United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D OUDKERK (Of Counsel) Instructed by: Russell Jones & Walker Swinton House 324 Gray's Inn road London WC1X 8DH


 


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.
2. The substance of her complaint was that on 2 occasions she had been passed over for promotion, at the time of the first appointment she was pregnant and between the 2 appointments she was on maternity leave, by her employer, the Respondent which carries on the business of executive recruitment. The relevant posts were given to a man on each occasion, and she contended that in those respects she was treated less favourably on grounds of her sex.
3. In advancing the appeal Mr Oudkerk submits that the Employment Tribunal fell into error in taking into account irrelevant factors or in failing to take into account relevant factors when considering, given the difference in treatment and the difference in sex between the Appellant and her comparators, the explanation provided by the Respondent for that difference in treatment, which explanation the Employment Tribunal accepted, in particular

(1) the Employment Tribunal made their own judgment of the suitability of the respective candidates, cf Martins v Marks & Spencer Plc [1998] ICR 1005

(2) they substituted their own selection criteria for those used by the Respondent

(3) they failed to see any relevance in their own finding that documents produced by the Respondent to demonstrate their selection process were self-serving and did not show what they purported to show

(4) they failed to take into account the provisions of the Code of Practice to which they were referred

(5) they took into account an irrelevant consideration, namely the number of female staff employed by the Respondent generally, as opposed to women employed in senior positions such as those under consideration in those cases.

4. It seems to us that these are matters which ought to be argued at a full appeal hearing with the Respondent present.
5. There is a further point taken in relation to the Employment Tribunal's finding that the first appointment exercise complained of was out of time and that it was not just and equitable to extend time. Having heard Mr Oudkerk specifically on this aspect of the case we are persuaded that he should be permitted to argue the limitation point as well as the substantive points in the Appeal.
6. In those circumstances we shall direct that the matter proceed to a full hearing, marked for 1 day – Category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged at the same time at the Employment Appeal Tribunal.
7. There is an application on behalf of the Respondent for Chairman's notes of evidence. First, on the basis that this Appeal amounts to a challenge to certain factual findings by the Employment Tribunal. We do not understand the Appeal to be put in that way and certainly that is not the basis on which we have permitted it to proceed to a full hearing. Secondly, it is submitted that the Chairman's notes will be of assistance in the event that the appeal succeeds to allow the Employment Appeal Tribunal, if necessary, to affirm the Employment Tribunal's decision on the basis that it is plainly an unarguable right.
8. We think there is no realistic prospect that if the Appeal were to succeed the outcome would be other than for the matter to be remitted to a fresh Employment Tribunal for re hearing. In these circumstances we make no Order for the Chairman's notes of evidence.