United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T LINDEN (of Counsel) Instructed by Ms Bernadette Worthington Canter Levin & Berg 4th Floor The Corn Exchange Fenwick Street Liverpool L2 7RB


 


MR COMMISSIONER HOWELL QC

We have, after some deliberation, reached the conclusion that there are aspects of this appeal which it would be right for us to allow to go forward to a full hearing of the Employment Appeal Tribunal.

1. We deal with the various issues in the order they were argued before us. First of all, a perversity issue. On the evidence we have seen, we were not persuaded that this was a case in which it could be argued that no reasonable tribunal could properly have concluded other than that sex related discrimination was the reason for the Appellant's employment being terminated. In other words, it was not a perverse conclusion per se for this Tribunal to have rejected the complaint of sex discrimination in the termination of the Appellant's employment. The transcripts and other material we have seen justify the conclusion in paragraph 37 of the Tribunal's Extended Reasons, that her retention was unworkable regardless of the sex of those involved.
2. Secondly, it is suggested the Tribunal's findings on the reasons for dismissal were inadequate, and that they erred in failing to identify a more specific reason for this if it was not sex-related. We reject the appeal insofar as it is based on that line of argument: it appears to us that the only question for a Tribunal in these circumstances is whether sex related discrimination has been established or not. The inference from the facts as to whether an act such as dismissal has or has not been based on sex related considerations, is a matter for the Tribunal to draw, or not to draw, and it is sufficient in such circumstances as these if they record that they are not satisfied that sex related reasons have been behind the decision to dismiss, merely identifying other likely causes without making a more specific finding on that issue, than they did in paragraph 38 of their reasons.
3. So on those two lines of argument we do not consider this appeal should go forward. However we have been persuaded on the third line of argument on the issue of termination, which is that it may be arguable that the Tribunal, in directing themselves to what they had to consider, failed to address (at any rate sufficiently expressly and clearly), the possibility of unconscious, as distinct from conscious, discrimination in the decision. We consider that the issue for this Tribunal on a full hearing of the appeal is whether it is permissible to infer from the way the question in paragraph 36 of the Tribunal's extended reasons is posed, that the Tribunal had erred in failing to address, expressly or impliedly, the possibility of unconscious discrimination, especially when they rejected Mr Abbott's evidence to some extent as to what the actual reasons for the dismissal had been. This can be encapsulated by saying that the possibility that the "incompatibility" to which they referred may have had sex differentiation at the base of it, even if unconsciously, may arguably have been insufficiently addressed, either in the Tribunal's minds or in the reasons they stated.
4. So that issue we will direct should go forward for a full hearing, and the further issue, which after some deliberation, we accept ought to go forward for a full hearing is the one raised on the Appellant's suspension from duty, which is that in the findings they recorded in paragraphs 24 - 30 of their extended reasons the Tribunal arguably misdirected themselves, in drawing too refined a distinction when identifying the protected act, for purposes of a potential victimisation claim, between making a complaint of sexual discrimination based on the alleged verbal abuse meted out by Father Burns, and the substance of the argument. in which that alleged verbal abuse was alleged to have taken place. The substance, of course, of the altercation was that, as a woman, the Applicant had been treated differently in being refused a key to the cells, when a man in a corresponding position would have been allowed one without question.
5. So on those two issues we will direct that this should go forward. As some of the paragraphs of the present Notice of Appeal relate to the points we have identified as what we consider are the proper ground for a full hearing of this appeal, and others do not, we will give liberty for the Notice of Appeal to be modified to re-state the grounds under the two heads that we have identified, and where appropriate to incorporate points in the existing paragraphs: for example the reference to not adverting to Nagarajan's case on the unconscious discrimination point.
6. An amended Notice of Appeal is accordingly to be lodged: we direct a full hearing of the appeal on the two issues we have identified, listing category C, estimated length ½ day. The Chairman is to be requested to produce his Notes of Evidence on the nature of the complaint of sex discrimination referred to in paragraph 26 of the extended reasons. Skeleton Arguments to be exchanged and lodged 14 days before the hearing. Leave to appeal against the dismissal of the other grounds of appeal refused.