England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Lindsay Presiding)

		Royal Courts of Justice Strand London WC2 Tuesday, 30th July 2002

Tuesday, 30th July 2002

1. LORD JUSTICE PETER GIBSON: This is an appeal by Carole Hobson from the order made by the Employment Appeal Tribunal on 6th June 2001 at the preliminary hearing of her appeal from the decision sent to the parties on 8th September 2000 of an Employment Tribunal sitting at Stratford. The Tribunal thereby dismissed Ms Hobson's complaint against the London Borough of Hackney ("Hackney") of sex discrimination. This appeal is brought with the permission of Mummery LJ.
2. I take the material facts from paragraph 7 of the Decision with Extended Reasons of the Tribunal. This sets out the findings of the Tribunal. Paragraph 7 contains 31 subparagraphs running to ten closely typed pages and demonstrates the care with which the Tribunal sought to set out its findings.
3. Ms Hobson, who is 49, was trained as a teacher. She obtained social work qualifications between 1975 and 1977 and thereafter held various posts with local authorities in the social services field. At the time of the Tribunal hearing she was in the process of studying in order to qualify as a barrister. She commenced work on 18th June 1998 for Hackney as an agency social worker on a duty and assessment team for six weeks. At that time her team leader was Lily Church and her area manager Roger Smith. In mid-August 1998 Mr Smith offered Ms Hobson a further temporary post in a care planning team, led by Oliver Mason, for three months. She started on 1st September, taking with her some cases from her work in the previous team and being allocated new cases by Mr Mason.
4. Ms Hobson quickly found that she could not agree with some of Mr Mason's decisions. She clashed with him over a case called the "S" case. The background of that case was that a child had been unlawfully killed. The mother was pregnant and the unborn child was considered to be in need of protection. In October 1998 Ms Hobson brought to Mr Smith her concerns about Mr Mason following a case conference in the "S" case at which there had been a difference of view. By this time both Ms Hobson and Mr Mason were of the view that they could not work with each other. Supervision by Mr Mason of Ms Hobson effectively ceased between November 1998 and May 1999. Ms Hobson also formed the view that Mr Mason was demeaning in his manner to females, even though five of his team of six were female.
5. On 16th October 1998 at a supervision meeting between Ms Hobson and Mr Mason, an incident occurred to which Ms Hobson took exception. There had been discussion of the "S" case and, in particular, of how the mother had met the father of the unborn child, the mother not being aware of the surname and address of the father. Mr Mason raised the question whether the mother might have responded to advertisements in "Loot", whereby couples wishing to meet other couples advertise that fact. Mr Mason had asked, "Is this part of your world?" Ms Hobson said, "No". She later came to the view that it had been a sexual invitation by Mr Mason, but she made no complaint about it at the time.
6. On 2nd November 1998 Ms Hobson, at her own request, changed from working full-time to part-time by job sharing with another social worker. Her workload, however, did not decrease. She complained to Mr Mason, but that did not result in any immediate lightening of her caseload. In mid-October 1998 Ms Hobson saw an advertisement for a permanent post of social worker offered by Hackney. Mr Smith agreed to provide a reference for her. She was offered the post by Mr Smith on 5th November 1998 after an interview, but the offer was subject to satisfactory references and police checks. She told Mr Mason of the offer and discussed its terms with him. She felt that he was attempting to influence the terms of her appointment. Instead of Mr Smith supplying a reference, Mr Mason was asked to do so by a written request dated 25th November 1998. Hackney asked for references from various persons and bodies. One reference received from the London Borough of Southwark, a previous employer of Ms Hobson, contained some criticism of her.
7. Ms Hobson did not receive confirmation in the new post and continued to work as an agency worker for Hackney. Mr Smith left Hackney on 31st March 1999 for another job. That day he wrote a satisfactory reference for Ms Hobson, but only for the period from June to November 1998. He was succeeded as area manager by Elaine Peace, who on 13th April 1999 requested a reference on Ms Hobson from Mr Mason as Ms Hobson's line manager. Mr Mason's reference was in the following terms:

"To Whom It May Concern

14 March 1999

REFERENCE FOR CAROLE HOBSON

I have known Carole in my capacity as her line manager in a care planning team since August 1998. During this period Carole has been an agency locum worker, working through the Reliance agency. Prior to August Carole was a locum worker within the Duty and Assessment Team at this office. Carole started in this team as a full-time worker. She requested to go part time due to her commitments to her course for qualifying for the Bar. Since October 1998 she has been job share with another locum worker in the team, with an agreement to work two days per week.

