United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE HOLLAND: By way of an IT1 dated 5 December 1998 Mrs De Santos brought a complaint against A.G. Barr, alleging sex discrimination.

1. The complaint arose out of her application to the Respondents for a job as a part-time clerk and cashier. The nature of the complaint emerges clearly from that document. It is in these terms:

"On the 8th October 1998 I attended an interview with Mr Saunders, Depot Manager for A.G. Barr Plc, Walthamstow for the position of part-time clerk/cashier. The application form asked the discriminating question (a) Are you married? (b) Do you have any children? I answered 'Yes' to the first question and refused to answer the second question. Mr Saunders assumed that I had no children and expressed his concern that I may, at my age, go off to have children within 2 years. He also said that he preferred to employ women whose children are 'off their hands'. I said I had no plans to have any children but felt upset by the line of questioning.

On the 14th October I was called to a second interview with Mr Sandland, Depot Manager for the Manchester depot and Mr Saunders' …….. . He asked me the following questions:-

1. How long I had been married

2. If I had any children

3. If I was planning any children

4. What my husband does for a living

5. Where I was born

6. Where my husband was born

7. Where my parents were born

8. Whether my parents lived in this country

I found the line of questioning very offensive and wrote to the Group Personnel Manager, Ian Wilson, expressing my concern. His response (copy attached) is unconvincing and I sent him a Sex Discrimination questionnaire with the help of the Equal Opportunities Commission. I firmly believe I was turned down for this job, which I am qualified and experienced to do, because of my marital status, age and the perceived 'risk' that I would leave after a short time to have children.

I am still awaiting a response to the questionnaire which was sent on 18th November."

We interpose, the age of Mrs De Santos at the material time was 30.

2. This complaint came before an Employment Tribunal held at Stratford on 26 January 1999. The unanimous decision of that Tribunal was that the Applicant had not been discriminated against by the Respondent on the grounds of her sex. In the overall result her claim was dismissed. From that decision there is an appeal to this Tribunal. It is set out essentially in a manuscript letter dated 12 March 1999. This, so far as material, reads:

"My case was supported by all the written evidence and was so incriminating. The Respondent attempted to settle with me out of court twice before the Tribunal. But this wasn't about money, it was a matter of principle.

I am not too qualified for the job that was on offer or very highly intelligent. I have 5 'O' Levels and my previous jobs in telesales, reception and as a sales assistant are on a similar level to the clerical job on offer. Anyway, my perceived intelligence was not the reason given for refusing me the job. They said I'd be more suited to a 'people interfacing' job as I'd worked with the general public in the past. I was quick to point out that the successful candidate had been a dinner lady for the last 4½ years – a job with the general public.

I did not have a Solicitor for the hearing. I could not afford one and do not qualify for Legal Aid. However, I have consulted a Solicitor regarding this appeal and taken his advice. After seeing the written evidence, he considered the decision one that no reasonable tribunal could have reached.

Please, please hear the appeal."

3. The appeal having been got under way, unhappily this Tribunal lost touch with Mrs De Santos. It would seem that she is no longer living at the address given and she cannot be communicated with by means of a telephone number that she gave. Efforts to communicate with her have continued for some months and in the overall result she is not here today. It has to be pointed out that at no time has she made any effort at all to give an alternative address or telephone number to this Tribunal.
4. The matter has been listed before us this morning by way of a preliminary hearing. Our task is to discern if we can a point of law that would found an inter partes hearing. If we can do then the matter will be adjourned to enable that to take place. If, on the other hand, we cannot find any such point it is our duty to say so and to dismiss the appeal.
5. The first issue for us is whether we should continue with this hearing in the absence of Mrs De Santos. We decided that we should do so.
6. First, there is the problem of ever communicating with her. If the matter is adjourned again today there is no obvious reason why circumstances should so change as to enable it to come back for disposal.
7. The second reason that moves us to deal with it today is that, having read the papers carefully, such including the full text of her Notice of Appeal (already cited in this judgment) we feel that we are in a position to undertake our task. In the overall result we say now that we cannot find any point of law that would justify an inter partes hearing and it necessarily follows that we must dismiss this appeal.
8. In reaching their conclusion we peruse with care the Extended Reasons of the Employment Tribunal sent to the parties on 11 February 1999. By way of those reasons the Tribunal carefully set out the issues. It reviewed the evidence that had been put before it and then, very clearly and very specifically, set out its findings of fact. Those in their turn are followed by a careful note of the respective submissions of the parties and by a summary of the law that the Tribunal deemed to be applicable. Then, the matter concludes with the conclusions of the Tribunal and such leading to the decision already noted.
9. We find ourselves not only impressed by the quality of these reasons but, more importantly, unable to fault such by reference to the law. The Tribunal, in our judgment, tackled the matter as the law required it and, more importantly, it correctly directed itself as to the law that was appropriate to the matter. Further, in the light of that law it reached its conclusions in a fashion that cannot, in our judgment, be faulted. Essentially, this whole complaint was a matter for that Tribunal who had the considerable decisive advantage of hearing not only the Appellant but also the witnesses for the defence, that is Mr Saunders, Mr Sandland and Mr Wilson. With that evidence before them it was for them to decide first, what actually happened in the course of these interviews and secondly, whether by way of such there was discrimination on grounds of sex that was caught by the Act. They decided that there was none such. We are in no position to challenge that finding and we do not do so. All that we reiterate with force is that we have carefully examined the Extended Reasons. We have subjected them to our own analysis. Those reasons stood up to that analysis.