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 THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		13th July 2006

1. LORD JUSTICE BUXTON: This is an appeal from a determination of the Employment Appeal Tribunal entered as long ago as 11 February 2005. The appeal was in proceedings on grounds of gender discrimination, brought by Mrs A Fox against two respondents, a Mr Rangecroft and the Elmbridge Borough Council. In circumstances that it will be necessary to explain, Mr Rangecroft was an employee of Elmbridge and thought by Mrs Fox to have behaved towards her in a way that discriminated against her on the grounds of gender. The claim, at least without forensic attention, is of a fairly straightforward nature, but the case has become entangled in a consideration of the comparatively new section 63A of the Sex Discrimination Act 1975, a section introduced in deference to norms of European Law.
2. I will set out that section now, because it has played a large part in the argument, and will then turn to the facts and background of the case before describing how the case developed. Section 63A is headnoted: "Burden of Proof: Employment Tribunals". For reasons that I will indicate in due time, the expression "burden of proof" may not be the happiest in this context. However, that is what the legislator said. The section reads as follows:

"(1) This section applies to any complaint presented under section 63 to an employment tribunal.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2, or

(b) is by virtue of section 41 or 42 to be treated as have committed such an act of discrimination against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act."

3. I would venture to emphasise at this stage, because these considerations are important, three things. First, that the section starts with the complainant being required to prove facts. Secondly, those are facts from which the Employment Tribunal could conclude the existence of an act of discrimination; and thirdly, more generally, that the section is concerned with discrimination.
4. I turn to the background to this case. The applicant has been employed by the second respondents, who I will call, as did the Employment Tribunal, the council, since January 1993. She began in a secretarial post, but was promoted to the position of administrator and further promoted in October 2000 to a role as a project manager. Her responsibility was in respect of an agency within the Housing Services Department of the council, called CARE. Broadly speaking, CARE is a home improvement agency that provides technical and other support to disabled and vulnerable people who have home improvement needs. Mrs Fox's function, until she ceased to play a managerial role, was to lead that agency and that was an extremely important task, because the functions that the agency performs are of great social importance. Mr Rangecroft was employed by the council in the capacity of Private Sector Housing Manager, which duties involved general oversight of the work of the CARE agency. From June 2002 onwards, he was the applicant's line manager. So far, I think there is no dispute.
5. The Employment Tribunal made extremely strong findings in respect of the facts and background. Those findings are, or least may be, challenged in this appeal, because on a ground that I shall deal with in due course the applicant says in effect that every finding made by the tribunal was not open to them because of their misunderstanding of the terms of section 63A. I reject that criticism and the view of the law on which it is based, and for that reason I consider it entirely appropriate to set out the findings that the Employment Tribunal in fact made. They made these findings after extensive investigation, hearing a number of witnesses as to what had gone in the CARE Agency and Mrs Fox's responsibility for it. They said this in paragraph 4 of their extended reasons:

"The Applicant's mastery of detail and administrative efficiency are beyond question. What is no less clear, however, to all but those who would rather not face the fact, is that, in managerial skills, she is severely lacking. During her short time in control of CARE, the performance of the team declined to the point at which its future was in peril. Morale was destroyed and the Applicant reduced some of her charges to nervous wrecks. Notwithstanding the incontrovertible evidence that CARE was failing, she did not at any time acknowledge any personal responsibility and steadfastly maintained that all criticism directed towards her was unwarranted. It is true that, for a fleeting instance, she appeared to signal a willingness to change her management style (even then without acknowledging that there was any real need to do so), but when that moment had passed, she resorted once more to her line of rejecting all criticism and holding everyone but herself to blame. On a temporary basis, Mr Rangecroft took over her day-to-day manager responsibilities and she was assigned project work. Quite unrealistically, as the atmosphere in the office worsened, the Applicant pressed even harder for the restoration of her management role. Her former charges expressed abject horror at the idea of being returned to her custody. The Applicant pursed a string of complaints through the grievance machinery. Having acquired the services of Mr Sykes, a former member of the Bar, she became unaccountably convinced almost overnight that everything she had been complaining about was attributable to her sex. A complaint of sex discrimination and/or harassment followed, which was referred to an independent investigator and ultimately found to be without substance. In the meantime, the Respondents began a disciplinary investigation into the Applicant's conduct and performance. Eventually, as a consequence of her behaviour towards other members of the staff, the Council's senior managers became gravely concerned about the atmosphere which she was generating and its impact on the morale – and even the health – of some members of the team. As a consequence, on 25 July 2003, they presented her with three choices, all of which entailed her removal for the time being from the housing section. The Applicant took the least unfavourable of those options, namely extended additional annual leave. So far as we are aware she remains on annual leave (and full pay) to this day. She has now issued at least three Originating Applications, two of which are before us. There is no end in sight."

6. The tribunal then went on to comment on the nature of the allegations before them and the nature of the proceedings to which those allegations had led. They said this at paragraph 5, which I will again quote in full:

"At colossal public expense, we have listened to the small detail of this sorry tale over a total seven days. We have heard evidence from nine witnesses. The Applicant's complaint as finally distilled by the end of the hearing comprised of nineteen separate allegations of direct sex discrimination. The case rested almost entirely on technical points concerning alleged departures by the Respondents from approved procedures, coupled with the often-repeated mantra:

'a male junior manager would not have so been treated.'

Discrimination cases are not decided on mere assertion. Nor is it enlightening or surprising in a case involving as many twists and turns and as many separate invocations of different procedures, that there should be some deviation from the applicable handbook. Time and again, Mr Sykes's cross-examination of the Council's witnesses made it necessary for us to remind ourselves (and him) that we were dealing with an allegation of discrimination, not a dispute about whether the matter had been handled in conformity with this or that procedure. As the case went on we found it increasingly difficult to avoid the perception that we were hearing the Applicant's grievances all over again, presented in the form of a complaint of sex discrimination purely because, in the absence of the packaging of a discrimination claim, those grievances could not be litigated in the Employment Tribunal."

7. I perhaps should say that Mr Sykes, referred to by the tribunal, is a former member of the Bar, who now apparently runs an organisation called Commercial Law Direct. He was permitted to represent the applicant, both in the Employment Tribunal and before the Employment Appeal Tribunal. He was not granted permission to represent her in this court; in his place, we have had the benefit of submissions from Mr Dutton.
8. The basis of the criticism of the Employment Tribunal is that the tribunal simply misunderstood the implications of section 63A, with the result that its whole view of the case, and its whole approach to the evidence, was distorted. At the time at which the tribunal heard this case, the applicable guidance as to interpretation and application to section 63A had given by the Employment Appeal Tribunal in a case called Barton v Investec Henderson Crossthwaite Securities Ltd [2003] IRLR 332. A week after the Employment Appeal Tribunal determined the case with which we are concerned, this court addressed that matter in the case of Igen v Wong [2005] EWCA Civ 142. The Employment Appeal Tribunal in Barton had set out a number of guidelines for the attention of Employment Tribunals and others who had to apply section 63A. In Igen v Wong those guidelines were repeated and largely approved, with one or two small additions; this court however at the same time emphasising two elementary points, the first being that guidelines are indeed only guidelines, and the second being that what courts must apply is, at the end of the day, the words of the statute and not glosses upon or attempts to explain those words by other tribunals.
9. It will be necessary in dealing with the arguments advanced in this case, for me to say something about the Barton and Igen guidelines, because a complaint is made that the Employment Tribunal in our case failed to follow them to the extent that its determination was, as I have said, irrevocably damaged. I wish however to emphasise that we have not heard a focused argument, I fear I have to say, about the status of the Igen v Wong guidelines; nor have we heard, or is it necessary to hear, adversary argument about them. I am aware it is likely that that question may return to this court in a more formal way in the coming months, and nothing that I say about the content of the guidelines should be regarded as in any way authoritative, if only for this reason: that I go into them for the purpose of explanation only, because as will rapidly become clear, and was clear to both tribunals below, this case does not even meet the preliminary requirement for the application of section 63A.
10. That said, I would venture to describe the task of the tribunals by the following numbered propositions. What section 63A requires, as it seems to me, is this: (1) the claimant has to prove on the balance of probabilities primary facts from which the tribunal could conclude that the respondent had committed an act of discrimination; (2) because the issue is one of discrimination, those primary facts must include at least some facts from which impermissibly differential treatment could be inferred; (3) having found those primary facts, the tribunal then assess whether an inference of discrimination could be drawn from them; (4) in performing that task, the tribunal must assume that there is no adequate explanation for those facts (that is paragraph 6 of the Igen guidelines); (5) if the inference of discrimination cannot be drawn in that way, then the claimant loses (that is paragraph 2 of Igen); (6) then, but only then, the burden of persuasion moves to the respondent (that is paragraph 9 to 11 of Igen).
11. I have deliberately used the phrase "burden of persuasion" because although the section is headlined "Burden of Proof", it is quite clear that the movement of responsibility that section 63A envisages is not a movement in respect of proof of fact, but in respect of explaining or persuading the tribunal as to the implications of those facts.
12. How is it said that the tribunal got these matters wrong in our case? As we have noted, when the tribunal was considering this matter it had the advantage of Barton in the Employment Appeal Tribunal, but not the advantage of the guidance of this court in Igen v Wong. It therefore made a number of observations about what it conceived to be the requirements of section 63A in paragraphs 7 and 8 of its extended reasons. It indicated, and this is a matter of which complaint is made, that it was in some respects departing from what it described as the Barton analysis.
13. As was pointed out in the course of argument, it is almost certainly the case that what the tribunal was saying at that stage was that there may be cases of discrimination so clear that it is not necessary to engage in the serial investigation that is laid down in Barton. The tribunal also said that it was persuaded by the observations of Simon Brown LJ, as he then was, in paragraph 26 of Nelson v Carillion Services [2003] IRLR 428, that section 63A introduced no new law.
14. This court in Igen v Wong did not agree with that observation of Simon Brown LJ, saying in its paragraph 18 that section 63A had indeed changed the law. It is, however, important in that context to note exactly what it was that the Employment Tribunal in this case was saying. Simon Brown LJ's observation was as follows:

