Title: Appeal No.
Author: CNASH
Last saved by: joe.ury
Company: Employment Tribunal Service

Appeal No. UKEAT/0080/08/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 and 18 April 2008
Judgment handed down on 23 May 2008

Before
HIS HONOUR JUDGE PETER CLARK
MR D CHADWICK
MR R LYONS

1) F & C ASSET MANAGEMENT PLC
2) MR M TONKIN
3) MR P COLE
4) MR D LOGAN	APPELLANTS

MS G SWITALSKI	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant

MS MONICA CARSS-FRISK
(One of Her Majesty’s Counsel)
Instructed by:
McDermott Will & Emery UK LLP
7 Bishopsgate
London
EC2N 3AR

For the Respondent

MS SUZANNE MCKIE
(of Counsel)
Instructed by:
Messrs Withers LLP Solicitors
16 Old Bailey 
London
EC4M 7EG

SUMMARY
Sex Discrimination – Comparison – Burden of proof
Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke
Direct sex discrimination – less favourable treatment – comparative exercise – Respondents’ explanation – adequacy of reasons.

HIS HONOUR JUDGE PETER CLARK

1.	This is an appeal by the Respondents before the London Central Employment Tribunal against parts of the reserved judgement of an Employment Tribunal chaired by Employment Judge Lewzey, following a 15 day hearing, promulgated with full reasons running to 66 pages on 11 January 2008 upholding in part the Claimant, Ms Switalski’s complaints of direct sex discrimination, harassment and victimisation contained within 2 separate claims brought by her.  Claims made in a third application were dismissed by the Employment Tribunal.  There is no cross-appeal by the Claimant against findings made adverse to her.  A fourth application awaits hearing, along with the issue of remedy arising from the Employment Tribunal’s findings on the first two claims.  Those matters were stayed by HHJ McMullen QC on 18 February 2008 pending the outcome of this appeal.  Having heard argument on 17-18 April we lifted that stay and reserved our judgment.  A further hearing has been fixed before the Lewzey Employment Tribunal commencing on 16 June 2008.

Factual background
2.	The Claimant was a high-flying city lawyer.  She joined F & C Asset Management Plc (the first Respondent) as a Consultant to the Legal Department on a 30 hour week on about 31 May 2000.  On 29 May 2001 she entered into a full time contract of employment with F & C (the company).  She became Director and Head of Legal.  Her work at subsequent reviews was rated as excellent by her then line manager, Mr Pitt-Lewis, Director of Compliance and Legal who in turn reported to the Chief Operating Officer.  She featured in legal publications, for example, winning ‘Deal Team of the Year in ‘Legal Week’ in 2004.

3.	On 11 October 2004 a merger was completed between F & C and ISIS Asset Management PLC, based in Edinburgh.  The merged organisation had £102.7 billion of assets under management as at 31 March 2007.

4.	Shortly before the merger was completed Mr Ben Apfel joined the legal team as the Claimant’s deputy.  Following the merger Mr Marrack Tonkin (the Second Respondent), who had worked for ISIS and was based in Edinburgh, assumed overall control of the legal team headed by the Claimant.  To complete the picture Mr Peter Cole (the Third Respondent) was Head of Human Resources and Mr David Logan (the Fourth Respondent) was Chief Financial Officer from 31 July 2006.

5.	In summary, it was the Claimant’s case before the Employment Tribunal that Mr Tonkin took every opportunity to marginalise and undermine her because she was a woman and thus created for her a working environment which became intolerable.  He built close working relationships with male subordinates, subjected her work to closer scrutiny than other senior male employees and imposed conditions relating to flexible working and budgeting constraints inconsistent with those applied to male employees.  When, from about June 2006 the Claimant sought the intervention of the HR Department to assist in resolving her relationship with Mr Tonkin, she contended that Mr Cole took Mr Tonkin’s side culminating in a proposal made to her on 28 September 2006 by Mr Cole that she accept detailed working practices or an ‘amicable separation’ on terms to be agreed.  The Claimant then commenced formal grievance proceedings and, following a letter from her solicitors to Messrs Tonkin and Cole dated 10 November 2006, intimating that they would be joined personally in Employment Tribunal proceedings and proceedings under the Protection from Harassment Act 1997.  She became subject to disciplinary proceedings on 24 November 2006.  Having commenced the first 3 sets of proceedings in the Employment Tribunal she resigned on 7 September 2007, complaining of constructive dismissal, which formed the basis of the fourth set of proceedings commenced on 5 December 2007.

