United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS TESS GILL (of Counsel) Messrs Eversheds Solicitors Fitzalan House Fitzalan Road Cardiff CF2 1XZ
For the Respondents	MR ELDRED TABACHNIK QC MISS CECILIA IVIMY (of Counsel) Messrs Hepherd Winstanley & Pugh Solicitors 22 Kings Park Road Southampton SO15 2UF


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal by Yvonne Shipman ["the Appellant"] from a tribunal sitting at Cardiff who in a unanimous decision, promulgated on 19 March 1997, dismissed her claims of sex discrimination, victimisation and constructive unfair dismissal which she had brought against her former employers, B&Q plc ["B&Q"].

Background Facts

1. On 10 September 1990 the Appellant commenced employment with B&Q at their Caerphilly store as a grade 2 assistant manager. In December 1990 she was transferred to the Hadfield Road store in Cardiff, where she remained until November 1993, at which date she was transferred to the Merthyr Tydfil branch. In February 1994 the Appellant was upgraded to a grade 1 assistant manager and was seconded to a customer service and store procedure initiative (the WINS initiative) which lasted until December 1994 when she returned to the Merthyr Tydfil store. Upon the conclusion of the secondment the Appellant expressed her ambition to become a store manager and the tribunal found that such aspirations continued to be expressed by the Appellant to the B&Q's senior management throughout the remainder of her employment. B&Q had no female managers in the South West region.
2. When the Appellant returned to the Merthyr Tydfil store she became responsible for the running of the store along with a fellow female assistant manager. The tribunal found that the position carried significant responsibility. They ran the store between them during the period of December 1994 to February 1995 while the store manager's post was vacant. Although the Appellant indicated her interest in the manager's post she was not offered the appointment and the manager's post was filled without having been advertised.
3. On 26 May 1996 when the Appellant was on duty at the Merthyr Tydfil store, she claims that she asked to speak to the District Manager, Mike Evans, about her unhappiness concerning her career development. She suggested that she should move to Caerphilly as a Designate Manager to assist the store manager. She was told that someone had already been appointed for South Wales and that she was "not mobile" within the West region. Although the Appellant was unhappy at remaining at the Merthyr Tydfil store she informed the District Manager that she did not want to go to Caerphilly as an Assistant Manager as she would be financially worse off and her career would not progress. On being transferred to Caerphilly on 17 June 1996 the Appellant claimed that she realised that her career would not progress as her Manager was not experienced and her knowledge and skills were not being properly utilised. Accordingly she tendered her resignation on 29 July 1996. In her resignation letter the Appellant complained that the management recruitment process had been unfair and did not offer equal opportunities to women.
4. On 31 July 1996 the Appellant telephoned the District Manager during which conversation the circumstances of her resignation were discussed. The Appellant alleged that the District Manager said he took offence at the mention of equal opportunities in her resignation letter and that if she took it any further he would go straight to solicitors. On 2 August 1996 the Appellant attended an 'exit interview' with the District Manager at which the Appellant set out her grievances over the recruitment procedure and the appointment of male Managers. The Appellant's employment terminated on 4 August 1996.
5. The Appellant submitted an originating application dated 8 August 1996 claiming unlawful sex discrimination. It was alleged that although she had been told that she was highly regarded and had been told to apply for management positions, the Appellant was passed over for management positions by men in circumstances when the vacancies were not advertised.
6. The tribunal identified the central issue in the case to be whether B&Q, through its senior management discriminated against the Appellant on the grounds of her sex. They specifically considered whether she had been directly discriminated against in relation to five management appointments: that of Derek Bellamy as manager of the Cwmdu store in November; the appointment of Chris Evans to the post of manager of the Newport store in November 1995; the appointment of Steve Amos to the post of manager at the Caerphilly store in November 1995; the appointment of Grant Tarlyn as manager of the Caerphilly store in March 1996, and the fact that 3 external male candidates were interviewed for the vacancy of Manager Designate in May 1996. It was the Appellant's contention that B&Q operated a policy of excluding her from promotion by specifically selecting a man for promotion on an automatic basis without inviting applications, conducting a fair selection or applying fair criteria.
7. The tribunal set out three further allegations made by the Appellant. First, that she was indirectly discriminated against as B&Q made mobility a requirement for the position of store manager and Manager Designate. Secondly, that B&Q's conduct in transferring the Appellant to Caerphilly in June 1996, which she claimed was in response to her complaints about not being promoted, amounted to victimisation and thirdly, that she was constructively and unfairly dismissed with effect from 4 August 1996.
8. The tribunal made the following findings:

