Durber v. & P Moore & Ors [2000] UKEAT 853_00_1112 (11 December 2000)

JUDGMENT PRELIMINARY HEARING © Copyright 2000 APPEARANCES For the Appellant MR G BEALEY Representative JUDGE D PUGSLEY In this case the Appellant has been represented by Mr Bealey. Members of this Tribunal have extensive experience of redundancy exercises and the pain and misery they cause. Some of the arguments that have been used by Mr Bealey are perfectly understandable, but on a true analysis, contain a misunderstanding about what the nature of redundancy is. As one of my colleagues made clear during the hearing, the fact that subsequent events may falsify what had been a genuine belief at the time, does not mean that the original decision in any way, was tarnished or malicious. In a nutshell, what this case is about is that the Applicant was employed as a groom. It was not on a commercial basis, in the sense it was a business; she looked after the family horses. They owned some land within the curtilage of their own home, and used grazing land at Top Meadows and Tittensor Fields which are owned by Mr Talbot. The wages were paid perfectly properly, it seems, through a limited company. There was no tax relief, it was just that it was expensive to set up a wage system for one individual. There were four horses, three of the horses belonged to the Respondents, and Marcus was on loan from one Helen Wood. There was a reduction in the work that was carried out, and a consequent reduction in pay, but then the decision was taken that it was likely that Mr Talbot's field would no longer be available, because the land was being developed. He had planning permission and he anticipated the development starting in 1999, but it was subsequently delayed because of a public enquiry being called. The family's daughters were losing interest in the horses and in paragraph 9 of the decision, the position in summed up in this way: that the Tribunal was satisfied that: "there had been a reduction of horses being kept by them at their own premises, their loss of the use of land and the fact that they had decided that livery was cheaper than keeping horses at home" Unfortunately, the Applicant discovered that she was going to be dismissed by a third party. The Tribunal examined all these matters, and they came to the view that there was no conspiracy, that they could not draw an inference of sex discrimination, in the sense they said they thought it was just bad management, rather than "Ah, we are getting rid of her because she is pregnant". We pay great respect to Mr Bealey, we really do not think this is a case of perversity. The circumstances in which perversity can apply are extremely limited, they are set out in a seminal judgment of Mr Justice Mummery, as he then was, in a case called Cleveland , and really it is in Stewart-v-Cleveland Guest Engineering IRLR 440 - 443 and it is really that the Tribunal should only intervene on the ground of perversity in the most rare of circumstances, where it is not a permissible option and none of think that applies. What is not expressly addressed is whether or not learning that the Applicant was pregnant hastened that decision, rather than caused it. Namely, in other words, did it precipitate the making the decision earlier, rather than later. There are no specific findings of fact in the Tribunal's decision, as to when the redundancy was to take effect. If a person who is, in any event, to lose her job due to redundancy, it is at least arguable that it is sexual discrimination, if the fact that you are pregnant brings forward the date on which that takes place, albeit that would have obvious implications as far as compensation is concerned. Now, we do not want it to be misunderstood; we are not saying the case is going to succeed on that, but we are persuaded by Mr Bealey that that is arguable. We are not persuaded that the other grounds of appeal on perversity are relevant. We do think that this is a ground which is arguable, that the Tribunal have not directed their mind to that issue; namely whether the pregnancy precipitated rather than caused the decision as to pregnancy. Half a day case, Category C, limited to the grounds permitted in the Judgment. You can have leave to amend your grounds of appeal, within 21 days. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII