United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M JOHNSTONE Representative Instructed by The Employment Law Centre Ltd Wembley Law Chambers 38 Napier Road Wembley Middlesex HAO 4UA


 


JUDGE WILKIE QC

1. This is an Appeal by Whitbread Walker Ltd against a decision of the Employment Tribunal sitting in Cardiff on 3 and 4 June 1999 which upheld the complaint of Mrs Jones that she had suffered unlawful sexual discrimination. In a linked hearing conducted immediately after the substantive hearing it concluded that she was entitled to receive £9,630 odd compensation within which sum £2,000 was for injury to feelings and the balance was for loss of earnings.
2. The Appeal has been presented by Mr Johnstone, who is an employment consultant of some experience he told us, appearing regularly several times a week in Tribunals over the past 8 or 9 years. We have had the advantage in advance of this hearing of reading his Notice of Appeal and a substantial skeleton argument. In addition, because certain of the grounds of appeal assert procedure and propriety and bias we have had the advantage of reading the Affidavit which he has sworn in support of those aspects of his case as well as the point by point comments made by the Chairman in response to that Affidavit.
3. We have formed the view that there is an arguable point of law sufficient to go to a full hearing in respect of one aspect of the Tribunal's decision on remedies. This is not a point which was initially taken by Mr Johnstone in his grounds of appeal but it does find its place in his skeleton argument.
4. He therefore applies for leave to add this ground of appeal out of time and we give him leave to do so. Essentially it is this. The Tribunal made a finding of indirect sex discrimination. It then went on to consider the claim for compensation. Mr Johnstone has pointed out that before making an award for compensation in a case in which indirect sex discrimination has been proved it is incumbent on the Tribunal to form a view of whether the indirect discrimination was deliberate, intentional or unintentional. If the indirect discrimination was intentional then it may go on to make an award for compensation. If the indirect discrimination was not intentional then it may go on to make an award of compensation but only if it would be just and equitable to do so.
5. There is, he correctly points out, nothing in the part of the decision, which runs from paragraphs 13 – 19, which overtly refers to either of these requirements or constitutes specific findings in respect of these requirements. It seems to us, whether or not this turns out to be a good point to be plainly arguable and he is entitled to have that canvassed at a full hearing.
6. The balance of his grounds of appeal comprise essentially 2 broad strands. The main strand is an assertion of procedural impropriety backed up by alleged bias. Essentially, it is on the footing that the Chairman mixed up the substantive with the remedies part of the hearing contrary to a prior ruling that there should be separate hearings as a result of which evidence was heard on the substance which appertained to remedies but in respect of which his witnesses and Mr Johnstone as advocate was placed at a disadvantage.
7. He has also asserted that the Chairman's attitude towards him and his case and his witnesses was brusque to the point of being improper. He says he was interrupted. He was unable to develop his arguments and it got to the point that the Chairman was even interrupting his lay members' questions. Mr Johnstone feels that his clients did not have a fair hearing.
8. Furthermore, he asserts that the Chairman, presumably on behalf of the entirety of the Tribunal, improperly indicated that they had formed the final view of the matter at the end off the first day. The Applicant had given her evidence and the Tribunal invited the Applicant's representative, who was also an experienced solicitor in this field to consider whether in addition she might wish to amend her claim to bring her claim for direct discrimination.
9. That is the broad thrust of his major grounds of appeal and he has particularised them both in his grounds of appeal, in his skeleton argument and in his Affidavit. The Chairman has responded point by point to these assertions and the Chairman also relies on his own notes of parts of the evidence and the structure of the decision itself.
10. The case itself was one which, in our judgment, undoubtedly presented very severe difficulties for an advocate representing his respondents. The complaint made by Mrs Jones was four square one of indirect sex discrimination. She rehearsed the details of her complaint and it seems to us perfectly plain from her application that the essence of her complaint was that she had been told on 25 August by Mr Davies that her contract would be terminated that Friday due to the fact that she could not work 40 hours a week. That is to say she was unable to work full-time as opposed to part –time. She also says that the following morning she was told by Mr Davies that she was now to be made redundant and that they will be giving her replacement a new job title.
11. The issue between the parties appeared at one stage essentially to centre on whether she was told by Mr Davies that she was being dismissed because she was unable to work full-time or whether she was told by him on both occasions that she was being dismissed by reason of redundancy. That was the reason for dismissal put forward by the respondent in their Notice of Appearance.
12. Unfortunately for Mr Johnstone and his presentation of his client's case it became apparent from the evidence given by Mr Davies that the statement made by him on at least one occasion (and on his evidence or on his case on two occasions) that she was being dismissed by reason of redundancy was simply a sham, designed to assuage her feelings when, according to the respondents, the true reason for her dismissal related to a loss of trust and confidence.