6.	The Respondents vigorously denied the claims made by the Claimant.  In order to gain a flavour of the Respondents’ case below we have read the witness statements of Mr Tonkin (2/436-490) and Mr Cole (2/596-636).  From Mr Tonkin’s primary evidence it would appear that any management decisions taken by him affecting the Claimant were done in the best interests of the business without regard to considerations of her sex.  Mr Cole comes across as a caring HR Professional of long-standing.  Neither had ever before been the subject of accusations of sex discrimination.  

7.	Thus the stage was set for the Employment Tribunal hearing.  Both sides’ version of events after 11 October 2004 could not be right.  It was the Tribunal’s task, having heard the evidence and argument, to decide the facts and apply the law.  Our task is not to say whether we agree or disagree with the Tribunal’s conclusions.  It is to determine whether or not the findings under appeal are legally permissible or flawed.

The Employment Tribunal Decision
8.	As might be expected from the high quality representatives engaged in this matter the Employment Tribunal was assisted by an Agreed Composite list of issues arising in each of the 3 claims under consideration.  That list is set out at para 10 of the Reasons.  The scheme of the reasons then takes the following form; a chronological account of the primary facts found by the Employment Tribunal (paras 14-135); reference to the detailed written submissions of counsel (the Claimant’s running to 55 pages; the Respondents’ 119 pages) supplemented by short oral submissions in closing and then the Employment Tribunal’s conclusions on the identified issues.  In summary, they were as follows:
First case
(1)	A claim of indirect sex discrimination based on alleged pressure placed on her to comply with a non-flexible or less flexible working arrangement was dismissed (paras 141-143).
(2)	Claims of direct sex discrimination succeeded in part.  The critical reasoning is at paras 160-173.  We shall return to that reasoning when considering the Respondents’ grounds of appeal.
(3)	The complaints of harassment against F & C, Mr Tonkin and Mr Cole succeeded in the light of the Employment Tribunal’s findings upholding the Claimant’s complaints of direct sex discrimination (paras 175-177).
(4)	The claims of victimisation were dismissed (paras 181-197).
(5)	Similarly the ‘whistleblowing’ claims failed and were dismissed (para 200).

Second case
(6)	The complaints of direct discrimination against F & C and Mr Logan arising out of the internal disciplinary proceedings succeeded.
(7)	A complaint of victimisation arising out of the sending of a letter dated 24 November 2006 calling her to a disciplinary meeting succeeded against F & C and Mr Logan, but not Mr Tonkin.
(8)	The claim of whistleblowing failed.
(9)	The claim of disability discrimination failed, the Employment Tribunal having found that the claimant was disabled.

Third case
(10)	The claims of direct sex discrimination, victimisation and disability discrimination all failed and were dismissed.  An Equal Pay claim was dismissed on withdrawal.

We pause only to observe that, as the outcome of the various claims shows, the Employment Tribunal looked critically at each claim, upholding some and rejecting others.

Grounds of Appeal
9.	Miss Carss-Frisk QC has organised her grounds of appeal under the following main headings:
(1)	Misdirection in law
(2)	Failure to carry out the necessary comparative exercise
(3)	Failure to analyse the Respondents’ evidence/explanation and reaching internally inconsistent findings
(4)	Failure to give adequate reasons (Meek) 
recognising that there was necessarily a degree of overlap.

Chairman’s Notes of Evidence
10.	In permitting this appeal to proceed to a full hearing on all grounds, by order dated February 2008, Elias P made the usual direction as to the parties agreeing a note of relevant evidence given below, failing which application could be made for the Chairman (now Employment Judge’s) Notes of Evidence.

11.	Attempts were made between the parties to reach agreement, but in the absence of full agreement application was finally made, by consent, on 19 March 2008 for the Chairman’s notes of the whole of the evidence given by 5 witnesses, the Claimant, Mr Tonkin, Mr Cole, Ms Barley (the Claimant’s Personal Assistant) and Mr Scott (F & C Head of Stewardship).  The Registrar made that order on 1 April 2008.

12.	On 3 April the Regional EJ, Mr David Latham wrote to the EAT indicating that Ms Lewzey would be unable to deal with the matter prior to the week commencing 12 May.  The appeal hearing was fixed for 17-18 April.  That letter was placed before Judge McMullen, who discharged the Registrar’s Order on 7 April, referring any further directions to me as the hearing Judge.  The Respondents’ solicitors then applied to me on 8 April for that direction to be reconsidered.  I convened a directions hearing early on 11 April.  The upshot was that the parties were left to make further efforts to agree the evidence; the hearing dates were to remain fixed; if it were to become necessary as a result of the argument to seek comments from the Employment Tribunal we would do so.  For the reasons which follow we do not consider it necessary to take that course.

Discussion
13.	We shall deal with the grounds of appeal in the same order as did Miss Carss-Frisk.

(1) Misdirection in law
14.	Miss Carss-Frisk correctly submits that, as was explained by the Court of Appeal in Madarassy v Nomura [2007] IRLR 246, when the Employment Tribunal is considering whether the Claimant has made out a prima facie case of unlawful direct discrimination at the first stage of the test propounded in Igen v Wong [2005] IRLR 258, it must take into account evidence given by the Respondent as well as that led by the Claimant.  The practical application of that principle is clear from the judgment of Mummery LJ at para 71:

“The respondent may adduce evidence at the first stage to show that the acts which are alleged to the discriminating never happened; or that if they did they were not less favourable treatment of the complainant or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that even if there has been less favourable treatment of the complainant, it was not on the grounds of her sex…”

15.	The question for us is whether the Employment Tribunal followed that guidance in the present case.  That they purported to do so is not in doubt; as Miss Carss-Frisk accepts, the Employment Tribunal correctly directed themselves as to the relevant statutory provisions; SDA 1975, ss1(2)(a) and 63A(2) (paras 144-145) and to the relevant guidance from the CA in Igen, as explained in Madarassy, (paras 146-147).  Further, at para 148, the Employment Tribunal refer to the Claimant’s reliance, in the first case, on a hypothetical comparator and, in addition, men of her seniority within the company, including Derek McLean (to whom we shall return). The issue on appeal is whether the Employment Tribunal correctly and demonstrably applied the law to the facts as found, drawing appropriate inferences, when considering the relevant agreed issues, themselves based on paras 9-18 of the Particulars of Claim (P of C) annexed to the Claimant’s first form ET1.  We shall deal with that issue when considering the third ground of appeal.

16.	Next it is submitted that the Employment Tribunal misdirected themselves as to the continuing application of the principles in Zafar v Glasgow City Council [1998] IRLR 36 (HL) and Bahl v The Law Society [2003] IRLR 640 (EAT Elias J presiding; affirmed by CA [2004] IRLR 799), those cases having been decided before the introduction of the reverse burden of proof by s63A(2) SDA.

17.	At para 159 the Employment Tribunal refer to passages in both Zafar and Bahl cited by Miss Carss-Frisk in her closing written submissions; having done so they end that paragraph with these words:
“The Tribunal must follow the guidelines in Igen and Madarassy set out above.”

18.	Miss Carss-Frisk argues that the Employment Tribunal has there demonstrated a misunderstanding of the law.  First, they wrongly believed that it is enough for a Claimant to show that she has received unfavourable treatment at the hands of her employer without more; secondly, they considered that Igen and Madarassy have altered the approach taken in Zafar and Bahl at stage 1 of Igen.

