Title: Appeal No.
Author: Ola Odunlam
Last saved by: vmartzou
Company: BAILLI

Appeal No.	 EAT/422/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 July 1998
Judgment delivered on 26 April 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR R JACKSON
MR B M WARMAN

MS S KUDRATH	APPELLANT

THE MINISTRY OF DEFENCE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant | IN PERSON

For the Respondents

MR W HOSKINS
(of Counsel)
The Treasury Solicitor
Queen Anne’s Chambers
28 Broadway
London
SW1H 9JS

MR JUSTICE MORISON (PRESIDENT):	This is an appeal by Suzanne Kudrath, the Applicant in this matter, from a tribunal sitting at London (North), who by a unanimous decision dated 5 February 1997, dismissed her claim of sex discrimination.  The appeal came before us in July 1998, when after deliberation, this Court directed that the case be remitted for a fresh rehearing. 

The background facts in this matter can be briefly stated.  In early 1994 the Applicant applied to join the Territorial Army.  She was admitted on 23 July 1994 and in September 1994 she attended a two-week recruits course, commonly called a CMS camp.  The Applicant completed the first week successfully.  At the beginning of the second week, due to her daughter being admitted to hospital as an emergency, the Applicant was forced to leave camp late on Monday 12 September and did not return until the morning of Thursday 15 September.  During that time the Applicant missed the field exercise which took place on Tuesday and Wednesday.  Despite obtaining good results in the other disciplines at the camp the Applicant was not promoted to Lance Corporal and was made to repeat the missed part of the camp training. 

The Applicant repeated the second week of the course in February 1995.  Unfortunately she was taken ill with suspected hypothermia and was required to repeat the CMS camp.  The Applicant attended a third CMS course in May 1995 where she suffered a back injury which meant she was unable to finish the course.  On 21 May 1995 a recommendation was made that the Applicant be discharged.  She was discharged from the Territorial Army by way of a letter dated 21 June 1995. 

On 18 September 1995 the Applicant submitted an Originating Application which complained of discrimination on grounds of race and sex and contained an equal pay claim in relation to the failure to promote her to Lance Corporal.  At a preliminary hearing heard on 1 March 1996 an Industrial Tribunal decided that it did not have jurisdiction to determine the Applicant’s complaints of unfair dismissal and race discrimination.  When the substantive matter was eventually heard over 5 days in December 1996, the tribunal only considered the matter of sex discrimination.

The Applicant presented 3 complaints to the tribunal which we can summarise as follows.  Firstly, that the Applicant missed two days of the CMS camp and was required to repeat the whole of the second week, whilst in contrast, Private Henderson was similarly away from camp for two days in order to attend an interview, but was passed out as a trained soldier without any requirement to retake any part of the camp.  Secondly, that the decision to discharge the Applicant was discriminatory as Private Williamson and Private McPhee had been reprimanded in respect of poor conduct which could be equated with the conduct of the Applicant, but were only given warnings and were not discharged.  The third complaint was one of indirect discrimination concerning the requirement to wear the standard issue 1958 webbing kit.  The 1958 kit was specifically designed for men and not for women and caused the Applicant, who is small in stature, great discomfort and pain.  An alternative kit was available, the 1992 Personal Load Carrying Equipment, and it was worn by other recruits at the camp.  The Applicant was refused the new equipment and as a result she had to use the 1958 kit which was a detriment in that she was subjected to back injury and was unable to complete her training, a direct consequence of which was her discharge from the Territorial Army. 

At the start of the hearing an application was made to include a fourth allegation of discrimination.  The complaint raised was that the Applicant and other female trainees were prevented from mixing with male staff while the male trainees were allowed to mix freely.  The tribunal refused leave to amend the application and that decision has not been appealed.

The tribunal’s findings in relation to the first complaint were set out at paragraph 7 of their written reasons.  On the basis of the evidence presented the tribunal made the following findings:

