United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS MULCAHY (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MR BROOK (of Counsel) Instructed by: Messrs Davies & Partners Solicitors 5 Highlands Court Cranmore Avenue Solihull West Midlands B90 4LE


 


MR JUSTICE WALL

1. In these related appeals, the Crown Prosecution Service (the CPS) appeals against

two Decisions of the Employment Tribunal sitting at Birmingham. In the first Decision,

promulgated on 20 September 2000, the Tribunal decided unanimously that the CPS had

discriminated against the Respondent to this appeal (the Applicant before the Tribunal)

Mrs Mary Clarke on the grounds of her sex.

2. In a Reserved Decision promulgated on 25 April 2001, following a remedies hearing, the Tribunal made the following award to Mrs Clarke:-

Loss of income to date of hearing £ 1,032.50.
Future loss of income Nil.
Pension loss £ 45,000.
Injury to feelings £ 10,000


Total - £ 56,032,50

3. The CPS appeals against both Decisions. We will, accordingly, deal with the "liability" appeal first.

The facts

4. On 6 December 1998, Mrs Clarke answered a public advertisement issued by the CPS seeking Crown Prosecutors to fill vacancies existing in the Midlands. At that point, Mrs Clarke was 43, and she made it clear in her application that she had only qualified and been admitted as a solicitor since October 1997. From 1988 to 1995 she had been a Probation Officer.
5. Mrs Clarke was interviewed for the position of Crown Prosecutor on 20 January 1999. No complaint is made about the quality or content of that interview. A total of twenty candidates were interviewed, of whom fourteen were acceptable. Mrs Clarke was placed seventh. She received a "C" mark, which designates "Average". The Tribunal found that:

Typical of the comments made by the assessors were that she [Mrs Clarke] had a "sound application of legal knowledge" and that she was "slightly diffident but seemed honest and earnest" and that "with training and support" she would make a competent Crown Prosecutor.

6. On 16 February 1999, the CPS wrote to Mrs Clarke advising her that following her interview she was considered suitable for appointment as a level C1 Crown Prosecutor, that is the lower grade for which positions had been advertised. The letter also stated her appointment was subject to "satisfactory pre-employment checks" and that as a result of an ongoing re-organisation the CPS was not able to offer a position at that time. However, the Tribunal found that the CPS:

"…. made it clear that it was their intention and they did subsequently offer appointments as Crown Prosecutor to all of the successful candidates with the exception of Mrs. Clarke and one other".

7. Time went by and Mrs Clarke heard nothing. She made a number of inquiries as to when she was likely to receive an offer of appointment, only to find that she was being "fobbed off". On 11 June 1999 she was able to speak to the Area Business Manager of the CPS, who was unable to indicate whether or not she would be offered a post or how long she would have to wait for such an offer to be made.
8. Mrs Clarke then wrote to the Chief Crown Prosecutor for the CPS in Birmingham, Mr D Blundell, asking to be given some indication of when a position might become available. In reply, Mrs Clarke received a letter dated 25 June 1999, in which she was advised that the "pre employment checks" had not been satisfactory, and that consequently the CPS was unable to offer her employment.
9. As she put the matter in her Form IT1, disappointment at the CPS's failure to offer her an appointment turned to mystification, when she discovered that none of her previous employers had been approached, let alone expressed an opinion of her suitability. None of her references had been taken up. On 1 July 1999, she says she was told by telephone that the information which led to the CPS declining to make an offer "came from local staff employed by ourselves". The Form IT1 concludes:-

"If true, this informal procedure seems unfair and inconsistent with proper recruitment practice. A discriminatory practice that I believe was compounded by the manner of appointment of a male as a "Crown Prosecutor". As I understand it, he did not even apply to the advertisement [sic] but found himself redundant after the deadline had passed."

10. The Tribunal found that it was only as a result of these proceedings having been commenced that the reason why Mrs Clarke was not offered a post became known. What appears to have happened is that subsequent to her being interviewed, it became known (how is not clear) amongst Crown Prosecutors in the Birmingham branch of the CPS, that Mrs Clarke had been a successful candidate who might be appointed to that branch. As a consequence, Mr Ian Edwards, a Prosecution Team Leader based in the Birmingham branch approached the Branch Crown Prosecutor in that office, Mr Robert Lambden. Mr Edwards informed Mr Lambden that having regularly seen Mrs Clarke as an advocate in the Sutton Coldfield Magistrates Court, he had formed the opinion that she was nervous, highly strung, hesitant and not fluid in her address to the court. Mr Edwards further thought that she lacked confidence in her ability and gave the appearance of not always having thoroughly prepared her case. He had "grave reservations" therefore as to whether Mrs Clarke could hold down a post in the Birmingham branch of the CPS. Mr Edwards also expressed reservations as to whether it would be proper for Mrs Clarke to undertake prosecutions in a city in which she had been a Probation Officer and practised regularly as a defence solicitor.
11. In evidence before the Tribunal Mr Edwards said that he had intended only to express reservations about Mrs Clarke's ability to work in the busy Birmingham branch of the CPS; that he did not think he was "destroying her ambitions" to work in the CPS and that he had never thought that matters "would progress as they did". Mr Edwards also accepted in his evidence that it was not uncommon for former local defence advocates to be appointed as Crown Prosecutors. This was a problem which could be "worked round", and that this would also apply to former probation officers. The same points were also accepted in evidence by Mr Michael Grist, Area Business Manager of the West Midlands CPS Area, who said that he had disregarded them in coming to the decision not to appoint Mrs Clarke.
12. Because of what he had been told by Mr Edwards, Mr Lambden approached another Team Leader in the Birmingham office of the CPS, Mr Nigel Gilbert. Mr Gilbert informed Mr Lambden that he had grave reservations as to Mrs Clarke's ability to cope with the stress of being a Crown Prosecutor; that he had formed the impression that she was disorganised; that he did not rate her as a good advocate and that he did not consider that she had the requisite professional skills to be an effective Crown Prosecutor.
13. Mr Lambden then made enquiries of the third Team Leader in the Birmingham office, Mr Kevin Coleman. Mr Coleman had no personal knowledge of Mrs Clarke but stated that concerns had been expressed to him regarding her ability to perform the duties of a Crown Prosecutor in Birmingham. Concerns had also been expressed about the fact that she was a former probation officer, and that she was of a nervous disposition.
14. The Tribunal also records that at some point the question of Mrs Clarke's appointment was discussed at a meeting of Crown Prosecutors in the Birmingham area, where at least one of those present was a woman, a Ms Jane Hullin. Ms Hullin, whilst being unable to recall exactly what she said, indicated that she had expressed a generally negative view regarding Mrs Clarke's appointment.
15. Following these discussions, Mr Lambden approached the Service Centre Manager of the Midlands Service Centre of the CPS in Birmingham, Mrs Borrill and told her that, given the serious reservations held, Mrs Clarke should not be employed in the Birmingham Branch. In turn, Mrs Borrill spoke to the Area Services Manager, Mr Grist, who asked her to speak to Mr Brian Cameron, Head of Personnel 2, in the CPS headquarters. Mrs Borrill did so and was told (1) that the lawyers who said that they knew Mrs Clarke should be asked to put their comments in writing; and (2) that the CPS did not have to take Mrs Clarke. Mrs Borrill then proceeded to take statements from Mr Edwards, Mr Coleman and Mrs Gilbert.
16. On 21 May 1999, Mrs Borrill wrote to Mr Grist to say that the "merit list" produced following the Recruitment Boards in January and February 1999, in which Mrs Clarke had participated, was almost exhausted. It will be recalled that she had been placed half way down the list. From this it was clear, and accepted by the CPS, that had these various comments regarding Mrs Clarke not been made she would by that date have been appointed to the position of Crown Prosecutor.
17. In her note to Mr Grist, Mrs. Borrill refers to Mr Lambden having informed her that he did not wish to employ Mrs Clarke in his branch and that she had a nickname of "mad Mary". The Tribunal commented that this name was not mentioned in any of the statements that had been produced by Mr Edwards, Mr Coleman and Mr Gilbert, and that in evidence none of the CPS witnesses was prepared to admit having used the name, although it was accepted that it had been used. Mr Grist wrote to Mr Cameron on 21 May 1999, enclosing a copy of the note he had received from Mrs Borrill, and stating that whilst it may be possible to place Mrs Clarke in a branch other than the Birmingham branch, the question was whether to take her at all.
18. Eventually, on 21 June 1999 Mr Cameron wrote to Mr Grist saying that it: would be foolish to appoint Mrs Clarke if they were to have "good reason to believe" that she would not be a suitable Crown Prosecutor, and that the statements which had been obtained from within the CPS should be regarded in the same way as unsatisfactory references. It was as a result of this that Mrs Clarke received the letter of 25 June 1999 to which we have already referred.
19. Whilst the letter of 25 June 1999 refers to the CPS's pre-employment enquiries not being satisfactory, it does not refer to the fact that none of the persons whom Mrs Clarke had provided as referees was asked for a reference. The Tribunal found that had they been approached, they would have given entirely satisfactory references for her. The Tribunal also found that, having passed the Board, she would have been appointed had the references been taken up.
20. The Tribunal further found that it was not, as Mr Blundell said in his letter to Mrs Clarke of 7 July 1999, "normal practice" for the CPS to "consult widely" in order to ensure that prospective candidates meet their requirements. The Tribunal further found that it was unusual for the CPS to do anything other than take up references from the referees whose names they had been given. This, of course, they failed to do in Mrs Clarke's case.
21. The Tribunal was, rightly in our judgment, highly critical of the conduct of the CPS in relation to the manner in which it conducted its selection process in Mrs Clarke's case. This is what they said about it:-

