United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr P Oldham (of Counsel) Instructed by Mr R Bielby London Borough of Southwark Southwark Legal (Contract) Services South House 30-32 Peckham Road London SE5 8UB
For the Respondent	Mr M Ford (of Counsel) Instructed by Mr J Clinch Legal Officer UNISON 1 Mabledon Place London WC1H 9AJ


 


MR JUSTICE BURTON: Ms Whillier, the Respondent, was employed by the London Borough of Southwark. the Appellant, commencing her employment in November 1990.

1. The Employment Tribunal in this case had to deal, over the period of some 13 days of hearing, with a lengthy history of her employment by the Appellant, because there was a claim included in her originating application for unlawful deduction from wages, which had led to a dispute and the activation of grievance procedures over a long period of time. That claim was dismissed by the Employment Tribunal, Mr Bano as Chairman, when he gave the unanimous decision of the Tribunal in February 1999. The Respondent made two other claims in respect of which she was successful before the Employment Tribunal The first was a claim under Section 146 of the Trade Union and Labour Consolidation Act 1992 on the basis of action short of dismissal on grounds related to union activities, and the second was a claim of sex discrimination.
2. This is an appeal brought by the London Borough of Southwark against that unanimous decision. The two claims which succeeded, unlike the claim which failed, were centred on a very short period of time indeed and had they stood alone would only have needed, as we see it, a very short hearing; but the result of their forming part of a lengthier hearing is that it is not been thought necessary or appropriate to produce notes of evidence of that lengthy hearing, and in addition that Mr Oldham, who appears before us for the Appellant, as he did below, has without those notes of evidence, not been able to supplement from his own recollection, even had he been otherwise entitled to do so, the rather short way in which the Employment Tribunal in fact deals with its decision on these two claims, while Mr Ford who appears today for the Respondent was not instructed below.
3. The claim in respect of Section 146 and the Sex Discrimination Act claim both arise out of the same series of events. What very shortly happened was that, as a result of all the various grievance procedures to which I have referred, an internal hearing was held on 17 September 1996, which was designed to and probably did finally resolve that stage 2 grievance, although not entirely to the satisfaction of the Respondent, hence her eventual claim before the Employment Tribunal which failed, but which resulted in the Applicant's making an offer of promotion. The offer that it made was it seems on the same basis as that which is expressly contained in a letter, subsequently written by Mr Bull of the Appellant to the Respondent on 12 November 1996, to which I shall refer in a moment. At that stage, it seems, there was no particular job in mind so far as concerned that offer of promotion, but at some stage after that hearing, in September or October, the job in question materialised, it seems, as a job as a Training Officer, which would involve an upgraded position and consequently an upgraded salary for the Respondent as and when that job was agreed upon by her.
4. She had, however, during the course of the grievance procedures, and hence of the ongoing dispute between herself and her employer, been elected as Branch Secretary of UNISON, and that position as Branch Secretary involved a full time release. There was, and there no doubt still is, an agreement between UNISON and the employer, called the TOFTUDS Agreement, (Time off for Trade Union Duties Scheme), which was, although it has not been put before us, and indeed was not lengthily canvassed, if at all, before the Employment Tribunal, dedicated towards funding payments made by the Appellant to those who were on full time release as Trade Union employees while retaining, but not carrying out their employment with the Appellant. On 11 July 1996, Ms Whillier in her capacity as Branch Secretary of UNISON wrote a letter to a Mr Dorey, Business Unit Manager (Purchasing) which included the following paragraph: -

"I was concerned to learn that it could be problematic to find me a PO post, given that I am currently on full time release as Branch Secretary. Given the arrangement under the TOFTUDS agreement, I would be released regardless of my substantive post and money is available from the TOFTUDS budget to fund cover. Any attempt by the Council to delay the resolution of this matter can only be considered as an attack on my activities as a Trade Unionist and would necessitate a legal remedy. Given the protracted and unnecessary manner in which the Council has dealt with my case, it is clearly in nobody's interest to drag this matter out any further than necessary."

