United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR I GATT (of Counsel) Instructed By: Colman Coyle Wells House 80 Upper Street London N1 0NU
For the Respondent	MS S McKIE (of Counsel) Instructed By: Kay Georgiou 15-16 Guildford Street London WC1N 1DX


 


MR JUSTICE WALL:

1. In this appeal, Colman Coyle (the Appellants) who are a firm of solicitors, appeal against that part of the decision of the Employment Tribunal held at London (North) on 9-11 February 2000 and promulgated on 23 February 2000 by which the Tribunal decided that Mrs Zacharoulla Georgiou (the Respondent) had been unfairly dismissed by the Appellants. The Tribunal also decided that the Respondent's claim of sex discrimination against the Appellants failed and should be dismissed. The Respondent cross-appeals against that decision.
2. At a directions hearing on 14 October 1999, the issues between the parties were identified as follows:

"(1) was the [Respondent] discriminated against because of her gender and/or because of her pregnancy?

(2) was the [Respondent] treated less favourably than a man would have been treated in the same circumstances? and

(3) was the [Respondent] constructively dismissed? Was there a fundamental breach of the contract of employment on the part of the [Appellants] and what was the nature of that breach and, if so, did the [Respondent] resign because of that breach?"

3. The facts of the case are important, and need to be set out in some detail. The Respondent qualified as a Solicitor in October 1993. On 1 August 1996, she joined the Appellants as an Assistant Solicitor. She worked in the Commercial Conveyancing Department.
4. In May 1997, following a merger, Gary Wighton joined the Appellants as a Consultant in the Commercial Conveyancing Department. In March or April 1998 the Respondent told Mr Wighton that she was pregnant, and on 3 July 1998 she went on maternity leave. It is common ground that she intended to return to full-time employment with the Appellants on 1 December 1998 at the end of her leave.
5. In the meantime, on 1 June 1998 John O'Donovan had begun work as an Assistant Solicitor with the Appellant to provide cover for the Respondent during her maternity leave.
6. The Respondent's child was born on 28 July 1998. This was her second child.
7. On 13 November 1998 the Respondent had a meeting with Mr Wighton and Mr Coyle, the Senior Partner in the firm. Her case is that she said she could not return to work full-time, and that she wanted to work on a part-time basis. The Appellants say that she told them she could not return to full-time work at present because her father (who was one of the children's carers) had had an operation that summer and was only just recovering. According to the Appellants, she asked to work on a part-time basis for only a short period whilst her father recovered. The Appellants say they agreed to this and arranged for the Respondent to perform a specific task of preparing a Commercial Property precedent bank for the Appellants. The Respondent says it was agreed that she could work three days a week in the office and two half days at home.
8. In any event, on 1 December 1998 the Respondent began working part-time. She spent one full day a week in the office, and worked four half days at home. At the beginning of January 1999, this pattern changed. The Respondent worked three days in the office and two half days at home. Her case is that this was satisfactory to the Appellants.
9. On 2 February 1999, the Respondent was told by Mr Wighton that the arrangements were not satisfactory, and that the partnership found it unacceptable that she worked at home part-time. She was told she would have to work in the office five days a week. The task of preparing the precedent bank was coming to an end, and Mr O'Donovan was not generating the fee income required.
10. The Respondent explained that her problems with childcare arrangements were continuing, and that it had been her intention to have her baby looked after by her parents and her parents-in-law. However, her father, who had undergone surgery, remained unwell although at that stage he was getting better. She said he would be able to take over childcare when he was recovered.
11. The Respondent says that on the following day she was told by Mr Wighton that she had to work five days a week in the office in order to deal with urgent instructions, to see clients who arrived without appointments and to make sure that she generated sufficient fee income. She further says that Mr Wighton told her that clients would not like it if she was not in the office full-time; that she would be an added expense to the partnership; and that if she continued working as she had been doing, it would set a precedent for other employees with children. Mr Wighton denies saying that.
12. The Respondent's case is that she was pressed to give a date for her full-time return to work, and she indicated that she could return to full-time work in September 2000. She says Mr Wighton informed her that this was unacceptable and that the partnership wanted her back by 1 May 1999. The Respondent indicated that this was not possible.
13. There then followed a number of discussions between the Appellants and the Respondent in an attempt to accommodate her child-care difficulties in order to enable her to work full-time or to undertake alternative work on a part-time basis. At a meeting on 16 February 1999 between the Respondent and Georgina Kyriacou (the Appellants' staff partner) the Respondent was told that her suggestions of a job share or morning only working in the office were not acceptable. The Respondent explained that she could not endure the pressure of working in the office five days a week.
14. On 17 February 1999, Mr Wighton suggested to the Respondent that she should work one day a week in the office developing leasehold enfranchisement work only, building up to five days a week over the 18 month period to September 2000.
15. On 19 February 1999 the Respondent had another meeting with Mr Wighton and Mrs Kyriacou. The Respondent made an attendance note which reads as follows:

"4.00 pm. Meeting with Georgina and Robert.

