United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DANIEL OUDKERK (Of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH
For the Respondent	Ms Barbara Hewson (Of Counsel) Instructed by: Messrs Bevans Solicitors Grove House Grove Road Bristol BS6 6UL


 


JUDGE PETER CLARK

1. This is an appeal by Mrs Rawson, the Applicant before the Reading Employment Tribunal, sitting over 6 days, against that Employment Tribunal's decision, promulgated with Extended Reasons on 5 September 2000, dismissing her complaint of unlawful sex discrimination brought against the Respondent, her former employer Martin Ward Anderson Ltd.

Background

2. The Appellant commenced her employment with the Respondent as a Recruitment Consultant in March 1993. The Respondent is a recruitment organisation, principally in the financial and Information Technology fields, specialising in the recruitment of both temporary and permanent managers and senior managers in those areas.
3. She progressed well within the Respondent's organization, rising to manager of the Windsor office Temps Team in September 1996. That progress is reflected in her salary; she started on £16,500 per annum; by January 1998 she was earning £40,000 per annum.
4. A factual issue arose before the Employment Tribunal as to whether, at the beginning of 1998, she was told by Peter Ward, a director of the Respondent, that a new level of management would be created and she would receive a promotion by the end of that year. The Employment Tribunal preferred Mr Ward's evidence that he did not in terms promise the Appellant's promotion.
5. In June 1998 she advised the Respondent that she was pregnant. Her maternity leave, originally expected to be for 3 months, was due to and did start on 24 December 1998. She gave birth to her son on 28 December.
6. Shortly before commencing her period of maternity leave, on 14 December 1998, the Respondent announced the promotion of 2 men, Sean Ascough and Gary Moran, to the new post of senior manager. The Appellant was extremely upset; she saw herself as having been passed over for promotion. When she returned from maternity leave she would be reporting to her erstwhile contemporary, Mr Ascough. Having heard of these promotions she burst into a partners' meeting that day, 14 December. A further factual issue arose as to whether, on that occasion, she complained that the reason she was not promoted was because she was pregnant. The Employment Tribunal again preferred the Respondent's evidence that she made no such complaint at that time.
7. She did, however, raise the issue of discrimination on the grounds of pregnancy in relation to the December 1998 male promotions (the first round of promotions) at a meeting held with Peter Ward on 8 March 1999. At that meeting he offered her the opportunity to defer her return to work from the appointed day, 1 April. She took up that offer and it was arranged that she would return in August. The Employment Tribunal noted that on 1 January 1999 her salary was increased to £45,000 and she later received a £30,000 bonus.
8. During the remainder of her extended maternity leave, the partners, together with Helen Morris, the Financial Controller and Company Secretary, discussed the creation of 2 further senior management positions, they being Senior Manager London Financial Services and Senior Manager Permanent Industry London (The second round of promotions). They appointed, respectively, Matthew Johnson and Mark Freebairn to those posts, informing the Appellant of that fact on 8 July 1999, just before she went on annual leave and before her return to work on 2 August.
9. Following her return to work a meeting took place between Mr Wright, a director, Mr Ascough and the Appellant concerning a re-organisation of working practice whereby instead of there being one manager for the Temps team and another for the Permanent staff team each manager would control half the territory, covering both temporary and permanent staff recruitment. She was told that she would be a preferred candidate for an opportunity to develop an interim management recruitment business. Asked if this would be a promotion, she was told by Mr Wright that the detail of the reporting line had yet to be decided. Further, that the current senior managers would soon be known as directors, but the new position proposed for her would not be on that level. She reiterated her dislike of reporting to Mr Ascough, rather than to a partner direct.
10. Further meetings then took place on 4 and 7 October and on 8 October the Respondent received her Originating Application, presented in these proceedings on 7 October.
11. On 1 December the Appellant took up her new post as Interim Business Manager and on 28 February 2000 she resigned from the employment.

The Employment Tribunal Decision

12. It was contended on behalf of the Appellant that the Respondent's failure to promote her in either the first round or the second round amounted to unlawful sex discrimination, such failure being on the grounds that she was pregnant/on maternity leave. If that was a significant factor in the Respondent's decision to promote men rather than the Appellant discrimination is made out. Further, it was contended that such failure on 2 separate occasions amounted to a practice or policy of discrimination, such that her complaint was in time in respect of the December 1998 round as well as that in July 1999.
13. The Employment Tribunal considered each promotion round. They found:

(1) that in the first round Mr Ascough was the more polished managerial candidate, observing both him and the Appellant as witnesses and considering their respective CVs. The Employment Tribunal could understand why the Respondent was attracted to him in preference to the Appellant on merit. Her lack of experience with permanent recruitment told against her in that competition. Mr Moran was preferred for the London post because he had substantial marketing experience. They concluded that sex had nothing to do with these appointments. They were made on ability and suitability for the job. The Employment Tribunal also took into account the Respondent's record on female advancement in the Company, particularly Helen Norris, who had been taken on as Financial Controller in early 1999 and was appointed Financial Director and Company Secretary when the business was incorporated in November 1999. All this despite their finding that the Respondent's selection process was hopelessly inadequate; there no interviews before these internal promotions were made and no notes of the selection process. Documents produced to the Employment Tribunal purporting to show how the appointments in both rounds had been made had been created after the Appellant's Originating Application had been served and, whilst not misstating the position, were characterized by the Employment Tribunal as self-serving.

(2) As to the second round, Mr Johnson was the natural choice, by virtue of his investment bank experience, for the post of Senior Manager London Financial Services. As to the post of Senior Manager Permanent Industry London, the Employment Tribunal accepted that there were realistically 3 candidates; the Appellant, Frances McCutcheon and Mark Freebairn for that post. The Employment Tribunal were impressed by the evidence of Helen Norris, who had been involved in the second round of promotions. They accepted that had the Appellant's gender or maternity leave played any part in those promotions she would have stood up strongly against such an approach. The Employment Tribunal accepted the Respondent's evidence that Mr Freebairn was the preferred candidate because of his relevant experience in the permanent recruitment side of the business, as opposed to the Appellant's on the temporary side.

14. In short, as the Employment Tribunal saw it, the promotions were made wholly on merit without regard to sex. The Employment Tribunal was satisfied by the Respondent's evidence and explanations.
15. Finally, as to the question of limitation, the Employment Tribunal found that there was no policy of a discriminatory nature operated by the Respondent, accordingly the complaint was out of time so far as the first ground in December 1998 was concerned. They considered whether it was just and equitable to extend time but held that it was not, particularly as the Appellant had received legal advice before her meeting with Mr Ward on 8 March 1999. As to her contention that she had deferred commencing proceedings to preserve her job, the Employment Tribunal observed that that did not prevent her starting proceedings in relation to the second round within time and whilst she was still employed by the Respondent.