5. Mr Dorey, did not give evidence before the Employment Tribunal, but that letter was certainly before the Tribunal. It is right to say that it does not in terms address the possibility, which eventually arose, of promotion to the post without the salary to go with it, but it certainly in general terms put the Appellant on notice that the expectation of the Respondent was that there would be promotion and that money would be available from the TOFTUDS budget to fund cover. There then came, as I have indicated, the meeting of 16 September 1996, and in a letter of 12 November 1996 to which I have referred, Mr Bull, who had been the Assistant Director at Community Care present at the meeting at 17 September, wrote to Ms Whillier substantially as follows:-

"I am writing to set out the outcome of your grievance which was heard as you know by Liane Venner, (Senior Regional Officer) and myself. The contents of this letter have been agreed with Liane. I would also like to apologise for the delay in this response being sent to you although the outcome was conveyed to you orally at the end of the hearing."

And then there are a number of bullet points and I read only selectively:-

"The panel agreed that you should be offered an alternative job in line with the outcome of the occupational assessment, which has already taken place. During the course of the grievance I let you know of suitable vacant posts in Social Services within the PO1-3 range. I understand that you are still considering the possibility of the Training Officer post. I have also written to the Head of Personnel asking him to facilitate the process of your being considered for similarly graded posts across the Council."

And he concluded with this penultimate paragraph: -

"At the grievance hearing on 17 September you raised the issue of when you would be paid your increased salary from, should you take up any offer of a new post. I am advised that you would be paid from the point where you took up the duties of the new post. Should you have any queries about this position, given your current full time release on trade union duties, then you should raise these with either the Head of Personnel or the Chief Personnel Officer."

6. It was that letter which set out in writing the position which that had already been made clear by Mr Bull as there appears at the meeting on 17 September, which led to both complaints before the Employment Tribunal, namely that this decision, that whatever promotion was offered, probably to Training Officer but as yet to be clarified, would be on the basis that it would not carry with it an immediate increase in salary, but only as and when the Respondent ceased her full time union activities, was both action short of dismissal, in breach of Section 146, and amounted to sex discrimination. By a letter dated 11 November 1996, namely the day before this letter was sent, Ms Whillier, the Respondent, again on Southwark UNISON No 1 branch notepaper, had written to Mr Walker, and she wrote in paragraph 6 of that letter that she still considered that she should be paid the differential in salary for past employment which had led to the disputed claim for wrongful deduction of wages, which she lost in the Employment Tribunal. She then continues: -

"I was advised verbally that I would not be remunerated at the upgraded rate of my new post until I finished being Branch Secretary. Applying the 'but for' test, this is clearly discrimination on the basis of my trade union activities."

This letter was received by Mr Walker but there is no reference in the Employment Tribunal's decision to any evidence, nor can Mr Oldham remember whether any was given, as to whether the letter was received by Mr Walker, before the despatch of Mr Bull's letter of 12 November 1996. It is certainly right to say that the letter of 12 November: -

a) does not purport to be an answer to that letter

b) makes no reference to that letter

c) has a self standing purpose, as being a rather belated record of what had occurred on 17 September

d) was written by Mr Bull and not by Mr Walker.

7. The letter of 12 November was explained in evidence by Mr Bull, as was described in paragraph 41 of the decision of the Employment Tribunal, as having been sent by him in accordance with advice from Mr Walker, who was his senior. We are told by Mr Oldham, although it does not appear from the decision of the Tribunal, that Mr Walker's evidence was, in general terms, that he believed that any advice had been misunderstood and that there was some kind of communication failure between him and Mr Bull.
8. The final fact that we should record is this. By an amendment to the Originating Application, the Respondent added a paragraph 15a, which read as follows: -

"The Applicant believes that other male branch secretaries have been upgraded and paid at the higher rate despite being on trade union release. This constituted sex discrimination."

Although there was, it seems from the decision, mention made, at some stage during the lengthy hearing, of other names, in the event this point crystallised only on the evidence of a Mr McLaughlin. Mr McLaughlin had it appears been elected as Staff Side Secretary, carrying full tine release in 1987, and it seems from paragraph 46 of the decision that Mr McLaughlin's evidence was that in the summer or autumn 1988 he applied successfully for an upgraded permanent position, and was paid the salary for the upgraded position whilst still on full time release. He was male.

