United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR VINCENT KETER A Representative Consultant 55B Alexandria Road London W13 ONR
For the Respondent	MR MARTYN BARKLEM (Of Counsel) Instructed by: Messrs Colman Coyle Solicitors Wells House 80 Upper Street London N1 ONU


 


JUDGE PUGSLEY

1. The circumstances of the case are that the Appellant had in 1999 or thereabouts brought a case against the Respondents in which she had been successful. She had been awarded compensation of something over £100,000. There were appeals and cross-appeals. A Tribunal has reconvened to consider the issue of quantum but has not yet issued a decision.
2. The matter with which we are concerned was heard by the London Central Tribunal on 10 July 2001. The particular issue which occasioned the application was the fact that the Respondent refused the Applicant registration of the Central Register of Advanced Hypnopherapists. The Applicant was by that stage living in Australia and we have before us a copy of the statement that she made. She was at that stage represented by Mr Keter, Consultant who was the person who appeared before Lyndsay J and Mr Shrigley and Mr Singh when this matter was before the Employment Appeal Tribunal to identify whether or not there was an error of law. The Employment Tribunal reached a unanimous decision that the Applicant was not discriminated against on the grounds of her gender reassignment, pursuant to sections 1(1)(a), 2A and 13 of the Sex Discrimination Act 1975, as amended and therefore refused a review. The Chairman refused a late amendment of the IT1 to include victimisation.
3. The Applicant with her representative Mr Keter sought to amend the Notice of Appeal to include against the Employment Tribunal's refusal to allow the amendment of the IT1 after the decision had been promulgated to parties and after, of course, the hearing had been completed. But Lindsay P observed it was far from clear the Employment Tribunal has such power whatever to allow an amendment to an IT1 after the decision had been sent out but obviously if any such power did exist it would only be exercised and compelling in exceptional circumstances. We quote now from the judgment of Lindsay P at paragraph C of page 3 of the transcript:

"It seemed, to us, at first blush, that the reason why victimisation had not been included in the IT1 in the first place could only have been an oversight but Mr Keter assures us that it was a deliberate decision. That makes it even more difficult to countenance the possibility of amendment after sending out of the judgment. It seems to us that the Employment Tribunal could not possibly, on that ground, have permitted an amendment at so late a stage and, therefore, it cannot have been wrong for the ET to have refused it on 2 August 2001."

4. However, although the Tribunal rejected that as a ground of appeal they went on to identify the error of law which has given us some considerable cause for concern. The Tribunal sitting under Lindsay P at present confessed to have been puzzled by the Employment Tribunal's reasoning. The Respondent, the National School, had sought to say that they refused to register Ms O'Keefe was not prompted by her transsexuality but for objective reasons of good administration. The Employment Tribunal disbelieved that. They said:

"Having considered the evidence of Ms Roche Pengelly, particularly under cross-examination, we find that on the balance of probabilities it is unlikely and implausible that the decision to exclude overseas registrations was taken from the objective purposes of good administration and/or to reduce the burden of administrative work and the potential for claims with which the Respondents would have to deal. There was no evidence before us that this was a current problem and the number of members of CRAH who were actually affected by this decision was so few that the impact on the Respondents would have been negligible."

The Tribunal under Lindsay P continues thus:

"8. So the Tribunal was in Zafar territory which they recognised and indeed, they quoted from Zafar v Glasgow City Council [1998] IRLR 36, including the passage that runs as follows:

'If no explanation is put forward, or the tribunal considers the explanation to be inadequate or unsatisfactory, then it is legitimate for the tribunal to infer that the discrimination was on the grounds of sex'

9 The position plainly, was that the explanation given had been found not merely to be inadequate or unsatisfactory but to be implausible. The Tribunal therefore saw it that it could be that the treatment of Ms O'Keefe was because she had previously brought a claim against the National School, at an earlier stage, but they never actually hold that to be the case. They recognised it was a thing that they needed to look into as a possibility but what they say on that subject is (with our emphasis);-

'It may well be that the true reason why they excluded her was because she had brought a previous claim"

A little later, they say:

'They may well have sought to exclude her from membership by reason of her having brought a previous claim in this Tribunal against them'

10 So they do not actually hold that the earlier claim was being paid back by way of the refusal of registration on the CRAH. That she was being treated as she was because of her transsexuality had not, so far in their reasoning, been ruled out. They had looked at an alternative reason - that she was being paid back for the earlier claim - but never actually conclude that that was the case. They say that they were inclined to the view that what was done was specifically aimed at Ms O'Keefe. They say:

'We are inclined to conclude that the Respondent took the decision to exclude overseas specifically in order to exclude Dr O'Keefe.'"