Robert said working full time means full time in the office. As a separate proposal the partners were prepared to allow me to work one day a week building up to 5 over 18 months on the condition I resign, go on holiday for 3 weeks and return under a new contract of employment. There will be a break in my employment. The reason for this is because they have a business to run and did not want me to turn around in 6 months' time asking for a 5 day a week job.

I said I would think about it."

16. On 23 February 1999 the Respondent made a further attendance note of a conversation which she had had with Mr Wighton in the office.

"We discussed the proposal that I resign and am then employed one day a week to build up the leasehold reform department. The reasoning behind my resigning is that the partners do not want to be in a position where I can demand to work 5 days a week in the office. They will need to make other arrangements to take on another solicitor to carry out the work I was doing and they do not want to make a commitment to someone else unless they are certain I cannot turn around in 6 months' time and ask for my job back.

I explained I felt insulted and offended at the suggestion I should resign. The whole point of our discussions over the last few weeks was because I could not, until September 2000 at least, work in the office on a full-time basis. I said that I would not resign for the simple reason I would be losing any employment rights I may have. Looking at it from my point of view there was no guarantee that there would be a job for me when I return under my new contract. I said that I would not be demanding my job back in 6 months time. He said if there is no work under their proposal whether or not I have continuity of employment I would be looking at a redundancy situation … [illegible].

We discussed the type of work I would be doing under the new contract. The work would be to complete existing instructions on leasehold reform matters and dealing with new enquiries. Gary estimated that there is 1 day a week's work in the office. The days I worked would increase in line with the increase in volume of work. Gary explained that the partners agreed my working 1 day a week. I said that if I am to expand the department I will need 2 days in the office, 1 day to do the work and 1 day to market the department. He could understand why I need 2 days. The plan was that I would build up the work over an 18 month period so in September 2000 there is a full-time work load for me.

Gary said he would discuss 2 days with the partners and I would consider a way around my having to resign. I reiterated the proposal for me to resign was unacceptable and if I were asked to leave I would almost certainly take legal action against the firm."

Beneath this attendance note there is a further note marked "xx":

"Under the new proposal I would do leasehold reform work only and not any conveyancing work at all. I said that most of the commercial work I have done is not time critical and there is no reason why I should not do it. Gary said no. The proposal was for leasehold reform work only and under no circumstances would I do commercial work."

17. On 24 February 1999 Mr Wighton had dictated a letter setting out the Appellant's proposals for the Respondent's employment which he hoped to discuss with her on the following day. Unfortunately, the Respondent was unwell, and immediately after that Mr Wighton went on holiday. The Respondent, however, obtained a copy of the letter and on 6 March 1999, the Respondent and Mr Wighton met to discuss its terms.
18. The letter made it clear that the Respondent was changing jobs in order to build and develop the work involving leasehold enfranchisement. She was to work one day per week in the office from 9:00 am to 5:30 pm: she was to have no right to insist on working any additional days and her contract of employment was deemed to be varied in this respect. The Appellant was, however, to be entitled to request her to increase the number of days worked in the office on giving not less than 14 days prior notice. Her salary was to be at the current rate reduced pro rata: she was to have four days paid holiday per year and the arrangement was to start on 8 March 1999.
19. Critically, the letter contains the phrase "Subject to the above continuity of employment is maintained". In other words, the Appellants had re-thought the suggestion that the Respondent should be required to resign and be re-employed, a sequence of events which would have deprived her of her rights in relation to continuity of employment.
20. The Respondent made it clear at the meeting she had with Mr Wighton on 6 March that the proposal in the letter of 26 February 1999 was not acceptable. She said that she had no alternative but to resign, and that she would complain of constructive and unfair dismissal and sex discrimination. On 12 March 1999 the Respondent wrote a long letter to Mrs Kyriacou, setting out her version of events. Mr Gatt for the Appellants makes the point that nowhere in that letter does the Respondent rely upon the proposal that she should resign and be re-employed as a fundamental breach of contract fatally damaging the trust and confidence between herself and the Appellant.
21. The Respondent's IT1 was issued on 4 May 1999. Once again, there is in this document no specific reference to the proposal that the Respondent should resign and be re-employed; the only possible reference is a somewhat delphic phrase:

"Robert [Coyle] told me I could work one day a week in the office developing leasehold enfranchisement worked increasing to 5 days over 18 months terminated my contract of employment (sic)."

