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Cite as: [1992] UKEAT 394_91_1507

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BAILII case number: [1992] UKEAT 394_91_1507

Appeal No. EAT/394/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 July 1992 & 12 November 1992

Judgment delivered 19 January 1993

Before

THE HONOURABLE MR JUSTICE WOOD MC (PRESIDENT)

MRS M E SUNDERLAND JP

MR G H WRIGHT MBE

GUARDA SECURITY LTD APPELLANTS

MRS S ROBERTS RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant Mr J Bowers

(of Counsel)

Messrs Dibb Lupton

Broomhead

Solicitors

Fountain Precinct

Balm Green

SHEFFIELD S1 1RZ

For the Respondents Ms V Gay

(of Counsel)

Messrs Irwin Mitchell

Solicitors

St Peter's House

Hartshead

SHEFFIELD S1 2EL

MR JUSTICE WOOD (PRESIDENT) By an Originating Application dated 7th November 1990, Mrs Roberts alleged that she had been the victim of sex discrimination in that she had been "dismissed without warning and replaced by a full-time man. I was working only four days per week." The date of dismissal is alleged to be 20th August. By a letter of 24th August 1990 her employers, Guarda Security Ltd (the Company) state,

"You were dismissed on 20th August 1990 for failure to carry out the duties for which you were responsible, namely, the efficient running of the Personnel Department which included recruitment and vetting of staff."

After a hearing of two days, and in a decision promulgated on 30th May 1991, an Industrial Tribunal sitting at Sheffield found in her favour and adjourned the issue of remedy.

Her case seems to have been based on both direct and indirect discrimination. Primarily it was under S.1(1)(a) of the Sex Discrimination Act 1975 and S.6(2)(b) which in its relevant part reads -

"S.6(2)(a) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -

(a) ...

(b) by dismissing her, ..."

Her claim for indirect discrimination under S.1(1)(b) is only referred to in paragraph 22 of the Decision, where the Tribunal say:

"Finally we would mention that the applicant was a part-time employee. It is apparent that the company was wanting full-time employees. We are satisfied that women with homes to run and children to bring up are less able to give full-time service to their employers than are men. No attempt appears to have been made to invite the applicant to undertake full-time employment in order to fit in with the company's requirements. There is there some evidence of indirect discrimination when it is clear that Mrs Howsham was dismissed because full-time service was required and the company's policy was being changed to that effect."

On this appeal we have been told by Ms Gay that Mrs Roberts did not and does not pursue her claim on this ground.

The Company appeals.

Before the Industrial Tribunal the Applicant was represented by a solicitor, Mr Warne, and the Company by one of its Directors. The witnesses for the Applicant were Mr Craw - a previous employer who spoke well of her in her capacity as an office supervisor; Miss Hogan, aged 16 who had worked with the Applicant for 2¹/₂ weeks in August 1990; Mrs Roberts herself; and Mrs Howsham, her sister. The Company called Mrs Unwin, previously a wages clerk and now an office manager in charge of the Wages Office with two other women; Mr Ainsworth, the Divisional Manager from Sheffield and Mr Dennis Sansome, an Operations Director. We have also seen the Notes of Evidence.

Save on one particular issue in paragraph 18 of the Decision - the Industrial Tribunal does not indicate whether particular witnesses were satisfactory or not and precision in finding facts becomes therefore even more important.

That part of the Company's business which is relevant to the present case is the supply of security guards to clients. This business was highly competitive, the remuneration of the guards was far from generous and the turnover of guards was high. There was clearly some discontent. Because of the terms of its insurance cover, vetting of applicants for employment was essential and important. The demand for security guards is somewhat seasonal and as the Tribunal found,

"The demands for guards by site owners were pressing during the time of summer holidays and accordingly more than usually in the months of July and August a sufficient supply was required."

Few employees survived the three months probationary period and the rapid turnover caused constant problems.

The Personnel Department was responsible for recruitment. It was small and was judged by its ability to produce sufficient new recruits to satisfy the immediate demands of the clients.

The method of recruitment was simple enough. Advertisements were placed in newspapers or arranged through wireless programmes. There is no suggestion that sufficient funds were not available for this purpose. Application forms were sent out on request. When those forms were returned the next step was "televetting". This involved numerous calls to past employers and referees to establish a picture of past employment and lifestyle over a period of the previous five years. Once the file had been completed to this stage and the information found to be satisfactory, an applicant would be called for interview. At some stage the file with its information was initialled by a manager or director and subsequently employment commenced.

It seems to us abundantly clear that the personnel management in this Company left a great deal to be desired and that Mrs Roberts was treated unfairly. She expressed her own views forcibly in her evidence. She said that she had done "a lot of disciplinary work ... industrial relations were not good at the respondent Company. Management regarded all employees as disposable. The management standard was appalling. There was no consideration for the workforce. There was a high turn-over". It should cause no surprise therefore if the actions of Management have been closely scrutinized.

The history of Mrs Roberts' employment with the Company starts on 13th February 1989 when she was employed part-time. She was dismissed on 20th August 1990. In 1989 she worked under a Mr Hall who resigned in September 1989. On 7th October 1989 Mrs Roberts became full time personnel manageress. By December of that year she found full time working too much and that her domestic demands were inconsistent with full time working. She wanted to return to 3 days working per week. She looked for and found a Mr Davies who, on 19th January 1990, was employed as personnel manager. On 5th March 1990 Mrs Roberts became part-time personnel assistant. She did not work on Friday's and this was in fact a demotion. On 4th May 1990 after employment of some four months, Mr Davies was dismissed. Mr Davies had worked some 12 years previously in a security company, both in personnel and training, and his system of training had been of some value. The Industrial Tribunal deal with his dismissal as follows -

"... In fact his training capabilities and the expertise he introduced were useful and his methods were retained when he was dismissed for other reasons only 3 months after he had been engaged."

The reason for Mr Davies' dismissal, as explained by Mr Ainsworth and Mr Sansome, was that he had been dismissed for failure to recruit sufficient guards for the Company's needs. The attitude of the Company is clearly indicated in the evidence of Mr Sansome where he says that "if a department cannot bring in staff we will deal with it radically. Roberts dismissed because of recruitment situation - could not afford to wait for Davies to do what we required it was the same with Roberts". The Notes of Evidence disclose no issue on this matter. The test - a brutal one - was the ability to produce the number of guards which were demanded. The Industrial Tribunal comment upon this in paragraph 9:-

"The respondents say that the reason why they terminated the applicant's employment was that she was not producing a sufficient number of recruits. They admit that they are mercenary in the whole matter, that if the number of recruits required is not being produced steps must be taken, and, if necessary, the manager of the department must be dismissed. They say that their normal practice is to fill vacancies from within the company. This is what they had done in a number of instances the promotion of the applicant to personnel manager being one of them."

On 8th May 1990 Mrs Roberts was appointed personnel manageress. This was promotion but she was allowed to maintain her four-day week. Initially the Company was pleased with her work. On 7th June Mr Phenix was engaged part-time as a training officer. He departed on a course.

It was in July 1990 that dissatisfaction with Mrs Roberts' performance became evident. On 19th July she was given an oral warning that the number of recruits must improve within the next two weeks. Mrs Roberts was in fact on holiday for two weeks at the end of July. On 6th August Mr Ainsworth gave a second warning about the number of recruits and said that if they did not improve within the next two weeks she would "have to go". In fact Mrs Roberts was on holiday for a week from 13 to 17 August and it was virtually on her return on 20th August that she was dismissed. These very dates re-enforce our earlier comment that she was treated unfairly.

Speaking of her dismissal on the 20th August Mrs Roberts, in evidence said that the final meeting had been in the office of Mr Ainsworth but Mr Timothy Crookes, the Operations Manager, was there. Mr Ainsworth had said things were bad, she had commented that the manpower level had been a lot worse and asked who was taking over. They did not know. She was told that Mr Sansome wanted full-time personnel office not part-time. She commented that prior to her being told, the staff had been informed that there were to be vast changes. She commented that both she and Mrs Howsham had been replaced by a man. Then ultimately, the notes read that she said "dismissed so Phenix could take my position on full-time basis - I not tied to family - I went out with the boys when I was not prepared to do that. The Company wanted a man in my position."

The point at issue between Mr Ainsworth and Mrs Roberts in July and August 1990 - prior to her dismissal on 20th - is set out in paragraph 15 of the Decision.

"He complains that vetting was incomplete. He complains that people were making an approach to the company with a view to being considered for appointment and instead of the proper routine being followed, namely that the person be called in for interview at which he or she might be accepted or rejected, without going through the detailed vetting procedures, the applicant was sending forms to the persons who had made an approach, persons were filling in the forms, the forms were being returned and on the strength of those forms the interested party was being accepted for further consideration or rejected. The reason why this was not satisfactory to Mr Ainsworth was that many of the people engaged in this kind of work are people who are not used to writing application forms and making the best of themselves. Only by personal interview can a proper assessment be made. The evidence does not indicate to us that, finding this to be the manner of operation by the applicant, Mr Ainsworth gave a specific direction or tried to assist the applicant in revising her method of working to satisfy the company's requirements. If this was the way to secure more recruits then one would have expected to find that done."

At that time Mrs Roberts, at her own request, was working four days a week; her sister, Mrs Howsham was working only three days a week; and for the 2¹/₂ weeks prior to 20th, Miss Hogan had been helping.

The criticism levelled by the Industrial Tribunal at Mr Ainsworth in paragraph 15 is re-enforced in the terms of paragraphs 14 and 16.

"14. The respondents insist that the reason for the dismissal had nothing to do with discrimination; it was merely due to the fact that the applicant was not producing the number of recruits. We have considered the evidence of Mr Ainsworth. He frequently had conversations with all members of staff. Every Monday morning the week's situation was considered and he says he frequently spoke to the applicant about the requirements for recruitment in between those meetings. What we cannot understand is why, if recruitment was not up to the standard required, Mr Ainsworth appears not to have considered the detailed working of the department in order to advise the applicant what steps she might take to rectify the position. The appointment of Keely Hogan, a mere beginner, seems to us to have been a move which was only trifling with the situation."

...

"16. There is some evidence that the applicant and her superiors did not always see 'eye to eye'. There is some evidence that the applicant and Mr Phenix did not strike up a very co-operative relationship. However, the applicant was in post. She had her responsibilities. She was entitled to have guidance from her superiors without being dealt with in an abrupt manner dependent only on the number of recruits she was able to obtain. She was given a warning on 19 July by Mr Ainsworth. She was to see that the number of recruits improved within the next 2 weeks. He says that he was simply giving her a kick because everybody needs a kick from time to time, being convinced that she could pull it round. However, she was away on holiday for 2 weeks at the end of July and there was no opportunity in which she could demonstrate what Mr Ainsworth was expecting. He says that when he came back from his holiday the position was worse than it had been when he went. On 6 August he told the applicant that if things did not improve in 2 weeks then she would have to go. She had a week's holiday from 13 to 17 August. The same lack of opportunities therefore once again applied to that warning."

After Mrs Roberts had been dismissed on the 20th August Mrs Howsham stayed on with the agreement of all concerned, but ultimately on the 28th August Mr Phenix had entered her office and told her that she was dismissed as they wanted "full-time work". She was asked by him to stay on full-time but she had refused as she enjoyed part-time working.

The reason for her dismissal was confirmed in a letter as follows:

"The reason for the termination of your employment is that the Company require the employment of full-time staff for all administrative departments."

Miss Hogan was dismissed at the same time as Mrs Roberts and she told the Tribunal that the reason was "too many mistakes". The evidence about this matter does not seem to be very clear. As far as we are aware neither Mrs Howsham nor Miss Hogan have issued any proceedings against the Company, whether on the basis of Sex Discrimination or otherwise. At the end of August there were 1.5 people in the Personnel Department, thereafter there were three.

Mr Phenix took over as personnel manager; his son and a Mr Christopher then became the team in the personnel department.

The Tribunal found specifically that:

"Mrs Howsham was dismissed because full time service was required and the company's policy was being changed to that effect."