Since becoming part-time, Carole has had a high caseload, whose demands have exceeded her contracted hours. She has held one particularly complex case which has absorbed much of her time. Carole has also been under particular stress due to the demands of exams for her course.

Carole's timekeeping and absence record have been good. She has had only one period of sickness.

Carole's work performance has been mixed. Carole has established good relationships with other workers in the team, who have found her supportive and ready to give advice or take time to discuss matters.

Carole has shown a strong commitment to the welfare and empowerment of her clients and has experienced considerable stress when she has been unable to fulfil the demands of her cases due to time pressures.

Carole has managed to establish relationships with some clients with extremely difficult behaviour who other social workers have not been able to engage. Carole is able to show great patience in the face of difficult and abusive behaviour and has managed to find points of engagement.

I have however had serious concerns about Carole's work performance. These have been in relation mainly to one complex case that Carole holds.

Carole has shown uncontained anxiety and need for consultation and reassurance about parts of her work. At times she has not been able to prioritise or contain her thoughts so that long consultations take place about less important facets of her work.

In my view she has become overidentified with the client in her complex case. This has led to some difficult dynamics; Carole has tended to view the intervention of other parts of Social Services, eg. the child protection system, as conspiracies against herself or her client. This has paradoxically led to Carole's focus being drawn away from her client and her child. Carole has also been unwilling to accept reasonable management decisions regarding this client.

Carole has at times been unreasonably preoccupied regarding some bureaucratic issues, this preoccupation remaining even when the issue has been dealt with at a higher level.

Carole's views and hypotheses regarding her client's situation and difficulties have tended to fluctuate rapidly depending on the most recent information received. Carole has appeared to have difficulty in holding on to a larger context of information received over a longer period.

Carole appears to have largely neglected the other cases she holds; there are few recordings on these cases since September 1998.

Carole's expressed intentions regarding her employment with LB Hackney have been contradictory and difficult to deal with at times. Carole applied for the permanent jobshare post after a period of jobsharing as a locum. On being made a conditional offer of the jobshare post she stated that LB Hackney would not be able to hold her to the terms of the jobshare previously outlined to her, and so she would effectively work as a part-timer. Carole has declared her intention to resign form the job share locum post several times due to the demands on her time, but simultaneously applied for a full-time locum team management post. Carole gave a letter of resignation from the locum post dated 9.4.99, but stated her intention of still taking up the permanent job share post. I and the team are very unclear regarding Carole's true intentions, and her current proposal does not offer consistency of service to her clients.

In summary, my concerns are: the lack of stability and consistency in Carole's approach to her work, her impulsiveness and lack of longer term consideration in forming hypotheses and judgements, her lack of planning and balance in attending to other parts of her caseload.

There are some factors which have made Carole's situation more difficult: since going part-time, her workload has been high. Carole has worked two separate days of the week, which have not helped her to structure her work. I have not been able to have supervision with Carole since November last year, although many informal consultations have taken place during this period. Carole has not heard, and had a chance to respond to some of my concerns mentioned above. As mentioned above, Carole has been under increasing stress on account of her studies for the Bar.

Having taken the above factors into account, I am nonetheless of the view that Carole in her current situation has significant difficulties in meeting the demands of complex cases which would appear to be appropriate for her level of experience.

Oliver Mason

16.4.99."

