United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	P NICHOLLS (Of Counsel) Messrs Graham Evans & Partners Moorgate House 6 Christina Street Swansea SA1 4EP
For the Respondents	MS D ROSE (Of Counsel) Messrs Eversheds Solicitors Fitzalan House Fitzalan Road Cardiff CF2 1XZ


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a unanimous decision of an Industrial Tribunal held at Cardiff following a 13 day hearing. By their decision the Tribunal dismissed the complaints of the two applicants that they had been discriminated against on the grounds of their sex.

The two female applicants, ['the employees'], were employed by the Respondents to this appeal, the Driver & Vehicle Licensing Agency ['the employers'], in their Vehicle Customer Services Department at their substantial tower block premises on the outskirts of Swansea. The employers are an executive agency of the Department of Transport, employing some 3000 people at those premises. A system of flexi-time is in operation. The Tribunal's Decision fully explains the system. For present purposes it is sufficient to say that a working day is divided into core hours and flexi-time hours. As its name implies, flexi-time enables employees to choose which hours he or she works outside the core hours. It is a system of working of particular use to those who have family responsibilities, but it is dependent upon employees accurately clocking in and clocking out, using the centrally computerised flexi-clocks on each floor.

Prior to the matters complained of, the two applicants shared a full-time post at the grade of Administrative Officer. Their department was run by a Mr Uren a Higher Executive Officer, to whom 8 Executive officers reported, to whom, in turn, the 50 Administrative Officers reported. Below the Administrative Officers was the grade of Administrative Assistant, of which there were some 100 posts.

It was the employers' case, based upon a two week surveillance of the employees' clocking activities during the lunch period between 12 noon and 1400 hrs, and other investigations, that the employees were believed to have been cheating the flexi-time system by going to the gym without clocking out, and then coming back an hour later and subsequently clocking out for a half-hour break. The employers carried out a somewhat painstaking investigation which involved comparing the times booked in the Gym Book against the computerised clocking records.

The way the flexi-time system operates inevitably involves putting the employees on trust. The flexi-time documentation makes clear that any deliberate misuse of the system would render the employee concerned liable to the imposition of disciplinary sanctions; and that other misuses would or might result in the employee's pay being adjusted to reflect the hours actually worked.

After the investigation, Mr Uren interviewed both applicants on March 24, some two months after the alleged incidents of misuse had occurred. Being dissatisfied with their explanations, he referred the matter to the Personnel Group for them to consider what disciplinary sanctions should be recommended for implementation by the responsible person, a Mr Palmer. The personnel officer investigated the matter further and conducted disciplinary interviews with the employees on 5 May. At that interview, the women were represented by their Trade Union officer. As a result of their explanations, the number of occasions on which there were unexplained discrepancies was reduced, but, nonetheless, the personnel officer concerned, Mrs Evans, decided to recommend that each should be demoted to the grade of Administrative Assistant. It is to be noted that such a demotion carries with it a salary differential of some £700 per annum. Mr Palmer adopted the recommendations of the personnel officer and the two women were demoted.

The case for the applicants at the Industrial Tribunal, which they presented themselves, with, apparently, conspicuous ability, was, first, that they had been the victims of, effectively, a conspiracy against them. They believed that false documents had been generated [in particular the Gym Diary] and that deliberate false evidence had been given against them. They denied every incident of alleged discrepancy and contended that, by reason of their sex, they had been grossly unfairly dealt with by the employers. Second, they compared their treatment to that of two men who had also been found fiddling the flexi-time process at about the same time as their case was being dealt with. In relation to the two men, Mr Uren had made an adjustment to their pay to reflect the time not worked, instead of referring the matter on for disciplinary action through the personnel function. The applicants compared their case with that of the men and invited the Tribunal to conclude that the only satisfactory explanation for the difference in the employers' treatment of them was because of their sex. In either event, any such discrimination would have been unlawful.

The Industrial Tribunal had considerable sympathy with the women's case.

They concluded, in general terms [paragraph 1 of the Decision] that:

"We are satisfied that there are many respects in which the respondents treated the applicants differently, and less favourably, than they did the men."

They referred to the general laxity in the office during the flexi-time period between 12 noon and 1400 hours, in the light of evidence that people would do their knitting or read books but not clock off whilst doing so. The tribunal said [paragraph 12]:

"... This "easy going" atmosphere contributed significantly to our feeling that the applicants have been much too severely disciplined having regard to their long good service and the absence of any warning prior to the first monitor between January and February."

They considered that, in reaching their decision to demote, the employers did not take all the mitigating factors properly into account [paragraph 14].

They thought that the delay between the date when the events took place and the date when they were interviewed by Mr Uren was not justified. "It was unwise. It was unfair" [paragraph 22]. The interviews should have taken place sooner and there was no such delay when the employers dealt with the men's cases.

"... The delay in interviewing the women, contrasted with the promptness of the interviews of the men, is different treatment which clearly was very prejudicial to the women." [paragraph 32].

The complaints were dismissed by the Tribunal with "unanimous regret" [paragraph 5]:

".... each [member] feeling that the way in which the applicants' behaviour, as we find, misbehaviour, was punished was (1) disproportionate to both the quality and quantity of the misbehaviour and (2) did not take sufficiently into account the long service and excellent qualities of both applicants."

The final paragraph of the Decision repeated the expression of regret.

It is against that background that the appeal comes before us. We are grateful to both counsel for their assistance: it was a well-argued appeal.

The point that was made on the employees' behalf was that the Industrial Tribunal had failed, in their otherwise long and comprehensive decision, to explain in paragraph 36 of the Decision why they concluded that the difference in penalties imposed upon the men and the women was justified or how it was explained. It was contended that this was an error of law. Reliance was placed on the dicta of Bingham LJ in Meek v City of Birmingham [1987] IRLR 250 at paragraph 8 and a passage in the judgment of this court, presided over by the former distinguished President, Mummery LJ, in Pye & Others v British Coal Corporation, an unreported decision given on 19 February 1996. It was contended that in the present case there was clearly both a difference in treatment and a difference in sex. The Tribunal accepted that the treatment of the women was unfair:

"In these circumstances the Tribunal should clearly have stated why, despite that treatment and the difference in sex it was not prepared to draw any inference of discrimination. For this reason the decision of the Tribunal is flawed, even though in other respects the decision is detailed."

The basis for the employees' submission is paragraph 36 of the Decision. Paragraph 35 lists, in summary form, the difference in treatment between their case and the men's case as identified by the applicants to the Tribunal during the hearing. Difference numbered (8) was:

"the final treatment meted out, demotion versus a debit and, in the case of one man, promotion".

It was contended that, whilst the Tribunal had dealt with differences numbered (7) and (9), it was significant that they did not deal with the one crucial difference that the women were ultimately relying upon.

On behalf of the employers, Miss Rose argued that the Decision should be read as a whole and that when that was done, it was clear why the applicants' complaint was rejected. Essentially, the employers had decided that the women's breaches of the flexi-time system were deliberate and systematic, whereas the men's were not. Although the Industrial Tribunal firmly disagreed with the employers' assessment of relative culpability, the question whether an explanation put forward to explain a difference in treatment was sufficient to rebut an inference of unlawful discrimination was not the same as whether the explanation amounted to a justification of the treatment. Thus, by analogy, if a woman who was manifestly better qualified for promotion than her male comparator was not promoted, but he was, the tribunal would be quite entitled to reject the natural inference that the only plausible explanation for her rejection was the fact that she was a woman if the employers led evidence to show that the appointment's panel had simply misread the woman's application form. Here, the employers had drawn a distinction between the quality of the women's offences and those of the men. Even if the Tribunal itself would not have regarded such a distinction as justified, if they nonetheless accepted the employers' evidence for the difference in treatment of the two groups not related to their sex then the applications were rightly rejected.

It seems to us that Miss Rose was right to say that we should look at the Decision as a whole rather than confine out attention to paragraph 36 of it. Parties to Tribunal proceedings are entitled to know why their case has been rejected, if it has been. A reasoned judgment is called for so that they can decide whether to pursue the matter through the appellate process or not. It is unsatisfactory that, after a hearing, the parties should be in the dark as to the Tribunal's reasoning which has led to the Decision. We respectfully agree with the way this point was more felicitously expressed in the two cases to which our attention was drawn by the employees' counsel.

Having looked at the whole of the Decision we are satisfied that the Tribunal have properly set out the reasons which led them to reject the women's complaints, albeit, with apparent reluctance. We set out below the various passages in the Decision which we consider reveal what is, to our mind, a conclusion on the facts which, in law, justified the Tribunal in dismissing the complaints.

At paragraph 1, the Tribunal said this:

"We are satisfied that there are many respects in which the [employers] treated the [employees] differently, and less favourably, than they did the men. We are not satisfied that the reason for the differential treatment is on the grounds of the sex of either [employee]. [The employees] have pointed to many respects in which they were treated less favourably than were the men, but [the employers] have put forward reasons which we find are sufficient to explain each of those differences, and the totality of those differences, in ways which do not cause us to to draw an inference that the reason, or one of the reasons, for the different treatment was because of the [employees'] sex. We reject the suggestions that the [employers] or their witnesses have created false documents, or made false entries in documents, or have given deliberately false evidence. We reject the allegations of forgery, conspiracy and the concoction of evidence, or the giving of deliberately false evidence."

At paragraph 3, the Tribunal said:

"... We find that the explanations put forward by the [employers] for each of the differences between the men's and women's treatment are either adequate or satisfactory and, in any event, are such as to dissuade us from drawing an inference, adverse to the respondents, that the reason for the differences is on grounds of sex."

There were, as we have noted, three stages in the process which ultimately led to the demotion decision: Mr Uren's decision to refer the matter to the Personnel Group; Personnel Group's decision to recommend demotion; acceptance by Mr Palmer of that recommendation.

In relation to Mr Uren's part, the Tribunal said this:

"... In relation to that date [13 January 1994] there was no doubt in Mr Uren's mind as to what had happened. He had seen Mrs Nicholas in the gym with his own eyes. In addition he discovered that all three ladies [the third was not a party to the Tribunal proceedings, although she, too, had been demoted] had attended the Familiarisation Course [at the gym] on 14 September 1993, a course which took place between 12 noon and 1.00 pm. Mrs Glynn was not in work that week, and came in in her own time to attend the Familiarisation course so as to be entitled to use the gym in future. Mrs James [the third woman] and Mrs Nicholas were both working and both clocked out for the minimum 30 minutes between 1.00 pm and 2.00 pm. Mr Uren accordingly believed he had, and we find did have, uncontradicted evidence about Mrs Nicholas using the gym on the 14 September and 13 January between 12 noon and 1.00 pm but clocking out and back in for half an hour between 1.00 pm and 2.00 pm." [paragraph 19]

At paragraph 22 the Tribunal acquitted Mr Uren of having any 'oblique motive for the delay' in holding his disciplinary interview with the two applicants.

At paragraph 36, the tribunal found:

"... It is correct that once the monitor had thrown up the discrepancies in the women's cases, Mr Uren then went back a considerable time in the past. He went back to September 1993. But we accept that that was because, in relation to the women, there were materials that he could go back over..... In the case of the men we accept Mr Uren's explanation why he could not go back in the Gym Diary. There were a number of men with similar names..... The women's explanations were rejected because, we accept from Mr Uren, he genuinely and reasonably did not find them acceptable or credible. The men had less implausible explanations and only had two days to deal with..... We accept his explanation that there was nothing that caused him to think it necessary to make inquiries into the men's past behaviour to the same extent..... Having regard to what Mr Uren concluded about the length of time over which the women's behaviour had continued and the pattern which he found in the chart... it is not surprising or significant that Mr Uren reported the women's conduct, as he believed it to be, to the Personnel Group..... We accept that the [employers] were entitled to impose a debit, merely, with the men and in doing so treated them within the flexi-time guidelines."

At paragraph 37, the Tribunal considered the relative merits of the two applicants' cases and said:

"... It is true that Mrs Glynn had only two specific "offences" reported against her which was the same number as could be laid against the men. However, the pattern in her case, when [the chart] and all the circumstances were taken into account, was such as to make it reasonable for [the employers] to carry out the same disciplinary conclusion in the case of Mrs Glynn and is the case of Mrs Nicholas and Mrs James. In any event if [the employers] were unfair to Mrs Glynn, that was not an unfairness because she was a woman. It had nothing to do with her sex. It was not sex discrimination."

It seems to us that the Industrial Tribunal accepted the employers' case that they genuinely believed the women's culpability to be greater than the men's. The women's conduct was 'proved' to have occurred over a longer period and had a pattern to it; whereas there were only limited occasions in relation to the men, who, if they had been using the gym as had the women, were lucky enough to be able to hide behind a similarity of first names in which bookings were made in the Gym Book. The passage we have highlighted with italics shows, we think, that the Industrial Tribunal accepted as reasonable Mr Uren's decision to refer the women's case on to the Personnel Groups but to deal with the men's case himself under the procedure. Even if his decisions were unreasonable, they were made on a mis-assessment of the relative degrees of culpability of the two gender groups, but that mis-assessment was not tainted by the group's gender.

In relation to the investigations carried out by the Personnel Group and what happened at that stage, the Tribunal said this, at paragraph 25:

"... We went into the investigations carried out by Mrs Evans [a personnel officer] in minute detail, and heard a great deal of cross-examination thereon. We find in them nothing which points to the Personnel Group treating the applicants unfavourably or less favourably on the grounds of sex. Until the interview with Mrs James, [the] Personnel Group knew nothing of any allegations made in relation to the men."