“(1) Private Henderson was only absent on Saturday afternoon and possibly on part of Sunday, at a time when little of significance was going on.
…
(3) That the part of the course which the Applicant missed was an essential part of the course, which it was necessary for everyone to complete before they could be allowed to undergo further training.
(4) That this was not the case with the absence of Private Henderson, who was absent only at a weekend, and from no part of the course which could be regarded as essential.
(5) That the decision in those circumstances that the Applicant would have to retake the second week of the CMS training and would not have to retake the whole of the 15 days was an exceptional one and was taken in the Applicant’s favour because her absence from the second week was on compassionate grounds and she had successfully completed the whole of the first week’s training and it was therefore necessary for her to repeat it.
(6) In these circumstances, the comparison between the treatment meted out to the Applicant and the treatment meted out to Private Henderson does not convince us that the circumstances subsisting in respect of Private Henderson bear comparison to the extent that it could be said that the Applicant had been treated differently in respect of the requirement to complete the course from the treatment which had been meted out to the comparable man, namely Private Henderson.  The circumstances we find are different and do not involve any discrimination against the Applicant on the grounds of her sex.  The circumstances are, we find, different and justified the Respondents in taking a different attitude towards the Applicant from the attitude they took towards Private Henderson.  If anything, the Applicant, we find, did receive favourable treatment in that in most cases of this nature the soldier is required to retake the whole of the course.”  

The dates of absence in relation to Private Henderson were erroneously stated in paragraph 7 of the decision to have been between Saturday and Sunday when they were actually Sunday and Monday.  By a certificate of correction dated 23 February 1998 the Chairman of the tribunal corrected the mistake.

The Applicant’s second complaint was dealt with at paragraph 8 of the tribunal decision.  The criticisms raised by the squad officer against the Applicant, and Privates Williamson and McPhee were contained in a document headed “PRE-CMS2 - NOTES ON RECRUITS”, to which our attention was drawn.  Having considered this document the tribunal recorded that the complaint made against the Applicant was that she showed no motivation and it was recommended that she try another Unit. Private McPhee was advised that he should have a long think about whether he could get through CMS camp and Private Williamson was warned about his fitness and weapons handling and was told that he might be backsquaded if it did not improve.  We note that at the bottom of the form, there is a hand-written note asking, “Sir, can we start processing Kudrath’s discharge.”

The tribunal went on to find that the differences were not so significant as to amount to any different treatment of the Applicant from the other two privates.  The tribunal decision was as follows:

“The essential point, as we see it, is that all three were warned as to their commitment to various aspects of military life and were given what we find is appropriate advice as to their future career in the Volunteer Forces. The fact that there may have been some slight differences as to the way in which each of them was treated on these occasions does not, we find, amount to sex discrimination against the Applicant, but merely a different approach by those supervising the courses caused by the differing circumstances which had occurred to the Applicant and to the two persons with whom she wishes to compare herself.”

On the indirect discrimination matter concerning the webbing equipment the tribunal dismissed the applicant’s claim on the grounds that they had not been presented with appropriate evidence to decide whether the requirement to use the 1958 kit was discriminatory.  They decided that it was impossible on the evidence before them to decide whether the inability to wear the equipment comfortably was caused by the Applicant’s small stature which might equally affect a small man, or was due solely to the fact that she was a woman.

The tribunal stated their interpretation of the evidence required for a finding of discrimination in the following terms:

“In our view, without some statistics which would show that either all women suffered a disadvantage in wearing this equipment compared with all men or that the anatomical structure of women was such that it caused all women to be at a disadvantage when wearing the equipment as compared with all men, or that small women were at a disadvantage and that there were more small women than there were small men so that women of the Applicant’s dimensions would suffer a disadvantage in greater proportion than would men because men would tend to be larger than women, there was insufficient evidence for us to come to the conclusion that there had been indirect discrimination by reason of the requirement that women as well as men should wear the same equipment.”

The Applicant, who represented herself most ably on appeal, appealed the decisions of the tribunal in relation to her three complaints against the Ministry of Defence [“MoD”] on the grounds of perversity and a misdirection of law on the matter of indirect discrimination.  Further grounds of appeal were that the tribunal Chairman fell asleep during periods of evidence and that there was a danger of potential bias because the Chairman revealed that he had been ‘a military man.’  It was the Applicant’s contention that a fundamental attitude existed within the Army that women were less capable than men with the result that when women missed elements of training they were forced to repeat them, whereas men, who were considered more able, were allowed to pass courses without having undertaken all the relevant exercises.  The discrimination also explained why the Applicant was not believed by her commanding officers when she suffered from hypothermia on the second CMS course and acute back pain on the third; the Army took the view that she, as a woman, was malingering hence the decision to ‘back-squad’ and ultimately discharge her.

The principle complaint in relation to the tribunal’s findings on the allegations regarding the more favourable treatment of Private Henderson was that the tribunal made errors in its findings of fact.  It was contended that the tribunal failed to consider that Private Henderson was actually absent from Sunday and Monday during which time he missed a mandatory test.  Therefore, the finding that Private Henderson missed nothing of significance and that the Applicant missed an essential part of training was wrong. 