We have little doubt that the Respondents' treatment of Mrs Roberts was grossly unfair, but that must not be allowed to cloud the real issue.

The law on direct discrimination is becoming clearer. It is defined in S.1 of the 1975 Act as follows -

"A person discriminates against a woman in any circumstances relevant to the purposes to any provision of this Act if -

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

The issue can therefore be paraphrased as follows - in circumstances relevant for the purposes of the 1975 Act did the respondent treat the applicant, a woman, less favourably than it treated an actual man, or would have treated a hypothetical man in the same or not materially different circumstances, and did so on the grounds of sex?

It will be rare indeed for an Industrial Tribunal to stop a case of discrimination before hearing both sides and the correct approach after hearing all the evidence is now well established in King v. Great Britain - China Centre [1991] IRLR 513. See the leading judgment of Neill LJ at paragraph 38

"In the course of the argument we were referred to other recent cases including London Borough of Barking & Dagenham v. Camara [1988] IRLR 373; Baker v. Cornwall County Council [1990] IRLR 194 and the valuable judgment of Wood J in the Employment Appeal Tribunal in British Gas plc v. Sharma [1991] IRLR 101. From these several authorities it is possible, I think, to extract the following principles and guidance:

(1)It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.

(2)It is important to hear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption 'he or she would not have fitted in'.

(3)The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with S.65(2)(b) of the 1976 Act from an evasive or equivocal reply to a questionnaire.

(4)Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in Noone, 'almost commonsense'.

(5)It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

The next applicable principle, which is now well established, is that in order to establish direct sex discrimination, sex must be the direct cause of the treatment. Seide v. Gillette Industries Ltd [1980] IRLR 427. Mr Seide was Jewish. He was employed as a tool-maker. There had been problems with a fellow employee, a Mr Garcia. As a result Mr Seide was transferred to another shift so that he worked alongside a Mr Murray. In April 1978 Mr Murray asked for a transfer from the section because of the relationship that had developed between himself and Mr Seide. He claimed that Mr Seide was trying to involve him in antagonism with Mr Garcia. The management decided that Mr Seide should be removed and Mr Seide complained that the reason for his removal was that he had been treated less favourably on the grounds of race. The Industrial Tribunal dismissed Mr Seide's complaint and decided that he had not been moved on racial grounds. In giving the judgment of this Appeal Tribunal the President, Mr Justice Slynn at paragraph 28 to 30 deal with the argument that was being advanced that as Mr Seide being Jewish was part of the background facts it was therefore factor in the decision, although the Tribunal had found that it was not a direct cause. He says -

"28 On the other side, Mr Beloff accepts that this was plainly an important part of the story. The matter may not have occurred at all in the way in which it did had Mr Seide not been Jewish but he says that is not sufficient. He says that the Tribunal has to ask itself the question: 'Which was the effective or activating cause for the steps which were taken by the employers?' If Mr Seide's being Jewish is merely a factor without which the situation would not have arisen, that is not sufficient. It has to be established by an applicant to the satisfaction of Tribunal that it is the effective cause and there may be factors of race in the background but that is not enough. Mr Beloff, I think, would accept that there can be more than one ground for a particular step being taken by an employer and if one of those - a substantial and effective cause for the employer's action - is a breach of the statute then that might well be enough. He says here that the Tribunal have effectively decided, as they were entitled to do on the evidence, that the only course here at the end of the day was the reaction of Mr Murray to the situation which had arisen on 15.5.78.

29 Mr Macdonald says that is not enough. If the fact of Mr Seide's being Jewish is still here in the background, is still there was a factor and has not, as he put it, entirely been snuffed out as the link in the causation, then it must be taken by the Tribunal as a matter of law to be one of the grounds on which the company acted.

30 We consider that on this Mr Beloff is right in his submissions as a matter of law. It does not seem to us to be sufficient merely to consider whether the fact that the person is of a particular racial group within the definition of the statute is any part of the background, or is (as is said in other cases) a causa sine qua non of what happens. It seems to us that the question which has to be asked is whether the activating cause of what happens is that the employer has treated a person less favourably than others on racial grounds."

