United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P O'BRIEN (of Counsel) 18a Carlisle Avenue St Albans Hertfordshire AL3 5LU


 


JUDGE PETER CLARK: This is an appeal by Mrs Parker, the applicant before the London (North) Industrial Tribunal sitting on 22nd, 23rd and 27th August 1996, against a reserved decision of that tribunal dismissing her complaints of unfair constructive dismissal and unlawful sex discrimination against her former employer, Marshall Cavendish Ltd ["the respondent"]. Extended reasons for that decision are dated 30th September 1996.

The facts

In October 1990 the appellant joined the respondent on a temporary contract. She became a permanent member of staff in the capacity of PA/Secretary on 1st February 1992 and remained in employment until she resigned on 31st January 1995 in circumstances which she alleged amounted to constructive dismissal.

There was a degree of overlap between the allegations relied upon in support of the complaints of constructive dismissal and sex discrimination. The main incidents relied upon, together with the tribunal's findings in relation to each incident, were these:

(1) that the respondent had, through its managing director and chief executive, Mr Kee Sum Hooi, arbitrarily and capriciously cut her recommended annual salary increase from 3% to 1.5%. The tribunal found that the large increase was dependent on the creation of a new post, that of personnel office, and the appellant taking up such a post. In the event it was decided not to create such a post.

Further, her pay increase was in line with the recommendations of Hay Consultancy who were brought in to research median figures for pay increases in January 1995. She had received pay increases of 7% and 6% in the two previous years. She could not properly be compared with a male employee, Mr R Squizzoni, who received a pay increase of 3% although he received the same merit award as the appellant. His higher increase reflected extra work which he had carried out, working evenings and weekends.

(2) that she had not been promoted to the position of personnel officer. No such post was created.

(3) she was required to make cups of coffee for the managing director. The tribunal found that secretaries normally made coffee, and they were women.

Having considered the allegations the tribunal concluded that no case of constructive dismissal or sex discrimination had been made out.

The Appeal

Mr O'Brien, who did not appear below, now takes the following points in this appeal:

Constructive Dismissal

(1) The tribunal failed to consider the allegations cumulatively to see whether a series of non-repudiatory acts could, together, amount to a repudiatory breach of the implied term of mutual trust and confidence. Lewis v Motorworld Garages Ltd [1986] ICR 157. Further the tribunal had ruled out further complaints on the grounds that they were time-barred. He submits that it is permissible to look at events which occurred more than three months before the presentation of the complaint under the Lewis principle. We have been taken to the grounds of complaint in the form "IT1" which include this paragraph:

"To summarize, I claim there was a series of events which amounted to a fundamental breach of implied terms of contract viz inequitable application on the pay formula, unfair expectations based on my gender, and lack of trust and confidence reasonably due to me."

It seems to us that these matters which are set out in paragraphs 1 and 2 of the appellant's grounds of appeal ought to go to a full appeal hearing and we so direct.

(2) He submits that the tribunal erred in finding at paragraph 19 of the reasons that it was unnecessary for employees to know of a change in the formula for calculating pay increases on the basis of the Hay review. It is said that an employer is not entitled to alter the basis of remuneration without the consent of the employee.

That submission confuses two quite different situations. One is where the existing basis of remuneration is unilaterally changed, see R Hill v Mooney [1981] IRLR 258, the other where the basis for increasing remuneration changes. As to the first, we see the force of Mr O'Brien's submission; however, it does not apply to the latter. There is, generally, no contractual right to a pay rise, and the tribunal expressly so found in the appellant's case. The appellant relied upon FC Gardner Ltd v Beresford [1978] IRLR 63 for the proposition that to deliberately single out an employee for less favourable treatment than others in the matter of a pay increase, in a way which is arbitrary, capricious and inequitable, might lead to a finding of constructive dismissal. However, so the tribunal found, that was not this case. The appellant was treated no differently from anyone else in relation to her pay increase. It was not an arbitrary decision. It fitted the regime recommended by the outside consultants.

Sex Discrimination

(1) It is submitted that in paragraph 24 the tribunal fell into error by stating that there was no comparator in relation to the claim that the appellant was not promoted to Personnel Officer. The tribunal ought to have considered the case of a hypothetical comparator. We accept that such an exercise is required, in the absence of an actual male comparator where there is a complaint of unequal treatment. However, the tribunal found that there was no post of personnel officer created. That was not directed against the appellant, it was a reasonable management decision, it was not based on the grounds of her sex. In these circumstances we can see no scope for comparison with an actual or hypothetical male comparator.

(2) It is submitted that in dealing with the issue of making coffee the tribunal failed to ask itself whether Mr Hooi had a stereotypical view of women, and whether that caused him to subject her to the detriment of a reduced pay rise and/or refusal to accord her a new job title. In our judgment that argument was considered and rejected by the tribunal in paragraph 27 where they held:

"27 ... We do not find that this unfavourable impression was due to her sex but due to her attitude towards him. ..."

(3) He submits that the tribunal took into account irrelevant factors over the coffee making issue; whether or not making coffee is servile; whether she raised a grievance about it, or whether a different chief executive might have taken a different view of the appellant. We cannot accept that submission; it was for the tribunal to assess the evidence given on both sides in order to reach a conclusion as to whether the appellant had been subjected to unequal treatment on the grounds of her sex. They were entitled to weigh those matters in the balance.

Finally, Mr O'Brien complains that the appellant was not permitted to rely on a previously decided Industrial Tribunal case brought by a Mrs Bannister against the same respondent. That applicant succeeded in her claim of sex discrimination. He contends that the appellant was entitled to produce any relevant admissible evidence to prove her case.

First, a previous Industrial Tribunal decision dealing with a different case is not evidence. Nor is it binding on a second Industrial Tribunal even if the facts are broadly similar, which this tribunal found was not the case. Mr Bannister's claim was based on pregnancy. The tribunal found that case to be of no assistance; that was a view which they were entitled to form.

It follows that having considered the various points sought to be argued in this appeal, only those raised in paragraphs 1 and 2 of the grounds of appeal raise any arguable point of law.

Accordingly, at this stage, the remainder of the appeal is dismissed.