8. It will be noted that two different dates are given at the start and at the end of the reference. The Tribunal found that 14th April was the correct date.
9. In a discussion on 27th April between Ms Peace, Mr Smith and Mr Mason, Ms Peace decided to withdraw the offer to Ms Hobson of the permanent position, as Ms Hobson was informed by letter dated 29th April. Ms Peace there said:

"Regrettably, references I have received are not satisfactory to me so the conditional offer of the post is hereby withdrawn."

10. In the meantime in February and March 1999 Ms Hobson collapsed at home with an illness diagnosed as irritable bowel syndrome. She believed her busy workload was a factor in her medical condition. As a consequence, on 9th April she wrote a letter of resignation which she handed to Mr Mason. In it she referred to her completing the Bar vocational course and her heavy caseload, saying:

"My team manager has been aware of this situation and has been as supportive as he has been able to be, given the limited resources of the Department..."

11. She said that she had decided that she needed to leave in order to concentrate for the last two months on her Bar course requirements.
12. On 13th April Mr Mason and Ms Hobson had met. Mr Mason reassured her as to her future in the permanent post and suggested a way in which she could manage her current job if she were to withdraw her resignation. He told her that he would be writing a reference for her in which he would express some concerns about her abilities and performance. In the belief that she was likely to be successful in obtaining a permanent post, by a note dated 16th April she withdrew her resignation, saying that her team manager had discussed her resignation letter and reassured her that there might be some strategies that could be implemented to help improve her performance and service delivery. Mr Mason at the same time handed her a copy of his reference.
13. Ms Hobson was upset to read that reference and felt that Mr Mason had manipulated Ms Peace and caused her to withdraw the offer.
14. Ms Hobson had not had any supervision meetings, contrary to Hackney's published procedures, between November 1998 and May 1999. At Ms Hobson's initiative a meeting was arranged for 7th May 1999. At that meeting an incident occurred to which Ms Hobson took exception. In the course of the discussion Mr Mason had occasion to describe a female solicitor who was dealing with one of the cases as being pregnant. He indicated that she was pregnant by gesturing with his hands over his stomach. Ms Hobson found this offensive and degrading to women. On 20th May 1999 Ms Hobson wrote a letter of complaint about Mr Mason to Hackney's director, Jeremy Oppenheim. Among the many matters of which she complained was the gesture made to her on 7th May 1999. But the complaints included neither a complaint about the incident of 16th October 1998, nor a complaint about the reference.
15. Also on 20th May 1999, Ms Hobson presented a time sheet to Mr Mason for his signature so that she could be paid. The time sheet was for working over a weekend to rewrite a report which she had prepared for court in the "S" case. That report had been severely criticised by the solicitor preparing the case for court. Mr Mason refused to sign the time sheet because Ms Peace declined to authorise it.
16. At the meeting on 27th April 1999 with Mr Smith and Mr Mason, Ms Peace decided that since Ms Hobson would not be appointed to the permanent post, it would not be in accordance with Hackney's policy to allow her to continue working as an agency worker, and that she was to be informed that her agency work would be terminated. A meeting had been arranged for 25th May between Ms Peace, Mr Mason and Ms Hobson to discuss the terms of her employment. Ms Hobson was unwell and did not attend. Ms Peace on 26th May wrote to Ms Hobson saying:

"It was unfortunate that you were unable to attend our meeting yesterday morning which we had arranged.

Further to my letter dated 29th April 1999 which withdrew our conditional offer, I wanted to meet to confirm your last working day. Therefore, I am writing to confirm that we have notified your agency that we are terminating your employment in accordance with our contract with them. Therefore, your last working day will be Tuesday 1st June 1999."