"13. The respondent's [B&Q] decisions in relation to the five appointments identified by the applicant were taken solely on the basis of business need and business efficacy, and on the merits, experience and professional competence of those appointed. The decisions were not taken for any reasons of gender. We find in relation to those five appointments that the applicant did not receive any less favourable treatment and was not subjected to a detriment within the provisions of the Sex Discrimination Act 1975."

On the employer's requirement for mobility the tribunal made the following finding:

"14. We find that for reasons of efficiency and continuing commercial development, the respondent moves its store managers and assistant managers within the South Wales area on approximately a two year rotation. This is legitimate and justifiable as part of a business management policy and such practice and movement of staff which it involves was not based on any reasons of sex discrimination. Also, as a consequence of such policy, it is accepted by the tribunal that some store management appointments were not formally advertised but rather were filled by what has been termed a "re-shuffle". Specifically, of the opportunities identified by the applicant, the following were not advertised. Cwmdu in November 1995; Newport in November 1995 and Caerphilly in November 1995. The tribunal find that the failure on the part of the respondent to advertise these particular posts was not directly or indirectly discriminatory to the applicant."

9. The tribunal found that the appointment of Mr Bellamy to the Cwmdu store was due to the exceptional commercial circumstances which were then present at the store and that explained why the position had not been advertised. The appointment required someone with particular management skills and Mr Bellamy's appointment was based on his ability to do a difficult job and not on the grounds of sex.
10. The tribunal found that the appointment of Grant Tarlyn to the Caerphilly store was based on his retail experience. However, the tribunal then went on to say the following:

"That Mr Tarlyn was an external candidate who had not held a first appointment store and that the length of his experience was not considerable could be viewed as unfair. However, such unfairness could affect equally male and female employees of the respondent and not merely the applicant."

The tribunal made the following findings in respect of the District Manager, Mr Evans:

"19. The tribunal finds that Mr Mike Evans, the respondent's area manager, applied that same basis of assessment to all his assistant managers in terms of assessing their suitability for further promotion. We accept Mr Evans' evidence that the applicant still needed some six to nine months' development at the time of her resignation before being ready in his view to undertake a store manager appointment…That Mr Mike Evans did not seriously address the applicant's application for the vacant Caerphilly post during April 1996 was based not on the fact that she was a woman applicant but rather upon the expertise which she was able to offer relative to other candidates…

20. …we are satisfied on the evidence brought before us that Mr Evans' approach was intended to make the applicant a stronger store manager contender and not in any way to suppress or frustrate her ambitions to a store manager appointment because she was a woman."

On the matter of indirect discrimination the tribunal made the following findings:

"23. It is common ground that because of her family commitments the applicant was not mobile outside the respondent's South Wales area. The evidence is that there is a mobility requirement for the post of store manager designate since the costs of such posts are borne on a regional rather than an area basis…The tribunal finds that the requirement of mobility in those cases meant potentially that the proportion of women able to comply with that requirement was smaller than the proportion of men. However, the tribunal finds that such requirement was a genuine commercial and organisational requirement of the respondent arising from the regional funding of store manager designate posts."

11. The tribunal considered the authority of Mead Hill v British Council [1995] IRLR 847 and concluded that the Appellant's reasons for non-mobility were not because she was in the position of a second earner as in Mead but because she did not want to uproot her family. Accordingly the tribunal held that Mead was not entirely applicable to this case.
12. With regard to the allegation of victimisation the tribunal found that the Appellant's transfer to Caerphilly in June 1996 was due to the District Manager's desire that she develop her abilities and was not based on a desire to treat her less favourably. The tribunal accepted that whilst both the telephone conversation and the exit meeting between the Appellant and the District Manager were tense, the District Manager was neither hostile nor threatening towards the Appellant.
13. On the matter of the Appellant's resignation, the tribunal stated that after considering all the evidence they decided that it was a voluntary act taken by the Appellant as there was no serious breach of any implied or express term of her contract of employment.