19.	We reject that submission.  First, at a basic level, both Zafar and Bahl are referred to in the judgments in both Igen and Madarassy.  Thus, an Employment Tribunal which follows the latter guidance correctly will, in so doing, also be following the still relevant approach taken in Zafar and Bahl.  We emphasise the words “still relevant”.  It is necessary at this stage to trace briefly the historical development of the law of direct discrimination.  In Zafar, Lord Browne-Wilkinson resiled from the analysis which he proferred, as President, in Khanna v Ministry of Defence [1981] IRLR 331 and Chattopadhyay v Headmater of Holloway School [1981] IRLR 487 in favour of that classically stated by Neill LJ in King v Great Britain China Centre [1991] IRLR 513, 538 (see Zafar, para 16).  Where a Claimant makes out, on the balance of probabilities, a difference in treatment and a difference in race, the Tribunal will look to the employer for a non-discriminatory explanation.  Where no or no adequate explanation is given the Tribunal may (King) not must (Khanna) draw an inference of unlawful discrimination.

20.	That was the position pre s63A(2).  What that provision does, as I put to both counsel in argument without dissent, is to substitute must for may at the final stage of the King enquiry.  In other words, a return to the then President’s approach in Khanna.  We are not for one moment seeking to depart from the CA approach in Igen, as explained, in Madarassy and we are satisfied that Judge Lewzey’s Tribunal was right to so direct themselves.  We simply observe that the Igen approach, which owed much, with slight variations, to the forensic argument advanced by Mr Robin Allen QC and accepted by the EAT in Barton v Investec [2003] IRLR 332, might have been simplified in this way, thus obviating the need for further explanation in Madarassy.

21.	The next point taken by Miss Carss-Frisk focuses on the Employment Tribunal’s reference to justification.  At para 161 they say, in relation to the complaint by the Claimant that Mr Tonkin took no steps to foster working relations with her, a situation which the Employment Tribunal was satisfied was one where an inference of sex discrimination could be drawn, they comment:
“We had no explanation put forward to us. Ms Carss-Frisk does not address the issue of justification in her submissions.”

And at para 163 they say:
“We are satisfied that Mr Tonkin and the company did undermine Ms Switalski and they have not demonstrated that such conduct was justified.”

22.	Miss Carss-Frisk submits that the Employment Tribunal’s reference to justification in those 2 passages demonstrates that they looked to the Respondents to show that they had not acted in an unjustified, that is unreasonable way, thus ignoring the approach in Zafar and Bahl.

23.	Again, we reject that submission.

24.	Technically and as a matter of statutory language, the concept of “justification” has no place in the consideration of a complaint of direct discrimination.  It arises in the context of indirect discrimination and disability discrimination, but not here.  

25.	In this connection Ms McKie drew our attention to observations of Mummery LJ in Madarassy, paras 110-111.  We note that Judge Lewzey chaired the Employment Tribunal in that case.  In that passage Mummery LJ rejected a submission made on behalf of Ms Madarassy that the Employment Tribunal could be criticised for saying that there was “no evidence” in relation to a particular allegation when the Claimant herself had given that evidence. Describing that observation as “rather loose use of language” Mummery LJ read that expression as meaning “no credible evidence”.

26.	In the same way, we read this Employment Tribunal’s reference to justification and justified as meaning, in context, that the Employment Tribunal found that the Respondents had failed to prove a non-discriminatory explanation for the prima facie less favourable treatment found at stage 1.  

27.	Finally, under the heading of patent misdirections in law, Miss Carss-Frisk challenges the Employment Tribunal’s approach to the complaint of harassment in relation to the first case, dealt with by the Employment Tribunal at paras 175-176.  Although the Employment Tribunal set out the relevant provisions of S.4A(1)(a) SDA at para 174, she submits that in making the finding upholding the complaint of harassment in relation to those P of C where findings of direct sex discrimination had earlier been made, the Employment Tribunal overlooked the statutory requirement that those acts of discrimination, also found to have the purpose or effect of creating a hostile, etc environment, must be conduct engaged in by the Respondents on the grounds of her sex.  We disagree.  We accept Ms McKie’s submission that, having found those same acts to amount to sex-based direct discrimination, the only question for the Employment Tribunal was whether those acts also amounted to unwanted conduct having the relevant purpose or effect specified in the sub-section.  Since there is no challenge to the finding by the Employment Tribunal that they did, the harassment finding stands or falls on the earlier findings of direct sex discrimination being upheld on appeal.

