United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 235_93_0102

Appeal No. EAT/235/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 February 1995

Before

THE HONOURABLE MRS JUSTICE SMITH

MR R H PHIPPS

MISS A MADDOCKS OBE

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MISS L DAVIES          APPELLANT

CERRIG CAMU LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR T WILLIAMS

Solicitor

Messrs Tudor Williams & Co

Solicitors

27 Chester Street

Wrexham

Clwyd

LL13 8BS

For the Respondents NO APPEARANCE BY OR

ON BEHALF OF THE RESPONDENTS


 


MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at Dolgellau on 29 September 1992. The unanimous decision of the Tribunal was that the Appellant's complaint of sexual discrimination failed and was dismissed.

The Appellant had claimed against her employers that they had directly discriminated against her contrary to Section 1(1)(a) and Section 6(2)(b) of the Sex Discrimination Act 1975. Section 1(1) provides:

"(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -

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

Section 6(2) provides:

"(2) 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, or subjecting her to any other detriment".

The Tribunal made the following findings of fact. The Respondents own the Cerrig Camu Residential Home for Young People with learning difficulties and behaviourial problems at Dolgellau, Gwynedd.

The Appellant was employed as a secretary at the Dolgellau Home from June 1990. She was then aged 18. Mr J.B. Quinlan was the Manager of the home and became a Director of the Company from 1 January 1992. He was a married man, considerably older than Miss Davies.

In March 1992, an anonymous letter was received by the Respondents alleging that the Appellant and Mr Quinlan were conducting an affair during working hours at the home. The two owner/directors of the Respondent Company, Mrs Hett and Mrs McGrail, considered that speedy action must be taken in respect of this anonymous letter, which contained a threat that, if no action were taken, the matter would be reported to Gwynedd County Council, the registration authority for the home. The letter, which we have seen, also contained allegations that the relationship between the Appellant and Mr Quinlan was well known in the local community and was bringing the home into disrepute.

The Tribunal were referred to the standard terms and conditions of employment of the Respondents which applied to all employees, including Mr Quinlan. It was a rule of employment that "personal involvement between members of staff during working hours will not be permitted under any circumstances".

On 2 April 1992, Mrs Hett visited the Dolgellau home and suspended the Appellant. She did not show the Appellant the anonymous letter, although Mr Quinlan told her of its contents that night when they stayed together at the bungalow at Cerrig-Camu. Mr Quinlan was shown the letter but he was not suspended at that time.

On 8 April, Mr Quinlan was interviewed about his association with Miss Davies and admitted the allegation. He has also asked about another matter, not affecting the Appellant, but of concern to the management. He was suspended by letter dated 9 April. On 9 April the Appellant wrote a letter offering to resign if her resignation would ensure the continued employment of Mr Quinlan. That letter was received by Mrs Hett on 10 April, shortly before she went into a meeting at which the Appellant's future with the Company was to be discussed. At the meeting, Mrs Hett refused to accept a conditional resignation from the Appellant and in effect told her that she could either resign unconditionally or be dismissed. She was sent away to consider her position. She did not, in fact, return to work and on 17 April, Mrs Hett sent her a letter accepting her resignation unconditionally.

Mr Quinlan, in contrast, remained in his employment until he was dismissed, for wholly unrelated matters, in August 1992. It is clear from the documents and notes of evidence which we have seen that the only action taken against Mr Quinlan was that he was suspended for a short time while an investigation was made into the other matter of concern to the Respondents, which related to the death of one of the inmates of the home. Thereafter, he continued in his normal duties. No action was taken in respect of his affair with the Appellant.

The Industrial Tribunal, having made their findings of fact, recorded the Appellant's contention that she had been treated less favourably than Mr Quinlan, on the grounds of sex, in four ways. First, she was not shown the anonymous letter and Mr Quinlan was. Second, she was suspended on 2 April and Mr Quinlan was not. Third, she was not given an opportunity to discuss or refute the allegations in the letter and Mr Quinlan was, and fourth, she was constructively dismissed and Mr Quinlan was not. They go on as follows:

"3. .... Mrs Hett for the respondents freely admitted that the applicant and Quinlan had been treated differently but that was because of their different status and not because of the applicant's sex. The applicant was a secretary, a junior position, whereas Quinlan was the Manager of the home and a Director of the company. In addition other matters affecting him and not involving the applicant had to be investigated. The burden of proof was on the applicant to satisfy us on the balance of probabilities that the treatment she received as compared to the treatment of Quinlan was on the grounds of her sex and that a man in her position would have been treated differently. We do not consider she has met that burden of proof. The treatment is wholly explicable on the grounds of their respective status and we can make no inferences from the evidence that her sex was the reason. Accordingly the application must fail".

Following the delivery of that decision the Appellant applied for a review of the Tribunal's decision on the ground that the case now revealed evidence of indirect discrimination. The Tribunal rejected the application for an appeal for a review and no criticism has been made of that decision before this Appeal Tribunal.