9. The claim under Section 146 was that the proposition by the Appellant that there would be a promotion, but only on the basis that she was paid for the job as and when she actually began the duties, was action short of dismissal, taken against her as an individual by her employer for the purpose of deterring her from taking part in the activities of UNISON or penalising her for doing so.
10. The Employment Tribunal found that that claim was proved. They dealt with it very shortly indeed. The letter in question of 12 November was set out in paragraph 32 of the decision. In paragraph 35 the following is set out by reference to the grievance hearing on 17 September where the Chairman says as follows: -

"Although it appears that difficulties about the Applicant's promotion while carrying out her duties as Branch Secretary were first raised by Mr Dorey on 5 July 1996, it appears from the Applicant's letter of 11 July that Mr Dorey's position was that there would be difficulties in finding the Applicant a post while she was still Branch Secretary. The position taken by Mr Bull in his letter of 12 November was somewhat different, namely, that the Applicant would not be paid the salary appropriate to any new post until she took up the duties of such a post. That position appears to have been conveyed to the Applicant for the first time on the last day of the Stage 2 grievance hearing on 17 September 1996."

Then in paragraph 39 the Chairman says: -

"On the basis of the way in which the Respondents' position was stated in Mr Bull's letter of 12 November 1996, it is apparent that they decided that the Applicant would not be allowed to take up the duties of a new post while she was on trade union release."

11. I interpolate to say that as Mr Oldham has pointed out, that is plainly erroneous because its reason she could not take up the duties of a new post was just because she was a Branch Secretary, and no complaint could be, or was, made about this. But then the Chairman continues;

"as well as deciding that she would not be paid at the rate for the new job until she took up the duties."

At paragraph 41, the Chairman recites the Tribunal's conclusion: -

"We have reached the conclusion that the purpose of the action taken by the Respondents in relation to the Applicant was to deter her from taking part in the activities of her trade union. Although Mr Bull stated that his letter was written in accordance with advice from Mr Walker, Mr Walker, who was responsible for the TOFTUDS scheme, said in his evidence that the fact that the Applicant was on (trade union) release did not affect her taking up promotion in the usual way. Whilst Gallacher v Department of Transport (above) decides that there is a difference between purpose and effect, there is therefore no basis in this case for holding that the Respondents' purpose was anything other than to oblige the Applicant to choose between promotion and remaining in office as trade union branch secretary, and thereby to deter her from remaining in the office. Both Mr Walker and Mr Bull denied any hostility to trade unions and, whilst we do not wholly accept Mr Walkers evidence to that effect, we do not consider it necessary to our finding to hold that any of the Respondents' employees were motivated by hostility to trade unions or, as the Applicant suggested, because she was particularly effective in carrying out her trade union duties. For the reasons given below, we consider that the Respondents' action against the Applicant was the result of sex discrimination, but we do not consider that that finding prevents us from holding that the Respondents' action was also in breach of section 146."

12. It appears that what weighed most heavily in the minds of the Tribunal was the evidence of Mr Walker, which is there recited. Mr Walker apparently gave evidence that the fact that the Respondent was on trade union release did not affect her taking up promotion in the usual way, and by in "the usual way" we interpret that as meaning on the basis of receiving the appropriate salary for the promoted job. Given that the evidence of Mr Walker himself, therefore, was that there was no reason why the Respondent should not have had her promotion, and given that the burden under section 148 (1) is on the Appellant to show the purpose for which action was taken against the complainant, it appears to us that it was particularly necessary for the Appellant to have explained why it was that it was thought appropriate to do what they did, namely to say that promotion would be given, but without the concomitant increase until she began her duties.
13. It may seem to an outsider strange that it should be considered appropriate that somebody should be entitled to increased pay for promotion to a new job, when in fact she would not be doing that new job, but would be continuing doing exactly what she had been doing namely being on full time release as branch secretary, but: -

That was, it seems, what the TOFTUD scheme was there to fund

Mr Walker, when he gave evidence appears to have said that that would indeed have been usual practice.