It is also to be noted that sex must not only be a reason but a substantial reason in order to be to causative. This is apparent from Owen & Briggs v. James [1981] ICR 377. In this case the Employment Appeal Tribunal was also presided over by Mr Justice Slynn. At p.383H the learned judge says this -

"... It is for the industrial tribunal to investigate all the reasons which are put forward and to see whether there has been discrimination. If the tribunal finds that a substantial reason for what has happened is that a candidate has not been considered for a post, or has been refused an appointment because of his or her race, then it seems to us that the tribunal is entitled to say that there has been a breach of the legislation. If there are other grounds put forward which may also have been a factor it is for the tribunal to consider whether , at the end, the candidate has because of discrimination lost the chance of or lost the appointment."

This case is sometimes cited to us for the proposition that provided a reason for an action was based on sex or race that is sufficient to prove discrimination. This is not the law as enunciated by Mr Justice Slynn in those two cases. The causal affect must be direct and must be substantial.

The first task therefore for an Industrial Tribunal is to weigh up the evidence and to find a set of primary facts from which in the absence of an explanation, discrimination can properly be inferred. Those primary facts must point to discrimination on the grounds of sex or race as the activating cause of the less favourable treatment.

The reasoning of this Industrial Tribunal appear in paragraphs 18 to 21.

"18. The applicant gave us evidence which we accept that during the morning of 20 August Mr Phenix had spoken to her and had asked how she would feel about him being her boss to which she had replied "Why, are you going to be"? Mr Phenix said to her that Mr Sansome had been after him to take over the personnel department from the day he started. This was news to the applicant. The remark is denied by the respondents who of course had their opportunity to call Mr Phenix to give evidence about the matter had they chosen to do so. Mr Phenix has not been called, nor has Mr Sansome given evidence; and all Mr Ainsworth can say is that he and Mr Sansome were not present at the conversation which the applicant referred to, and they for their part had made no arrangements with Mr Phenix before 20 August.

19. This evidence, together with the view we have formed of the evidence of Mr Ainsworth that he did not do very much to try and enable the applicant to conduct her department so as to bring about the results the company required, leads us to the conclusion that the explanation which the company have offered to the effect that the real reason, the only reason, for dismissing the applicant, her inability to produce the number of recruits required, is an insufficient explanation of what, on the face of it, appears to be discrimination against the applicant in bringing in men to take her place.

20. We are not here to find out whether there was a deliberate attempt to discriminate. We have to draw our conclusions in the light of the evidence which is put before us. On the face of the matter this was a case where there was discrimination against the applicant. We are not satisfied that there was an innocent explanation.

21. We are not of course examining the procedures followed leading to the dismissal to decide whether they were fair or unfair. But we do draw the conclusion that when warnings were given in the manner in which they were and the termination of the applicant's employment occurred abruptly, as it did, coupled with engagement of Mr Phenix and his son and Mr Christopher, the explanation offered by the company must be regarded as suspect. We find it so suspect that we are not satisfied that an innocent explanation has been given. Accordingly we conclude that this complaint that the applicant was the victim of discrimination succeeds."

Mr Bowers makes a number of criticisms. First, he submits that the basic fact set out in paragraph 18 is gender neutral. The fact that Mr Phenix was intended to take over the personnel department from Mrs Roberts points neither one way nor the other.

Secondly, that the most likely facts upon which this Industrial Tribunal relied as the basis of an inference of discrimination lie in the last lines of paragraph 19 where it reads, "... an insufficient explanation of what, on the face of it, appears to be discrimination against the applicant in bringing in men to take her place." Mr Bowers submits that this statement of fact flies in the face of the expressed finding of the reason for Mrs Howsham's dismissal in paragraph 12 and 22 of the Decision. He also submits that Miss Hogan who had only been employed for some 2¹/₂ weeks provides a gender neutral situation and affords no help.

Thirdly, he criticises the reasoning in the conclusion at the end of paragraph 21 in that the Industrial Tribunal has not applied the law in the correct sequence and in accordance with the cases which we have cited above and in particular that it did not take into account the hypothetical or actual man as comparator. In this instance the nearest example was Mr Davies, the facts of whose case bore a close resemblance to that of the Applicant. The importance of a comparison with a man in like circumstances is stressed in the very recent decision in the Court of Appeal Shomer v. B & R Residential Lettings Ltd [1992] IRLR 317. In particular we would refer to those passages of the leading judgment of Lord Justice Glidewell at paragraphs 31 and 32.

"For my part is not entirely clear to me whether the majority in the Industrial Tribunal did take into account that misconduct by the hypothetical man. Certainly in the relevant passage in their decision - the sentence where they say that the majority took the view that the hypothetical man would nevertheless not have been dismissed but would have been kept on the books to await his fitness to return - they do not refer to the misconduct at all. I therefore agree with Mr Peto's submission that it does seem that the majority in the Industrial Tribunal did not take all relevant circumstances into account in making the comparison. I say this for two principal reasons. First, in that part of the decision reference is made to the evidence about the 73 year old male employee who was not dismissed. So far as I can see, that was totally irrelevant because nobody suggested that he was guilty of misconduct, and the fact that an employee who was not very useful was dismissed is not a relevant consideration. What is relevant is whether an employee who was going to suffer from a disability and was then guilty of misconduct would have been dismissed if he had been a man. Secondly, I note that further on in the passage, having said that the majority of the Tribunal consider that the applicant was dismissed because of her pregnancy, the immediately following words are 'albeit that an element of misconduct entered into the matter'. That suggests to me that the majority were not feeding that element into the comparison as such, because they had already dealt with the comparison. If that analysis is correct, then it follows that the majority of the Industrial Tribunal erred in law.

32 But I go on to say this. If that analysis is not correct and if, as Miss Lang submits, it is to be assumed by us that the majority in the Tribunal did include the misconduct as a factor which was common both to Mrs Shomer and to the hypothetical man with whom the comparison must be made, I for my part, while acknowledging that the Industrial Tribunal were entitled to draw inferences, can find no material on which they could conclude on the balance of probabilities that the hypothetical man guilty of misconduct would not have been dismissed. There is no direct evidence about it because the situation has not arisen before. In other words, knowing that Miss Simmons was waiting in the wings as a replacement, with Mr Brown anxious to engage her as soon as possible, if the person under consideration had been a man who was about to leave work in three months' time because of disability and he was then guilty of the same misconduct as that of which Mrs Shomer was guilty, it seems to me to be likely that B & R would have dismissed him. Certainly I can find nothing that can be drawn from the conclusion that they would not. If they would have dismissed the hypothetical man, then it cannot be said that there was discrimination within the meaning of the Act. That being so, the decision of the Industrial Tribunal would be perverse, as the majority of the EAT found that it was. I put that second alternative, but I prefer the earlier analysis, that the majority of the Tribunal was wrong in law because they failed to take all relevant considerations into account in making the comparison."

What then are the primary facts discernible from this decision?

The personnel management of this Company is poor. Its attitude to its staff is open to severe criticism. It "hires" and "fires" almost indiscriminately, based on performances which some could reasonably think made impossible demands on its staff. This Industrial Tribunal did however acknowledge at paragraph 10 of its decision that the Company had given consideration to Mrs Roberts' domestic circumstances and made arrangements which suited her when giving her responsibilities as personnel manageress with effect from 8th May 1990.

Mr Davies, although specially recruited, had been dismissed within three or four months for failing to produce a sufficient number of new recruits.

Mrs Roberts and Mrs Howsham were, at their own request, working part-time.

Mrs Roberts was dismissed at a time when the company was complaining that she was also failing to produce a sufficient number of recruits. The letter of 24th August gives that as the reason for her dismissal.

Mrs Howsham was dismissed a week after Mrs Roberts on the ground that the company had decided to move to full time working for all administrative staff (see paragraphs 12 and 22 of the Decision.)

Miss Hogan was dismissed for "making mistakes".

The positions formerly held by Mrs Roberts, Mrs Howsham and Miss Hogan were taken by men, and Mr Phenix had been recruited initially with the idea that he should ultimately take over the personnel department from Mrs Roberts.