17. That date was later corrected to a slightly earlier date.
18. Neil Henderson of Hackney's Human Resource Department was appointed to investigate Ms Hobson's complaint in her letter of 20th May 1999. He had meetings with Ms Hobson and Mr Mason. By a report dated 14th October 1999 he referred to Ms Hobson's two allegations concerning the incidents of 16th October 1998 and 7th May 1999. He said that he did not believe that Mr Mason went out of his way to harass or demean Ms Hobson in any way, but Mr Henderson said that Mr Mason should be made aware of his need to be sensitive to people's feelings and interpretation of his words and actions.
19. Ms Hobson presented an originating application to the Tribunal on 27th July 1999 complaining of sex discrimination (among other allegations). The terms of her originating application were unspecific. She amended it on 17th November 1999 to raise a large number of specific allegations. On 13th March 2000 she withdrew the allegations other than that of sex discrimination, but that day she presented a second originating application also complaining of sex discrimination by victimisation. The originating applications were consolidated. Ms Hobson does not appear to have had legal assistance at this stage. But before the Tribunal she was represented by an advocate from the Free Representation Unit.
20. The Tribunal in its Extended Reasons identified the following as being issues for it. In relation to the first originating application the issues were:

(1)whether Ms Hobson was given an unfair reference by Mr Mason which discriminated against her on grounds of sex and led to the retraction by Hackney of its offer of a permanent job;

(2)whether the reference was discriminatory in the language used;

(3) whether she suffered sexual harassment from Mr Mason as set out in paragraphs 6-9, 11-13 and 16-19 of the amended originating application.

21. Of those allegations the most significant matters were the incidents of 16th October 1998 and 7th May 1999.
22. In relation to the second originating application the issues were:

(4) whether Ms Hobson suffered victimisation by Mr Mason failing to sign the time sheet for work completed, as a direct result of her complaining about sex discrimination;

(5)whether she suffered further victimisation by the termination of her locum agency job with Hackney because of her sex discrimination complaint;

(6) whether she suffered yet further victimisation by Hackney failing to investigate properly her sex discrimination complaint.

23. The Tribunal referred in some detail to the decision of the Employment Appeal Tribunal in Driskel v Peninsular Business Services Ltd [2000] IRLR 151 for the guidance given by Holland J, giving the judgment of the Appeal Tribunal, as to the correct approach to adopt in cases of sexual harassment, and it is evident that the Tribunal sought to apply that guidance in the form and the content of its decision. The Tribunal also referred to the well-known guidance given by this court in King v The Great Britain China Centre [1991] IRLR 513.
24. After finding the facts in paragraph 7 to which I have already referred, the Tribunal gave its assessment in paragraph 9. It said in paragraph 9(b):

"When Mr Mason wrote his reference, it expressed serious concerns as to the Applicant's abilities. It led to the withdrawal of the position by Ms Peace. Ms Peace also had some other relevant information to support her decision to the London Borough of Southwark, as well as other information as to the standard of the Applicant's work. She believed this to be below the standard to be expected of someone at the Applicant's level. In particular, she was aware of the criticisms of her report in the `S' case by the Respondents' legal officer, Miss Doreen Forrester-Brown."

25. The Tribunal continued in paragraph 9(c):

"The decision not to confirm the provisional appointment was clearly taken by Ms Peace, applying her own assessment as to the qualities of the Applicant from the references obtained and other information before her. The Applicant's suggestion that she was manipulated into this decision by Mr Oliver Mason has not been established. The terminology of Mr Mason's reference is said by the Applicant to be stereotypical of a discriminator against women. We have read the terms of the reference carefully and we cannot find that any reasonable reader would consider it to be couched in any such terms."

26. In paragraph 9(d) the Tribunal held that no sexual harassment occurred in what was said on 16th October 1998 by Mr Mason to Ms Hobson who was hypersensitive in giving Mr Mason's words the meaning of an invitation to participate in group sexual activity.
27. In paragraph 9(e) the Tribunal also rejected the complaint about the incident on 7th May 1999. In paragraph 9(f) the Tribunal reverted to the reference by Mr Mason and said this:

"In evidence to the Tribunal the Applicant claimed that the language of the reference by Mr Mason betrayed Freudian complexes as to Mr Mason's true attitude to women. She referred to words and phrases within the reference as indicating a demeaning and patronising attitude. By way of example she referred to the statement that she was able to show great patience, as indicating a view that men are forceful whilst women are patient. She referred to the use of the phrase `uncontained anxiety' as underpinning the image of women being psychiatrically unwell. She claimed that this phrase would not be used of a man.