14. Consequently, there would need in our view to have been some evidence from the Appellant as to what other reason there was than persuading and encouraging the Respondent, to give up her branch secretary duties as soon as possible and return to the fold, if any other conclusion than that there was such action short of dismissal, given the burden on the Appellant, could be arrived at. It appears that no other evidence or suggestion was made. The highest it appears from Mr Oldham to have been was that there might have been some communication problem between Mr Walker and Mr Bull. This appears to us to be most unlikely. First of all, any sensible reader of the letter of 11 July, assuming that it got to anyone other than Mr Dory, would have been put on notice as to the difficulty of dealing, as they were, with a trade union branch secretary; but it may be that that letter was not fully reflected on, or not received or some evidence may or may not have been given about it, though this is not known to us. Further, although it may be that the letter of 11 November was not received before the letter of 12 November was sent, it seems to us extraordinary that, even if it was received afterwards, there was not any opportunity taken for Mr Walker to say, if indeed that was his view, "Mr Bull you've got all this wrong, you sent the letter wrongly, and, particularly now I have received this letter of 11 November, we'd better send a corrective letter". We do not know if any of that evidence was canvassed. It certainly doe not appear to have been so, either from Mr Oldham's recollection or the decision of the Tribunal. It may be that the real reason, if evidence had been given, might have been that the reason why the employers were taking this stand was simply because they were antagonistic towards the Applicant as a result of the previous history. But whatever might have been the evidence given, none was, and we are entirely satisfied that the Tribunal was entitled to find that the Appellant failed to satisfy the burden of showing the purpose for which the decision was made as against the Respondent to offer promotion without pay, given, as Mr Walker himself said, that the normal course would be to do just the opposite.
15. In those circumstances, although bearing in mind, as the Tribunal inevitably and rightly did, Gallacher v Department of Transport, which puts a Tribunal on notice to look out for the difference between the purpose and the effect of an employer's action, we are entirely satisfied that the Tribunal was entitled to find that, in this case, the purpose of the sending of the letter was to deter the Applicant in accordance with section 146. But that was by no means the end of Mr Oldham's submissions, either before the Employment Tribunal or before us, because what he submitted was that this was not action taken against the Respondent. He drew our attention to the well known case of Associated Newspapers Ltd v Wilson ...frequently called the Palmer case) [1995] ICR 406, in which the purpose in that case too was established as having been to deter or discourage employees from being or remaining members of a union; but the conduct there complained of was the employer's statement, decision and implementation of such decision, that unless employees agreed to new contracts of employment which effectively de-recognised the union they would not get, and did not get, a salary increase. The conclusion of the House of Lords in that case was that, within Section 23(1) (a) of the Employment Protection Consolidation Act 1978, 'action' did not include an omission, notwithstanding section 153(1) of that act, and consequently that the failure to pay a salary increase was not an action, but an omission.
16. Mr Ford has submitted two things in relation to that. First of all, that there was something special about the facts in the Palmer Case, arising out of the fact that it was not possible for the applicants in that case to complain of the actual decision, because for various reasons the applications were or would have been out of time, and consequently they were only able to complain about the actual non-payment of the salary; and secondly, had the complaint been able to be made about the taking of the decision, then that would have been a complaint of an action. It seems to us that that is not a way in which the Palmer Case can be distinguished. It seems to us that an omission, unless it is an accidental and unintended one, (in which case it would not satisfy the requirement of being done for some purpose) is bound to be the consequence of some decision and that if not giving a salary increase is an omission, then deciding not to give a salary increase is also an omission or at any rate is not an 'action'.
17. Consequently, if the facts here are on all fours with the Palmer Case, in which the omission, as I have indicated, was the failure to pay a salary increase then strange or unexpected as the House of Lords decision in the Palmer Case might have been, and even though it appears that in the Employment Relations Act 1999 steps have been taken to eliminate the effect of that decision, by introducing by amendment to the 1992 Act a provision that failure to act has the same consequences as action, we would, all other things being equal, be required to follow a decision of the House of Lords.
