position as a reluctant employer, that could not be used as a protection so as to prejudice the Claimant's proper statutory rights.

1. As to the submission by Mr Dors that a failure by the Respondent to comply with the statutory DDP ought not to undermine the Respondent's credibility, the Employment Tribunal observed (para. 23) that discrimination may be subconscious and that is why the Claimant was entitled to the protection of the statutory and contractual procedures.

1. Following that discussion the Employment Tribunal concluded that the reason or principal reason for the Claimant's dismissal was her pregnancy, a reason related to her sex (para. 25).

1. At para. 26 they said this:

"26. We do not find that the Respondent had decided to dismiss her on 24 December 2007. We are satisfied that at that date the Respondent had concluded that she would do something; but, in view of the nature of the misconduct we are satisfied that the decision to dismiss had not been made because the Claimant continued to work until the 5 January 2008. On the facts as we find them, there would have been no reason at all why the Respondent could not have dismissed the Claimant for gross misconduct on the 24 December; such dismissal would have been within the Claimant's 12 months qualifying employment and she would had no consequential claim to the Employment Tribunal for unfair dismissal. One of the reasons for our conclusion in this respect is that she was taking advice the Local Authority Social Services Department at this time."

1. Finally (para. 27) the Employment Tribunal reasoned that the fact that the dismissal letter from the Respondent's solicitor made no reference to either the Claimant's lack of performance or gross misconduct on 24 December encouraged the Employment Tribunal to find that that (conduct/performance) was not the true reason for dismissal.

**The appeal**

1. Following a preliminary hearing held before a division presided over by Slade J on 12 February 2010 the appeal was permitted to proceed to this full hearing on the basis that all 4 grounds of appeal raised in the Respondent's Notice were reasonably arguable for the reasons explained in the judgment given by Slade J on that day. Those 4 grounds, in headline terms are (1) bias (2) misapplication of the law (3) Meek-compliance, and (4) perversity. We shall deal with each in that order.

**Bias**

1. Mr Dors does not suggest actual bias on the part of the Employment Tribunal; rather that the Tribunal and in particular the Employment Judge gave the appearance of bias.

1. The test is that propounded by Lord Hope in Porter v Magill [2002] 2 AC 357, para. 103; would a fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that the Tribunal was biased? The test is objective; not the subjective view of the complaining party. The key, as Lord Steyn observed in Lawal v Northern Spirit [2003] IRLR 538, para. 14, is the public perception of the possibility of unconscious bias.

1. The material relied on by Mr Dors in the present case is not significantly in dispute between the parties (cf. Stansbury v Datapulse plc. It is common ground, based on the affidavit evidence, Employment Judge's notes of evidence and comments of the Employment Judge and both Employment Tribunal members, that the Claimant gave her evidence first on the first morning of the 2 day hearing. After her evidence was completed there was a 30 minute break whiles some copying was done. When the parties returned, just before the luncheon adjournment the Judge observed that the Respondent had 'a very steep hill to climb' and he suggested that Mr Dors have a talk with Mr Johnston over the short adjournment. Mr Johnston was not counsel, as the Employment Tribunal Reasons record, but the father of the Claimant's partner, who represented her at the hearing. The Judge's notes refer to those remarks as an 'indication only'. 'The Employment Tribunal can always change mind on hearing all the evidence.' Over the short adjournment no settlement was reached between the parties. When the parties returned the Judge's notes show that Mr Dors asked what had caused the earlier indication by the Judge. His response was to refer to the Igen v Wong principles as to the reverse burden of proof, the Claimant's oral evidence and the chronology of events and letter of dismissal written by the Respondent's solicitor. We note that the Respondent waived legal professional privilege and put in evidence a letter written by the Respondent's solicitor, Mr Parsons, to the Respondent on 9 January (the date of the dismissal letter) following a consultation held the previous day.

1. The parties left to discuss a possible settlement and on their return Mr Dors indicated that no agreement had been reached; the Respondent was confident and wished to continue, to which the Judge responded with words to the effect 'let's hope they don't rue the day', a comment which his colleague, Mr Little, describes in his observations as 'somewhat inappropriate'. The matter then proceeded. In addition to the Respondent herself, Mr Dors called Ms Perring and the Respondent's son, Alan Fisher.

1. It seems that the evidence was completed just before lunch on the second day. At that point, the Judge indicated that the Employment Tribunal would give their judgment immediately after the short adjournment. Mr Dors pointed out that he wished to address the Employment Tribunal in closing. The Judge said that the Employment Tribunal would hear closing speeches after the adjournment. Mr Dors then addressed the Employment Tribunal; Mr Johnston, it appears from the Judge's notes, made no submissions. The Employment Tribunal then stated their conclusion that pregnancy was the reason for dismissal and reserved their reasons.