In relation to the Applicant’s complaint that she was unlawfully discriminated against in relation to her recommendation for discharge, the Applicant argued that the tribunal had misunderstood or misdirected itself as to the evidence.  In finding that the difference in warnings given to the Applicant and the two privates was insignificant, the tribunal failed to consider the most fundamental part of the Applicant’s case, that is, that she was discharged and the two privates were not.  The tribunal therefore failed to consider whether the Applicant was being treated less favourably in being recommended for discharge whilst the other two officers, with similar poor conduct records, were allowed to continue.  There was also no finding on the Applicant’s complaint that she was discharged without having been given all the required warnings.

As the tribunal erroneously concentrated on the nature of the warnings given and not on the consequences, ie the discharge of the Applicant, the tribunal failed to consider whether that course of treatment was due to a difference in gender or whether any inferences of discrimination could be drawn from the difference in treatment.

Alternatively, it was argued that the tribunal confused the question of whether there was a difference in treatment per se, with the question of whether the difference in treatment was on the grounds of sex.

As to the complaint of indirect discrimination it was submitted by the Applicant that the tribunal had failed to approach the matter properly.  The evidence showed that the 1958 kit was designed for men but she was required to wear it because it was standard issue.  Ex regulars and transferees were entitled to wear their own personal kit, although they had to wear the 58 belt.  Thus, the requirement that recruits had to wear standard issue kit if they did not have more comfortable personal kit was a requirement which affected and disadvantaged a greater proportion of women, since the regulars and transferees were predominantly men.
The tribunal failed to make findings on these matters and erred by concentrating on whether statistics showed that the 1958 kit was uncomfortable for the Applicant because she was small or whether it was uncomfortable for all women.   

The Applicant added that she had requested from the MoD statistics in relation to the different kits and their appropriateness for different sexes, but her request had been refused.  At a preliminary hearing of the matter the Chairman stated the MoD would not be ordered to produce any statistics at that time but if the need arose for those documents, an order could be made subsequently.  The Applicant emphasised that it was consequently unfair for the tribunal to rely on the lack statistical evidence as a reason to dismiss her claim when the tribunal itself had refused to order relevant discovery. 

The Applicant has submitted an affidavit in which she claims that the Chairman was asleep for periods of 10 to 15 minutes at a time and it was argued before us that that adversely affected her claim as evidence was misunderstood.  An affidavit has been filed by Mr Jones who attended the hearing because he had a claim against the Territorial Army also, and claims that the Chairman sat motionless with his eyes shut during the hearing of the evidence.  Counsel on behalf of the Applicant at the tribunal has made a statement that the Chairman closed his eyes during final submissions but not for more than a few seconds.  Counsel on behalf of the MoD at the tribunal made a statement that he could not recall the Chairman ever falling asleep.  A letter dated 27 March 1998 was written on behalf of the tribunal Chairman denying the allegations of falling asleep.  

In reply, Mr Hoskins submitted that when considering the allegation that the Chairman appeared to be asleep, there were four considerations which had to be taken into account.   First, the EAT should consider whether there were reasonable grounds for supposing that the Chairman was asleep; second, if there were such grounds, then the EAT should determine over what period and during which stages of the hearing this was so; third, do those findings give rise to a real and reasonable suspicion that the Chairman’s consideration of the case would or might have been affected thereby; and fourth, is the appellant shut out from raising this issue now having failed to make the submission to the Chairman at the time.

Mr Hoskins argued that there was no uncontroverted evidence of the Chairman falling asleep and as the decision was unanimous it was a moot point and such an argument was bound to fail.  Our attention was also helpfully drawn to the authority of R v Moringiello 1997, Times, July 25, in which the Court of Appeal stated that an allegation that a judge, sitting with a jury, has fallen asleep should be raised at the time in order to better assess any prejudice caused to the defendant.  As no complaint had been made at the time and neither Counsel supported the allegations of the Chairman falling asleep, it was urged upon us to dismiss this part of the Applicant’s appeal.

More generally, the findings of the tribunal were reasonable findings of fact, based on the evidence presented before them and therefore could not be over-turned on appeal. 

In relation to the finding with regard to Private Henderson, it was argued that it was based on the evidence of the witnesses called, and was correct.  The evidence showed that Private Henderson missed minor parts of the training which he was able to catch up on; whilst the Applicant missed a 2½ day field exercise which had to be performed as it was the essential part of the course.  That, so it was argued before us, explained why the Applicant had to re-perform the second week of training and Private Henderson did not.  The tribunal was therefore entitled to conclude that the difference in treatment was not based on gender.

In relation to the Applicant’s second complaint it was contended that the tribunal were entitled to conclude that Privates McPhee and Williamson were treated differently because they had not been ‘spoken to’ by a Squad Officer, whilst the Applicant had already received warnings about her conduct.  The MoD contended that the tribunal rightly considered that all three were warned about their commitment to the Territorial Army and the consequences of those warnings were commensurate with the different circumstances of each individual.  In contrast to the other two privates, the Applicant had already been warned about her commitment after her second attempt at the CMS course and had been ‘back-squadded’ as a result.  The decision to discharge the Applicant was therefore not made on the basis of sex discrimination.  

On the issue of indirect discrimination the MoD submitted that the evidence before the tribunal was that all new recruits were issued with 1958 kit and no member of the Territorial Army was permitted to wear their own equipment.  It was argued that there was no evidence to support the Applicant’s contentions that almost all the men attending the CMS camp were transferees and were allowed to wear up-to-date kit and that the proportion of men wearing the 1958 kit was smaller than the proportion of women due to the greater number of men transferring.  In any event the tribunal were correct to conclude that the Applicant had presented no evidence to show that she was disadvantaged in being required to wear the 1958 kit.  Indeed, it had been demonstrated to the tribunal that the 1958 kit was quite suitable for use by women, by another female recruit of slight proportions.

Before we state our findings we wish to remind ourselves that this Court has jurisdiction to hear and determine an appeal brought on the ground of perversity where a tribunal’s finding on the evidence “is certainly wrong”, or “is plainly wrong” or “is not a permissible option” or “is outrageous” as per Mummery J. (as he then was) in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440.  The standard is clearly a high one and we will not interfere with a tribunal’s decision unless there is clear evidence of a misunderstanding or misdirection on the facts. 

We have been supplied with the Chairman’s notes of evidence in relation to the evidence given by Warrant Officer Taylor as he was cross-examined on the matter of Private Henderson’s attendance at the CMS camp.  The following is an excerpt from those notes:

“Henderson left Sunday lunch time and returned on Monday.
Page 358 of the Applicant’s bundle confirms that Henderson missed the section attack on Monday.
I also agree he missed the personal weapons test which is mandatory.
And I also agree that Henderson missed the march and shoot.
I agree that Henderson missed other important part of the exercise. (sic) 
The Applicant’s bundle pages 356/7. It would appear from these that Henderson did not do well.
I cannot say why Henderson was passed.”

Whilst we accept the Chairman’s explanation for the typographical error in the judgment where Saturday and Sunday have been confused for Sunday and Monday, in our opinion, that does not sufficiently explain how the tribunal has made findings in such apparent contradiction to the evidence given.  The mere correction of the days did not deal with the knock-on effect which that had on the evidence. 

The tribunal’s findings that Private Henderson “was absent at a time when little significant was going on” and “was absent only at a weekend, and from no part of the course which could be regarded as essential” was clearly wrong on basis of the evidence given by a witness called by the MoD.  

The Applicant concedes that she missed important components of the CMS course when she was called away to see her daughter.  But it was her case that discrimination was evident in the decision that she was required to repeat the second week of the course, in contrast to Private Henderson who did not have to repeat any part of the course which he missed.  The evidence before the tribunal was that Private Henderson missed a mandatory part of the course but was nevertheless passed without any requirement to repeat the mandatory exercises which he missed.  There was clearly a difference in treatment between the Applicant and Private Henderson. The tribunal should then have required an explanation from the MoD to explain that difference in treatment and to show that it was not as a result of sex discrimination.

In our view, a telling piece of evidence given by Warrant Officer Taylor was that, given the exercises missed by Private Henderson, he could not explain why the Private was still passed.  That raises a doubt as to the MoD’s motives for allowing Private Henderson to pass as a Lance Corporal, but requiring the Applicant to repeat the second week of the CMS course.  In accordance with the well known authorities of King v Great Britain China Centre [1992] ICR 526 and  Zafar v Glasgow City Council [1998] IRLR 36, in the absence of an adequate explanation from an employer, a tribunal may, but is not bound to, infer that discrimination was behind the difference in treatment.  It would not appear that the tribunal made proper enquiries into the reasons for the different treatment of the Applicant and Private Henderson.  It may well be that other witnesses on behalf of the MoD gave evidence to explain away the apparent discrimination raised by Warrant Officer Taylor’s evidence, but it is not for us to speculate on matters not contained in the tribunal’s written reasons.

We accept the Applicant’s arguments with regard to her second complaint.  By their decision the tribunal appear to have failed to direct their minds to the question of whether the treatment meted out to the Applicant, namely discharge, and that meted out to Privates McPhee and Williamson, was different by reason of gender.  The tribunal accepted that the warnings given by the Territorial Army were different, but dismissed those differences as “slight”.  The tribunal may have been right to conclude that the difference in the warnings was slight but the difference in the consequences was clearly more than insignificant as the Applicant was discharged.  The tribunal failed to consider whether the discharge of the Applicant was less favourable treatment by reason of her sex.  

On the matter of the Applicant’s third complaint alleging indirect discrimination it is helpful to set out the statutory position.

Section 1 of the Sex Discrimination Act 1975 is as follows:

“(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -  
(b) he applies to her a requirement or condition which applies or would apply equally to a man but -
(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and
(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it applied, and
(iii) which is to her detriment because she cannot comply with it.”

In considering whether the requirement that new recruits, not entitled to wear their personal kit, was a requirement or condition with which a considerably smaller proportion of women than men “can comply with it” raises difficult questions which will need to be addressed at any further hearing.  The word “can” does not mean ‘physically able’ but means ‘can in practice comply according to the current usual behaviour of women as observed in practice’.  The appellant says that in practice the 1958 kit is so designed that a woman with a ‘normal female frame’ cannot properly fulfil her TA commitments.  The tribunal in its decision referred to “all women” being at a disadvantage compared to “all men”.  That, with respect, is not the proper test for indirect discrimination and discloses an error of law.  Whether there is any statistical evidence to support the Applicant’s claim is a different matter to be decided by the tribunal re-hearing the matter. 

As to the allegation about the Chairman being or appearing to be asleep, we have to express our great concern about this.  This particular Chairman has a habit of closing his eyes which leads to a number of appeals.  We have already expressed the view that ‘closing one’s eyes’ to indicate that the advocate is not being persuasive is not a suitable technique for an Industrial Tribunal Chairman or Member.  It must never be forgotten that for the parties concerned the case is likely to have assumed considerable importance, regardless of the amounts at stake.  For them, their case is all important.  It is the duty of the tribunal to be alert during the whole of the hearing, and to appear to be so.  In this case, there has been an unfortunate and crucial error as to dates which had to be corrected.  Further, the tribunal failed to approach the indirect discrimination complaint properly and did not do justice to the applicant’s complaints relating to her discharge from the service.  Whether these errors were attributable to a lack of concentration is irrelevant.  It is most unfortunate that the case will have to be re-heard, through no fault of the parties.  We express the hope that we shall not see any further appeals from decisions where Mr Flint is chairman where there is an allegation relating to him closing his eyes and appearing to be asleep.  

Finally, we wish to say that whilst it is clearly preferable that the advocates, representatives or parties themselves should complain, at the time, that the Tribunal does not appear to be fully alert, in the context of litigation in the Employment Tribunals we regard it as unrealistic to expect that that will always be sensible or practicable.  In the Moringiello case, there was a criminal trial before a Judge and jury.  The jury are the fact finders.  Both parties were represented by counsel at the hearing.  It would have been possible, without difficulty, to make an application to the Judge, in the absence of the jury, about the Judge going to sleep, without fear that umbrage would or might be taken and the facts found against the complainant.  In the Employment Tribunal, in many cases, one of the parties will be unrepresented by a lawyer.  It would, we think, be a denial of justice were the EAT to refuse to intervene where a Chairman appeared to fall asleep, or was guilty of any other misconduct, if no complaint had been made at the time.  There is an obvious distinction between the circumstances of the Moringiello case and what happens in Employment Tribunals.  Whilst we would hope and expect that a professional advocate would raise the matter then and there, this expectation is not to be regarded as a pre-condition to making an appeal here on that ground.  That said, when judging whether there has been an appearance of bias or impropriety, whether or not a contemporaneous complaint was made will be relevant.  In this case, we were told that the Applicant was represented by a person who was a pupil in Chambers doing one of her first cases.  It seems to us somewhat unrealistic to expect her to raise the issue before the Chairman who was part of the fact finding industrial jury.

For these reasons, the appeal must be allowed and the matter remitted back to a freshly constituted tribunal.  We have not intended by this judgment to give any indication as to how the new tribunal should decide any of the issues.

Copyright 1999

EAT/422/97

EAT/422/97
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