18. Mr Ford however submits that we are not bound by the decision of the House of Lords. He submits and points out that the Palmer Case involved a majority interpretation of section 23(1) of the Employment Protection Consolidation Act [1978] which was a predecessor in identical terms of section 146 of the Trade Union and Labour Relations Consolidation Act 1992. He points, by reference to the case of Farrell v Alexander [1977] AC 59, to the principle that is well known in the law of precedent as the Barras principle, emanating from a decision called Barras v Aberdeen Steam Trawling And Fishing Company Ltd [1869] LR 5 Ch 703, which apparently itself has two strains of opinion, one, the more strict interpretation, from Lord Buckmaster and one, the slightly more liberal interpretation, from Lord Macmillan. in their respective speeches in that case. The Barras principle is, as we understand it, as follows, that where there is a consolidating act, the parliamentary draftsman must be, at least if there is any ambiguity, taken to be relegislating on the basis of the law as it then stood, both as arising out of previous legislation, but also by virtue of any clear judicial authorities interpreting that earlier legislation. The draftsman then, with his pen in hand, is taken to intend, not only to consolidate the legislation, but also to consolidate the judicial interpretation of that legislation.
19. Mr Ford, therefore, submits, that when the draftsman of the 1992 Act consolidated all earlier legislation, he was thereby consolidating additionally, as well as the 1978 Act itself, the decision of the Court of Appeal in National Coal Board v Ridgway [1987] ICR 641 which had interpreted 'action' in Section 23 to include an omission. Consequently, when the House of Lords in the Palmer Case came in 1995 to overrule National Coal Board v Ridgway and to interpret the same 1978 statute, because the facts in the Palmer Case had antedated the 1992 Act, and were therefore still governed by the 1978 Act, all it was doing was firmly overruling the previous erroneous Court of Appeal view of the 1978 Act, so that for the future, if there ever were any further activities governed by the 1978 Act, they would be governed by the House of Lords' decision: but that the House of Lords was too late to do anything about correcting the 1992 Act, which it was not purporting to interpret, even though the wording in the 1992 Act, because it was a consolidating act, was identical to that of the 1978 Act. He consequently submits that the House of Lords' decision in the Palmer Case is irrelevant to our consideration, because it only interprets the 1978 Act, whereas the 1992 Act must be interpreted as it was when it was passed in 1992, and thus unaffected by the subsequent decision of the House of Lords.
20. This is a somewhat arid but no doubt extremely interesting area for academics. It has been addressed to an extent in Cross on Precedent as a Source of Law at page 181, to which our attention has been drawn by Mr Oldham, but nowhere, it seems, in any decided authority in terms. Both counsel are agreed that the primary canon of construction must always be, what do the words of the statute mean clearly on their face? And if the primary canon alone can provide the answer, then they agree that the Barras principle, being a secondary canon, does not arise and certainly this is clear both from Farrell v Alexander and indeed from the Palmer Case, which did consider Farrell v Alexander itself, for other reasons. But it is plain that the section, which was Section 23 and is now Section 146, is not so clear, otherwise there would not have been the very disputed issue which was resolved in the House of Lords, and is again being raised before us today, namely as to whether 'action' includes omission, notwithstanding the definition section, which again is the same in this Act as it was in the 1978 Act.
21. And so, once past the primary canon of construction, there are secondary canons and Mr Ford accepts that a secondary canon of construction is the kind of activity that was gone through in detail in the Palmer Case, to arrive at the conclusion that their Lordships here did, namely to look at all the old statutes and work out the legislative history, but there is also the alternative canon of the Barras principle, and Mr Ford submits that the Barras principle is normally preferred, and ought to be preferred, to the legislative history exercise, for the perfectly logical reason that he has set out, about the mind of the legislator. Mr Oldham points out that all those canons of statutory construction became less significant, once it became permissible to look at Hansard, and that may well be right.
22. But Mr Oldham has two further and compelling answers. First of all, he submitted that the principle of English Law that the House of Lords does not change the law, but simply declares what the law has always been, should apply in this case also, and thus retrospectively, in 1994, the decision of the House of Lords not only corrected the mouths of the litigators, and indeed the mouths of their Lordships in the Court of Appeal, but also corrected the pen of the legislator, so that retrospectively it must be deemed that when the legislator sat down with the intention of setting out what the law was in the consolidated statue, he must retrospectively have been setting it out in accordance with what the House of Lords later found it to have been. The second way in which Mr Oldham seeks to answer Mr Ford is to say that it is a recognised exception to the Barras principle that it only applies where there has been clear judicial precedent. It would not apply in relation to a decision of a lower court, or a decision which did not carry with it the stamp of authority. Lord Wilberforce In Farrell v Alexander at pages 74-75, was sceptical about the doctrine of Barras, which Cross described as parliamentary endorsement of decided cases "on the ground that it might often be fictional to suppose that the draftsman had them in mind." He appears to have been in a minority, but, quite apart from Lord Wilberforce, both Lord Simon and Lord Edmund Davies accepted that it would only be clear statements of judicial weight by the Court of Appeal to which the Barras principle would apply, and Mr Oldham submits that just as the Barras principle picks and chooses according to whether it is to be considered that an earlier decision had weight, and was clear or was unchallenged, so too one can, at least retrospectively, now pick and choose between Court of Appeal authorities on the basis that some of them may have seemed good at the time, but have subsequently been disapproved by the House of Lords.
23. I accept both those two arguments for the non-applicability of the Barras principle in a case such as this. It seems to me it would be nonsensical for us, faced with a decision of the House of Lords on identical wording in 1994, two years after the statute with which we are now dealing had already come into effect, and at a time when the factual context to which the House of Lords decision would have been applied would in any event have been dwindling, and they must be taken to have known that there was by then, and had been for some two years, a new consolidated statute in force., to ignore that decision. Consequently, whatever reservations there may be about the outcome in the Palmer Case, as I have said earlier in this judgment, we must follow it.
24. The question then is, can the facts of Palmer be distinguished? As I have earlier indicated, in Palmer the employer's action was not to pay a salary increase or indeed, if such had been the facts, and I for one do not see any difference, a threat, statement or decision that it would not pay a salary increase. What Mr Oldham submits is that that is exactly what has happened here. There has been a statement that there would or could or may be a promotion, which would be beneficial to the Respondent in this case, but that there would not be a salary increase. She naturally has no objection to the offer of the promotion; she objects to the fact that there was not to be the concomitant salary increase, and consequently it was the omission to pay, or promise to pay, the salary increase which was the conduct, which amounted to the incentive or deterrent so far as trade union activities were concerned, and that is, as in Palmer, an omission. Mr Ford submits that that is not the proper interpretation of what here occurred. It was not simply an omission, if what the Appellant did here was to say, on the findings of the Employment Tribunal, which we have upheld, that if and so long as the Respondent continued in her full time trade union activities, any promotion they gave her would not be accompanied by the necessary salary increase, it seems, in breach of the TOFTUDS agreement. That conduct, it seems to us, amounts to an action, that is to offer a particular kind of promotion, one which is not accompanied by the necessary salary increase. It is not simply the failure or omission to pay a salary increase, it is the fact or promise that there will be, not the usual promotion, but an unusual promotion, on Mr Walker's evidence, a promotion not accompanied by the salary increase which would ordinarily follow; and that it seems to us is action and not omission.
25. In those circumstances, we turn to the third argument which Mr Oldham put forward, namely that there was a need for detriment, and that there was no detriment at all in any event. We are not satisfied that he is right to say that there would have to be a detriment, but we reach no conclusion about that, because we are satisfied that the conduct in question, the action in question, namely the offering of unsatisfactory promotion, that is promotion without the concomitant salary increase, was detrimental, because not as beneficial as the offer of promotion with the appropriate concomitant salary increase. In those circumstances, we dismiss the appeal in respect of the section 146 claim.
26. I turn to the sex discrimination claim. The Tribunal also deals very shortly with this. I have already read the passage in which, anticipatorily in paragraph 41, the Tribunal stated that they did not consider that a finding of sex discrimination prevented them from holding that the Appellant's action was also in breach of section 146. Then the sex discrimination claim is dealt with from paragraph 43 onwards. There is reference made to Mr McLaughlin, to whom I have already referred. In paragraph 48 the Chairman sets out the evidence of antagonism between the Respondent and the senior management of the Social Services Department, and then in the last sentence of the paragraph, he reminds himself of Glasgow City Council v Zafar [1997] WLR 1659:-

"A finding of hostile treatment, even if that treatment is not satisfactorily explained, does not entitle the Tribunal to make a finding of sex discrimination, unless the Tribunal is also satisfied that a person of the other sex, was, or would have been, treated more favourably."

27. At paragraph 49, however, the Chairman then says: -

"We have, however, concluded that the treatment given to the Applicant in relation to her promotion whilst carrying out trade union duties was less favourable than that given to Mr McLaughlin, and we have also concluded, in the absence of any satisfactory explanation for the Applicant's less favourable treatment, that it was on the ground of the Applicant's sex."

In paragraph 50, the Chairman refers to Mr Oldham's submissions that the Tribunal should not compare the treatment of the Respondent with the treatment given to a male employee some eight years earlier, and also Mr Oldham's submission that Mr McLaughlin was not promoted but was either re-graded or was on a career progression scheme. But the Chairman then continued: -

"However we see no reason to reject Mr McLaughlin's evidence that he applied for and was being given a job at a higher grade, and was paid the salary for that job even though he was on full time trade union release. There does not appear to have been any change in the position with regard to the promotion of employees on full time trade union release in the period from 1988 to 1996, and we do not consider that there were any material differences between the case of the Applicant and that of Mr McLaughlin. Even without taking into account the evidence of prior hostile treatment of the Applicant, we are satisfied that the less favourable treatment given by the Respondents to the Applicant in comparison to that given to Mr McLaughlin was on the ground of the Applicant's sex."

28. He concludes by once again referring to the Tribunal's conclusion that it was not inconsistent to have made a finding that the same conduct amounted to both trade union discrimination and sex discrimination. In relation to the latter point, thus made twice in the course of the Tribunal decision, the Chairman perhaps indicates an apparent consciousness of a susceptibility to criticism to this regard. We are far from satisfied that we can agree with the Chairman. It is obviously quite plain that there can be occasions in which there can be both, if, for example, the facts were in this case that there was both a desire to deter the Applicant from being a trade union branch secretary and a conclusion that, because she was a woman, it would be easier to do, or it would be done in a different way, or alternatively it would be done at all, whereas they might be nervous, perhaps, of doing it to a man, or something of that kind; there could be some such evidence, but it does not appear to us that there was any such evidence here, and indeed that evidence at all on this point was extremely exiguous.
29. The only point on which this argument was founded at all was the fact that, in 1988, Mr McLaughlin was given a salary upgrade while working as a branch secretary, whereas, in 1996, the Respondent was not. We of course must remind ourselves of the provisions of the Sex Discrimination Act. By Section 1 (1) a person discriminates against a woman in any circumstances, if, on the ground of her sex, he treats her less favourably then he treats, or would treat, a man. Thus, that is the prime question; was the treatment in this case, if differential treatment there was compared with Mr McLaughlin, on the ground of her sex? We understand and appreciate Mr Ford's submissions, which are well fortified by authority, that it is very difficult, often, to identify sex discrimination, that it will not be trumpeted or be capable necessarily of being illustrated, even by disclosure of documents, and it can be only be done very often by the starting point of a comparator.
30. The comparator here was a very difficult one, it seems to us. The account of Mr McLaughlin, albeit given orally by him, related to eight years earlier. The facts were not capable, for obvious reasons, of being fully set out, just because they had taken place eight years before, and there was no suggestion in the decision, nor, we understand in the evidence, that either Mr Bull or Mr Walker had been involved in any particular way, in relation to that earlier event, or had any knowledge of it when they came to deal with the situation in 1996 with regard to the Respondent. We bear in mind very much the guidelines which are set out by Lord Justice Neill in King v Great Britain-China Centre [1992] ICR 516, 528-529 C.A. as approved by Lord Browne Wilkinson in the House of Lords in Glasgow City Council v Zafar I do not think it necessary to repeat again those well-known guidelines, but a number of points must be made.
31. First of all, whereas in relation to the section 146 claim the onus is upon the employer, that is not so in relation to a sex discrimination claim; as is set out in guideline 1, if the Applicant does not prove the case on the balance of probabilities, he or she will fail. On the other hand we have already indicated that we do not consider that it is necessary for an applicant necessarily to do any more than to indicate a comparator, and we are not persuaded by Mr Oldham's primary submission, that it is necessary to identify precisely who the alleged discriminator was in the employment of the employer and then to seek to establish, that he or she was the same discriminator, who had previously acted in relation to the comparator. It seems to us, as indeed in the event Mr Oldham conceded and Mr Ford agreed, that there can be other ways of establishing a nexus between the comparator and the applicant in a case. But there needs to be, it seems to us, some established evidential nexus, be it a company policy which can be pointed to or an involvement of the same or similar people, or people in similar positions, or some kind of documentary evidence or some kind of knowledge, of the earlier facts, even if it is only rumour or folktale within the company. Further it is quite obvious to us that it will be far more difficult to establish an appropriate comparator in relation to events which are as far separated as these ones, namely eight years, where the evidence in relation to the earlier incident is so sparse that it is difficult to be able to make genuine and proper comparisons, and where there was no material connection between the parties, and the only thing that can be said is that the company policy in relation to TOFTUDS has not changed in the meanwhile.
32. What appears to have been decisive in the Tribunal's thinking here is that there was a comparator, and that the employer had not been able to come up with any satisfactory explanation for the end product of different treatment of the two, eight years though they were apart. We consider that that is hardly surprising in relation to the age of the events in question if what did happen (although given the absence of notes of evidence or of reference in the decision, or even independent recollection by Mr Oldham, we are not helped as to whether this is what did happen) is that the evidence of Mr Walker or Mr Bull was "even if we were involved we can't tell you any more about it because we have no recollection and we haven't been able to find any documents." That would, if that was the evidence, have been perfectly understandable. But guideline 4 of Lord Justice Neill would still be relevant and I read it: -

(4) "Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds [and of course instead of race, sex must be interpolated, where appropriate] a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds."

As to this, it appears to us, for reasons that I have given, that the lack of explanation by the employer in this case could well have been understandable, simply by virtue of the passage of time. But more significantly and I say this with diffidence, is that it may be worth adding slightly to the words of Lord Justice Neill, in order to be more comprehensive. It seems to us that the explanation does not necessarily need to be "put forward" by the employer. It could be put forward, or be available to be put forward, from some other source, and in particular from the Tribunal's own decision.

33. The Tribunal referred to two matters in their decision which are available as alternative explanations, even if not 'put forward' by the employer, for the difference of treatment between these two people, even apart from the lack of clarity and the passage of time. First, the Chairman expressly referred, although, rightly, indicating that it could not be a reason for a finding of sex discrimination, to the hostility between the parties. That was not of course something which was put forward by the Appellant, which was busy no doubt brushing away any suggestion of hostility in order to be, as it was, successful on the first claim. But it is a conclusion which the Tribunal itself came to, and could have been a perfectly good explanation for why it is that the Appellant acted as it did, irrespective of the sex of the person towards whom they were hostile. More significant is the finding by the Tribunal of section 146 trade union discrimination. There, available to the Tribunal, was its own conclusion that the reason for this conduct was trade union discrimination.
34. Consequently, if the only reason for finding sex discrimination was that it was, or would have been, legitimate to infer it, absent any other explanation, and it seems to us on the facts here that that is the highest that this case can be put, then there were other explanations, which the Tribunal themselves formulated and had in mind. We do not consider that this is at all a sex discrimination case, and we are satisfied that there was no evidence on which the Tribunal could reach the conclusion that it did, that the conduct in question was by virtue of the sex of the Respondent and consequently, we allow the appeal in respect of the Sex Discrimination Act claim. The sex discrimination claim appeal is therefore allowed and the sex discrimination claim is dismissed. The appeal in respect of the section 146 claim is dismissed.