1. On these facts Mr Dors submits that the fair-minded observer would conclude that there was a real possibility that, before hearing the Respondent and her witnesses, the Judge had a closed mind; unlawful discrimination related to the Claimant's pregnancy had taken place. It was not simply that the Judge had given an indication that the Respondent had a very steep hill to climb; she should try to reach a settlement with the Claimant which would necessarily involve paying the Claimant a sum of money. That was a view reached before hearing any evidence from the Respondent's side. When no agreement was reached the Judge made the 'rue the day' comment and, after the evidence was complete, anticipated giving the Employment Tribunal's judgment without hearing closing submissions from the parties, until asked to do so by Mr Dors.

1. In support of that submission Mr Dors relied on the approach of Lady Smith in Chris Project v Hutt (UKEATS/0065/05/RN, 6 April 2006). In that case the EAT held that an Employment Judge's observation, before hearing any evidence at a remedy hearing, to the Respondent's representative that 'you have an uphill struggle here' was sufficient to give the appearance of a closed mind against the Respondent; thus satisfying the Porter v Magill test for the appearance of bias. We note, at para. 22, Lady Smith's observation that such a comment by the Judge may given rise to the risk of an impression of pre-judgment if it is not made clear to the parties that any views expressed are provisional and that the Employment Tribunal's mind is not yet made up and remains open to persuasion. The Respondent's appeal in Hutt was allowed and the matter remitted for re-hearing before a fresh Employment Tribunal.

1. Mr Dors also draws our attention to the old case of Peter Simper & Co Ltd v Cooke [1986] IRLR 19 (EAT Peter Gibson J presiding) for an example of remarks made by a, then, chairman giving rise to an appearance of bias. For a more recent example of a case in which an Employment Judge was found to have exhibited a prematurely closed mind we have taken into account the observations of Maurice Kay LJ (approving the approach of Elias P in this Tribunal) in N Glamorgan NHS Trust v Ezsias [2007] IRLR 603.

1. On the other side of the line is the case of Jiminez v LB of Southwark [2003] IRLR 477 (Court of Appeal), to which we referred counsel. That case was considered in Ezsias. In Jiminez, the EAT allowed an appeal by the Respondent employer in circumstances where, on the tenth day of hearing after all the evidence had been heard but before closing submissions, the Employment Judge, whilst stating that he was expressing a preliminary view, described the council's treatment of the Claimant as 'appalling'. The Court of Appeal reversed the EAT decision allowing the employer's appeal on the basis that, although strongly expressed, there was no proper basis for doubting the genuineness of the Tribunal saying that this was a preliminary view. Mr Dors submits that Jiminez may be distinguished on the basis that the views there expressed come after the whole of the evidence had been heard; in the present case the Judge expressed a view of the case, albeit said to be an indication only, before hearing evidence called by the Respondent.

1. We are each of us satisfied that the facts of the present case, and each case of apparent bias necessarily turns on its particular facts, fall very close to the borderline between a helpful provisional view, designed to assist the parties in resolving their differences by a mutually agreed settlement and the manifestation of a closed mind before hearing the whole of the evidence and argument.

1. That said, we are just persuaded by Mr Palmer that, as a stand-alone ground of appeal, this bias challenge fails. We have looked closely at the Employment Judge's assertion that the view expressed by him before the short adjournment (the 'very steep hill' comment) was indeed a preliminary indication rather than demonstrating a closed mind, as we are encouraged to do by Peter Gibson LJ in Jiminez. We are not inclined to reject the Judge's assertion and are fortified in that view by the comments of his lay colleagues, particularly Mr Little, to the effect that they, whilst taking legal direction from the Judge, apply their own independent and impartial judgment to the case before them, having heard everything that is said by and on behalf of both parties.

1. As to the comments themselves, we bear in mind that this was principally a complaint of sex discrimination (a point to which we shall return) and that on the primary facts, not in dispute, the Claimant's suspension and summary dismissal shortly thereafter immediately followed on from the Claimant informing the Respondent that she was pregnant. As Mr Dors acknowledges, the Claimant raised a prima facie case of sex discrimination which placed the onus on the Respondent to show that the dismissal was in no way whatsoever connected to the fact of her pregnancy. It follows that any Respondent, in these circumstances, has a hill to climb. The angle of that incline may be a matter of opinion in any given case.

1. Further, the fact that the Employment Judge encouraged the possibility of a settlement does not, of itself, suggest any impropriety (Jiminez, para. 32).

1. Finally, Mr Palmer prays in aid the Respondent's own evidence in these proceedings (her affidavit, para. 6). Whilst the parties plainly ought to have been given the opportunity to make closing submissions after the evidence was complete and before judgment was given without prompting by Mr Dors, the Respondent herself expressed the feeling that following Mr Dors' closing address his submissions had struck a chord with the Tribunal.

1. Nevertheless, we can well understand why the Respondent and her supporters might subjectively have considered that they had not received a fair hearing; in these circumstances it was particularly important that, in giving their judgment upholding the Claimant's complaint of sex discrimination, the Employment Judge produced a cogently reasoned decision explaining why the parties won or lost. We shall return to that issue later.

**Misapplication of the law**

1. This ground of appeal is directed to the use made by the Employment Tribunal of the statutory DDP in their reasoning. Mr Dors submits that the question as to whether the Respondent complied with the DDP, or contractual disciplinary procedures, was immaterial to the real issue, which was whether the Claimant's dismissal had nothing to do with her pregnancy, but was solely related to her conduct and performance during the employment.

1. At this point we digress. In her particulars of claim, served with her Form ET1 and apparently professionally drafted by solicitors then acting for her, the Claimant put her claim in three ways (paras. 13-15). First, she complained of direct sex discrimination contrary to s3A SDA; that she was dismissed because she was pregnant or for a reason connected with her pregnancy (the SDA claim). Secondly, expressed to be in the alternative (although we do not see why it should not also be additionally) she contended that her dismissal was automatically unfair under s99 ERA, read with reg. 20 of the MPL Regulations 1999, in that the principal reason for dismissal was pregnancy and thirdly that there was a failure by the Respondent to follow the statutory DDP, entitling her to additional compensation.

1. We asked to see any CMD order made in this case, identifying the issues to be determined by the Tribunal at the full merits hearing, the issues not being clearly set out in the Employment Tribunal's Reasons. None were produced to us. We therefore proceed on the basis that the liability issues were those raised in the Form ET1.

1. Mr Dors submitted that the kernel of the Claimant's case below was whether or not the Respondent's decision to dismiss her was taken as a result of her pregnancy and the Respondent's compliance with the statutory DDP or contractual procedures had no bearing on that issue, particularly in circumstances where the Claimant had not completed 12 months continuous service.

1. We examined that proposition with counsel during the course of argument. Having considered their submissions our analysis is as follows. Section 98A(1) ERA (in force at the date of dismissal) provides that failure to follow the DDP renders a dismissal automatically unfair. On the facts of the present case there was total non-compliance with the DDP; there was no step 1 letter; no relevant step 2 meeting before dismissal and no right of appeal offered (step 3) in accordance with Part 1, Chapter 1 of Schedule 2 to the ERA 2002.

1. Remedy for automatically unfair dismissal contrary to s98A(1) includes, in addition to compensation for ordinary unfair dismissal, a minimum basic award of 4 weeks pay (relevant to the present case, where the Claimant had less than one year's service) (ERA s120(1A); and an uplift of between 10 and 50 per cent on the compensatory award (EA, s31).

1. It has been common ground in this case, reflected at para. 22 of the Employment Tribunal's Reasons, that the additional awards mentioned above apply only where the Claimant has completed 12 months continuous employment, although the Employment Tribunal there express the view that the DDP requirements apply from the moment employment starts.

1. True it is that by s108(1) ERA the right to 'ordinary' unfair dismissal protection does not apply to employees with less than one year's continuous employment. However, there are exceptions to that jurisdictional bar; materially, by s108(3)(b), to dismissals which are (automatically) unfair for a reason prohibited by s99, read with the MPL Regulations 1999. Section 99 renders unfair a dismissal for which the reason or principal reason relates to pregnancy (s99(3)(a)). In those circumstances no period of continuous service is required.

1. It therefore seems to us that where an employment tribunal's jurisdiction is engaged by a s99 unfair dismissal, an employment tribunal may then go onto consider whether that dismissal is also unfair under s98A(1), thus entitling the Claimant to additional compensation.

1. We proffer that analysis (in the absence of any authority so far as we are aware) as an aside. One feature of this Employment Tribunal's judgment is that it finds in the Claimant's favour only on the SDA claim; yet makes a finding at para. 25 consistent with a s99 unfair dismissal, without upholding the s99 claim and considers the application of the DDP but considered that breach of the DDP had no application due to the Claimant's short service. The explanation for that state of affairs, we infer, is that Mr Johnston, doing his best as an unqualified representative, did not adopt our analysis of the case in presenting it to the Employment Tribunal. If so, no criticism can be made of the Employment Tribunal's approach.

1. The question remains, if breach of the DDP was not an unfair dismissal issue before the Employment Tribunal, how was it relevant to the SDA claim, upheld by the Employment Tribunal?

1. We think that the answer provided by Mr Palmer is probably correct. The key issue in the SDA claim was whether the Respondent could show that the Claimant's dismissal was in no sense whatsoever on the grounds of her pregnancy, to adopt para. 11 of the Igen guidance annexed to the judgment in that case, following para. 76 of the judgment of the court delivered by Peter Gibson LJ. The relevance of the statutory (and contractual) disciplinary procedures, on a possible reading of the Employment Tribunal's Reasons, is that had a proper procedure been followed that may have strengthened the Respondent's contention that the grounds or reason for dismissal related to the Claimant's conduct and performance and not the news of her pregnancy.

1. That brings me to the Employment Tribunal's Reasons.

**Meek-compliance**

1. We did not require Mr Dors to address us on the legal principles relating to adequacy of the Employment Tribunal's reasons, for they are now well-established. The importance attached to an employment tribunal's reasons for judgment is now enshrined in r30(6) of the Employment Tribunal Rules of Procedure 2004. The issues must be identified; there must be a concise statement of the applicable law and how it has been applied to the relevant facts found by the employment tribunal.

1. That formalizes the approach taken by Bingham LJ in Meek v City of Birmingham [1987] IRLR 250, 251. From the employment tribunal's outline of the story and their factual conclusions and a statement of their reasons leading to their conclusion the parties are entitled to know why they have won or lost.

1. The expression 'Meek-compliant' was coined by Sedley LJ in Tran v Greenwich Vietnam Community [2002] IRLR 735, para. 17, a case of unfair dismissal. In the field of discrimination law assistance may be derived from the judgment of Sedley LJ in Anya v University of Oxford [2001] ICR 847. There, his Lordship drew attention (para. 10) to the need to make the findings of primary fact. He also approved, at para. 24, the judgment of Morison P in Tchoula v Netto (unreported 6 March 1998) which emphasised the importance of the employment tribunal explaining, where a conflict of evidence arises, why the evidence of one witness is preferred to another's. We would add in the context of the present case, that it is equally importance to explain why witness evidence on a material issue is rejected.

1. Against that background we turn to consider the Employment Tribunal's reasons. We have earlier drawn attention to the submission made by Mr Dors in his closing address (Reasons, para. 21). He invited the Employment Tribunal to determine whether the Respondent was truthful when she said that she made the decision to dismiss the Claimant on 24 December after she left her post in circumstances which the Employment Tribunal characterised as gross misconduct.

1. It seems that the Employment Tribunal did not see their task as deciding whether or not that evidence, supported to some extent by Mr Fisher and Ms Perring was truthful. Confirmation of that view is provided by the Judge in his comments on the Respondent's affidavit in these appeal proceedings. At para. 3 he said: 'there was never any issue as to whether or not the witnesses were believed'.

1. Instead, the Employment Tribunal appear to have decided the SDA claim on two principal grounds, having determined, permissibly, that the burden had passed to the Respondent to provide a non-discriminatory explanation for the Claimant's dismissal; first, the Respondent's failure to follow the statutory and contractual disciplinary procedures and secondly, that discrimination can often be subconscious.

1. Taking the second point first, it is quite right to say that discrimination may be subconscious and that, subconsciously, the news of the Claimant's pregnancy may have been a final straw on top of the Respondent's earlier dissatisfaction with the Claimant's performance and conduct which prompted her suspension followed shortly by dismissal. However, that answer to Lord Nicholls 'reason why' question does not arise if in fact the decision to dismiss was formed on 24 December, because on that date the Respondent was unaware of the Claimant's pregnancy.

1. As to the disciplinary procedures, it is again correct to say that none were followed in this case. What the Employment Tribunal do not address in their Reasons is why those procedures were not followed.

1. As the Employment Tribunal find (para. 24), the Respondent did not want to be an employer; that status was visited on her by the Local Authority. She received a job description and draft employment contract from the Authority but her literary ability being limited, she never read them. The Tribunal was sympathetic towards her in those circumstances.

