United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BROWN (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR COMMISSIONER HOWELL QC

1. In this appeal, which is before us today for preliminary hearing, Miss Susan Jane Redford Leaney seeks to have set aside as erroneous in law the decision of the Stratford Employment Tribunal, set out in extended reasons send to the parties on 2 February 2001 after a hearing which took place on 11 January 2001. Those extended reasons are before us in the appeal file at pages 24-28 inclusive.
2. The proceedings before the Tribunal were a complaint by Miss Leaney against the Respondent, Oakforest Management Ltd, who are the proprietors of a hotel in Southend-on-Sea, the Palace Hotel, which according to the facts recorded by the Tribunal is a hotel which has some 200 rooms and operates as a hostel providing bed and breakfast accommodation for people who are homeless or are seeking asylum. It is common ground that Miss Leaney had at some point been a resident of the hotel and was familiar with it.
3. The complaint, brought by her Originating Application dated 30 September 2000, was of sex discrimination on the part of the management of the hotel in rejecting an application by her for employment as a receptionist at the hotel.
4. That complaint was resisted by the Respondents on the ground that she had never been employed and the issue before the Tribunal, when the Tribunal came to consider the evidence, turned on whether there had been discrimination against Miss Leaney in relation to a position as a receptionist, which had indeed been advertised as a vacancy, but which in the event the Respondents decided did not require to be filled after all, so that the vacancy was withdrawn without either Miss Leaney or any other applicant being interviewed for the job at all.
5. As the Tribunal recorded in their extended reasons, at paragraphs 4 and 5:

4. "Our findings of primary fact are as follows. On Monday 5 June 2000 the Applicant made enquiries of the Employment Service at Southend Job Centre regarding a vacancy at the Palace Hotel, Southend for a Weekend Receptionist/Porter – a permanent Sunday job between 8am and 5pm at £4 per hour. The Job Centre details, which are A1-1, indicate that the duties included manning the reception desk, answering phone calls, letting guests in and out of the building, and would suit applicants aged 30 or over. The Palace Hotel is run by the Respondent as a management company. It has 200 rooms and operates as a hostel, providing bed and breakfast, for people who are homeless or are seeking asylum. The Respondent employs about 15 hotel staff covering reception, office administration, cleaning and catering, and residents are occasionally employed to support the regular staff.

5. The Applicant had in fact resided at the Palace Hotel between March and June 1999, although never employed there before, and knew the Job Centre's contact, Luke Wood, from whom we have heard today. He was the reception manager. The vacancy had arisen because Mr Wood was working excessive hours and wished to avoid Sunday working in future. The Applicant was interested in the employment opportunity and, on the face of it, was a reasonable match with the brief job and candidate specifications supplied to the job centre.

6. The Respondent's arrangements with the job centre were that no candidates were to be sent directly for interview."

6. The Tribunal then recorded that the Applicant had attempted to contact the Respondent by telephone with a view to an interview but that had not succeeded and that on Friday 9 June 2000, or the following Monday, she had happened to be in Southend and went in to see Mr Wood in reception, having in her possession the introductory letter from the Employment Service. She inquired whether the owner was present to deal with her application. Mr Wood informed her that he was not and that he was hard to get hold of. They exchanged pleasantries and the Applicant decided to await developments.
7. Again in the Tribunal's words in paragraphs 9-11 of their extended reasons:

9. "At some stage, before or shortly after Friday 23 June, Mr Wood reconsidered his position regarding weekend working, negotiated with Mr Pascali and reinstated his weekend working under new rostering arrangements. Accordingly a Sunday Receptionist/Porter was no longer required, resulting in the withdrawal of the vacancy with the Job Centre. Only the Applicant and a handful of other enquiries had been received by the Respondent. No shortlist had been made, no interviewing took place, and apart from the Applicant, no candidate had been seen.

10. On Friday 23 June, nothing having developed in the meantime, the Applicant called at the Palace Hotel and again saw Mr Wood. She proffered the introduction letter which Mr Wood declined. He appeared disinterested in her enquiry and more pre-occupied with practising golf putting in the reception area. He also told her that she would not be employed at the Palace Hotel on the basis of a rule against employing residents. The Applicant was taken aback, because she knew from personal experience that the hotel did employ residents. The probability in our view is that the off-hand treatment suffered by the Applicant was because Mr Wood had already agreed to reinstate his Sunday working, or alternatively was keeping his options open with regard to restoring weekend working.

11. Understandably the Applicant felt rejected and she left to seek advice from the Job Centre about her treatment by the Respondent since 5 June 2000."

That was followed by the Applicant's presentation of her Originating Application against the Respondent on 1 August 2000, alleging sex discrimination regarding the recruitment process.

8. The Tribunal then considered the applicable law on cases of unlawful sex discrimination, in terms which are not criticised by Miss Brown, who has helpfully appeared under the ELAAS scheme on Mr Leaney's behalf before us today. The Tribunal's conclusions and reasons for rejecting the claim of sex discrimination are expressed in paragraph 19 of their extended reasons as follows:

19. (1) In this case the Applicant had adduced no evidence that she was treated less favourably than any other job applicant was or would have been treated. We have no information about the other job applicants beyond that there were two or three, or maybe a few more, people who expressed interest; but no-one was ever seen by the Respondent, apart from the Applicant who visited the Palace Hotel uninvited at her own initiative; no-one was shortlisted, no-one was interviewed and no-one received a job offer. The vacancy was withdrawn within a few weeks of it being placed with the Job Centre.