She stated that by referring to her need for consultation and reassurance Mr Mason was patronising of her and implying childlike qualities. In stating that she was not able to prioritise or contain her thoughts, he was making judgments of her work. Similarly, by using phrases such as `over-identification' and `having conspiracy theories' he was underpinning the image of a woman having silly ideas floating around in her head. She complained that Mr Mason did not describe her in forceful or dynamic terms, as he would a man. She claimed that the use of such psychiatric terminology indicated that he regarded her as only useful to join him in sex, or to be talked at in gender based terms. It was indicative that he did not find her useful in the workplace because she had a `butterfly brain'. The indications were that he believed her to not be able to concentrate on her work, because women are like this whereas men are not. Consequently he was derogatory of her achievements. She said phraseology such as `lack of stability' and `impulsive' were used as stereotypical of women. According to the Applicant, if the reference had been written by Mr Mason about a man different language would have been used and it would have been differently structured."

28. The Tribunal gave its assessment on the point in paragraph 9(g):

"In our assessment this reference was not, in its language, discriminatory. If the name and gender had been obliterated no reasonable reader of the reference would conclude from its terms that this must relate to a woman. Insofar as it expressed judgments as to the Applicant's abilities, this is one of the purposes of providing a reference."

29. In paragraph 9(h) the Tribunal found against Ms Hobson on the fourth issue relating to the time sheet.
30. In paragraph 9(i) the Tribunal said this in relation to issue (5):

"The decision to withdraw the offer of a permanent post was made by Ms Peace on 27 April 1999 on the ground that the Applicant's references were not satisfactory. The decision was then made to apply the Respondents' normal policy, where a person was not appointable to a permanent post, of not allowing that person to continue for any length of time in a temporary agency post. It was not an act of sex discrimination by Ms Peace to take account of the reference from Mr Mason when making the decision to dismiss, nor was it victimisation by Mrs Elaine Peace to terminate the agency job. This was not done in response to the Applicant's complaint of 20 May 1999. We are satisfied that the decision to terminate the agency job was, in fact, made on 27 April 1999. The fact that it was not put into effect until 26 May 1999 was because it was anticipated that there would be a discussion between Ms Peace, Mr Mason and the Applicant as to her last day of agency working, following the decision that she was not appointable to the permanent post."

31. In paragraph 9(j) the Tribunal decided issue (6) against Ms Hobson, saying that the allegation of victimisation in respect of Mr Henderson's investigation was not substantiated, Ms Hobson's complaint having been properly investigated.
32. Accordingly Ms Hobson's complaints were dismissed. Ms Hobson then appealed to the EAT on a large number of grounds, but the EAT dismissed the appeal.
33. Before this court Mr Pawlak appears for Ms Hobson. We asked him at the outset of his submissions to identify the questions of law which arise on the appeal. The jurisdiction of this court is, as is well-known, limited to such questions on an appeal from the Appeal Tribunal, just as the Appeal Tribunal's jurisdiction to entertain appeals from the Tribunal is so limited. As I understood Mr Pawlak, his primary submission was that there was an error of law in the Tribunal's failure to consider whether the reference was justified in its terms, or fair, or derogatory. He argued that the Tribunal in considering whether the reference was gender-based and stereotypical of women in its language needed also to consider the contents of the reference to see if the facts stated in the reference were justified. He submitted that the reference constituted a detriment to Ms Hobson, and he complained that this was not considered by the Tribunal.
34. Mr Pawlak very properly, and in my view correctly, indicated that in view of the findings of fact made by the Tribunal in relation to the incidents of 16th October 1998 and 7th May 1999 the Tribunal's conclusion on those incidents could not be challenged. He confirmed that the only point now taken related to the reference by Mr Mason. He submitted that the Tribunal gave inadequate reasons for rejecting Ms Hobson's case that the reference used stereotypical language to prejudge Ms Hobson's abilities and competence.
35. Mr Langstaff QC, appearing with Miss Laura Elfield for Hackney, relies on the decision and reasoning of the Tribunal. He submits that the primary submission made by Mr Pawlak is not open to him as it runs counter to the way the case was argued for Ms Hobson before the Tribunal and by Ms Hobson before the EAT, her case having been that sex discrimination was to be inferred from the language of the reference. He further submits that the Tribunal was entitled to conclude from an objective viewpoint that the reference did not demonstrate gender-based phraseology and that it was sufficient for the Tribunal to say so and indicate the standard by which that was being assessed, that of a reasonable person. He says that the Tribunal was plainly right in its conclusion.
36. The provisions of the Sex Discrimination Act 1975 relevant to the appeal are these. Part I sets out definitions as to what constitutes discrimination. Section 1(1)(a) provides that:

