United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS T GILL (of Counsel) Messrs Bindman & Partners Solicitors 275 Gray's Inn Road London WC1X 8QF
For the Respondents	MR A RIMMER (of Counsel) T G Baynes & Sons Downe House 303 High Street Orpington Kent BR6 0NJ


 


JUDGE PETER CLARK: This is an appeal by Ms McGuigan against parts of a reserved judgment of the Ashford Employment Tribunal, promulgated with extended reasons on 13th August 1997, dismissing her complaints of direct discrimination and victimisation contrary to ss. 1(1)(a) and 4 and 6(2)(b) of the Sex Discrimination Act 1975 ['SDA'].

The facts

We are indebted for the careful way in which the Chairman, Mrs Valerie Cooney, has set out the detailed findings of primary fact made by the tribunal. This appeal is concerned with two conclusions drawn by the tribunal from those facts.

The appellant, a legal executive, commenced employment with the respondent firm of solicitors on 3rd October 1994. The respondent had six offices in Kent. She was recruited, following an interview with Mr Galt, a partner in the firm, to work in the personal injury ['PI'] department at their office at 141b Broadway, Bexleyheath. She had previously been employed in a sole practitioner firm, SJ Oliver & Co., since 1989.

During the interview Mr Galt asked her if it would cause problems with her work if either of her two children were ill. She replied that he should not be asking her such a question, but told him of her childcare arrangements.

Following her appointment she worked principally on road traffic accident ['RTA'] cases, mainly referred by legal expenses insurers DAS. The work she carried out did not involve complex legal issues.

By late 1995 the other members of the department in which she worked were two solicitors, Gary Clifford and Craig Hanson. The work they handled was more complex that that dealt with by the appellant. The two partners at her office were Mr Galt and Mr Stinson.

In late 1995 the DAS work declined and this, together with the increase in the County Court arbitration limit, resulted in a substantial decline in work which the appellant was doing.

In December 1995 the appellant informed Mr Stinson that she was pregnant. It was her perception that thereafter Mr Galt showed hostility towards her. There was an incident on 6th February 1996 when Mr Galt shouted at her in front of a secretary. She felt embarrassed and humiliated. The following day she complained about the incident and Mr Galt apologised.

On 9th January 1996 the respondent's management board decided that there was spare capacity for new PI work at the appellant's office and that either staffing had to be reduced or new work obtained. At a board meeting on 7th February 1996 it was resolved that the PI department should be reduced.

On 27th February 1996 the appellant gave notice of her intention to return to work following her maternity leave.

On 13th March 1996 the appellant had an appraisal meeting with Mr Stinson. She told him that she did not have sufficient work and she asked for more. He agreed to delegate some of his work to her. At that meeting she told Mr Stinson that the firm had different expectations from females than they had from males and that she felt that job opportunities open to females were much less than they were to males. The tribunal found that this observation amounted to 'protected act' with the meaning of s. 4 SDA (reasons. para. 72).

The appellant left on maternity leave on 26th April 1996. Her child was born on 8th May. She had signified her intention to return on 29th July 1996.

On 4th July, during her absence on maternity leave and without prior consultation, the respondent decided that the appellant would be dismissed by reason of redundancy.

The appellant first suspected that her employment would be terminated shortly thereafter when she received a letter from the firm in connection with a personal conveyancing matter in which the firm were acting on her behalf. She noticed that her name had been removed from the firm's notepaper. As a result, she made an appointment to see Mr Stinson.

That meeting took place on 18th July. He told her that she was being made redundant due to lack of work. He indicated that there was a possibility of a part-time position marketing the PI department's work.

She asked why she had been selected for redundancy rather than Mr Clifford or Mr Hanson. Mr Stinson replied that they were solicitors and therefore capable of becoming partners in the firm. What he did not mention was that a point-scoring exercise had been carried out in relation to all three employees under the selection criteria set out in the respondent's written redundancy policy, and that she had scored the lowest mark.