Lindsay P then notes that the Employment Tribunal went on to say:-

"Therefore, we conclude that while the Respondents acted prejudicially to Dr O'Keefe, they did not do so by reason of her gender reassignment. Although we do not accept the Respondents' explanation, we decline, for the reasons stated, to make an inference of sex discrimination on the grounds of gender reassignment."

Lindsay P in his judgment stated:-

"12. We do not understand how it follows - which the word 'therefore' normally suggests - that the prejudicial treatment of Ms O'Keefe was not to be inferred to have been reason of her gender reassignment, given there was no conclusion that it was instead for some other reason such as, for example, a pay back for the earlier proceedings. Nor have we understood the reference "for the reasons stated" to exclude the possibility of prejudicial treatment, less favourable treatment, on the grounds of gender reassignment."

5. The Employment Appeal Tribunal, having rejected other grounds nevertheless said that they would allow certain grounds 3 and 4 to go forward and also the Meek ground that at the end of the day the parties do not know the sufficient particularity why they have won why they have lost. Before us we have had a skeleton argument prepared to which we have given careful attention. We are not belittling the position to say that the Appellant's argument is very much a matter which hammers home the points made by the Lindsay Tribunal. The point that has been made before us is that it was being said on Dr O'Keefe's behalf that her discrimination predated the application she made to the Tribunal and that the decision was made that they were going to proceed on the basis of discrimination on grounds of her being a transsexual rather than victimisation. It is against that background that it is argued the Tribunal's reasoning is not clear and therefore in all the circumstances it would be, they say, wrong to allow this decision to stand.
6. It is true as Lord Hoffmann observed in the case of Piglowska v Pigslowski [1999] 3 All England 632 and 643 that Appellate Courts should intervene only with great diffidence there was far more than professional courtesy involved. There are few decisions with which hindsight, could not be approached. If one looks at the reasoning at paragraph 25 of the Tribunal there is a certain coyness in the reasoning they give:

"We are not persuaded it was just coincidence that the decision was made and that the only person seriously affected by it was Dr O'Keefe, just at or about the time at which Dr O'Keefe's letter to the Respondents informing them she was now resident in Australia and would be so for at least a year, would have been received by the Respondents. It seems to us the Respondents seized on this fact to rush through a decision which should have taken considerably more time to put into effect, with the sole purpose of excluding Dr O'Keefe from membership. Thus to address the first question which was posed by the Tribunal at the Directions Hearing on 8 June:

'Are the reasons given for the refusal by the Respondent plausible reasons?' – We answer in the negative.

The second question posed at the Directions Hearing was as follows:

'If the Respondent's reasons are not plausible reasons, is the Tribunal able to infer that the true reason was the fact that the Applicant is a transsexual woman?'

Here (says the Tribunal at paragraph 25) we are in some difficulty. There was evidence before us at all to show that Dr O'Keefe sexuality or gender reassignment was the reason why the Respondents made the change in their constitution which would have the direct effect of excluding her. While we do not doubt that they made the change in order to exclude Dr O'Keefe, there is no evidence before us to show that it was because of her gender reassignment. It may well be that the true reason why they excluded her was because she had brought a previous claim against the Respondents and had received a very substantial award, albeit subject to appeal. That would come under the provisions of section 4 of the Act, namely discrimination by way of victimisation, and it seems to us that the actions of the Respondent fall clearly within that section which provides as follows:

'A person (the discriminator) discriminates against another person (the person victimised) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

(a) brought proceedings against the discriminator or any other person under this Act,…'

We are inclined to conclude that the Respondents took the decision to exclude overseas members specifically in order to exclude Dr O'Keefe. Of the only two other persons who were similarly affected, one was not going to practise anyway and the other was going to America for reasons of which we are not aware. So far as the Respondents were concerned, the only overseas member who would be seriously and professionally affected by the decision was Dr O'Keefe. In answer to Mr Mansfield's contentions, it would have been very obvious that the Respondents were victimising Dr O'Keefe if they had failed to send her a renewal form in January while sending such forms to all other members of CRAH. Similarly, although they 'left the door open' for a renewal of membership if Dr O'Keefe returned within three years, this was a reasonable risk for them to take to get her off their books in the short term. Therefore, we conclude that while the Respondents acted prejudicially to Dr O'Keefe, they did not do so by reason of her gender reassignment. Although we do not accept the Respondents' explanation, we decline, for the reasons stated, to make an inference of sex discrimination on the grounds of gender reassignment. They may well have sought to exclude her from membership by reason of her having brought a previous claim in this Tribunal against them, but this is not a claim which has been asserted in the present proceedings."