"25 A question which we felt obliged to ask, but to which we received no satisfactory answer, was why it was that the CPS had an entirely proper selection procedure with interviewers trained in and having pamphlets on equal opportunities available to them if the CPS then allowed that entirely proper system to be usurped by the comments made by male employees of the CPS regarding a female candidate. We were also extremely concerned regarding the use of the nickname "mad Mary", which none of the respondent's witnesses were prepared to admit having used (other than Mrs Borrill in her note to Mr Grist) but which appears to have played some part at least in the decision not to employ Mrs Clarke.

26 We feel compelled to say, and put on record, our extreme disquiet at the CPS having departed from its procedures and listened to the opinion of others as opposed to taking up Mrs Clarke's references. We regard such a practice to be entirely unsatisfactory."

22. We entirely agree with those sentiments. We very much hope that in the light of the Tribunal's Reasons promulgated on 20 September 2000, the CPS has reviewed its selection process and has taken steps to ensure that appropriate selection procedures are properly carried through in every case.

Was there sex discrimination in this case?

23. However unsatisfactory the procedure for interviewing and assessing Mrs. Clarke for the post of Crown Prosecutor may have been, and however badly Mrs. Clarke may have been treated, the question the Tribunal had to determine (as it clearly recognised) was whether or not in this case Mrs Clarke was disadvantaged or discriminated against on grounds of her sex. The evidence from the CPS witnesses was that they would have acted in the same way regardless of the candidate's sex, and Mr Coleman produced an example of when he had expressed an unfavourable opinion about a male candidate, albeit that on this occasion his comments had been ignored.

