ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
EAT (THREE JUDGES)
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE RIX
LORD JUSTICE RIMER
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Ms Amanda Hart (instructed by Leigh Day & Co) for the Respondent
Hearing date : 24-25 October 2011
Crown Copyright ©
Lord Justice Maurice Kay :
The statutory provisions
"… 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, or
(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but –
(i) which puts or would put women at a particular disadvantage when compared with men,
(ii) which puts her at that disadvantage, and
(iii) which he cannot show to be a proportionate means of achieving a legitimate aim."
"There was an explanation put forward by the Navy as to why it was that the decision had been made as it was. That was essentially that great weight was given to the references, or the reports, written by the commanding officers of the respective candidates. There was no criticism advanced in this case about any direct discrimination by those officers. Accordingly, the evidence given that the members of the board had looked at and come to a conclusion reasonably open to them on review of what those reports showed, was one which commanded at least sufficient respect to require the Tribunal to say why it did not accept it as a sufficient answer if indeed it was not a sufficient answer."
It later added (at paragraph 57):
"This is a case … which cried out for an analysis which is singularly absent."
The appeal to this Court in relation to direct discrimination is limited to a complaint that the EAT ought not to have remitted the issue to the ET but should have dismissed the claim.
"Very little direct discrimination is today overt or even deliberate. What King and Qureshi tell tribunals and courts to look for, in order to give effect to the legislation, are indications from a time before or after the particular decision which may demonstrate that an ostensibly fair-minded decision was or equally was not, affected by racial bias."
He later added (at paragraph 21):
"The choice between two comparably well-qualified candidates depended entirely on how the panel viewed their professional and personal qualities. Such a judgment is notoriously capable of being influenced, often not consciously, by idiosyncratic factors, especially where proper equality of opportunity procedures have not been followed. If these are to any significant extent racial factors, it will in general be only from the surrounding circumstances and the previous history, not from the act of discrimination itself, that they will emerge."
The approach is, of course, the same when the allegation is one of sex discrimination. In addition, statistical evidence may have a part to play: West Midlands Transport Executive v Singh  ICR 614.
"The strategic role of the Naval Service has evolved since 1990. The declarations you made then may not be relevant today, and could be denying you the opportunity to be considered for certain attractive and beneficial assignments. In particular, the requirement for shore-based operational tours (Op Tours) has greatly increased since 1990, when the only Op Tour was service in the Falkland Islands."
The letter offered "the opportunity to reconsider the declarations" that had been made in 1990. Mrs Cartner chose to remain shore-based.
"Boards must not discriminate by gender, age, colour, creed or seagoing/non-seagoing status."
In the light of that instruction, it was not possible for Mrs Cartner to point to a "provision" relating to seagoing. Her case was seen as one of a "criterion" or, more likely, a "practice". At the material time, all male Naval personnel were seagoing but some women were not.
"The Tribunal must draw the conclusion that sea service, in particular certain kinds of sea service were considered to be yardsticks by which a candidate's success could be measured and that this priority is reflected regularly in the reports written by commanding officers who clearly take the view that sea-time is a necessary pre-requisite to promotion.
Whether the individual members of the Board either directly took the view that seagoing was an essential criterion and condition for promotion or whether it was inherent in the way they exercised their professional judgment is to the Tribunal immaterial."
As I stated earlier, the MoD did not attempt to justify the PCP or to argue that, if it existed, it was not discriminatory.
"The question for us … was whether the Tribunal was entitled to come to the conclusion of fact that there was a practice … which at least gave preference to those who were seagoing as opposed to those who were not. Although it is argued that the Tribunal took what was to any observer an overstated view … 'that sea time was a necessary pre-requisite' and … 'that seagoing was an essential criterion and condition for promotion' that is, in our view, beside the point if in fact there was a preference for such".
The view had been "overstated" because of undisputed evidence that, between 2004 and 2007, five female non-seagoers had been promoted to Warrant Officer ahead of seagoing male candidates. The EAT continued:
"We do not consider that that overstatement … (assuming it to be such) necessarily falsifies the conclusion to which it came on the other evidence available to it. The letter of 10 July 2007 within its terms was capable of being read, and the Tribunal appear to have read it, as suggesting to [Mrs Cartner] that if she opted to become seagoing as opposed to non-seagoing then her promotion opportunities would be better. The Tribunal … recited that they heard oral evidence effectively to that end … In shore jobs it is more difficult to obtain relevant experience.