(2) There is no actual comparator and no evidence which inclines us to draw an inference that a male job applicant with the same (or materially similar) relevant characteristics as the Applicant, other than her gender, would have been treated differently. We have found that the applicant was treated in a surprisingly off-hand and discourteous manner by the Respondent, through Mr Wood, on 23 June. We have asked ourselves whether we should infer that she was so treated on grounds of her gender either from this discourteous treatment or from the Respondent's failure to reply to the questionnaire. On balance, we have determined that it is not appropriate to do so. The probability in our view is that the treatment arose solely from Mr Wood's general disinterest in job applicants, having a vested interest in access to the Sunday work himself, as evidenced by his subsequent resumption of Sunday working. The failure to respond to the questionnaire is no more than a similar manifestation on the part of Mr Pascali.

(3) The burden of proof is on the Applicant and her claim necessarily fails on the basis of he above conclusions. Our unanimous conclusion if that the Applicant's complaint of sex discrimination fails and is therefore dismissed."

9. Against that decision Miss Leaney appealed on grounds set out by herself in her Notice of Appeal dated 14 March 2001 making a large number of detailed points on the evidence and what was before the Tribunal. Before us Miss Brown, on her behalf, has helpfully refined the grounds of appeal into what amounts to substantially one single major point, namely that the Tribunal misdirected themselves in the question they asked and then answered in paragraph 19 (2) of their extended reasons, which we have read, on the issue of what inferences should or should not be drawn from the off-hand conduct by Mr Wood on 23 June, which they found proved.
10. She drew our attention in particular to the observations of the Court of Appeal in the recent case of Anya v University of Oxford [2001] IRLR 377, where as recorded in the head note the Court of Appeal determined that the Employment Tribunal in that case, dealing with a case where there had undoubtedly been less favourable treatment of the Applicant, since he had been shortlisted for a job but the post had been given to another candidate of a different racial group, had, in their words:

"…erred in directing itself that if an employer behaves unreasonably towards a black employee, it is not to be inferred, without more, that the reason for this is attributable to the employee's colour in that the employer might very well behave in a similarly unreasonable fashion to a white employee. Such hostility may justify an inference of racial bias if there is nothing else to explain it. Whether there was an explanation such as that posited by the Tribunal will depend not on a theoretical possibility, that the employer behaves equally badly to the employees of all races, but on evidence that he does."

11. So, submitted Miss Brown, the Tribunal's assessment on the balance of probability that the way Mr Wood had behaved towards the Applicant from 23 June was attributable to his general disinterest in job applicants by that date, was unjustified and they should have embarked on a further enquiry as to whether all job applicants would have been treated in a similar, off-hand manner before concluding that there was no sex discrimination involved in the way the Applicant was treated.
12. This, she submitted, was so especially as Miss Leaney herself instructed her that at the Tribunal hearing the Respondents had failed to agree a bundle of documents and had attended late, which Miss Leaney had felt merely confirmed the Respondent's discourteous attitude towards her, manifested by Mr Wood's conduct.
13. However, taking all that into account, it appears to us that the claim of sexual discrimination in this case was completely answered by what we consider to have been a clear finding of fact by the Tribunal themselves in the preceding sub-paragraph 19 (1), that the Applicant had not demonstrated that she had in fact been treated less favourably than any other job Applicant was or would have been treated. As the Tribunal recorded, in fact no steps towards entertaining a job application had been taken by the Respondents from any of the other applicants or persons who had expressed interest, whether Miss Leaney or any of the two or three other people they referred to.
14. Given that finding, it may not have been strictly necessary for the Tribunal to embark on questions of probabilities as to what led to Mr Wood's off-handed treatment of the Applicant on 23 June at all. But, analysing what they appear to have said and found in paragraph 19 (2) – the paragraph criticised by Miss Brown – we consider it apparent from what they said, that they were recording that they were not satisfied, as a matter of fact, that that off-handed treatment and apparent discourtesy by Mr Wood on 23 June did amount to less favourable treatment in its own right so as to constitute a separate head of unlawful conduct, contrary to Section 6 (1) (a) or (c) of the Sex Discrimination Act 1975, (which was the contention advanced by Miss Brown before us), distinct from the failure to progress the job application at all, dealt with in paragraph 19 (1).
15. That appears to us to be a conclusion of fact which is a matter for the Tribunal hearing the evidence to determine. We are unable to see that it is arguable that that conclusion was unjustified, given the evidence that was actually before the Tribunal. We are also unable to see that there was any arguable misdirection on the part of the Tribunal, in determining that question of fact, on the balance of probabilities, as they did.
16. Given that the Tribunal there do seem to us to have been determining, as a matter of fact, that no less favourable treatment was involved in the way the Applicant was spoken to by Mr Wood on 23 June, questions of inferences and motivation or bias in the way Mr Wood behaved then do not, on strict analysis, arise in the case at all and do not in any event make a material difference to the decision that the Tribunal reached.
17. Consequently in our judgment there is not a sufficiently arguable ground of law in law that would warrant us in sending the appeal against the Tribunal's conclusion expressed in paragraph 19 (3) forward to a further full hearing of the Employment Appeal Tribunal and we accordingly now, unanimously, dismiss the appeal.