The redundancy policy provided:

"From time to time the firm may unavoidably have to make a position redundant for whatever reasons. In such cases it will consider all the people who do that type of job in an available pool for possible redundancy. These people will then be asked to attend a meeting at which the redundant position will be described. The staff will be asked to consider this situation and to determine whether anyone would want to take redundancy or would want to work part time, or come up with any other solution. After that consultation process has taken place, the partner responsible for handling the redundancy will then consider the merits of those people, and to do this the following criteria will be used:

1. Length of service.

2. Time-keeping records.

3. Disciplinary record.

4. Attendance record.

5. Ability and skills in the job.

(a) performance in present job

(b) ability to work unsupervised

(c) adaptability and flexibility

(d) attitude to the job and partnership."

The policy went on to indicated that scores would not be released to employees or those selected for redundancy and that the firm would consider the availability of any suitable alternative positions within the organisation. It was the respondents' evidence through Mr Stinson that the appellant was the only one in the pool for selection for redundancy due to the disappearance of ULR work on which she was engaged but that the partners decided that that was not fair and so they widened the pool by placing Messrs Clifford and Hanson into the pool and carrying out a scoring exercise based on the above criteria.

The point-scoring exercise was carried out by four of the partners, including Mr Stinson and Mr Galt. The scoring system provided that length of service scored a maximum of 20 points; criteria 2, 3 and 4 scored a maximum of 10 points each, and of the criteria under paragraph 5 (a) and (d) scored a maximum of 15, and (b) and (c) scored a maximum of 10.

In the exercise the appellant scored lower marks than Mr Hanson and Mr Clifford on all criteria other than length of service, disciplinary record and flexibility/adaptability. As regards attitude, Mr Stinson said in evidence that the appellant had been critical of the firm and that that was taken into account. He had in mind the fact that at her appraisal meeting on 13th March she had raised the issue of discrimination by the firm against women and, in his view, that illustrated her attitude to the company.

On 1st August 1996 wrote to the appellant giving her formal notice of termination of employment to take effect on 2nd October 1996.

She replied by a letter dated the 28th August which ended with this final paragraph:

"Need I remind you that the events that have given rise to my complaint occurred whilst I was on maternity leave and exercising my right to return to my job upon expiration of said leave. I can therefore only conclude that such decision to select me for redundancy is a blatant infringement of my statutory rights."

That allegation was refuted by a letter from the respondent dated 23rd August 1996.

On 2nd October 1996 the appellant received payment in lieu of notice.

The Complaint

In her Originating Application presented on 15th October 1996 the appellant raised the following claims:

(1) Automatically unfair dismissal under s. 99 of the Employment Rights Act 1996['ERA'], in that the reason or principle reason for dismissal was connected with her pregnancy and/or childbirth and/or maternity leave; or

(2) unfair dismissal in that she was unfairly selected for redundancy on the foregoing grounds; or

(3) unfair dismissal in that the respondent failed to consider her for suitable alternative work contrary to ss. 77 and 99(1)(e) of ERA; or

(4) "ordinary" unfair dismissal by reason of redundancy contrary to s. 98(4) ERA.

(5) Direct sex discrimination.

(6) Victimisation.

(7) Unlawful deductions from her wages.

(8) A claim under the Equal Pay Act 1970.

The Tribunal Decision

The tribunal rejected the claim of unfair dismissal under (1) - (3) above, but upheld it under (4). The complaints of direct sex discrimination and victimisation were dismissed and it is those findings which are the subject of this appeal. The wages claim was upheld and the Equal Pay claim withdrawn by the appellant.

In reaching the conclusion that the claim of unfair dismissal succeeded under s. 98 of ERA the tribunal made the following findings:

(a) the reason for dismissal was redundancy (para. 49).

(b) Mr Stinson had identified the appellant for redundancy at the beginning of 1996 and at any rate by mid-March 1996. By the time the appellant left on maternity leave on 26th April it appears to have been extremely likely that she would have to go (para. 51).