And at the end of the next paragraph [26] the Tribunal found:

"... However, we are satisfied that, after all allowances had been made or matters which the [employees] were able to explain, there remained ample evidence of discrepancies which entitled Mrs Evans to make the recommendations which she did make in each of these three ladies' cases."

Accordingly, as a matter of fact the Tribunal has found that the employers had obtained evidence which justified the personnel group's decision to recommend that the women should be demoted.

As to the final decision taken by Mr Palmer, who had the recommendation of the personnel group before him, the Industrial Tribunal said, at the end of paragraph 27:

"... As far as disciplining the women is concerned there is little more that need be said. Mrs Evans reported to her superiors. They reported to their superiors. Eventually the matter reached Mr Palmer, the decision maker. He adopted the recommendations which the Personnel Group officers had put before him and imposed a demotion on each [employee] and Mrs James. We consider the penalty too severe."

We deduce from the way the Tribunal dealt with this part of the case that the main thrust of the evidence and argument related to the initial decision by Mr Uren to refer the case to the Personnel Group, and to the recommendation subsequently made by the Group that the women should be demoted. At the end of that process, the employers had irreversibly moved towards demotion.

In a nutshell, the Tribunal accepted the employers' evidence which founded their belief that clocking offences had been committed by the women on a systematic basis, whereas there was no sufficient evidence to suggest that the men had been guilty of such systematic abuse of the system. Whilst there is room for argument as to the merits of the employers' decision to demote, we consider that the Tribunal having properly directed themselves as to the drawing of inferences in discrimination cases like these, were entitled on the evidence to conclude that the difference in treatment between the employees' cases and that of the men was not due to a difference in sex, but rather due to a difference in perceived culpability. If that is the correct analysis, then the women's case would be bound to fail.

It seems to us that there is no real merit in the point made on behalf of the appellants in relation to paragraph 36. That paragraph starts off by a statement that the tribunal "have already dealt with several of these differences" which they had listed at paragraph 35. The real core issue in the whole case was 'why were the women demoted but not the men' [question 8]. It was to that issue that the whole of the Decision was directed. All the other issues were entirely relevant to the ultimate conclusion on the core issue, but it is, we think, simply unfair to say that the appellants cannot know from the decision the Tribunal's answer to it. The fact that it was not expressly dealt with in paragraph 36 is, we think, not surprising having regard to the extensive analysis which the Tribunal had previously made of the evidence. The purpose of paragraph 36 seems to be to carry out a check-list to ensure that the Tribunal had covered all the matters of which complaint was made. It would have been a remarkable oversight had the Tribunal failed to deal with the central issue and, in our view, they have not made that error, as we have sought to show. The reason for the difference in treatment is, in our view, clear from a perusal of the whole Decision.

The Tribunal noted [paragraph 2] that they were not dealing with a complaint of 'unfair demotion'. What they had to decide was whether the treatment of the women, which was unquestionably less favourable than that of the men, was due to a difference in sex, or not. There is always room for debate as to the relative culpability of people who have broken the rules, whether in the employment context or in society more generally. It seems to us clear that the Tribunal ascribed the difference in treatment in this case to a difference in the employers' assessment of the culpability of the two groups.

We cannot leave this case without commenting on the present position. The women remain demoted. They have suffered a considerable financial penalty which might be thought to exceed their culpability. Whilst the lay members of this Court point out that clocking offences, in the private sector, are often dealt with by instant dismissal, the employers in this case appear to have adopted a somewhat less vigorous approach to such matters. The women have given long and faithful service. It comes as some surprise to learn that they have not yet been re-instated. If they could establish that they were not re-instated because of their application to the Industrial Tribunal, then that would be capable of amounting to unlawful victimisation under the Sex Discrimination legislation. Further, there was a male who had, in the past, been demoted. If his demotion was for a relatively short period, we would simply draw attention to the possibility, without knowing the facts, that the employers could be exposed to the risk of a further Industrial Tribunal application brought by the women for direct discrimination based upon the less favourable treatment of them than of him.

We hope that the employers will continue to act within the law, and with, perhaps, a better sense of judgment than the Industrial Tribunal believed them to have shown in 1994.

This appeal must be dismissed.

We reserved this decision. Both parties told us that if they lost they would seek leave to appeal. It is our view that the real question in this case was one of fact and depended for its outcome for a full analysis of the Decision of the Industrial Tribunal. We do not consider that there is any arguable point of law or that the matter is fit for consideration by the Court of Appeal, unless, of course, that Court thinks otherwise. We refuse leave to appeal.