"It seems to me tolerably clear that the effect of s63A was to codify rather than alter the pre-existing position established by the case law."

I pause there; the criticism made of that observation in Igen v Wong was that section 63A had, or may have, reversed some observations of Neal LJ in King v Great Britain – China Centre [1992] ICR 516, to the effect that it was permissible, not obligatory, as section 63A seemed to make it obligatory, to infer discrimination in the absence of an explanation. Simon Brown LJ then went on to say:

" The burden of proving indirect discrimination under the 1975 Act was […] always on the complainant, and there pursuant to s63A it remains, the complainant still having to prove facts from which the tribunal could conclude that he or she has been unlawfully discriminated against, 'in the absence of an adequate explanation' from the employer."

15. What the Employment Tribunal in this case immediately went on to say in comment on that part of Simon Brown LJ's observations, which as far as I can see were not criticised in this court, was this:

"It seems to us that the statutory reversal of the burden of proof is designed to operate where the Applicant proves primary [original emphasis] facts from which an inference of unlawful discrimination could [original emphasis] be drawn."

I would respectfully agree with that analysis. The point about the statutory reversal of the burden of proof arises when, but only when, the applicant has proved primary facts from which discrimination could be inferred. The problem in the present case, and why it is not necessary to go into the arguments about whether or not the Employment Tribunal was correct in everything that it said about the section 63A, is that Mrs Fox did not succeed in proving any facts from which a tribunal could conclude that the respondent committed an act of discrimination. The Employment Tribunal found, in the clearest possible terms, that there had been no evidence before it of a relevant comparator or of an underlying attitude of discrimination used by the employer. They said that in respect of one particular compliant in paragraph 26 of their determination, but what they said there was, as it seems to me, equally applicable to the whole of their judgement. They said this:

"The Applicant has entirely failed to prove any facts from which the Tribunal could infer sex discrimination on the part of the Respondents (or either of them). The burden of proof does not shift […] The acts and omissions of which she complains are gender neutral. She cannot point to any instance of a male comparator in like circumstances receiving more favourable treatment than she. There is no 'background' evidence tending to show a gender bias within the Council or any part of it."

16. Those are findings of fact plainly within the reach and jurisdiction of the Tribunal and no appeal is brought in respect of any perversity, or failure to take account of any particular piece of evidence. Some attempt was made during oral argument to move in that direction, but Mr Dutton agreed, after discussion with the court, and indeed emphasised, that he could not attack those findings on orthodox grounds. What he did say was that they were inherently unreliable because of what he said was the failure of the Tribunal to apply the appropriate law under section 63A, and more particularly to follow the Barton and Igen guidelines. I will come to that allegation in a moment. Remaining for the moment with the Employment Tribunal's treatment, they went through each of the allegations, – and I do not intend to extend this judgement by repeating what they or any of them were. In some cases, they accepted that Mrs Fox had incurred a detriment, but in each case they pointed out that there was no indication at all, and no evidence at all, that that detriment was related to the applicant's gender. Those, as I say, were findings well open to them.
17. Mr Dutton did take a further point in respect of the detailed findings of fact, which was that under section 63A(2) the test is whether the complainant proves facts from which the Tribunal could, apart from this assertion, conclude (and I emphasise these words for the purpose of this argument) "in the absence of an adequate explanation", that the respondent has committed an act of discrimination against the complaint. He said that at some stages of the preliminary findings of primary of fact the Tribunal had illegitimately taken account of explanations given by the council. This point was, if I may say so, misconceived in two ways. The first is that it is really quite impossible, when looking at a history such as this, to make any distinction between evidence about what happened and why it happened on the one hand, and an explanation of the council's behaviour on the other. I quote the example that he gave:

"That is to say whether the applicant was discriminated against by the removal of her current management duties."