The Appeal

16. Mr Oudkerk submits that in reaching their conclusions in this case the Employment Tribunal failed to take into account relevant factors and took into account irrelevant factors and in so doing failed to consider matters raised by the Appellant in support of her case that here the Respondent was guilty of conscious or sub-conscious discrimination. See Anya v University of Oxford [2001] ICR 847.
17. First, he submits, based on the Court of Appeal decision in Marks & Spencer Plc v Martins [1998] ICR 1005, that, at paragraph 34 of their reasons, the Employment Tribunal have impermissibly themselves "interviewed" the Appellant and a successful candidate, Mr Ascough, and have found that the latter was a 'more polished managerial candidate', elsewhere describing the 4 successful male candidates as having the 'overall rounding' not possessed by the Appellant (reasons paragraph 41). Further that the Employment Tribunal took into account a criterion other than those put forward by the Respondent and therefore an irrelevance, that is a consideration of the CVs of the Appellant and Mr Ascough.
18. In our view the position here and in Martins is not truly analogous. In Martins the Employment Tribunal substituted themselves as interviewers for the Respondents and went on to find that the Applicant was a suitable candidate for the post in that case, (page 1019H-1020B; per Mummery LJ). In the present case, reading the Employment Tribunal's reasons as a whole, they accepted the Respondent's evidence that the male candidates succeeded on merit and the Employment Tribunal, in reaching that conclusion, took into account their own assessment of those candidates and the Appellant from what they had seen in the witness box. That, in our view, was a permissible approach in the circumstances of this case. See Nagarajan v London Regional Transport [1999] ICR 877, 896G, per Lord Steyn.
19. Secondly, Mr Oudkerk submits that the Employment Tribunal was wrong to find that the documents put forward after the event by the Respondent to show how the comparisons between candidates for the posts were made, the self-serving documents as the Employment Tribunal described them, were irrelevant. They ought to have considered a point made below by Mr Oudkerk, and indeed recorded by the Employment Tribunal at paragraph 25 of their reasons, that at one stage the comment appears, in relation to Mr Ascough "the whole team sorry to lose him". That could not have been a factor at the time of his appointment on 14 December 1998.
20. We cannot accept that submission. Plainly the Employment Tribunal had in mind that those documents post-dated the event. They said so. However, at paragraph 37 of their reasons, the Employment Tribunal find that those documents did not misstate the position. Thus they were irrelevant as documents because they were not contemporaneous. However, the Employment Tribunal accepted that the contents reflected the Respondent's thought processes at the time, subject to the post-event comment to which we have referred.
21. Next it is said that the Employment Tribunal failed to consider the Appellant's case on the reference to the Appellant's 'strong emotional reactions' in the Respondent's response to a Sex Discrimination Act questionnaire served by the Appellant. Again that point is specifically mentioned in the Employment Tribunal's summary of Mr Oudkerk's submissions at paragraph 26 of their reasons. It is true that the Appellant was pregnant at the time of the events in question, particularly her outburst at the partners meeting on 14 December 1998; but it was also a correct description of her behaviour on that occasion on the Employment Tribunal's findings of fact (reasons paragraph 33). We cannot say that the Employment Tribunal failed to make the necessary factual findings and deal with the point in arriving at their conclusions.
22. Nor are we persuaded that, at paragraph 32 of their reasons, the Employment Tribunal failed to appreciate the Appellant's case that, on their own admission, the Respondent urgently needed the senior managers appointed in the first round in place. What the Employment Tribunal there found was that was part of a long-term strategy and that the Appellant's then expected 3 months absence had no effect on the selection. From that we infer that, in the Employment Tribunal's view, if the Respondent had decided that the Appellant was the best person for the job that would not have put them off appointing her because she would be absent on maternity leave for the next 3 months. That is a finding which was open to them.
23. Finally, Mr Oudkerk refers to the Employment Tribunal's observation at paragraph 36 of their reasons that "They (the Respondent) had a large number of female employees in their business." That really is a case of taking one sentence in the Employment Tribunal's reasons, out of context. The Employment Tribunal, in that paragraph, stated their view that, insofar as it helped them, that the Respondent had a generally good record of even-handed treatment of male and female staff. Particular reference was made to Helen Norris, a woman who held a more senior position that any of the 4 male senior managers. It was a relevant, although not determinative factor in their overall consideration of the case.
24. More generally, we have taken particular note of the judgment of Sedley LJ in Anya. There, the Employment Tribunal fell into error by not making findings of fact on and considering the effect of those findings on the Appellant's case that a member of the interviewing panel had an animus against him on the grounds of his race. That is not this case. It was, in our view, a strong circumstantial case of discrimination. The Appellant was absent or about to go absent on maternity leave at the time of these promotion rounds. The Respondent's procedures were wholly unsatisfactory as the Employment Tribunal found. It required a good explanation from the Respondent. The Employment Tribunal heard the evidence over 6 days. They accepted the Respondent's explanation, that the male candidates were selected purely on merit. That was a judgment for the Employment Tribunal to make, having considered all the points made by and on behalf of the Appellant. We can find no error of law in their approach.
25. It follows therefore that the appeal fails on the substantive grounds advanced. It must equally follow, as Mr Oudkerk accepts, that the question of limitation in respect of the first round of promotion is thus rendered moot in our judgment. Accordingly, we must dismiss this appeal.