The sole ground of appeal before us is that the Tribunal's decision was perverse. Mr Williams, who has appeared for the Appellant before us, although he did not appear for her below, has submitted that the Industrial Tribunal's acceptance of the Respondents' explanation of why they treated Miss Davies differently from Mr Quinlan was perverse in the sense that it was illogical and irrational.

We have seen the notes of evidence and the documents which were before the Tribunal. Mr Williams accepts that the notes of evidence reveal that Mrs Hett did indeed say that the difference of treatment was on account of the difference in status between Miss Davies and Mr Quinlan. It does not appear from the notes that much explanation of why the difference in status was the reason for different treatment; nor does it appear that the reason was challenged in cross-examination as being either untrue or irrational.

Mr Williams also submits that the decision is so brief that it is not possible to understand the reasoning which lay behind it. It is true to say that the relevant passage of the Tribunal's decision could, with advantage, have been more explicit. It would have made our task easier if it had been, but we do consider it to be adequate, especially when read in conjunction with the notes of evidence and the documents.

First, we feel that we should express our sympathy with Mr Williams' submission that the treatment of this young woman appears to have been most unfair. She was aged 18 and in a junior position. Mr Quinlan was a man much older than herself, the Manager of the home and in a senior position in the Company. On any view, he must have been regarded as the more responsible for that which happened and the more culpable, in that this was conduct which was contrary to the rules of the Company. The young woman was told to resign or to be dismissed whereas, after a brief period of suspension, Mr Quinlan continued in his post. Indeed, it is clear from the evidence that Mrs Hett herself, who was the owner/director responsible for the constructive dismissal, was unhappy about having to deal with Miss Davies in the way that she did. It is clear that she, herself, held Mr Quinlan responsible for that which had occurred. Her treatment of the Appellant was unfair and she knew it.

But this was not an unfair dismissal case. Miss Davies had not been employed for two years and could not bring a complaint of unfair dismissal. The question for the Tribunal was not whether Miss Davies had been treated fairly. It was, under Section 1(1)(a) of the Act, whether, on the ground of sex Mrs Hett had treated Miss Davies less favourably than Mr Quinlan. The primary facts were clear. There was a difference of treatment. The question was whether it was on the ground of sex. There is now abundant authority in the cases of King v The Great Britain China Centre [1992] ICR 516, the case of North West Thames Regional Authority v Noone [1988] ICR 813 and the case of Khanna v Ministry of Defence [1981] ICR 653 as to what is the proper approach for a Tribunal to adopt in cases of race discrimination and sex discrimination. It is only necessary to cite a short passage from the judgment of Browne-Wilkinson J., as he then was in Khanna case to illustrate the point. At page 658H he said this:

"If the primary facts indicate that there has been discrimination of some kind, the employer is called on to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the industrial tribunal, an inference of unlawful discrimination from the primary facts will mean that the complaint succeeds".

Here the employers advanced an explanation. It was that the difference of treatment was due to the difference of status and the Industrial Tribunal accepted it. It is true that the Industrial Tribunal have not explained why they accepted it, but with the benefit of the notes and the documents we consider that their acceptance of the explanation was a decision which was open to them on the evidence. It was neither irrational nor perverse.

We note in particular the following matters which seem to us to be relevant. The Manager of a home such as this has to be a person approved by the local authority under statutory regulation. It would, it seems clear to us, be difficult to replace a manager such as Mr Quinlan at short notice. If, as would seem clear from the circumstances of this case, it was impossible for the employers to allow both employees to remain on the premises and if therefore, one had to go, one can well understand why it would have to be Miss Davies who went.

We note the evidence that Mrs Hett was unhappy about the decision that she was obliged to make. Miss Davies herself, in her evidence said that Mrs Hett was sympathetic to her position. It seems to us, that that evidence points away from any discrimination against Miss Davies and it is a matter which the Tribunal could properly take into account.

There is another factor which may point against this being a case of discrimination on the ground of sex. The two people taking the decision, Mrs Hett and Mrs McGrail, were both women. Whilst of course, it is not impossible for women to discriminate against a woman, a Tribunal might well feel that such an inference would not be easily drawn.

Finally, we remind ourselves that the Industrial Tribunal saw the witnesses and they were in the best position to assess truthfulness and sincerity.

It seems to us important to recognise that where an employer advances a reason for treating a woman differently from a man, he or she does not need to satisfy the Tribunal that the decision was a fair one. An employer who has treated a woman unfairly will escape liability under the Sex Discrimination Act if the Tribunal concludes that the employer would have treated a man in a similarly unfair way. If the Tribunal is to accept the explanation, plainly it must be credible. It will therefore have to be sensible and it will usually, although not necessarily, be related to the needs of the business.

In this case we have come to the conclusion that the Industrial Tribunal approached the case in the right way and that their acceptance of the employer's explanation was a conclusion which was open to them on the evidence. Accordingly, this appeal fails.