United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 941_95_2307

Appeal No. EAT/941/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23rd July 1996

THE HONOURABLE MR JUSTICE BUCKLEY

MR I EZEKIEL

LORD GLADWIN OF CLEE CBE JP

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MR A B STANSFIELD          APPELLANT

(1) DEPARTMENT OF EMPLOYMENT
(2) MRS MILTON - DEPARTMENT OF EMPLOYMENT          RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR H HUGHES

(Representative)

For the Respondents MR R COHEN

(of Counsel)

The Treasury Solicitor

Queen Anne's Chambers

28 Broadway

London

SW1H 9JS


 


MR JUSTICE BUCKLEY: Mr Stansfield commenced work for the Department of Employment back in about 1970. From sometime after 1989 or 1990 he commenced acting up, that is temporarily acting in the next highest grade of executive officer. He was acting up in the early 1990's. In early 1992 a Mrs Haysey had left the department in question, Mrs Milton was appointed in her place as temporary higher executive officer, and there was no other supervisor in the department except Mr Stansfield, until a Mrs Jones was appointed in 1992. In 1994, however, Mr Stansfield's period of acting up was terminated, and a Mrs Turner, I believe, was appointed to that position.

Mr Stansfield was unhappy about that, and indeed he felt that the reason that lay behind it, of course unspoken, was that Mrs Milton wanted a woman in the position, and hence had appointed Mrs Turner.

He put in an originating application to the Industrial Tribunal. The matter came on for hearing on Thursday, 29th June 1995 at Leeds. The unanimous decision was that the appellant was not discriminated against by the Department of Employment and the application was dismissed.

It is necessary to identify what actually happened at the hearing, because it is what has given rise to this appeal. The Department, or their solicitors, had prepared a bundle, a not inconsiderable bundle perhaps more than one, for use at the tribunal. We are told that in the normal way that had been sent to Mr Stansfield some time in advance. At the hearing these documents were tabled and used by the parties at the hearing. In the main, the documents provided a case history of Mr Stansfield and in particular his dealings over a few years with Mrs Milton. It was of course for Mr Stansfield to go first. He was represented by Mr Hughes, who has argued the appeal before us and to whom we are grateful. He gave his evidence and we are told in doing so was referred to some of the documents and doubtless made his comments on them. He was cross-examined by Mr Cohen, who has also appeared before us and to whom we are equally grateful. Mr Cohen cross-examined for some time. A couple of hours has been mentioned to us, during which time as is apparent from the tribunal's findings at least in large measure the story told through the documents was accepted or agreed by Mr Stansfield. There were one or two points noted by the tribunal when he took issue. At the end of that part of the case, Mr Hughes indicated that he had no other witnesses and presumably therefore that was the applicants case. Whereupon Mr Cohen submitted to the tribunal that there was no case to answer. The tribunal acceded to that application.

The grounds of appeal originally contained more than one ground, but Mr Hughes very helpfully wrote to the tribunal recently and indicated that it was only ground three that he was pursuing. Ground three is that:

"The Tribunal are seriously in error in not hearing the respondent's [Department of Employment] evidence and thereby denying the applicant an opportunity of cross examination."

That, we now understand means that he was deprived of the opportunity of cross-examining in particular Mrs Milton.

Let it be said at the outset that we accept as did Mr Cohen before us, that it is an unusual even an exceptional course for a tribunal to determine a case of discrimination on the submission that Mr Cohen made here of no case to answer. The courts and this tribunal have said on several occasions in the past that in cases of discrimination whether based on grounds of race or sex, it is usually inappropriate and very often unwise to adopt that course. That is because of the nature of industrial tribunals, the nature of their task, the nature of this type of application, the fact that parties very often are not legally represented and that above all the object of the informal, or relatively informal hearing at an Industrial Tribunal is to get at the real and true merits of the case, not for it to be determined or go off on any colourable or tactical basis. The nature of industrial tribunals makes it particularly important in cases of this sort. Because of that, this tribunal has given that guidance and so have the courts. We do not wish to be taken in any way to be undermining the guidelines that we have mentioned. We think that they are salutary and desirable in this type of case.

However, it has not been submitted that the tribunal did not have the option of stopping the case, provided they approached that decision in the right way. Clearly as a matter of law, they are entitled to provided that it is an appropriate case.

The first question is whether this tribunal therefore misdirected itself in point of law. Well that submission was not really developed by Mr Hughes. We come to his complaints in a moment. But we have looked at the decision for ourselves in any event, and can find no sign that the tribunal has done other than look thoroughly at the evidence to see whether there was anything in the evidence, "any evidential basis whatsoever" to use their own words upon which they could base or draw an inference of discrimination. That is the correct approach and it is only in the exceptional or rare case where there is nothing whatsoever there that a tribunal would stop a case after the applicant's evidence. We cannot say that they have gone wrong in law, it was an option open to them. That leaves the question only, whether they were right in the circumstances of this particular case.

What happened at the tribunal was as we have indicated, that Mr Stansfield must have given evidence for probably some three hours or so. Any of the available documents that he wished to point to, or Mr Hughes wished to point to or deploy on his behalf were pointed out to the tribunal. We do not propose to go through it in detail, but there are several pages in the extended reasons detailing, as we put it earlier, Mr Stansfield's case history in particular his dealings with Mrs Milton. The point of the enquiry was to see whether Mr Stansfield's managerial skills had been called into question, so as to see whether there was any genuine justifiable management reason for the decision to terminate his temporary promotion or acting up. A lot of those documents and that evidential enquiry is set out in some detail in the reasons.

At the end of it all, the case was put for the appellant in two ways. One was whether there was any element of unlawful discrimination in the selection of Mrs Jill Turner to replace the appellant. In his originating application he had so asserted. He had been asked for particulars and gave the names of two men who it was to be asserted were better qualified or if not better qualified more senior that Mrs Turner and the argument would, on that basis, have been that that indicated Mrs Milton's preference for a woman in this job, even though not as senior. We would only digress to comment that seniority provided there is sufficient suitability for the job, seems to have been in accordance with the code of practice operated in relation to this position.

That leg of the appellant's case fell away, because when those particulars were given and the two male employees identified, the respondents were able to reply and point out that they were not as senior as Mrs Turner, and that therefore there was no basis there for any inference of discrimination. That was accepted by the appellant. He could and did not seek, in fairness to him, to undermine Mrs Turner's suitability because he had in the past himself certified her as fit for promotion. So that aspect of his case inevitably fell away.

The other aspect was and could only therefore have been that in terminating his period of acting up or demoting him (to put it crudely and technically inaccurately), Mrs Milton was motivated by bias against him as a man. In short that she did that so that she could appoint a woman to that post. Implicit in that is that she perhaps chose her moment when the senior suitable candidate available was a woman so that she would have her way in that respect.

Now that the tribunal have clearly turned their minds to. We read into the tribunal's findings that during the course of Mr Stansfield's evidence, whether in chief or in cross-examination, perhaps the latter in answer to Mr Cohen's probing, he may have been asked whether he was suggesting or believed that there was some such plan by Mrs Milton. The tribunal finds expressly that there was in the evidence nothing from which they could infer, as he might have wished, that there was any such devious plan, based on the appellant's sex, to remove him and substitute Mrs Turner.

The task of this tribunal, having accepted that the decision taken by the Industrial Tribunal was one which was open to them in point of law, is therefore to look at their decision and see if in the particular circumstances that is in the light of the evidence that was before them, it was a decision open to them. In short, whether it was perverse or not. It boils down to this, the tribunal said that there was nothing in the evidence whatsoever from which they could draw the necessary inference. We were urged by Mr Hughes to say that there was something in the evidence, and moreover he suggested that it was unfair in a sense that he should not have been able to take up matters with Mrs Milton in cross-examination.

Well, if we could have identified anything for ourselves in the evidence from which an inference could have been drawn in this type of case, we would have been only too ready to intervene and send the matter back for a rehearing for the reasons we have reiterated. But we have listened to Mr Hughes, we have been taken by him carefully through the findings and the points of the evidence. We have to say at the end of they day, he has been unable to identify to our satisfaction, any point which could give rise to the necessary inference.

The position therefore is, as the tribunal themselves concluded on the evidence, there was nothing from which the inference could be drawn. It is not asserted that the selection of Mrs Turner was in itself discriminatory, it can only be the case that the termination of the appellant's acting up was discriminatory and was part of a plan to get Mrs Turner a woman in that post. As I say, we have been through the evidence. We have been through the documentary case history with Mr Hughes's assistance and of course Mr Cohen's, we have satisfied ourselves like the tribunal, that there was nothing there.

That being so, despite the cautionary remarks that we have made about a tribunal adopting this course, we can see no legal basis upon which it would be right for us to interfere with the decision made in this particular case, and this appeal must be dismissed.