(c) There was no satisfactory answer to the question "why was the appellant not told of the situation" (para. 53).

(d) There was no consultation with the appellant prior to the final decision to dismiss. She had no opportunity to put her case against dismissal (para. 55).

(e) The scoring exercise was little, if anything, more than a going through the motions exercise (para. 60).

(f) It was unreasonable of Mr Stinson to use remarks made by the appellant at the 13th March meeting to mark her down under the heading "attitude".

At a subsequent remedies hearing held on 27th October 1997 the tribunal awarded the appellant compensation for unfair dismissal in the total sum of £2,854 for the reason promulgated on 29th October 1997.

The Appeal

Direct Discrimination

In dealing with the appellant's claim of direct sex discrimination the tribunal found that her dismissal was not attributable to her pregnancy, childbirth or absence on maternity leave.

As to the contention that the respondent's failure to consult with her over her redundancy was attributable to her pregnancy, the tribunal simply found, at para. 67, that the appellant failed to satisfy them that the respondent's failure to consult was caused by her absence on maternity leave. It is that finding which gives rise to the first point in this appeal.

Ms Gill submits that such a conclusion is inconsistent with the facts as found by the tribunal. In para. 29 of their reasons the tribunal found that as at the appraisal meeting held on 13th March Mr Stinson knew that there was a serious risk of the appellant being made redundant. However no decision was then taken partly in the hope that things would pick up (and work increase) during her absence on maternity leave and partly on the basis that the respondent thought the appellant might not return after the birth and the problem would resolve itself. As at 26th April, the tribunal found at para. 53, there was no satisfactory answer to the question "Why was she not told of the situation?" At para. 65 the tribunal found that the timing of the decision to dismiss might well have been influenced by the perceived possibility that such decision could be obviated if the appellant failed to return from maternity leave. At para. 66 the tribunal said:

"66 The Respondents took what they hoped was an easy way out, doing nothing until the Applicant sought a meeting on 18 July 1996. They might well have hoped that the birth of the Applicant's baby would influence her to resign from their employment, and there is evidence to substantiate that."

On these findings, Ms Gill submits, on a proper application of the test of causation to be found in O'Neill v St Thomas More School [1997] ICR 33 the claim of direct discrimination is made out. In O'Neill Mummery J set out the basic question on causation as being, what is the "effective and predominant cause" of the act complained of. The event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of. It is enough if it is an effective cause. (43F-H).

Applying that principle to the facts in this case, Ms Gill argues that the detriment to the appellant was the failure to consult with her over her impending redundancy. An effective cause, although not the only cause, was the respondent's belief that she may not exercise her right to return following maternity leave. But for her maternity leave, which was pregnancy related, the respondent would or might have consulted with her in accordance with their redundancy policy. That was less favourable treatment on the grounds of her sex; it is not appropriate to compare her case with that of the men, Mr Clifford and Mr Hanson, who were also not consulted. Webb v EMO (No. 2) [1995] ICR 1021; to which we would add the recent ruling of the European Court of Justice in Brown v Rentokil [1998] IRLR 445.

The tribunal did not, on the face of their reasons, consider whether or not to draw an inference of unlawful discrimination from the absence of a satisfactory explanation for the lack of consultation. It was inevitable, not as a matter of law (Zafar v Glasgow City Council [1998] IRLR 36) but as a matter of fact, that had they applied the law correctly the tribunal would have found this part of the complaint to be made out.

In response Mr Rimmer accepted that the tribunal's reasoning on the causation issue, set out in para. 67, could have been more expansive. He submitted that if necessary this aspect of the matter should be remitted to the tribunal to amplify their reasons. We accept that that is an option open to us. Yusuf v Aberplace Ltd [1984] ICR 850.