(2) The comparative exercise
28.	We begin with this observation, stemming from the judgment of Elias J in Bahl.  Having analysed the speeches of their Lordships in Shamoon v Chief Constable of the R.V.C [2003] IRLR 28 (see paras 102-110) he focused on the “reason why” question, as it was put by Lord Nicholls in Shamoon, concluding, at para 115;
“Accordingly, we reject the contention that it is an error of law for a Tribunal to fail to identify a hypothetical comparator or to determine the issue of less favourable treatment prior to asking the “reason why” issue.  Indeed, as Lord Nicholls pointed out, it may result in an arid and ultimately pointless debate about which characterises properly define the hypothetical comparator.”

29.	That said, Elias J went on to warn, at para 116, that failure to construct a hypothetical comparator may raise a doubt as to whether the Employment Tribunal has properly considered all potentially relevant explanations put forward by the Respondents, something to which we must return when considering the third ground of appeal.  It may also be relevant to the reasons challenge, ground 4.

30.	Miss Carss-Frisk submits, by reference to specific examples to which we shall return, that the Employment Tribunal failed to address, in relation to each allegation raised, the two-fold question; was there less favourable treatment of the Claimant, compared with a man (actual or hypothetical); if so, was it on the grounds of her sex.  She submits that the reason why question is no substitute, under the statute, for that dual approach.

31.	We acknowledge the force of that submission.  However, we also bear in mind the valuable guidance of Mummery P in Qureshi v Victoria University of Manchester [2001] ICR 863 endorsed by CA in Anya v University of Oxford [2001] ICR 847, that whilst an Employment Tribunal must consider each allegation of discrimination raised by the Claimant, it must then stand back and look to see whether, overall, the complaint of unlawful direct discrimination is made out.
32.	So far as the structure of this Employment Tribunal’s reasons is concerned, there is ample evidence to show that the Employment Tribunal had in mind the requirement to carry out the comparative exercise set out in s1(1)(a) SDA, cited at para 144 (the reference to section 1(2)(a) is plainly a typographical error).  The relevant comparators are referred to at para 148.

33.	Turning to the language used by the Employment Tribunal in expressing their conclusions  on the various allegations of direct discrimination raised in the first claim (paras 160-172) we take the view that where the Employment Tribunal find, for example in para 161:
“In these circumstances Ms Switalski has demonstrated that she was less favourably treated.”

the Employment Tribunal is using a short-hand expression for the statutory wording; which we paraphrase as; on the grounds of her sex she was treated less favourably then a comparable man was or would have been treated.

34.	Finally we are entitled to and do take into account the fact that this Employment Tribunal was chaired by a very experienced EJ (who, as we have noted, chaired the Madarassy Employment Tribunal) familiar with the sex discrimination legislation and relevant case-law.  She had the benefit of sitting with lay members, one at least of who, as a matter of convention, we are confident would have had relevant experience in the work place in the field of sex discrimination.  The Employment Tribunal also had the benefit of representation before them of highly experienced counsel in the field.  And they heard evidence over 13 days, an advantage which we did not have.  All these factors are relevant when we come to consider the Third Ground of Appeal.

(3) Failure to analyse the Respondents’ evidence/explanations
35.	In advancing the argument that the Employment Tribunal, in addition to the complaint that it failed to engaged with the comparative exercise, identifying less favourable treatment on grounds of the claimant’s sex, ignored explanations put forward by the Respondents for the treatment complained of by her, Miss Carss-Frisk has, in our judgment, taken Lord Russell of Killowen’s fine toothcomb (see Retarded Childrens Aid v Day [1978] ICR 437, 444 D) to the Employment Tribunal’s reasoning, exposing it to an almost line by line analysis in the passages dealing with their conclusions adverse to the Respondents.  That is not, in our view, a proper basis for challenging an Employment Tribunal judgment on appeal.  It is axiomatic that appeals to this Tribunal are on points of law only.

36.	In these circumstances we do not purpose to examine each and every forensic point made by Miss Carss-Frisk and the detailed rebuttals by Ms McKie.  Instead, our approach is to take examples from the competing arguments.

37.	First we remind ourselves of the nature of the direct discrimination case being advanced by the Claimant.  It was that, following a highly successful period as Head of Legal prior to the merger in October 2004, what followed was a campaign by the new management, particularly Mr Tonkin with the support of Mr Cole, over the following 2 years, to undermine her position because she was a woman.  In order to make good that case she provided examples of the treatment to which she was exposed which she contended was not or would not be meted out to a senior male employee.  The Respondents’ case was that there was no less favourable treatment; the matters complained of represented reasonable management decisions particular to her performance.  It was not that all managers were treated unreasonably (see Zafar); on the contrary, her complaints were misconceived.

38.	The Employment Tribunal considered those conflicting accounts and made their findings of fact on the many issues which arose.  That is not to say that they ignored the Respondents’ explanations; rather they were not persuaded by them.  In making findings of less favourable treatment at stage 1 of Igen we are satisfied that they took into account the Respondents’ factual case but, in the relevant respects, preferred the evidence of the Claimant.  When the onus passed to the Respondents to provide an explanation for what the Employment Tribunal found to be prima facie unlawful discrimination the Respondents failed to provide an adequate explanation untainted by sex.  As commented on by Mummery LJ in Madarassy, we think that Judge Lewzey, in this judgment, has used the expression “no explanation” to encompass “no adequate explanation”.  Having reached that position the Tribunal was bound to make a finding of unlawful direct discrimination, applying s63A(2) SDA.

39.	Some examples.  Mr Derek Mclean was put forward by the Claimant as an actual comparator in relation to her complaint concerning her flexible working arrangement.  That factual complaint appears as an allegation of indirect sex discrimination at para 9 of the Claimant’s P of C, but in the agreed List of Issues (Issue 4(a): reasons para 10) appears also as an allegation of direct discrimination.

40.	The Employment Tribunal considered that complaint at paras 150-155.  At para 151 they expressly state that in considering the treatment of the Claimant and Mr McLean, both of whom had specific childcare issues, they had to consider the evidence of Mr Scott, Head of Stewardship and a witness called on behalf of the Respondents and the evidence of the other witnesses.  That directly undermines, in our view, Miss Carss-Frisk’s general complaint that in considering whether the Claimant had established a prima facie case of discrimination (our shorthand) at stage 1 of Igen, the Employment Tribunal ignored evidence adduced by the Respondents.

41.	In finding a difference in treatment between Mr McLean and the Claimant over flexible working the Employment Tribunal also took into account evidence adduced on behalf of the Claimant in the form of an article plotting the working week of Mr Scott.  The conclusion which the Employment Tribunal drew was that Mr Scott’s activities out of the office were not criticised in the way that Mr Tonkin criticised the Claimant.

42.	We do not propose to descend to the minutiae of the evidence relating to this issue, as Miss Carss-Frisk invites us to do.  It is not the function of the Employment Tribunal to examine each and every by-way in the evidence in order to rule on every point raised.  As we remind ourselves when considering the reasons challenge next, the obligation on an Employment Tribunal is to state why the parties have won or lost.  The Respondents lost this aspect of the case because the Employment Tribunal accepted that in relation to flexible working arrangements the Claimant was treated less favourably then Messrs McLean and Scott; there was a difference in sex and the Respondents failed to prove a satisfactory explanation for that less favourable treatment (having denied any difference in treatment) untainted by sex.