22. In her statement prepared for the Tribunal, which is of course her evidence in chief, the Respondent says in paragraph 15-17:

"15 There was a further meeting on 19 February 1999, attended by myself, Robert Coyle and Georgina Kyriacou. … . Robert told me I had one of two options. He said that working full-time meant full-time in the office. Or as a separate proposal I could work one day a week in the office developing leasehold enfranchisement worked increasing to 5 days over 18 months provided I terminated my current contract of employment, leave for three weeks and then return under a new contract. Mr Coyle said that this was the way forward.

16 On 22 February 1999 I was working at home. Gary phoned me for an update on the meeting I had with Georgina and Robert on Friday. I said that Robert said my working less than 5 days in the office was conditional on my terminating my contract of employment. …

17 On 23 and 24 February 1999 Gary and I discussed his proposal that I work 1 day a week in the office developing the leasehold enfranchisement work only. I explained my concerns regarding the partnerships' insistence that I should resign. On 24 February 1999 he said he would formulate a letter containing his proposals for my consideration."

23. We have the Chairman's notes of the Respondent's cross-examination. She was cross-examined on the reasons for her decision to resign. She said she decided to resign after the meeting on 8 March. She is recorded as saying

"The reason was there was no alternative but to resign. I had only two options. Five days or one day which was unworkable … . Terms were unacceptable. It was not a proposal. Gary was expecting me to sign the letter. Mrs Kyriacou had said that it was a proposal. I disagreed. I resigned at the time. I was under stress. I sought legal advice after I resigned."

24. The reason we have set out in such detail the Respondent's position in relation to the circumstances in which she came to leave her employment with the Appellants is that, of course, the finding of the Tribunal was that she had been constructively and unfairly dismissed. The Tribunal dealt with the matter in this way:

"61 Whilst negotiations were going on regarding this [the context makes it clear that this 'means the negotiations for the variation of the Respondent's contract'] the [Appellants] proposed a form of employment requiring her to resign from her previous employment and to take up employment with them on new terms. This had an ulterior motive of preventing the [Respondent] from benefiting from her employment rights. The evidence for this was from Mr Coyle and Mrs Kyriacou and also that they tried to impose a three week break in her employment to ensure that the rights would be terminated.

62 The [Respondent] realised that this was the basis of the proposal and even though the [Appellants] later withdrew that term and accepted that there would be continuous employment, the damage had already been done and the trust and confidence in the employer had been compromised. Following that, the [Appellants'] proposal as set out in the terms of 25 February that the [Respondent] should only work one day a week and that she could not demand a second day amounted to the fact that the [Respondent] felt that she would never regain her commercial property work of five days a week.

63 The [Appellants] admitted that the reason for the imposition of that condition in the variation, was that in case she did not succeed in building up the leasehold enfranchisement department, they would be able to terminate her employment. This is so even though Mr Wighton had tried to convince the [Respondent] that the one day a week was only a temporary measure and if she developed the department she would be working for five days a week by September 2000.

64 It is clear that by 8 March all trust and confidence by the [Respondent] in the [Appellants'] attitude and proposals had gone and felt she could not rely on their proposals with any certainty. She was therefore entitled to resign and leave her employment as there had been a fundamental breach of the term of her contract entitling her to leave within section 95."

25. The first point which Mr Gatt takes is that to establish constructive dismissal on the basis of a fundamental breach of contract committed by the employer, the employee must resign in response to that breach. He submits, accordingly, that on the facts, the Tribunal was perverse to find, as it did, that the Respondent resigned as a consequence of the proposal that she should resign and be re-employed under a fresh contract. He points to the fact that the proposal – for this purpose assuming it to qualify as a fundamental breach – had been withdrawn, and that the letter which provoked the Respondent's resignation expressly said that the offending condition had been withdrawn. The Respondent, he argued, plainly did not leave in response to that proposal made by the Appellant.
26. We think this submission well founded. It also seems to us clear from the evidence before the Tribunal that, contrary to its finding, if the Respondent had been able to negotiate a return package which was suitable to her needs, she would have returned. The whole tenor of the negotiations, in our view, does not indicate that there had been a breakdown in mutual trust and confidence: rather that the parties were unable to negotiate terms which were mutually satisfactory.
27. We also entertain some doubt about whether or not the proposed term requiring the Respondent to resign was as unsavoury as it first appeared. It is, in our view, significant that when the proposal was first outlined to the Respondent (see her attendance note set out at paragraphs 15 and 16 above) the Appellants were "up front" about what they were proposing, and made it clear that, in commercial terms, they could not warrant committing themselves to a further employee if the Respondent was likely to return to reclaim her job.
28. Whilst, accordingly, we quite see that a proposal that an employee resign might in other circumstances represent an anticipatory breach of contract (and even might have been so here had the Respondent's immediate response been to have resigned as a consequence of the proposal being put to her) nonetheless, on the facts of this case (a) the Appellants were quite open about why the proposal was being put forward (b) it was promptly withdrawn when it was objected to and (c) the Respondent did not resign in consequence of it. These factors, in our view, are fatal to the proposition that the proposal was an anticipatory breach of contract upon which the Respondent can rely in order to allege constructive dismissal. It follows, in our judgment, that the finding of constructive dismissal is, as a matter of law, fatally flawed and cannot stand.
29. Mr Gatt also makes the point – as the lengthy extracts from the papers make clear – that constructive dismissal based on the proposal that she resign was not the way the Respondent was putting her case. She was claiming unfair dismissal based on sexual discrimination and a course of conduct by her employer which had wholly destroyed the trust and confidence of the employment relationship. As Mr Gatt put it, constructive dismissal based on fundamental breach was something of a "late runner".
30. Miss Suzanne McKie, on behalf of the Respondent, make a valiant attempt to support the Tribunal's decision, although she was in the difficult position that her case in relation to the cross-appeal was that there had been a wholesale failure by the Tribunal to consider relevant evidence. Her submissions, however, essentially boiled down to the proposition that, given the admitted motivation behind the suggested break in continuity of employment, it was reasonable for the Tribunal to conclude that there had indeed been a breakdown of trust and confidence, and that matters had gone too far to be retrieved. The fact that the proposal to break continuity of employment was not acted upon by the Respondent before it was withdrawn was "a red herring". Miss McKie submitted that the attitude and intention of the Appellants – namely a willingness to consider undermining the Respondent's employment rights – were clear to the Respondent. She also submitted that the written submissions produced on behalf of the Respondent below recorded the assertion that the proposal as to the break in continuity of employment, and the leasehold enfranchisement option were reasons for her resignation; and that these matters were also recorded in the Notes of Evidence of the Chairman. She relied on the Tribunal's finding that the Respondent found the prospect of resigning "an affront" when she first heard of it, and also that the Tribunal recorded the Respondent's reaction as feeling "discriminated against".
31. In our view, none of the arguments advanced by Miss McKie are sufficient to meet the objection made by Mr Gatt. Even if this was a potential anticipatory breach (which on the facts found by the Tribunal we doubt) it was not a breach, in our judgment, on which the Respondent relied. It had been withdrawn some time before the Respondent's resignation, and as we have already made clear, our understanding of the negotiations is that they would have been successful had the Respondent been able to achieve more favourable terms.
32. Accordingly, the appeal against the first finding by the Tribunal, namely that the Respondent was unfairly dismissed by the Appellants will be allowed, and the Tribunal's decision in this respect set aside.

The Cross-Appeal

33. The allegation of sex discrimination in the Respondent's Form IT1 is that the Appellants

discriminated against her by refusing to accommodate her need to work part-time and had subjected her to detriment because of her absence on maternity leave. The Tribunal, having set out the terms of section 1(1)(a) and (b) of the Sex Discrimination Act 1975, went on to ask three questions, namely: (1) had the Appellants imposed a requirement or condition on the Respondent? (2) When did they apply the condition? And (3) was the requirement applied to others? It went on to conclude (1) that the Appellants did impose a requirement or condition namely that the Respondent should work on a full time basis; (2) that "the proportion of women who could comply with the condition or requirement at the material time was considerably smaller than the proportion of persons in the pool", and (3) that this was to the Respondent's detriment.

34. This left the requirement under section 1(d)(ii) that the requirement or condition was one which the Appellants could not show to be justifiable, irrespective of the sex of the person to whom it is applied. On this point, the Tribunal found against the Respondent. Having correctly directed itself on the basis of Hampson v Department of Education & Science [1989] IRLR 69 the reasons continue:

"55 … So we have to consider [the Appellants'] evidence to objectively decide balanced with the disadvantage of [the Respondent] losing her job. From the evidence of Mr Wighton and Mr Coyle we accept that there was:

(1) A need for two full-time solicitors working in the office. This was a small office and [the Respondent] was a very effective commercial property solicitor. Mr Wighton needed to promote the firm and to market the department and although he was able to provide cover for a short time during [the Respondent's] absence we accept that he could not carry on to cover on long term basis i.e. till September 2000.

(2) The question of clients is always of importance in the solicitor's office. We except (sic) that commercial clients expect a quick and efficient service and require access to the person dealing with their matter promptly.

(3) The work involved looking at files and title deeds and there is difficulty in copying documents to send to someone at home and making sure that files are not lost and documents not mislaid. Although modern technology allows for documents to be scanned it is time consuming to set up such an operation.

(4) A certain amount of supervision of [the Respondent's] work was required and [the Respondent] herself has stated that she referred certain matters to Mr Wighton.

56 From the evidence we conclude that the requirement that [the Respondent] worked full-time was justifiable. We accept that her fee income would have been reduced if she had worked part-time and that would have an effect on the profitability of the firm.

35. The question is whether the Tribunal erred in law in deciding that the Appellants had discharged the burden of establishing justification. As we have already indicated, Miss McKie's attack on the Tribunal's decision that the Respondent's claim of sex discrimination failed was based primarily on the failure by the Tribunal to take into account and make findings about material parts of the evidence. Miss McKie accepted that the Tribunal correctly directed itself by reference to Hampson v Department of Education & Science which, although it had been qualified to a degree was, in essence that: "if there is a prima facie discriminatory situation, clear and cogent reasons must be given to justify it" (per Lord Johnston, Lord Chancellor and Lord Chancellor's Dept v Coker & Osamor [2001] IRLR 116).
36. Miss McKie's criticisms of the Tribunal's findings are set out in great detail in her skeleton argument. We set out below a substantial extract below. Answers to the issues raised in the cross appeal were set out by Mr. Gatt in his skeleton. Both were developed in oral argument. It is plain that some of the issues raised were not dealt with by the Tribunal. The best example is the argument that the Tribunal failed to consider evidence that a similar size firm had offered the Respondent part-time work in the same position as a commercial property solicitor. This went, of course, to the Tribunal's finding that there was a need for a full time assistant solicitor in the Appellants' commercial property department. To that, Mr. Gatt counters that the firm was not truly comparable, that the Respondent did not accept the offer, and that this aspect of the case was not relied upon by the Respondent in closing submissions before the Tribunal.
37. Miss McKie also criticised the Tribunal's finding of fact that "Commercial clients expect a quick and efficient service and require access to the person dealing with the matter promptly". She argued that it was not disputed that the Respondent had offered to work three days a week in the office and two half days at home and that she could be connected and contactable with the use of modern technology.
38. Miss McKie continued with the following complaints, which we take from her skeleton argument:

"15 … The tribunal stated in paragraph 38 of the decision that the modern technology [the Respondent] had proposed could be used by her at home was not confirmed in writing. This determination appears to have played some part in the tribunal's decision. However, it was plainly wrong as the proposals were set out in writing by [the Respondent] and referred to [the Appellant]. The document was drawn to the attention of the tribunal during the course of the evidence. At no point in its decision does the tribunal properly consider the effect of these proposals on the possibility of efficient and acceptable part-time or home working.

16 In determining the need of the commercial clients, the tribunal failed to take into account the following evidence given by [the Respondent] during the course of the hearing:

(a) That the vast majority of clients in the past had access to her by way of appointment only and would not simply 'drop in'. As such there is no reason why the appointment system could not have continued in the same way as before in order to deal with access to commercial clients, that is on the three days a week [the Respondent] would be working in the office.

(b) That the only urgent instructions she received related to auction work which was a limited part of her workload (a matter she was not challenged on).

(c) That [the Respondent] could have documents couriered to her home, if necessary.

(d) That she routinely copied documents to take home and work on even when working full-time. There was no evidence on which the tribunal could reasonably conclude that there was a real concern about possible loss of documents if [the Respondent] worked from home.

17 The fact that [the Respondent] was very effective as a commercial property lawyer (mentioned as seemingly relevant by the tribunal in paragraph 55(1) of its decision) is irrelevant to whether or not the condition imposed can be objectively justified. The fact that the profits of the firm may have been affected in mentioned by the tribunal as a relevant matter … but the tribunal failed to take into account the evidence [the Respondent] gave to the effect that she would still be able to produced figures very close to those she had always produced on a full time basis, which was part of the documented business proposal she put forward. … The figures produced before the tribunal also showed that the profits made by the firm would not be much different on the basis of 4/5ths work. In any event such consideration must be irrelevant as the option of finding another part-timer was always open to a commercial organisation such as [the Appellant].

18 The tribunal failed to take into account the important consideration that [the Appellant] had done nothing to investigate the possibility that [the Respondent's] proposals for part-time/home work might work well in practice.

…

20 The tribunal relies on the suggestion that [the Respondent] required a certain degree of supervision … as being relevant to the condition of full time work being justified. The tribunal decision does not suggest that the tribunal considered that [the Respondent] would be in the office three days a week which should allow for sufficient supervision of such a senior lawyer. On the basis of the tribunal's assertion no assistant solicitor should ever be allowed to work part-time.

21 The tribunal also relies on the fact that Mr Wighton would be spending much of his time marketing and refers to the fact that the department required one other full time lawyer. The tribunal has seemingly ignored the undisputed evidence before it that the firm had one other lawyer already working in the commercial property department as at the time of [the Respondent's] resignation (Mr O'Donovan, who gave evidence to the tribunal that he'd been given a permanent contract of employment by the firm at that time). Mr O'Donovan had 17 years experience. The presence of Mr O'Donovan is not mentioned at all in the tribunal's reasons on justification which is suggestive of a failure to understand the actual position the firm found itself in at the time of the imposition the condition that she work full time.

22 Further, although the tribunal makes reference to the suggestion made by [the Respondent] of a job share the tribunal does not consider this as part of its determination in relation to justification.

23 The fact that [the Appellant] offered [the Respondent] (as the alternative to full time office work) an option of one day's work a week takes the matter no further, as the tribunal itself holds."

39. We have, of course, considered these submissions with care, and we have some sympathy with Miss McKie's argument that the reasoning of the Tribunal is at places unclear – a complaint also made by Mr Gatt. However, we remind ourselves that the matters complained all relate to issues of fact and evidence which it was for the Tribunal to accept or reject. It is not for the EAT to pore over the Tribunal's findings, or dissect their various nuances. The questions are: was there material upon which the Tribunal could properly reach its decision? In reaching that decision has it either overlooked something of sufficient importance for us to be able to say that its decision is thereby vitiated? Alternatively, has it taken into account something of significance which it should not have done, and which likewise is of sufficient importance to vitiate its decision?
40. In our judgment, the Tribunal's findings on this aspect of the matter, whilst somewhat skeletal, are sufficient to justify the conclusion to which it came. The fact that it does not refer to the comparator does not seem to us of crucial importance. The Tribunal was, plainly, entitled to accept the evidence of the Appellants' witnesses on these aspects of the case, and clearly did so. It was entitled to take a robust, down to earth view. It decided, in effect, that the Appellants needed the Respondent, or a solicitor of either sex with her qualifications, to work full time. That is a conclusion to which, on the evidence, it was entitled to come.
41. During the course of its recitation of the facts, the Tribunal gives quite detailed descriptions of the issues in dispute between the parties and whilst – as Mr Gatt pointed out – a number of mistakes are made, we accept his submission that the Tribunal plainly had the material upon which it could make the findings of fact it did make under the heading of "Justification". No doubt, it would have been preferable had the Respondent's evidence been – at least in summary form – set out under the same heading, but as Mr Gatt pointed out, it is not necessary for every item in dispute to be specifically identified in the Tribunal's reasons. What matters, we think, is that the main thrust of the evidence on this part of the case has been identified by the Tribunal, and that the Tribunal has made findings of fact which it was entitled to make.
42. In our judgment, both propositions are satisfied here, and, with great respect to Miss McKie, we do not think that either collectively or individually the issues set out in the notice of Cross- Appeal or her skeleton argument are sufficient to fall foul of the test set out in paragraph 39 above. In these circumstances we do not think it is necessary to deal one by one with her arguments on the facts.
43. It follows that the Respondent's cross-appeal fails. The appeal will be allowed and the decision of the Tribunal that the Respondent was unfairly dismissed set aside. The cross-appeal will be dismissed, and the Tribunal's finding that the Respondent's claim of sex discrimination failed will stand.