United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR C NUGENT (of Counsel) Messrs Clifton Ingram Solicitors 22-24 Broad Street Wokingham Berkshire RG40 1BA
For the Respondent	THE RESPONDENT IN PERSON


 


JUDGE PETER CLARK: This is an appeal by Vogon International Ltd ["Vogon"] against a decision of the Reading Industrial Tribunal sitting on 5th March 1997 that Vogon had unlawfully discriminated against the respondent, Mr Forsyth, on the grounds of his sex and an award of £2,000 compensation for injury to his feelings, together with interest was made. Extended reasons for that decision are dated 19th March 1997.

The facts

In September 1996, Vogon advertised a vacancy as Marketing Assistant at the Employment Service. Mr Forsyth, a man then aged 59 years applied for the post by submitting his curriculum vitae. The post had been advertised as German speaking. The respondent had extensive experience of working in Germany, had fluent German, and had experience of sales and marketing positions.

He telephoned Vogon a few days later to chase up his application. He spoke to Mrs Stevenson, a director of the company. She told him in terms that the company was looking to offer the post to a woman and she had never considered the possibility that a man would be appointed, so he told the tribunal in his evidence. He spoke to her again on 22nd or 23rd October to be told that she had progressed the application with a female candidate and that the post had never been regarded by her as one for which a man would be employed.

He complained to Mrs Cross of the Employment Service, who prepared a written statement which was admitted in evidence before the tribunal. In that statement she said that she had telephoned Mrs Stevenson who told her that she remembered the respondent who had been rude to staff when he telephoned. She thought he was too old and overqualified for the post. She said that ideally she was looking for a young lady aged about 25 years.

In evidence Mrs Stevenson conceded that she had made a comment that she was looking for a young lady of about 25 years of age. The tribunal found as a fact that she said words to that effect in conversation with the respondent during both telephone calls with him.

In the event, out of 20 or 30 applicants for the post, Mrs Stevenson interviewed only one candidate, a female graduate aged about 26, who was offered the post.

On those primary findings of fact the tribunal concluded that the respondent had established that his application was not given consideration because of his gender. The tribunal considered Vogon's explanation, which was that the respondent had been rejected because he was too old and had been a nuisance on the telephone, but nevertheless drew the inference that he had been unlawfully discriminated against on the grounds of his sex.

They went on to find that the respondent was not qualified for the job, and had his application been treated in a gender neutral way he probably would still not have got the job. Nevertheless, they awarded £2,000 compensation for injury to feelings to reflect the disappointment to him, after several years out of work, of having his application rejected in the way that it was.

The Appeal

The main thrust of Mr Nugent's argument in relation to the tribunal's liability finding is that in considering the issue of unequal treatment the tribunal failed to consider and compare like with like. The proper comparison was between the respondent and a woman of similar age. Such a woman would have been similarly treated. There was no discrimination on grounds of sex.

Further, he submits that this was in fact a claim of indirect discrimination, not direct discrimination as the tribunal treated it. Applying Perera v Civil Service Commission [1983] ICR 428 he submits that Vogon applied no requirement or condition which barred out the respondent. Further, the respondent had failed to show any detriment under s. 1(b)(iii) of the Act.

Mr Nugent contends that the mere fact of the comments by Mrs Stevenson on the telephone as to her preference for a young lady aged 25 or thereabouts for the post was not sufficient to entitle the tribunal to draw an inference of discrimination on grounds of sex. The tribunal failed properly to take into account the explanation given by Mrs Stevenson originally to Mrs Cross, that she said what she did to let the respondent down gently, the real reasons for rejecting him were his age and that his skills did not match the requirements for the job. Further, the tribunal was wrong to rely upon the fact that Mrs Stevenson interviewed only one candidate out of 20 or 30 applicants, and that that candidate was a female graduate aged about 26, who was later offered the post, in circumstances where there was no evidence before the tribunal as to the sex of the other applicants for the post.

We have considered these various arguments and reject them for the following reasons:

(1) The tribunal was entitled to treat this as a complaint of direct, not indirect discrimination. The respondent's case was but his sex he would have not have been treated less favourably than a woman. See James v Eastleigh Borough Council [1990] IRLR 288. Consequently the question of detriment and the imposition by Vogon of a requirement or condition is immaterial.

(2) It is well-established in authority that sex need not be the sole ground on which the less favourable treatment is based. Provided that it is a significant factor, albeit one of a number of factors, the others being gender-neutral, it will be open to an Industrial Tribunal to find that discrimination on the ground of sex had occurred. See Owen & Briggs v James [1982] ICR 618.

(3) The question here is whether the tribunal found, and were entitled to find that the respondent's sex was a significant factor in Mrs Stevenson's decision to reject him for the post. We are satisfied that the tribunal did so find and was entitled to do so. It rejected Mrs Stevenson's explanation for saying what she did on the telephone, that she wanted to let the respondent down gently when the real reasons for rejecting him were related to his age and skills. They were left with the inference, which they chose to draw, that sex was a material factor in the decision.

(4) We reject the contention that it was not open to the tribunal to draw that inference without knowing the sex of each of the job applicants, particularly where the respondent had put that very question in a questionnaire served on Vogon, which question questionnaire Vogon failed to answer. Plainly the tribunal were entitled to conclude that Mrs Stevenson meant what she said on the telephone. She wanted a young lady. Not a young person.

In these circumstances we dismiss the appeal on liability.

We turn now to the appeal on quantum. We think it worth observing that before the Industrial Tribunal both parties were unrepresented. No assistance was given to the tribunal by reference to earlier cases as to the appropriate level of award for injury to feelings on the facts as found.

Before us Mr Nugent has helpfully drawn attention to a number of authorities including JH Walker Ltd v Hussain [1996] IRLR 11; Orlando v Didcot Power Station Sports & Social Club [1996] IRLR 262, and the cases referred to in Harvey on Industrial Relations and Employment Law, Volume 2, at paragraphs L536-538. On the basis of the weight of authority cited he submits that the award of £2,000 on the facts as found by this tribunal, particularly the finding that it was considered extremely unlikely that the respondent would have been offered employment; indeed, on balance, the tribunal found that has his application received gender-neutral consideration he would still not have got the job; this breach of the Act was at the bottom end of the scale and that the award was so far outside the appropriate bracket as to be perverse; he invites us to set aside the award accordingly and substitute our own judgment for that of the Industrial Tribunal.

Mr Forsyth accepts that the discrimination in this case falls at the lower end of the scale, but urges upon us five factors which he submits justify the award as being within reasonable bounds. First, Vogon's rudeness in failing to respond to his letters and questionnaire; second, its deceit in advertising the post as being open to male and female applicants; third, the hurt to him of Vogon's unlawful action; fourth, their rejection of him on grounds of his gender; and fifth, Vogon's perverse behaviour through Mrs Stevenson, in attempting to resile from what she had earlier said when speaking with Mrs Cross.

Having taken all of these matters into account; the factual findings of the tribunal and the spread of awards indicated in the earlier cases, we have reached the conclusion that this award fell outside the proper bracket to the extent that we can and should interfere.

We are asked by both parties, in these circumstances, to substitute our own award for injury to feelings. Assessing compensation for injury to feelings is not a precise science. Doing the best we can on the material before us we are each of the view that the appropriate award is one of £1,000, to which interest at the appropriate rate should be added.

Accordingly, the appeal is allowed to that extent only.