1. More particularly, the Employment Tribunal record (para. 19) that the Respondent's solicitors gave no reason for dismissal in their letter of dismissal written on behalf of the Respondent. In his comments (para. 1, sub-para (3)) the Judge referred to the dismissal letter, observing that the Tribunal took the view that the Respondent must have known of the legal position at that stage. That was the position at the end of the Claimant's evidence, the point to which the Judge was directing that comment. However, as we have earlier mentioned, the Respondent then waived privilege and adduced in evidence the solicitor's letter to the Respondent of 9 January which, under the heading 'our advice' simply states that the Claimant is entitled to a minimum of a week's notice terminating her employment and then deals with repossession of the caravan occupied by the Claimant and her partner. There is no suggestion that any disciplinary procedure need be followed and none was followed by the solicitor in giving the Claimant notice of termination of the employment effective on 25 January in the dismissal letter also dated 9 January. The Employment Tribunal do not refer to the solicitor's letter to the Respondent in their Reasons, nor to the written evidence of Ms Pickles, which refers to the Respondent telephoning her on 7 January, as a result of which she apparently received conflicting advice from a department of the Local Authority and from ACAS, causing her then to seek advice from her solicitor.

1. In these circumstances it is not clear to us how the fact that no disciplinary procedure was followed, by the Employment Tribunal's reasoning, informed the Tribunal as to when the decision to dismiss was made by the Respondent and for what reason or reasons; particularly in light of the Employment Tribunal's observation (para. 26) that the Respondent could have dismissed the Claimant for misconduct on 24 December, presumably without going through a disciplinary procedure. On the basis of the Employment Tribunal's reasoning thus far we are unable to discern why the Respondent's explanation for dismissal was rejected by the Employment Tribunal in reaching their conclusion at para. 25 that the reason or principal reason for dismissal was the Claimant's pregnancy.

1. The Employment Tribunal then add two further paragraphs. At para. 26 they appear to reject the Respondent's evidence that she decided to dismiss the Claimant on 24 December, instead finding that at that stage she would do something but had not then decided to dismiss. That finding was plainly open to the Employment Tribunal, provided that they rejected the Respondent's evidence and that of her witnesses on that point. However, we repeat, credibility was never an issue, according to the Judge's comments. Either it was, in which case the issue required a clear determination with reasons, or it was not, in which case the inevitable conclusion, based on the Respondent's evidence (which the Claimant could not directly gainsay) was that the decision was taken by her before she knew of the Claimant's pregnancy and therefore the SDA claim (and the unfair dismissal claim, if it was in issue) must fail rather than succeed.

1. Finally, at para. 27, the Employment Tribunal appear to draw an inference from the absence of reasons for dismissal in the solicitor's dismissal letter that conduct and/or performance was not the true reason for dismissal. Such an inference, it seems to us, could only be drawn after considering the context of the advice given by the solicitor; that all that was required of the Respondent was to give at least one week's notice. During the course of argument we reminded ourselves that the statutory obligation to give reasons for dismissal does not apply to employee's with less than one year's service (ERA s92(3)).

1. For these reasons we are persuaded by Mr Dors that the Employment Tribunals reasons are not Meek-compliant. They do not provide a coherent and intelligible explanation as to why the Respondent's case was rejected. This ground of appeal succeeds.

**Perversity**

1. As we indicated to Mr Palmer during argument we did not find it necessary to hear from him on this aspect of the appeal. It is, we think, self-evident from all that has gone before that this case is highly arguable. The Claimant raises a prima facie case of pregnancy-related dismissal which requires an acceptable non-discriminatory explanation from the Respondent. She gave one. Where the Employment Tribunal fell down, in our judgment, is in failing adequately to explain why that defence was rejected. That is not to say that it is not open to an Employment Tribunal to provide a properly reasoned judgment in favour of either party, based on their findings of primary fact and inferences drawn from those facts.

1. The perversity challenge advanced by Mr Dors is, in one way, in reality another way of putting the Meek point. At all events it does not surmount the high hurdle explained by Mummery LJ in Yeboah v Crofton [2002] IRLR 634.

**Disposal**

1. We have considered whether, having upheld this appeal on the Meek ground, we should send the case back to the same or a different Employment Tribunal. Plainly we cannot resolve the matter ourselves without hearing the evidence and finding the facts; that is the function of the Employment Tribunal. In view of the perception of bias on the part of the Respondent, although not objectively upheld in this appeal, we have concluded that the correct course is to allow the appeal and to remit the whole matter for re-hearing before a fresh Employment Tribunal and we so direct.