He argued that the tribunal's conclusion was sustainable on the basis, first, that the respondent's failure to consult applied equally to male and female employees, and secondly because the respondent was self-selecting for redundancy, as the tribunal found at para. 59 of their reasons.

In our view neither basis for upholding the tribunal's conclusion on direct discrimination is sustainable. We have already referred to the principle that less favourable treatment on grounds related to pregnancy does not require a comparison with an actual or hypothetical comparator. See Webb and Brown. Further the fact that the appellant would have been selected for dismissal and not the other two men in the pool for selection is no answer to the detrimental effect of a failure to consult for the purpose of a direct sex discrimination claim.

In these circumstances we uphold the submissions of Ms Gill and have concluded that on the facts as found a finding of direct sex discrimination in relation to the respondent's failure to consult on the ground, among others, of her being absent on maternity leave, a pregnancy related reason, would inevitably follow on a proper application of the test of causation, and we shall make a declaration accordingly.

Victimisation

The tribunal accepted that in marking the appellant down under the heading "attitude to job/company" by reason of her remarks about the lack of equal opportunities for women at the appraisal meeting on 13th March 1996 the respondent victimised the appellant under s. 4 SDA.

However, they went on to find in para. 74:

"74 We considered, therefore, whether this victimisation amounted to subjection of the Applicant to a detriment within the meaning of section 6(2)(b). Subjecting to a detriment means putting at a disadvantage (Ministry of Defence .v. Jeremiah [1980] ICR 13). There was no evidence that the Respondents put the Applicant at a disadvantage in her employment because of what she had said at her appraisal on 13 March. As a contributory factor in her dismissal, the 2 marks which she lost under the heading "attitude" were negligible. The Applicant's total marks were 60, whereas those of her comparators were 70 and 72. It cannot, therefore, be said that "but for" the victimisation, the Applicant would not have been dismissed (James .v. Eastleigh Borough Council [1990] IRLR 288)."

Mr Rimmer accepts that in so finding the tribunal applied the wrong test in law. The "but for" test, to be found in James, is appropriate for deciding whether the less favourable treatment complained of is on the grounds of sex. It does not help decide the question of whether the complainant has suffered a detriment for the purposes of s. 6(2)(b) by reason of the discrimination, here victimisation.

However, he submits that the tribunal's conclusion ought to be upheld on the grounds that the appellant was not put at a disadvantage as a result of being marked down on her attitude by two points. She would still not have scored higher marks than the other two employees in the redundancy selection pool.

In our judgment that submission, as with the tribunal's finding at para. 74 of the reasons, elides "dismissal" and "other detriment" in s. 6(2)(b). The two are different.

Even if the dismissal was not attributable to the victimisation, can it be said that to be marked down in a redundancy scoring exercise by reason of having done a protected act does not amount to a disadvantage? We think not. As Ms Gill submits, the expression "subjecting to any other detriment" in s. 6(2)(b) SDA (and s. 4(2)(b) of the Race Relations Act 1976) is to be given its broad, ordinary meaning and it is plain that almost any discriminatory conduct by an employer against an employee in relation to his or her employment will be rendered unlawful by s. 6(2)(b) SDA. Barclays Bank plc v Kapur [1989] ICR 753, 767 F-G, per Bingham LJ. The purpose of the victimisation provision in the legislation would be undermined if an employer could escape a finding that the statutory tort of victimisation was complete because the complainant could not show, here, that her employment would have continued but for the discriminatory act.

Accordingly we shall also set aside this part of the tribunal's decision and substitute a declaration that the appellant was victimised contrary to ss. 4 and 6(2)(b) of SDA in being marked down for attitude in the redundancy scoring exercise carried out by the respondent by reason of having done the protected act.

Disposal

We shall allow this appeal against the tribunal's order dismissing the appellant's complaints, both of direct sex discrimination and victimisation, and substitute the declarations earlier set out in this judgment. The matter will be remitted to a fresh Employment Tribunal on the question of compensation arising from those declarations.