United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOEL DONOVAN Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE ALTMAN

1. This is an appeal from the decision of the Employment Tribunal sitting at Hull on days in September 2000 and it comes before us by way of preliminary hearing to determine whether there is a point of law arguable in full before the Employment Appeal Tribunal.
2. We are enormously indebted to Mr Donovan who has attended here without any fee, under the ELAAS Scheme, as I have no doubt is the Appellant herself for lending his very considerable experience and expertise to the presentation to this appeal and his contribution has assisted us enormously.
3. The appeal, as formulated in the Notice of Appeal, is in many respects not proceeded with but there remain three matters that are argued. The first two deal with the proposition of law that the Employment Tribunal failed to consider and apply the questions of law as to whether or not there was a detriment and whether or not there was discrimination on the ground of sex, in relation to two matters and also the argument that it is impossible to determine from their reasons what their conclusions in relation to those matters were
4. The first relates to the many different ways in which the Appellant's job was described in job titles, associated with the complaint that most of them tended to, as it were, down-grade her job title. It is said that the Employment Tribunal failed to show why it was discriminatory and that their reasoning in this matter was very compressed.
5. In paragraph 2(e) of the decision the Employment Tribunal analyse in some considerable detail their findings of 16 different ways in which the Appellant's job title was described. They then go on in paragraph (g) to refer to the fact that the Appellant focused on the fact that her references did not refer to her as Senior Technician when she was discussing matters with her employers towards the end of her employment and that a comparator, Mr Potter, was then referred to.
6. It is argued that the comparator was rejected for no apparent reason but in paragraph 8 of their reasons the Employment Tribunal point out the job title that Mr Potter received when he joined and that, when he received an increase in pay, his job title changed and they found that the position was not comparable to the Applicant.
7. Whilst it is compressed, it seems to us that those are findings of fact and conclusions on the facts that there was no comparable position; conclusions to which the Employment Tribunal were entitled to come and although the contrary conclusion of fact could readily be argued for, we find no arguable error of law in that respect.
8. The Employment Tribunal then went on in paragraphs 11 and 12 to deal with the complaints of sex discrimination regarding the job titles and they are very critical of the Respondent's "laxity" as they describe it in their use of job titles which they say was unsatisfactory.
9. The Employment Tribunal then rejected the proposition that this was evidence of a detriment to which the Appellant was subjected on the grounds of her sex and they elaborate upon that by pointing to the fact that it was general, regardless of sex, and that there was a need, in the Appellant's case, as the Tribunal found on the part of the Respondents, to avoid conflict with female technicians in the Science Departments, which led to the desire to avoid the job title Senior Technician, for which the Appellant was contending.
10. The Employment Tribunal then go on to deal with the fact that other titles were used, particularly using "administrative" and "assistant" as words which gave rise to the Appellant's concern. But they then reject those particular terms as giving rise to any discrimination on the grounds of sex and elaborated on the fact that they did not regard it as of significance, by referring to the gap in time between the time when the Appellant first knew that that was how she was described to the time, some 16 or so months later, when the issue was raised; and the Employment Tribunal rejected the complaints being raised at the end of her employment.
11. Mr Jordan says that that analysis does not do justice to the Appellant's complaint, but when one looks at the spread of the argument through the paragraphs to which we refer, we are driven to the conclusion that they gave reasons for their decision, which they were entitled to give in law, on findings which they were entitled to make in accordance with the evidence.
12. Whilst the Appellant may have wished for a different outcome or indeed a different outcome or interpretation of the facts may be argued for at first instance, we can see no error of law in that respect and we dismiss the appeal at this stage on that ground.
13. The other matter that is complained of is that the Appellant had said that she was omitted from Minutes, either in respect of showing her attendance at the meetings themselves or as being on the distribution list, and Mr Jordan argues that, properly approached, the Employment Tribunal could have done none other than conclude that that was a detriment. It was complained of specifically in the Originating Application and he says that on the findings of fact and the facts before the Tribunal, they erred in law in failing to conclude that there was a detriment and he criticises the compression of reasoning in paragraph 9 which deals with it.
14. The Employment Tribunal deal with it in the following terms. They say:

"This is clearly something of which the Appellant was aware in or about May 1998 and the first complaint made in respect of it was 17 February 2000. The Tribunal did not accept that there was any conscious decision to omit the Applicant's name from the heading of the Minutes of the meeting, which she attended. In any event we did not accept that such omission amounted to a detriment or that this was something that amounted to an act of discrimination. We consider that the Applicant imported a significance retrospectively to this aspect, which was entirely disproportionate to its importance in practice.

The lack of any conscious decision is a finding of fact and was clearly important in the Tribunal's mind and the factual significance of the actual omissions was dealt with, in effect, by the Tribunal adopting what they interpreted as being the Appellant's own assessment of the lack of importance of these matters and they came to that conclusion by referring to the lack of complaint between May 1998 and February 2000.

15. Whilst one may disagree with that conclusion, or at first instance argue that there were other conclusions to come to, we have come to the view that, succinct though that paragraph is, it contains arguments upon which the Employment Tribunal were entitled to reach the conclusion that they did.
16. We do not find that this case comes within that category of cases where one can say that there is an inadequacy of reason or of reasons or a proper analysis of the evidence, so as to enable a party to know why he or she has won or lost on a particular point.
17. However, the third matter, it seems to us, gives rise to an arguable ground of appeal and we suspect it may really have been the heart of the Appellant's grievance. In her Notice of Appeal on the third page there is a list of some 8 matters that she raised before the Tribunal. Number 1 referred to her being asked to bring forward her departure from the school's employment by 20 days without pay. Number 7 referred to her not being offered a full time position although one was available at the time her contract ended and it seems to us it is arguable that those issues were not addressed at all by the Employment Tribunal. The Respondents in their Notice of Appearance asserted that there was no full time contract available and that was clearly an important issue raised by the Appellant and it is arguable that it was not dealt with by the Tribunal at all.
18. So the ground of appeal, which effectively is that the Employment Tribunal failed to consider the Appellant's complaint that she was unlawfully discriminated against on the grounds of sex, by reason of first the way in which her employment ended and secondly in that she was not considered for any further employment goes forward to appeal and we permit the matter to go forward on that ground alone.
19. Of course, having said that we permit it to go forward on that ground alone, we cannot escape noting that if there is substance in that sense of grievance, it may well be that that is also some explanation as to why it was not until then that the Appellant looked back on the history of her employment and found matters to complain of which she had not previously complained of. It may be that the argument may still be available that there was evidence relating both to the inconsistencies in job title and to the omissions from the Minutes, which, it would be argued, the Tribunal should have considered in relation to the allegation of discrimination that we are permitting to be canvassed at the full hearing, but those matters do not occupy free-standing grounds of appeal on their own.
20. Accordingly this matter will go forward to appeal on that ground alone. We will list it for one day in Category C. Skeleton arguments must be furnished not less than 14 days before the hearing.