Do these facts point to the conclusion, in the absence of explanation, that Mrs Roberts in being dismissed was treated less favourably than Mr Davies or some other man in similar circumstances, namely working part-time and with an inability to recruit sufficient new employees, and that the substantial direct cause was because she was a woman. To re-state the issue - if she had been a man would she not have been dismissed? Would a man in the same position have been treated differently?

The reason for Miss Hogan's dismissal is gender neutral. The reason for Mrs Howsham's dismissal is not sex related.

Mr Bowers' main submission is that this Industrial Tribunal has failed to compare the less favourable treatment - dismissal - with that which would have been given to a man in similar relevant circumstances.

He also submits that the mere fact that the successor in a particular post is of a different sex to his or her predecessor must be "gender-neutral". He proceeds further to argue that even if one takes the primary facts, which we have set out above and which he placed before us, nevertheless on the basis of Seide and Owen & Briggs there is no basis for an inference of discrimination based on sex. Thus no explanation is required.

However, even if an explanation is required then it is provided in the evidence and that ultimately looking at the whole of the evidence it is for the applicant to establish on the balance of probability that sex was a direct and substantial cause of her dismissal.

Ms Gay for the Respondent, submits that the proper approach for an Industrial Tribunal is first to examine the evidence to see whether there is treatment consistent with sex discrimination. Secondly, if there is, it may draw an inference of sex discrimination. Thirdly, it looks further to see whether that preliminary inference is displaced by any other material before it. If the decision is firmly one way or the other at that stage then one or other party succeeds. But if there remains some doubt and further investigation or consideration is needed then the comparison is made with a man who would have been similarly treated.

In the present case she submits that the relevant man is the one who replaced Mrs Roberts. She submits that the Tribunal proceeded no further than the third stage and decided that the preliminary inference had not been displaced. Therefore the Applicant succeeded.

She reasons the findings of the Industrial Tribunal as follows. As to stages one, and two the Applicant, a woman, was dismissed by the Respondents, in order to be replaced by a man, in circumstances where an appropriate inference to draw was that gender was the reason.

Then proceeding to stage three that conclusion was not displaced by anything else before the Industrial Tribunal despite valid evidence of the employer to allege misconduct.

She relies upon seven essential findings as constituting the basis for the original inference of sex discrimination. First, that Mr Phenix was earmarked to succeed Mrs Roberts in due course. Secondly, that Mrs Roberts was working appropriately at the time when Phenix was employed. Thirdly, that Mr Phenix is a rank beginner in personnel work and his sole experience was as a "run around". It was clear that the Industrial Tribunal felt that in appointing Mr Phenix the Company was taking a risk. Fourthly, not only was Mr Phenix earmarked for employment as manager of the personnel department but in fact that was what happened. Mrs Roberts was replaced by a man. Fifth, the personnel department had three women employed in it and all were dismissed within a few days and were replaced by three men. She relies in particular on answer no.12 to the questionnaire. Sixthly, that the evidence was of a stereotypical function for women and this is to be drawn from paragraph 22 of the Decision. Mrs Roberts was never asked if she would work full time although Mrs Howsham was. Seventh, that the manner in which the warnings were given and the dismissal occurred smacks of an excuse or ruse to get rid of Mrs Roberts.

In our judgment the question to be asked by the Industrial Tribunal was whether the employers in dismissing her, treated Mrs Roberts less favourably than they would have treated a man in similar relevant circumstances and did so because of her sex? These include the job she was doing, competence, results and the fact that she was working part-time.

Despite Ms Gay's most able and helpful argument, we are not persuaded that this issue was clearly put to themselves by the Industrial Tribunal and we accept Mr Bowers' submissions on this aspect.

This appeal must therefore be allowed and the matter remitted for re-hearing before a differently constituted tribunal.

Although Mrs Roberts may raise both direct and indirect discrimination, it seems to us that the real issue may be, not the unfairness of her dismissal, which is all too obvious, but whether the respondent employers can justify the employment of full-time staff only.