"In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if-

(a)on the ground of her sex he treats her less favourably than he treats or would treat a man..."

37. That is direct discrimination, section 1(1)(b) going on to deal with indirect discrimination. That is not relevant. Nor are the provisions of subsection (2) relevant.
38. Section 4 deals with discrimination by way of victimisation and provides that:

"A person (`the discriminator') discriminates against another person (`the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-

...

(d)alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act ... ."

39. Parts II to IV of the Act deal with circumstances in which discrimination is rendered illegal. Part II relates to discrimination in the employment field. By section 6 provision is made for discrimination against applicants and employees in a situation where there is an employer and employee. But because Ms Hobson was not the employee of Hackney, I should go on to section 9, which applies to discrimination against contract workers.

"(1) This section applies to any work for a person (`the principal') which is available for doing by individuals (`contract workers') who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal.

(2) It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a woman who is a contract worker-

...

(d)by subjecting her to any other detriment."

40. In Part IV, section 41(1) deals with the liability of employers for things done by employees. It provides:

"(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."

41. There is no doubt but that if Mr Mason had been found to have discriminated against Ms Hobson by treating her less favourably than he would have treated a man and did so on the ground of her sex and subjected her to some detriment, Hackney would be liable for those acts. If Ms Hobson would not have received the same detrimental treatment but for her sex, Hackney would be liable. If Hackney discriminated against Ms Hobson by treating her in the course of her contract work for Hackney less favourably than it would have treated a man in the same circumstances and did so by reason of her complaint against Mr Mason of sex discrimination, Hackney would be liable for discrimination by way of victimisation. The correct approach, therefore, was for the Tribunal to consider whether discrimination was shown on the facts put before it by Ms Hobson before going on to consider whether the discrimination was rendered illegal under the Act by coming within section 6 or, as I believe, more relevantly section 9. Thus, it had to consider whether she received less favourable treatment on the ground of her sex than Mr Mason treated, or would have treated, a man in the same circumstances.
42. Normally the complainant must provide a comparator to demonstrate that the complainant, if female, was treated less favourably than a man was treated or would have been treated. That was not done in this case, but instead what was relied on below was the allegedly gender-based stereotypical reference which, if established, dispensed with the need to find a comparator.
43. In my judgment Mr Pawlak in complaining that the Tribunal did not make findings as to the allegedly unjustified, unfair and derogatory nature of the reference was in effect starting at the wrong end by seeking a finding of a detriment on the basis of which discrimination could be found. In any event, the argument is not open to Mr Pawlak in this court in view of the way the case was argued in the Tribunal for Ms Hobson and by her before the EAT. It is clear that the whole thrust of the argument below was that sex discrimination was demonstrated by the gender-based language of the reference. The Tribunal Chairman, Ms Gay, who conducted a directions hearing on 25th February 2000, had recorded what was agreed in a letter dated 3rd March 2000 under the heading "Sex discrimination claim":

"The gist of the Applicant's sex discrimination claim is that Mr Mason gave her an unfair, derogatory etc reference because he discriminated against her on grounds of sex and therefore the retraction by the Respondent of its offer to her of a permanent job, in reliance upon the discriminatory reference, was sex discrimination. The Employment Tribunal is to infer sex discrimination from:-

(a)the language of the reference itself. ..."