We looked at the criteria which were relied upon by the Navy before the Tribunal which emphasised the breadth of experience which a candidate should have, the preference for adaptability and the potential of candidates in a broad range of appointments. The references to adaptability and to breadth are capable of suggesting that the promotion system necessarily favoured those who were able to display such a breadth which, this Tribunal was entitled to conclude, therefore, tended to favour the seagoing members of the Navy who would have both the opportunity of land-based and sea-based service, to the disadvantage of someone whose horizons were necessarily more limited.
We have, therefore, come to the conclusion that the Tribunal here has addressed the relevant questions and it has here set out its reasons for coming to the conclusion it did. Although the judgment as a whole is open to criticism in that it displays much drafting which is inelegant and much which does not pose centrally the relevant questions … , here these objections have much less force. We have come, therefore, to the conclusion that the Tribunal was entitled to come to the view it did applying the relevant law that it did."
"The general picture with regard to Op tours … does appear to be something of a contradiction to this argument [sc that male and female candidates were treated equally and that no posting was given greater weight than another] because not only was the Navy itself in its letter of 10 July 2007 seeking to persuade [Mrs Cartner] to change her mind with regard to Op tours but Captain Powell [chairman of the Board] in his wash-up report was making the point that 'Op tour reports will have increasing weight for promotion boards and must be included in the packs'. This was also reflected in his evidence when he pointed out that such opportunities were available to [Mrs Cartner] and would improve her promotion prospects.
'It is not a question of valuing sea service over shore service – it is what people do that is important. It would not be right to presume some establishments are stronger. We do not favour a particular establishment'.
This evidence was somewhat contradicted by Commander Carter [another member of the Board] who stated that
'… Flag Officer Sea Training is a tough assignment. Very detailed knowledge of an Ops room of all types of ship, Commonwealth and allied. Candidates are identified while undergoing sea training. It is a huge professional challenge. There would have been about 6 CPOs at a time all hand-picked.'
He went on to say that
'while at sea there was 24 hour contact, failings became obvious very quickly and good things were more likely to show. Therefore in shore jobs the candidate must be careful to be in the eye of the line manager so that what he or she does is noted and recorded.'
It was noticeable that in the assessment of [Mrs Cartner's record] a lengthy spell spent at Headquarters Northwood was regarded as of less value than sea-time on different ships."
The ET referred to further points but I shall not burden this judgment with any more citation.
"overwhelming case … that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached."
I am satisfied that the MoD cannot satisfy this test.
i) In an earlier passage of its judgment (paragraph 26), the ET said this of the letter of 10 July 2007:"It is not a large step from this letter to appreciate that [Mrs Cartner] may have become an anomaly in Royal Navy terms, which anomaly would have been translated to conformity had she decided to opt for a seagoing path."
ii) As regards Mrs Cartner's time at Headquarters Northwood, the ET found that the Board witnesses were "really quite denigrating about the challenges" (at paragraph 40).
iii) In an agreed note of some of the evidence, Commander Carter is recorded as having said that sea service provides "a much broader spectrum of activities", that it was "much harder to find chances to shine if you don't go to sea", that it was "entirely possible" that a good report from sea would carry more weight and that "it can form a compelling picture of that person to get them promoted".
iv) In his witness statement, Commander Carter stated:"I advised her that Op tours did present an opportunity for people in the home command to add aspects of performance and behaviour to their appraisal reports. With so many of her contemporaries opting to demonstrate their flexibility and commitment to their service in this way … she might need to find increasing 'punch' in her own portfolio if she was to mitigate the Op tour effect."And:"… with regard to the issue of Op tours, these do add weight to a candidate in certain circumstances."
v) The statistics which lend some support to there having been a preference for male seagoing candidates.
All this adds to correctness of the rejection of the perversity challenge.
(2) Failure to remit
"Once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection. It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion was wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with the making of findings of fact."
"This statement, however, must, in our judgment, be read subject to an implicit qualification correctly stated by Waite J in the present case:
'If we are satisfied that a conclusion reached as a result of a misdirection is plainly and unarguably wrong upon facts found by the industrial tribunal and those facts do not require further amplification or reinvestigation, then we are entitled and bound to substitute our own conclusion as to what those findings require in law.' "
It has to be said that, in the present case, the EAT did not refer to the "plainly and unarguably right" (or "wrong") test. It expressed itself on the basis that the ET "was entitled to come to the view it did".
Lord Justice Rix:
Lord Justice Rimer: