United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T KIBLING (of Counsel) Michael Scott & Co 27 Britannia Street London WC1X 9JP
For the Respondent	MR D TATTON-BROWN (of Counsel) Irwin Mitchell St Peter's House Hartshead Sheffield S1 2EL


 


HIS HONOUR JUDGE PETER CLARK:

1. By an Originating Application presented to the Sheffield Employment Tribunal on 22 June 1998, the Applicant, Ms Ojinnaka, brought a complaint of sex and race discrimination against her employer, the Sheffield College. Those complaints were more particularly formulated in an amendment dated 22 June 1999 to raise three issues, identified by the Tribunal which heard the complaint over four days, followed by a day in Chambers, between 8-12 November 1999 as follows:

i) That she was discriminated against on the grounds of sex through not having been consulted on matters pertinent to her role as Black Access course leader during her maternity leave in 1997/8,

ii) That the college, and Mr Jon Cowley (who co-ordinated all access courses) in particular, discriminated against her on grounds of race and/or sex by its and his conduct towards her following her return to work on 22 March 1998, and

iii) That she was victimised by the Respondent following her complaints about not being consulted and about Mr Cowley's behaviour, the victimisation being contrary to both The Race Relations Act 1976 and the Sex Discrimination Act 1975.

2. By a reserved decision promulgated on 8 December 1999 the Tribunal unanimously rejected her case on the second and third issues. On the first issue the Tribunal was divided, by a majority that part of the Applicant's complaint was also dismissed. Following a preliminary hearing held in this appeal on 22 June 2000, it is only the majority finding on the first issue which is before us at this full appeal hearing.
3. The Facts

For the purposes of considering the first issue the principal primary facts found by the Tribunal were these. The Applicant, a black woman, commenced employment at the college in September 1985. She was at all relevant times a senior lecturer in history and was leader of the Black Access course, that is a course designed to help and encourage black and Asian people to further their education and enhance their work and life prospects. She was committed to that role and was anxious to encourage those from ethnic minority backgrounds to develop their talents and make the most of their opportunities.

4. In 1995/6 she took maternity leave. During her absence from work her post was covered by one Sonia Edwards, who kept her informed as to what was going on in relation to her work at the college and in relation to the Black Access course. She was sent minutes of meetings held during her absence and consulted on matters concerning her job, on one occasion being called into the college for that purpose.
5. She then took further maternity leave between September 1997 and 22 March 1998. During that period a Mr Clinton Duffus was appointed to cover her work. Unlike Ms Edwards, he did not keep her informed of what was happening at the college; nor did the co-ordinator of access courses, Mr Cowley. He believed that she should not be troubled during her maternity absence with matters which were of no immediate consequence to her. Following her return to work in March 1998, the Applicant learned from other colleagues that changes to her Black Access course might possibly be in the offing. A "new deal" proposed by the Government might adversely affect it.
6. A meeting took place between the Applicant and Mr Cowley on 1 April. It did not go well. The Applicant felt that she ought to have been involved in any internal discussions about her course during her absence. She complained of the lack of consultation. Mr Cowley, on the other hand felt, and this was accepted by a majority of the Tribunal, that nothing had been decided about her course prior to 1 April, nor would it be without consultation with the her.
7. The Law

The basis of the Applicant's complaint on the first issue was a claim of unlawful sex discrimination contrary to Sections 1(1)(a) and 6 (2)(b) of the 1975 Act. That is, that she was less favourably treated on grounds of her sex and that discrimination was unlawful because she had been subjected to a detriment. It is now well established by House of Lords authority that it is unnecessary for a pregnant woman to compare herself with a man where the discrimination complained of is pregnancy related. Webb v Emo Air Cargo (UK) Limited No.2 [1995] ICR 1021. Further, that the motive or intention of the alleged discriminator is irrelevant to the question posed by Section 1(1)(a). James v Eastleigh BC [1989] ICR 423.

8. Mr Kibling and Mr Tatton-Brown agree with this proposition of law; to subject a woman to a detriment because of her pregnancy is unlawful sex discrimination. It therefore follows, in this case, that if the treatment complained of amounted to a detriment and was causally connected to her pregnancy, her claim on the first issue must succeed.
9. As to the meaning of "detriment", the Tribunal were referred specifically to the Court of Appeal decision in Jeremiah v Ministry of Defence [1980] ICR 13. As Brandon LJ put it,

"Detriment means putting the complainant at a disadvantage" 26 B-C.

The factual question as to whether the Complainant was put at a disadvantage may be answered by reference to whether a reasonable worker might or might not take the view that there was a detriment. Per Brightman LJ 30 G-H. To constitute a detriment there must be something serious or important about it. Schmidt v Asutick's Bookshops [1978] ICR 85, 87 D-E per Phillips J.

10. In these circumstances, it seems to us that the critical question in this appeal is whether on the facts as found by them, the majority were entitled to conclude, expressly or implicitly, that on the first issue the Applicant had not suffered a detriment by not being consulted during her second maternity absence.
11. Detriment

We have earlier set out the Tribunal's unanimous findings of fact material to the first issue. On what we see as the question of detriment, the Tribunal members took a different view of the seriousness of the Respondent's failure to consult her during her second maternity absence. The majority findings are set out at paragraph 22 of the reasons. They may be summarised as follows:

1) Mr Cowley did discuss current issues with members of staff, as his job required, during the Applicant's second maternity leave period. However, none of those matters were of any real significance or importance, certainly not matters that could not wait to be discussed with the Applicant on her return to work.

2) Those issues included discussions about the Black Access course and potentially adversely affected that course.

3) There was no consultation with the Applicant during her absence.

4) All that took place during the Applicant's absence was an exchange of views amongst those working at the college.

5) The Applicant would have been consulted on anything which might have been to her detriment or in any way affected her status or job description or was damaging to her interests. As a matter of construction we take that latter phrase to include changes which might adversely affect the Black Access course.

12. The minority member took a different view (reasons paragraph 23). Principally, she concluded that the Applicant was less favourably treated on grounds of her sex in that she was not consulted on matters of importance during her period of absence. Unlike the majority, the minority member did not accept Mr Cowley's evidence that the matters discussed in the Applicant's absence were not urgent or of any significance.
13. The Appeal

Mr Kibling submits that the majority's conclusion on the first issue was perverse in that:

a) On the facts as found, the Applicant was not consulted during her maternity absence. That amounted to a detriment. It was pregnancy related. Therefore the complaint of unlawful discrimination was made out and the Tribunal were bound to so hold. Alternatively,

b) The majority could not permissibly conclude, on the evidence before them, that the failure to consult was of such insignificance or lack of importance that no detriment was suffered by the Applicant.

14. Having carefully considered those submissions in the light of all the facts found, unanimously or by a majority, we have concluded that the need for consultation and its timing were material factors for the Tribunal to consider. The bald assertion made below and repeated before us, that no consultation during maternity leave equals unlawful discrimination without more cannot be accepted.
15. As to the qualitative judgments made by majority and minority respectively on the absence of consultation and its effects on a reasonable employee, as opposed to this Applicant's subjective view, we have concluded that both the majority and minority conclusions based on their respective views of its effect were equally permissible.
16. It follows that Mr Kibling's principal submission fails. Following from that, the question as to whether the majority were entitled to find no less favourable treatment in a case which did not depend on a comparator becomes moot. Absent detriment the statutory tort is not made out.
17. Finally, Mr Kibling faintly argued that the majority fell into the trap of deciding the first issue, impermissibly, on the basis that Mr Cowley's motive in not troubling the Applicant during her maternity leave was benign, motive being an irrelevant consideration. See James. We reject that submission, first on the ground that the Tribunal correctly directed themselves as to the law at paragraph 17 of the reasons but secondly, by looking at paragraph 21. It is there made clear that all three members were satisfied that the Respondents were not motivated by malice or ill will towards the Applicant. Having said so, the minority member went on to find that unlawful discrimination was made out.
18. In these circumstances, we have concluded that no error of law is made out in this appeal and consequently it must be dismissed.