Guernsey Law Reports 2009-10 GLR Note 10
BURFORD v. FLYBE LIMITED
ROYAL COURT (Collas, Deputy Bailiff): June 23rd, 2009
Employment—termination—unfair dismissal
The appellant worked for the respondent as an aircraft captain. In May 2005, she commenced maternity leave, with June 18th, 2006 as the agreed date she would return to work. In March 2006, she requested, and was granted, an extension of leave to the end of October, to complete a university course. The respondent then agreed to grant her an unprecedented maternity career break until December 1st, 2007, which in September of that year was extended to January 7th, 2008. The appellant fell ill over the 2008 New Year and requested another extension. Owing to her illness, the respondent removed her from the retraining course she was due to undertake in the first week of January 2008 and instead offered her a place on either the course taking place in the second week of January or the one in February. The appellant declined the offer as she had childcare commitments she could not fulfil, saying that she wished to retrain at the start of 2009, when her husband would be able to help with childcare. At the end of January 2008, the respondent wrote to her to say that her maternity break had ended on January 7th, but that she could apply for another career break according to company policy. The appellant declined, since it would have involved her resigning her position, then reapplying, and, if successful, holding a lower rank and salary than she had previously enjoyed. She again requested an extension to her career break, but it was turned down at the beginning of February; as she did not then apply for a standard career break by the date the respondent had requested, the respondent assumed she was not returning to work and advised her on February 14th, 2008 that the “leaver process” would begin. When she asked what the “leaver process” meant, the respondent’s reply was that it related to “the company procedures [it had] worked to,” but it did not inform her that she was being dismissed.
In April 2008, the appellant informed the respondent that its failure to pay her constituted a repudiatory breach of her employment contract. A week later, on April 26th, she gave the respondent notice of her immediate resignation on the grounds of constructive dismissal by reason of the respondent’s conduct. She was advised by the respondent that her resignation was not accepted, since her employment had been terminated on February 14th, 2008. The Employment & Discrimination Tribunal found that the appellant had been dismissed unfairly, but that she had not suffered sex discrimination. It found the date of dismissal to have been February 14th, and reduced the award of damages by 80% because of the appellant’s involvement in the ending of her contract and the respondent’s repeated efforts to accommodate her requests for unpaid leave.
The appellant appealed against the Tribunal’s decision on the grounds that (a) it had wrongly determined the date of termination of her employment; (b) it had wrongly failed to ascertain the reason for her dismissal before finding that it was an unfair dismissal, as it was required to do under the Employment Protection (Guernsey) Law 1998, s.6; (c) its decision to reduce the compensation award by 80% was ultra vires or Wednesbury unreasonable and so subject to appeal on a point of law; and (d) the requirement to attend the course in or before February 2008 constituted discrimination on account of her sex.
Held: (1) The appeal would be dismissed. An analysis of the Tribunal’s decision showed that nothing to the appellant’s detriment turned on the date of termination of her employment, since the Tribunal assumed an earnings figure apparently agreed by the parties, and her alleged unreasonable conduct had happened before February 14th, 2008. It would not have been right to allow the appellant to pursue an appeal on a point of law merely because she alleged that the Tribunal reached the right decision for the wrong legal reasons—she would have needed to have shown some further reason to have its decision overturned.
(2) An express dismissal from employment had to be communicated to the employee—if such notification were to be delayed, the employment would continue until the employee was informed of his or her dismissal. Under s.6(1) of the 1998 Law, it was for the employer to provide and prove a reason for an employee’s dismissal—it did not require the Tribunal to establish that there was a reason falling under s.6(2), since it would not be able to ascertain such a reason if an employer had summarily dismissed an employee without reason. The failure of the respondent to establish a reason for the dismissal which fell under s.6(2) was not fatal to the Tribunal’s decision, and in fact supported a finding of unfair dismissal.
(3) The decision to reduce the compensation by 80% was neither ultra vires nor Wednesbury unreasonable. Under s.23 of the 1998 Law, the Tribunal had the power to reduce the award to any extent if it would be just and equitable to do so. The legislation did not specify which factors it had to consider, and the Tribunal therefore had a wide discretion to take into account matters it thought relevant, one of which was whether the employee’s previous conduct had contributed to the dismissal. There was no evidence that the Tribunal had improperly considered certain matters and wrongly ignored others. The respondent’s failure to follow a fair process in the appellant’s dismissal was not of itself sufficient to prevent the award of compensation being reduced, and the Tribunal’s decision showed that it had taken this factor into account in its decision. Although an 80% reduction was unprecedented, there were no guidelines for reducing compensation awards, and, in any case, great care would have to be taken in considering other cases since it was not always possible to identify the facts which influenced each decision.
(4) The Tribunal had correctly concluded that the respondent had not discriminated against the appellant because of her sex. Under s.1(1) of the Sex Discrimination (Employment) (Guernsey) Ordinance 2005, to prove sex discrimination the measure had unjustifiably to affect a considerably larger proportion of women than men. In considering whether the prima facie discriminatory measure was justified, the following principles had to be borne in mind:
(a) The burden of proof lay on the respondent to show justification once a prima facie case of discrimination had been established.
(b) The allegedly discriminatory measures had to correspond to a real need and be necessary and appropriate for achieving the objectives pursued.
(c) The more serious the discriminatory effect of the measure, the more cogent the justification for it had to be.
(d) The Tribunal had to weigh the reasonable needs of the employer’s objective against the discriminatory effect of the measure taken and to assess whether the former outweighed the latter.
(e) In considering whether the measure was justified, the Tribunal had to analyse the circumstances critically and reflect that analysis in its reasoning (Loxley v. BAE Systems Land Systems (Munitions & Ordnance) Ltd., [2008] ICR 1348, dicta of Elias, J. applied).
It was understandable that female employees would have proportionately more problems with childcare arrangements, but the respondent had to consider its need to employ the appellant’s services, which, she agreed, it could not do without requiring her to attend a retraining course. It would have been unreasonable, given the salary difference, for it to have employed her in some lower-ranking role (e.g. on ground duties) for almost a year before she retrained, especially since she had not given reasons why other family members could not have helped with the childcare arrangements, and she had refused to apply for a standard career break. The Tribunal had permissibly balanced the detriment to the appellant against the needs of the respondent, correctly concluding that the need of the respondent justified its prima facie discriminatory requirement, and that its flexibility in offering her several options for attending the retraining course more than counterbalanced the discriminatory effect of the appellant’s having to make childcare arrangements in order to attend the course. The respondent had removed the appellant from the January course only because of her recent ill health, not because of her gender; the Tribunal had therefore correctly concluded that the appellant’s claim of sex discrimination could not stand.
(5) Although the Tribunal’s decision as to when the employment was terminated was a question of fact not ordinarily subject to appeal, it could be reviewed on appeal if it resulted from the Tribunal’s misdirection on a question of law. Tribunals were lay bodies whose process was intended to be less legalistic and speedier than that of the courts; they were not designed to examine complex legal issues such as the ones arising here in relation to repudiatory breach of contract—such issues were better suited to examination in a court of law. The exigencies of daily life in the Tribunal were such that any decision it made could probably always have been better expressed; the decisions should therefore be read on the basis that the Tribunal knew how to perform its functions and which matters to consider, unless the contrary could be shown (Piglowska v. Piglowski, [1999] 1 W.L.R. 1360, dicta of Lord Hoffmann followed).
2010
Law Report
None
Guernsey Law Reports 2009-10 GLR Note 10