43.	Next, the complaint that the Claimant was subjected to micromanagement and unreasonable scrutiny, a matter raised at para 13.1 P of C.  Examples given included scrutiny of her expenses claims and a level of monitoring as if she was underperforming.

44.	It should not be overlooked that in stating the agreed issue relating to this factual complaint (Issue 4(c)) the questions posed to the Employment Tribunal were:
“(1) Did the Second Respondent (Mr Tonkin) treat the Claimant in the manner detailed in paragraphs 13.1 to 13.8 of the P of C?
(2) if so, by treating the Claimant in this manner, did the Second Respondent treat the Claimant less favourably than he treated or would have treated a male comparator in the same circumstances?” (Reasons para 10).

45.	The Employment Tribunal’s answer, at paras 160-161, has been the subject of 5 pages of detailed analysis in Miss Carss-Frisk’s written submissions to us, further developed orally. We would characterise those submissions largely as an attempt to reargue the factual basis of the Respondents’ case below.  It is said, for example, that Mr Tonkin’s scrutiny of the Claimant’s expenses was in accordance with the company practice, laid down by the Finance Department and applied across the legal team (male and female). That explanation, it seems to us, if accepted, provides a complete answer to this particular head of claim.  There was no difference in treatment; the treatment was meted out indiscrimately to men and women in the legal team: the Claimant does not pass stage 1.  Even if she did, that explanation is wholly untainted by sex.

46.	However it is clear to us that the Employment Tribunal did not accept Mr Tonkin’s evidence on this aspect of the case.  Having set out certain factual findings at para 160 the Employment Tribunal first considered the stage 1 enquiry at para 161.  They referred to paras (4) and (6) of the guidance annexed to Igen (para 76).  They cannot properly be criticised for doing so. They found that Mr Tonkin was uncomfortable with a number of matters put to him.  They found that he treated the Claimant differently from male members of the legal department, citing lunches with Mr Apfel and a difference in reception given by Mr Tonkin to a male colleague of the Claimant, Mr Blackman, when he visited Edinburgh compared with that extended to the Claimant.  They noted Mr Tonkin’s reference to a female member of the department, Ms Ball, in his evidence as a “clever girl”.

47.	Each of those findings has been the subject of submissions by Miss Carss-Frisk; she points out that, on the evidence, Mr Tonkin had lunch (a quick sandwich) with the Claimant once and suggested a second lunch which the Claimant was unable to attend.  Where, she asks rhetorically, lies any material difference, let alone less favourable treatment, in that? Taking that comparison alone we see the force of the submission.  However, as Ms McKie points out, it is necessary to see individual events in the overall context of the factual matrix as found by the Employment Tribunal.  For example, the Employment Tribunal go on to find that Mr Tonkin took no steps to foster working relationships with the Claimant. That was a conclusion which they were entitled to draw.  The lunch point formed part of a picture which the Employment Tribunal apparently accepted, that Mr Tonkin preferred to develop relations with male members of the legal team rather then the Claimant.  And as to the “clever girl” remark by Mr Tonkin during his evidence Miss Carss–Frisk points out that there was no finding by the Employment Tribunal as to how Mr Tonkin would have referred to an equivalent young male employee; a “clever boy” or a “clever chap”?  That, it seems to us, misses the point.  Here the Employment Tribunal were demonstrating, from the evidence which they accepted, why they drew the inference of prima facie discrimination at stage 1.  An instance of what may be regarded as patronising language about a young female member of staff is but one piece in the overall jigsaw.  What is absolutely clear to us is that, contrary to Miss Carss-Frisk’s general complaint, the Employment Tribunal did not ignore the Respondents’ evidence at stage 1 of the Igen enquiry; they demonstrably took it into account but were not persuaded by it.  When it came to stage 2 they were unable to discern any adequate explanation for the less favourable treatment found that was untainted by sex.  Mr Tonkin challenged the Claimants account of the treatment of which she complained; in the material respects his evidence was rejected.