That was dealt with at some length in paragraph 14 of the extended reasons, which I will read:

"Between 1 December 2002 and 31 March 2003 there were regular meetings between Mr Rangecroft and the Applicant, at which Mr Rangecroft would report on the day-to-day operations of the team and the Applicant would discuss the progress of the project work. The question of the restoration of the Applicant as manager of the CARE team was also debated. In that regard, a recurring difficulty was the Applicant's inability or unwillingness to accept the overwhelming evidence that her management of the team had failed and that if she was to be restored as manager, she would only be able to do justice to the role if her approach to it changed radically."

Now, Mr Dutton said that the last sentence of that paragraph, starting "in that regard, a recurrent difficulty was …" was, as he put it, the language of explanation and not the language of fact-finding, and it therefore fell foul of section 63A(2). I think it will be immediately apparent that what is being dealt with in that last sentence is not an explanation in the sense of an exculpatory claim by the employer, but simply the Tribunal's findings as to why certain events occurred, in the course of which it had to take account of what the employer says he did and whether they believe it or not, in order to find out why a certain state of affairs, that is to say that Mrs Fox's non-reinstatement as a manager, occurred.

18. But there is a more fundamental reason why that particular argument was misconceived. When section 63A(2) talks in terms of the absence of an adequate explanation, it is talking about the absence of adequate explanation for discriminatory conduct, or rather for conduct that is differentially directed at different persons from which the tribunal could infer discrimination. The explanation has to be about the differential conduct. For that to happen, differential conduct has to be established in the first instance. That point therefore, I have to say, was not well taken.
19. The more general reason why Mr Dutton, and Mr Sykes before him, who settled the grounds of appeal, say that none of the findings of fact are reliable is because, as I say, it is complained the Tribunal did not apply the Barton guidelines. The passage that I have read from paragraph 7 of the extended reasons demonstrates quite clearly that, whatever they said about the underlying and surrounding jurisprudence, they had clearly grasped that the first issue is whether the applicant can prove the primary facts from which the inference of unlawful discrimination could be drawn. Unless the applicant manages to do that, as guideline 2 in Igen says, the question of passing of the burden of proof, or of persuasion, simply does not arise. Therefore, whether or not the Employment Tribunal was correct in what it said about that exercise, anything it said was completely irrelevant to its orthodox fact-finding exercise, which is the threshold which has to be crossed before the burden of proof or persuasion moves under 63A. Therefore – this is why I have emphasised that anything that I have said about the wider Igen v Wong question should be regarded with care – these issues simply do not arise in this case, because of the finding that the Tribunal made.
20. When this matter came before the Employment Appeal Tribunal, HHJ Prophet, giving the determination at that tribunal, said at paragraph 3:

"Whilst we accept that there has been some judicial controversy as to the corrected interpretation of Section 63(a) of the Sex Discrimination Act it is beyond doubt that the Tribunal has to find that there could be a case of sex discrimination before the reversal of the burden of proof comes into operation. It is never sufficient for a person to assert that a person of the opposite sex would have been treated differently if there is really no foundation for that assertion."

The Employment Tribunal decision makes it clear that in Mrs Fox's case they could not that foundation in any of the allegations from Mrs Fox which are within its jurisdiction. That is essentially a matter which is for the Employment Tribunal, which hears and evaluates the evidence presented to it, to determine, and could only be disturbed by the Employment Appeal Tribunal if the Employment Tribunal had reached a decision which no reasonable tribunal could have arrived at.

21. Accordingly, that ground of appeal is one that contains no arguable point to proceed to a full tribunal and accordingly it is dismissed at this stage. I respectfully agree that both the tribunals below, if I may respectfully say so, got this case exactly right. I would dismiss the appeal.
22. LORD JUSTICE LLOYD: I agree.
23. LORD JUSTICE CHADWICK: I also agree. The appeal is dismissed.

Order: Appeal dismissed.