13. The Tribunal pointed out, as apparently was the case on the documentation emerging from the respondents themselves and their response to a questionnaire, that there was absolutely nothing in any of the contemporary appraisals or memos dealing with her employment or in the questionnaire which gave any hint of criticism sufficient to justify or base a decision to dismiss for loss of trust and confidence. Thus unfortunately for him, Mr Johnstone's clients were saying not only that they told the Applicant a bare face lie, but he was also faced with the unattractive position that they had apparently repeated that lie on more than one occasion in their Notice of Appearance which had been settled and submitted by the solicitors then acting for the respondent.
14. In the light of that we can perfectly understand that this Chairman might well have shown a degree of displeasure with the way in which the Respondent had conducted themselves and might well have indicated at an appropriate stage a provisional view which they had formed having heard part of the evidence. It is perfectly clear to us, however, both from the structure of the decision itself and from the response of the Chairman to the points made by Mr Johnstone in his Affidavit that what Mr Johnstone complains of and what actually happened falls far short of any procedural impropriety or any appearance of bias.
15. Mr Johnstone accepts that it is perfectly proper for a Chairman of Tribunals to indicate to the parties any provisional view to which they have come with a view to assisting them in the further presentation of their case. It is clear to us that that was at most what the Chairman was doing at the close of the first day when he indicated their provisional view on the then state of the evidence on indirect discrimination and invited the Applicant to consider whether their case might better or alternatively be expressed in terms of direct discrimination. Both the Applicant's representative and Mr Johnstone then had overnight to reflect upon that suggestion. The Applicant's representative elected not to take up that suggestion and as far as that was concerned that was an end of it.
16. It is clear to us that the Tribunal came to findings of fact which were perfectly open to them, not least on the basis that they were confronted with a witness whose evidence they were invited to accept as truthful who, in course of his evidence, was forced to admit that he had told a pack of lies to the Applicant on at least one occasion. Mr Johnstone has sought to argue that the Applicant's case was somehow different at the Tribunal from that which was pleaded in her IT1 on the footing that it became apparent that the person employed to replace her was not, as she had believed, employed to do the same work as she had been doing but was employed to perform a different role.
17. In our judgment that does not in any way undermine or change the fundamental nature of her case which was that she was dismissed because she could not work full-time and that that constituted indirect sex discrimination. The Tribunal has, in fact, found that her replacement was engaged to do a new task or a new job and therefore to that extent they did not simply accept lock, stock and barrel all the assertions of the Applicant. We simply find it not arguable to suggest that such a difference in nuance in any way constitutes an entirely new case which it was improper for the Tribunal to consider without giving the Respondent the opportunity to make representations that an entirely new case was being presented.
18. What Mr Johnstone invites us to do is to say that it is an arguable point of law that the passage in Harvey at Part L169 where the learned editors says: "Discrimination against part-time workers is prima facie unlawful indirect discrimination. In practice however, the employer will often be able to show objective reasons for the less favourable treatment accorded to part-timers." In modern circumstances, erroneous assertion based on cases decided at a time when compensation was not available for indirect discrimination in the absence of an intention so to discriminate.
19. He refers us to a passage in Harvey in which the case of Kidd v DRG (UK) Ltd is referred to in which the EAT said in terms that an Industrial Tribunal was entitled, in the absence of supporting evidence, to reject a proposition put forward by an applicant that it was self evident that a requirement to work full time as a qualifying condition in order to avoid redundancy selection was one which a considerably smaller proportion of married women, or women generally, could comply. That may well be right.
20. Unfortunately for Mr Johnstone the decision in this case was not based on any assertion that it was a self-evident proposition which could be accepted without supporting evidence. On the contrary the Tribunal has referred specifically to figures provided by the Applicant. What Mr Johnstone invites us to say is that it is arguable that we should construe that as an error of law. In our judgment it is simply unarguable. It is clear to us that the Applicant, on the face of the Tribunal's decision, did present specific information on the basis of which they were entitled to hold that in her case there was indirect discrimination on the grounds that a significantly smaller proportion of women could meet the condition of continued employment namely that she worked full-time rather than part-time.
21. It therefore follows that in our judgment none of the points raised by Mr Johnstone have any arguable prospect of success with the exception of the point on remedies which we fully accept is arguable and which will go forward to a full hearing.
22. In the light of the limited ambit of the full hearing of the Appeal we estimate the hearing required will be 2 hours and is Category C.