The Law

24. The Tribunal set out section 1(1)(a) of the Sex Discrimination Act 1975 (the Act). It reminded itself that it was for Mrs. Clarke to show (a) that she had been treated less favourably that a man has been or would be treated; and (b) that the difference in treatment was due to her sex. It pointed out that, in accordance with the decision in Owen & Briggs -v- James [1982] IRLR 502, gender does not have to be the sole reason for the difference in treatment, as long as it is a substantial or important factor.
25. The Tribunal made a specific reference to section 6(1)(a) of the Act, and relied on two further authorities, namely; James -v- Eastleigh Borough Council [1990] ICR 554 and King -v- The Great Britain China Centre [1991] IRLR 513. It set out the five guiding principles from the judgment of Neill LJ in the latter case, [1991] IRLR at 518, namely: -

(a) that it was for the applicant to make out a case of discrimination. If she is unable to do so on the balance of probabilities, she will fail;

(b) it is unusual to find direct evidence of discrimination as few employers are prepared to admit it even to themselves, and in some cases discrimination will not be ill-intentioned, but be based merely on the assumption that a person would not have "fitted in";

(c) the outcome of the case will therefore depend on what inferences it is proper to draw from the primary facts before the Tribunal, which may include inferences drawn from equivocal replies to statutory enquiries;

(d) although there will be some cases where non-selection for a job is clearly not on the grounds of sex, a finding of discrimination and a finding of difference in sex will often point to the possibility of unlawful discrimination. A Tribunal may then look to the employer for an explanation. If no explanation is forthcoming or the Tribunal consider it to be inadequate or unsatisfactory, it will be legitimate for the Tribunal to draw the inference that the discrimination was on sexual grounds. This is not a matter of law, but of "common sense"; and

(e) it is unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of the evidence, the Tribunal should make findings as to the primary facts. They should reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which people face when complaining of unlawful discrimination, and that it is for the applicant to prove her case.

26. The Tribunal plainly relied on this guidance in reaching its conclusion, and in our judgment was right to do so. It also made it clear that in coming to its Decision it had had regard to the Equal Opportunities Commission Code of Practice on sex discrimination, and the decision in Zafar -v- Glasgow City Council [1998] IRLR 36.
27. No complaint is made about the manner in which the Tribunal set out the law.