44. I need not read further from the letter.
45. Consistent with that, Ms Hobson's advocate before the Tribunal, in that part of his written closing submissions which dealt with legal submissions, said this in paragraph 42:

"The Applicant does not say that because the reference is derogatory in tone and content that it amounts to an act of unlawful sex discrimination. What she does say is that the terms in the reference are couched and a gender specific way and are stereotypical."

46. The Tribunal, as I have already noted, referred in the decision to issue (2) as being whether the reference was discriminatory in the language used.
47. The position was made even clearer in a document headed "Grounds of appeal against decision", which was Ms Hobson's Appellant's Notice and grounds of appeal to the EAT. Under the heading "Clear Misdirection in Law", she said this:

"5.1 The Tribunal misdirected themselves by examining the `reference' in terms of whether it was fair or derogatory. At no time did the Applicant make this a complaint and did not bring evidence on this point. The Applicant complained about the language that was used, ... but for the fact that she was a woman, then the construction of the language would have been different. Obviously it was derogatory, but it was derogatory to her as a woman."

48. A few lines later:

"The Tribunal have no current jurisdiction to look at any negligence."

49. In my judgment Mr Pawlak cannot now be allowed to pursue a different and inconsistent line of argument never adopted before, and not considered by, the Tribunal. We have been told that other proceedings have been instituted by Ms Hobson against Hackney in which she alleges defamation and negligence. It may be that in those proceedings the lack of justification for the reference that Mr Pawlak asserted will be considered.
50. The principal question for the Tribunal was whether the reference by Mr Mason was worded so as to indicate a stereotypical gender-specific view of women. In his skeleton argument Mr Pawlak submitted that the following phrases or words applied to Ms Hobson were gender-based: "uncontained anxiety", "need for consultation and reassurance", "not been able to prioritise or contain her thoughts", "over-identified with the client", "tended to view the intervention ... as conspiracies against herself or her client", "lack of stability", "impulsiveness", "views ... tended to fluctuate rapidly depending on the most recent information received". In his oral submissions Mr Pawlak referred only to one paragraph of the reference:

"Carole's views and hypotheses regarding her client's situation and difficulties have tended to fluctuate rapidly depending on the most recent information received. Carole has appeared to have difficulty in holding onto a larger context of information received over a longer period."