Parties' Submissions

14. The main ground of the Appellant's appeal, which was ably presented by Tess Gill, was that the tribunal failed to make sufficient findings of primary fact on the evidence on which it could properly decide whether the Appellant had been treated less favourably than men in similar circumstances. In respect of the five appointments which the Appellant claimed were motivated by direct sexual discrimination, it was submitted that the tribunal failed to make sufficient findings on the following matters: the sufficiency and objectivity of the selection criteria; whether other candidates were considered for the posts and whether they had the requisite skills and experience; failing to identify why the Appellant did not fulfil the criteria used by the District Manager to assess management suitability and failing to identify in what respects the Appellant was less suited than the male candidates appointed to management positions; failing to make any findings in respect of the appointments of Chris Evans and Steve Amos other than to observe that the vacancies were not advertised; and failing to make any findings on the allegation that three external male candidates were interviewed for the vacancy of Manager Designate in May 1996.
15. Given the tribunal's findings that the management positions were not advertised, that the Appellant was not given serious consideration for any of the posts, that the appointment of Grant Tarlyn "could be viewed as unfair" and the fact that the mobility clause was disproportionately unfair on women, it was argued that a reasonable tribunal should then have considered whether it was legitimate to infer that there had been less favourable treatment in accordance with the authority of King v The Great Britain-China Centre [1992] ICR 517. The tribunal made individual findings as to each allegation made by the Appellant and ruled that there was no discrimination, but, it was contended that the tribunal erred in not considering what inferences could be drawn from the totality of the facts.
16. In response, Mr Tabachnik QC submitted on behalf of B&Q that the tribunal was not obliged to provide a comprehensive and detailed analysis of all the relevant facts taken into account by the tribunal; nor was the tribunal obliged to give an explanation of its findings of fact. It was implicit, so it was argued, that given their clear findings that no discrimination had occurred, the tribunal could be taken to have also considered that no inference of discrimination should be drawn from the facts, so any such omission could not be criticised.
17. It was contended that the tribunal came to a clear finding that the Appellant's allegations of discrimination were rejected. In particular there were clear findings in favour of Mr Evans' belief that the Appellant lacked the required management experience and that she needed more development before she could be considered for management. The tribunal accepted that business considerations were the explanation for why the Appellant had failed in her attempts to be promoted, not her sex. Furthermore the tribunal made clear findings that in relation to the Newport and Caerphilly posts the Appellant lacked the required mobility, which was found to be a legitimate management policy and the Appellant was unsuitable for the Cwmdu position as the store posed a serious business risk. Mr Tabachnik submitted that when looked at as a whole the tribunal made sufficient findings of fact to conclude that the Appellant's failure to be promoted was not based on her gender.
18. As to the particular allegations of discrimination with regard to the employer's requirement of the mobility clause, the promotions via a "re-shuffle" and the lack of advertisement of vacancies, it was submitted that the tribunal came to a finding that the filling of posts in such a way was a legitimate and non-discriminatory business management policy. The tribunal were entitled to make that finding of fact and their findings could not be altered without contrary evidence showing perversity on the part of the tribunal.
19. This court has reiterated on a number of occasions that parties should not expect a tribunal's decision to be a forensic examination into the evidence heard before them; to require so would be to place too high a burden on the tribunal. However, the decision must be of sufficient detail so that a party can be sure that their arguments have been digested by the tribunal and then either rejected or accepted. It further behoves the tribunal to set out in sufficient detail why they do not consider that one party has established in evidence the case they were promoting.
20. In our opinion the tribunal has not made sufficient findings of fact for the Appellant to understand why her case failed with regard to each complaint made. Although the tribunal went into detail in its findings on the appointments of Derek Bellamy and Grant Tarlyn, it failed to explain in the written reasons why the Appellant's claim that she was discriminated against in respect of the promotions of Chris Evans at the Newport store and Steve Amos at the Caerphilly store did not succeed.
21. In concluding that the Appellant had not been discriminated against the tribunal placed mush reliance on the District Manager's evidence that the Appellant had little management experience and needed another nine months training before she could be considered for promotion. However, whilst accepting B&Q's explanation that the Appellant was too inexperienced for the role of store manager, the tribunal cast doubt on the level of experience of Grant Tarlyn, appointed to the Caerphilly store in March 1996. In our opinion the tribunal were wrong to dismiss this inconsistency in B&Q's case by stating that the promotion of Mr Tarlyn ahead of the Appellant was unfair to both male and female applicants and could not therefore be discriminatory. On finding that it was potentially unfair, the tribunal should then have investigated whether that unfairness raised an inference of discrimination and that required a thorough examination into the criteria used in appointing Mr Tarlyn over the Appellant. If B&Q failed to provide an adequate explanation for their decision it would then be open to the tribunal to infer that unlawful discrimination had played a part in the appointment.
22. In its written decision the tribunal stated that regard had been paid to the Equal Opportunities Commission Code of Practice on the elimination of discrimination on the grounds of sex and marriage and the promotion of equality of opportunity in employment. The tribunal considered that B&Q's procedures in respect of equal opportunity training or monitoring of gender had some shortcomings. The Code recommended that consistent criteria be used for promotion and that vacancies for promotion were published to all eligible employees so that one sex was not restricted from applying.
23. We accept the Appellant's argument that the tribunal did not appear to have these guidelines in mind when considering the matters of the failure to advertise management posts, making promotions through "re-shuffles" and by appearing not to use consistent criteria in the appointment of Grant Tarlyn.
24. In their decision the tribunal stated that they did not consider that the District Manager, Mr Evans, was "motivated by discriminatory intent". Ms Gill submitted, correctly in our view, that that was the wrong test for discrimination. Our attention was directed to the authorities of R v Birmingham City Council, Ex parte Equal Opportunities Commission [1989] IRLR 173 and James v Eastleigh Borough Council [1990] ICR 554 in which it was held that the approach of the tribunal should be to consider whether the applicant was treated less favourably and whether that treatment was due to gender. It was the Appellant's argument that the motives and intentions of the Area Manager were just one factor to be looked at when considering the matter of less favourable treatment on the basis of gender as a whole.
25. Mr Tabachnik accepted that a person, who has no intention to discriminate, may still do so, and it would be an error of law for a tribunal to find that because there was no intention on the part of a person to discriminate against a woman it followed that there was no unlawful discrimination. However, Mr Tabachnik's interpretation of the tribunal's decision was that they made a finding that not only did the Area Manager not intend to discriminate against the Appellant, he did not in fact discriminate against her, and any other reading of the tribunal's decision would be unreasonable.
26. The matter for investigation before a tribunal is whether or not an applicant was treated less favourably because of their gender or race. The question of intention may be part of the factual matrix used by the tribunal in coming to a decision but it is not of itself determinative of the issue.
27. In respect of the victimisation claim, the Appellant submitted that the tribunal failed to make any findings as to whether the Appellant's complaints about her career development and dissatisfaction with her role at the Merthyr Tydfil store amounted to a 'protected act' within s.4(1)(a)-(d) of the Sex Discrimination Act 1975. The District Manager transferred the Appellant to the Caerphilly store, so the issue before the tribunal which remained unanswered was whether that transfer was a reaction to the complaints made by the Appellant and was therefore unlawful.
28. It was submitted on behalf of B&Q that there was no evidence that the Appellant's expression of discontent amounted to a protected act and moreover, the tribunal found that the transfer of the Appellant to the Caerphilly store did not amount to unfair or less favourable treatment. Accordingly the Appellant was not victimised and the tribunal could not be criticised for not coming to a contrary opinion.
29. The tribunal found that the transfer of the Appellant to the Caerphilly store was based on, inter alia, "her expressed dissatisfaction with her role at the Merthyr store" and because B&Q felt she should not "stay in the comfort zone of Merthyr." It was clear from the evidence before the tribunal that the Appellant had expressed discontent with her position at the Merthyr Tydfil store and that she did not want a transfer to Caerphilly if she was to remain an Assistant Manager. On the basis of the evidence presented to the tribunal, we accept the Appellant's argument that the tribunal failed to consider whether or not the transfer away from Merthyr Tydfil was a form of punishment meted out against the Appellant in response to her complaints about being looked over for appointment. If that was the motive of B&Q then we consider that her claim that the complaints were a 'protected act' within the meaning of the Sex Discrimination Act 1975 and that the transfer was an act of victimisation would succeed. But that is not a matter for our deliberation.
30. In accordance with the findings of this judgement, the appeal is allowed and the matter will be remitted for rehearing before a freshly constituted Employment Tribunal.