The Tribunal note that that was a matter that was not pursued by Mr Keter at the hearing.

7. We then have heard the Respondent's argument put to us forcefully by Counsel, Mr Barklem. What he says is this. It is clear from the Respondent's representative, in what he said today, and in what he said before the Employment Appeal Tribunal at the preliminary hearing that a conscious decision had been taken not to advance before the Employment Tribunal a case based on victimisation arising from the Appellant's bringing of other proceedings against the Respondent.
8. Mr Barklem contends that the Tribunal's clear finding was, in effect, that having heard the Respondent's evidence, the members were not satisfied that they could infer that the reason that the Appellant was excluded was that she was a transsexual woman. This finding followed an explicit reminder to itself of the provision in Zafar v Glasgow v City Council [1988] IRLR 36, summarised at paragraph 23 of the decision, as to what inferences could properly be drawn from the primary facts.
9. The reason of the Tribunal, says Mr Barklem, is quite simple. This is couched in terms which reflect the reality that no claim for victimisation was before it, and there was no jurisdiction to make such findings. What is clearly being indicated is that the inference which it actually drew was that the Respondent did not want to keep the Appellant on its books because of her successful claim against it.
10. The statement in the last sentence of the final paragraph "It is not for this Tribunal to re-write the Applicant's case and we find that "the case as pleaded must fail" could hardly be a clearer indication urges Mr Barklem that the Applicant chose to run the wrong horse and, it is said by Mr Barklem, to assert that the Applicant cannot glean from the decision why it is she lost is to stand reality on its head. Mr Barklem points out it was always open for the Appellant to bring the case on the basis of victimisation, or as an alternative, and she cannot complain if such a deliberate decision has backfired. Mr Barklem concedes in the result, neither party can derive any pleasure from the result - the Respondent is being stignifised as being people who have given a reason which the Tribunal found is untrue but the Appellant simply put the case on the wrong basis.
11. In his final argument Mr Keter was saying that really the Tribunal just have not done justice to the information before them. And so we, noting that there was no oral evidence on her behalf asked if he we might see the written statement which she made. It was produced. Much of that deals with the question of the effect that discrimination has had upon her but the Appellant says this at paragraph 17:

"There is no doubt in my mind that the move by CRAH to expel members who were practising abroad was specifically designed to get rid of me as a member after I had won my previous case of sex discrimination against them."

That was a document that was before the Tribunal emulating from the Applicant. All of us saw that document as a revelation. Faced with the fact that that is how the Appellant had been putting her case in her only evidence which the Tribunal had before it we can see why this Tribunal reached its decision. The Tribunal were not prepared to draw the inference because the evidence that it was due to victimisation was powerful and cogent and the Applicant herself was advancing this as a reason for the Respondent's action.

Conclusion

12. Central to the Appellant's submissions is the proposition that there was no other reason for the prejudicial conduct of the Respondents than the Applicant's gender reassignment. The Applicant was entitled to adopt the course of relying on her statement rather than giving evidence. However this makes the task of the tribunal more difficult. The Employment tribunal were denied the opportunity of hearing the Applicant expand on what she meant by saying that the move to expel members who were practising abroad was specifically designed to get rid of me as a member after I had won my previous case of sex discrimination against them. Had the claim included a claim of victimisation then the position would have been wholly different; the Employment Tribunal would have been required to make definitive findings about the victimisation claim. It is trite to say that the reason for prejudicial conduct is within the knowledge of the person acting in this way rather than the victim of such discrimination. However in view of the Applicant's statement, which was not further expanded by oral evidence, we can see why the Employment Tribunal took the course they did and we consider that anyone involved in the case could readily understand the reasons for their decision. The tribunal were entitled to refuse to draw the inference that the reason for the Respondent's prejudicial conduct was the Applicant's gender reassignment in view of the evidence before it that pointed to victimisation as the reason for that action. There has been no appeal from the decision of the preliminary hearing of the Employment Appeal Tribunal under Lindsay P refusing leaving to raise the issue of victimisation. Whilst it would have been helpful if the Employment Tribunal has spelt out their conclusions in clearer terms we do not consider there are any errors of law in this decision. In these circumstances we dismiss the appeal.