51. When asked why that paragraph or indeed the other expressions used in the reference were, as claimed, stereotypical and gender-specific, Mr Pawlak asserted that those phrases or words could not or would not normally be applied to a man. My difficulty is in knowing the basis for that submission. Certainly there was no evidence to support such views. Mr Pawlak accepts, indeed asserts, that it is a matter of reaction and impression. But the body whose views are decisive on such points is the Tribunal as the industrial jury. It was for the Tribunal, which I note included a female member, to determine the correctness of the submission based on language. The Tribunal unanimously rejected that submission. It made clear that if the name and gender had been obliterated, its view was that no reasonable person reading the reference would conclude that the reference must relate to a woman.
52. The Appeal Tribunal considered it impossible to describe the Tribunal's reactions as being an arguable error of law, and I respectfully agree. I have to say that it seems to me quite extraordinary to suggest, as Mr Pawlak does, that it was a failure on the Tribunal's part not to have given reasons why those phrases or words were not gender-based. It was for Ms Hobson to establish that there had been sex discrimination by the writing of the report. I can see no error of law in what the Tribunal decided, and, in view of the accepted fact that it was a matter of reaction or impression, it is impossible to say that the Tribunal's reasons are inadequate.
53. In these circumstances I have reached the clear conclusion that there is in truth no point of law that can be advanced in this court and the appeal must be dismissed.
54. However, I would add one postscript on the use of the word "hypersensitive" in relation to findings on allegations of discrimination. The Tribunal cannot be blamed for following the guidance of the Appeal Tribunal in Driskel, and particularly paragraph 12(3) of the judgment in that case. But the Tribunal was saying no more than that Ms Hobson was treating as detrimental that which was reasonably not perceived by any objective observer as being to her detriment.
55. For my part, I think that comments as to undue sensitivity or hypersensitivity are best avoided in a delicate area in which strong feelings are aroused. The complainant is complaining because of a belief that the conduct complained about was offensive and on the ground of sex, and that subjective view must be taken into account by the Tribunal. But if the Tribunal concludes, having considered all the relevant circumstances, that the conduct complained of does not amount to a detriment to the complainant, whether because, viewed objectively, it could not be taken to be offensive or on the ground of sex or for any other reason, I would say that the Tribunal should so indicate, without casting a further aspersion on the complainant about excessive sensitivity.
56. LADY JUSTICE ARDEN: I agree with Peter Gibson LJ that this appeal must be dismissed for the reasons which he has given. Moreover, I am in agreement with his postscript. It is not necessary for an employment tribunal to ask itself whether the applicant was hypersensitive because the issue of the discriminatory conduct of words is one to be tested by objective fact.
57. In reaching my conclusion I do not thereby diminish the gravity of the reference which Mr Mason gave for Ms Hobson in the circumstances, or the significance of it for her, or the hurt and offence it caused. But an appeal lies to this court only on a point of law.
58. On Ms Hobson's case the question whether the letter was discriminatory turned on its language. Mr Witold Pawlak, who did not appear below, submitted that that was a matter of impression. However, he also submitted that the Employment Tribunal could not decide whether the language of the reference was discriminatory without first deciding whether its content was justified. I agree with Mr Pawlak's submission insofar as he submits that the question is one of fact for the Employment Tribunal, but I do not agree that the Employment Tribunal could only decide the issue after having determined whether the opinions expressed in the reference were justified. That was an entirely different exercise and not one which the Employment Tribunal was asked to undertake. There is no reason, in my judgment, why a reference cannot be expressed in discriminatory language, whether it is justified or unjustified. Justification, therefore, is a separate issue. It involves the question of examining detriment which under the Sex Discrimination Act is a separate question from that of discrimination. It is far too late for Ms Hobson to raise the issue of justification now.
59. Accordingly, the only issue on this appeal is one of fact, and the conclusion of the Employment Tribunal on the relevant issue was terse and was expressed in paragraph 9(c) and (g) of its decision which my Lord has already read. But in my judgment those paragraphs told Ms Hobson why she had lost and thus provided adequate reasons on this issue.
60. In coming to this conclusion I, of course, recognise that it can be discriminatory to use language which expresses stereotypical assumptions about a woman. Stereotypical language is one facet of the exhibition of gender bias. Other factors are a person who uses sexually explicit language and behaviour. A person who uses stereotypical language about a woman may well trivialise her achievements and talents and underestimate her ability. Many women are as effective in their posts as any male equivalent. However, their credibility is a problem if they are undermined by discriminatory behaviour against them. Thus, it is important in my judgment to treat subconscious assumptions in language seriously. But, as I have said, the task of deciding what is gender bias in language has been entrusted by Parliament to the employment tribunals. They have a very important role. Our society will not succeed in eradicating inequalities unless the employment tribunals are vigilant. I have no doubt but that the employment tribunals are conscious of their responsibility in this regard, which is to be carried out, of course, in the manner provided for in the Sex Discrimination Act.
61. However, this court cannot interfere with any individual decision of an Employment Tribunal on a question of fact unless the Employment Tribunal's conclusion is discloses an error of law or was perverse. No error of law has been shown and it has not been suggested that this was a case where the conclusion was perverse as regards the findings of fact.
62. Accordingly, in my judgment this appeal must be dismissed.
63. MR JUSTICE CRESSWELL: I agree with the judgments of Peter Gibson LJ and Arden LJ. It is important to underline again that the jurisdiction of this court is limited to questions of law. No error of law has been made out. The Employment Tribunal was the industrial jury. I too would dismiss this appeal.
Order: Appeal dismissed with costs, not to be enforced without the leave of the court. Detailed assessment of the Appellant's publicly funded costs.