48.	Similar observations apply to the further challenges made to the Employment Tribunal’s findings adverse to the Respondents.  We simply do not accept that the Employment Tribunal ignored the Respondents’ answer to the Claimant’s case that she was subject to undermining behaviour; to her being excluded from Management Committee meetings; to her reduced ranking in her 2006 appraisal and in relation to the way in which Mr Cole dealt with the Claimant’s complaints in 2006 and his conduct, particularly in relation to his letter to the Claimant dated 24 November 2006, and in relation to the disciplinary process.  Ms McKie has satisfied us that the Employment Tribunal took into account the Respondents’ evidence; they preferred that of the Claimant, drawing permissible inferences of prima facie direct sex discrimination for which no adequate explanation was provided.  Whilst we have been provided with a detailed analysis of evidence given before the Employment Tribunal, disguised to show that the Employment Tribunal made “perverse” findings of fact, we are not persuaded that the Employment Tribunal’s reasoning is thereby undermined.  Nor do we find it necessary to refer any questions to the Employment Tribunal for further clarification. 

49.	It follows that we can find no basis on which to interfere with the Employment Tribunal’s finding of harassment in the first case.  The course of conduct found in relation to direct discrimination, itself on the grounds of sex, supports the conclusion that that conduct fell within the statutory definition of harassment.  In relation to the second case we are satisfied that the Employment Tribunal was entitled to draw on its earlier findings of discrimination in upholding the like complaint in the second case.  As to the claim of victimisation upheld against the company, Mr Tonkin and Mr Logan, Miss Carss-Frisk complains that Mr Logan had never met the Claimant, and that his only part was to sign the letter of 24 November 2006 which was drafted by Mr Cole.  That is a curious submission; can it really be said that a very senior officer of the company has no responsibility for signing a letter drafted by another?  We agree with Ms McKie that the answer is no.  

50.	In these circumstances we reject the 3^rd ground of appeal.

(4) Adequacy of reasons
51.	What is required is an outline of the story, a summary of the Employment Tribunal’s basic factual conclusions and a statement of their reasoning so that the parties know why they have won or lost.  That approach is now enshrined in R30(6) of the Employment Tribunal Rules of Procedure 2004.
52.	As Bingham LJ made clear in Meek v Birmingham [1987] IRLR 250, the Tribunal is not required to create “an elaborate formalistic product of refined legal draftsmanship”, as we think Miss Carss-Frisk demands.  

53.	Those principles were more generally considered by the CA in English v Emery Reimbold [2003] IRLR 710.  Not only must the parties know why they won or lost, this Tribunal, on appeal (and on any further appeal) must be able to discern why the Employment Tribunal made the findings under appeal which it did.

54.	Standing back, with the advantage of careful and detailed submissions on both sides, we are each of us satisfied that, whilst a minute analysis of the Employment Tribunal’s reasons may reveal minor inconsistencies and some use of loose language, our overall impression is that the Employment Tribunal has adequately explained its reasoning, why it rejected the Respondents’ case where it did so, and demonstrated that it has correctly applied the law.

55.	Shortly after argument in the present case the CA handed down judgment in Consistent Group Ltd v Kalwak and Others [2008] EWCA Civ 430 (29 April 2008). The Respondents solicitors invited us to consider the judgments in that case, which concerned the employment status of Polish Agency Workers.  We have done so, taking into account the submissions made by solicitors newly appointed on behalf of the Claimant, dated 2 May 2008.  We can deal with that case shortly; the CA took a different view from that of Elias P, sitting alone in this Tribunal as to the adequacy of the Employment Tribunal Judge’s reasoning below.  That is the nature of the appeal process.  We can discern no new or different approach in principle to be found in the judgments of Rimer and May LJJ (with which Wilson LJ agreed) in that case.  On the contrary, the case is an example of how the correct legal principles may be applied to the circumstances of a particular case at both appellate levels leading to different results.

Conclusions
56.	For our part, we shall dismiss this appeal.  The matter will now return to Judge Lewsey’s Tribunal for determination of the fourth case and remedy.

Copyright 2007

UKEAT/0080/08/ZT

UKEAT/0080/08/ZT
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