The evidence

28. What then was the evidence on which the Tribunal found sex discrimination? Apart from having written and oral evidence from Mrs. Clarke, the Tribunal heard from a number of witnesses. Ms Diane Carman, a Senior Crown Prosecutor based in Wolverhampton gave evidence for Mrs. Clarke under the compulsion of a witness order. For the CPS, the Tribunal heard from Mr. Edwards, Mr. Lambden, Mr. Gilbert and Ms. Hullin. It is, we think, of particular importance in a case of this nature to remember that the Tribunal heard and saw the various witnesses. Issues of credibility, and overall impression are for the Tribunal, as are the inferences which are to be drawn from the evidence of the witnesses and the primary facts found.
29. Ms Diane Carman gave evidence of two other incidents of alleged sex discrimination in the Birmingham Branch of the CPS. Ms Carman attended under compulsion of a Witness Order, and was, as the Tribunal found, "clearly apprehensive as to the consequences" of giving evidence. She was, the Tribunal found, an entirely credible witness. Whilst Ms Carman's evidence was plainly not direct evidence of sexual discrimination against Mrs. Clarke, it was, in the words of Mr. Recorder Langstaff QC giving the judgment of the EAT at the preliminary hearing of the CPS's appeal, evidence of "a sense of the culture which operated within the organisation, an appreciation of which would be important context against which to evaluate any claim of discrimination". In our view it was powerful evidence in this context, and evidence on which the Tribunal was entitled to rely. The Tribunal plainly found Ms Carman's apprehension as to the consequences of giving evidence credible, and in this context it is significant, we think, that the Tribunal felt impelled to place their own concern about this on the record.
30. Ms Carman gave evidence about two incidents. The first was the selection of Prosecutors to take part in a pilot scheme introduced in Birmingham in 1996. Ten Prosecutors applied, six male and four female. In the event, four male Crown Prosecutors were selected to take part in the initial stages of the pilot scheme, and no female crown prosecutors were selected, although they were able to take part at a later stage. Ms Carman told the Tribunal that the initial selection had caused considerable consternation among the female Crown Prosecutors and that she had complained both to her Team Leader, Mr Clarke, and to Mr Lambden. In relation to that, Mr Lambden told the Tribunal that one or two of the female Crown Prosecutors had not been selected because of her travel to work commitments, although he accepted that one of the male Crown Prosecutors who was appointed had an equally long way to travel.
31. The second example given by Ms Carman was when a position of team leader was temporarily vacant and a male prosecutor had been appointed to "act up" in the position of team leader. This was so even though he had not passed the "Board" so as to be considered suitable for the position of Team Leader whereas one female Crown Prosecutor, who had passed her Board was overlooked, as was another Team Leader who had worked in and wished to return to Birmingham. In the event, the male prosecutor had "acted up" in that position for some eighteen months, with the result that complaints from female Crown Prosecutors had been made and the union involved.
32. Ms Carman also told the Tribunal that while she had a high regard for and enjoyed working with Mr Lambden, she felt there were strong elements of sexism in the two incidents she had described.
33. The Tribunal was also given an example of a male solicitor, identified by name, Mr. G., who had openly admitted suffering from work induced stress which had brought him to the brink of a depressive illness. He had, nonetheless, been appointed as a Crown Prosecutor.
34. In addition to these matters, the Tribunal had, of course, the evidence relating to the selection process which we have set out in paragraphs 4 to 22 of this judgment, included in which was the evidence of the nickname "mad Mary" to which we will return shortly.
35. The Tribunal was told that all appointments as Crown Prosecutors were subject to a six month probationary period, and that if Mrs Clarke had been appointed and proven to be unsatisfactory, her appointment could have been terminated during or at the end of that period.

The Tribunal's analysis of the evidence and its decision

36. The first question which the Tribunal asked itself was whether or not Mrs Clarke had been treated "less favourably". It pointed out that of the successful candidates following interview in January and February 1999, only the Applicant and a Mr McCann had not been offered appointment. Mr McCann, however, was not offered an appointment because, following the interview, it emerged that when he had been previously employed by the CPS he had not been regarded as a satisfactory Crown Prosecutor. The Tribunal found accordingly, that his position was entirely different from that of Mrs Clarke.
37. The Tribunal then pointed to the CPS's departure from the correct selection procedures, and found that had references been taken up, and no external pressure been applied, it was certain that Mrs Clarke would have been offered the position of Crown Prosecutor. She had been considered a suitable candidate by the interviewing panel.
38. For those reasons the Tribunal concluded that Mrs Clarke was treated less favourably than other candidates who had applied for appointment as a Crown Prosecutor.
39. The Tribunal then considered whether the less favourable treatment she had received was on the grounds of sex. In coming to their Decision in this respect they had regard to the guidance given by Neill LJ in King v The Great Britain China Centre [1991] IRLR 513, 518 and in particular to the fact that it was unusual to find direct evidence of discrimination; that few employers are prepared to admit to having discriminated and that in some cases discrimination will not be ill-intentioned and be based on the assumption that the Applicant would not have "fitted in".
40. The reasoning of the Tribunal in relation to its application to the law to the facts of the case is contained in paragraphs 45 - 51 of its Reasons. We propose to set these out in full.

"45 In this respect, in addition to the incidents of discrimination referred to earlier, we note that we were told that the reasons why representations were made was because it was felt that the applicant would not "fit in" in the busy Birmingham branch of the CPS. Also that while one of the reasons given for this was that the applicant was of a "nervous disposition", another male candidate who has admitted to having been on the brink of a depressive illness, has been appointed a Crown Prosecutor. Further, the terms and conditions of appointment as a Crown Prosecutor allow for a 6 month probationary period, which may be extended, at the conclusion of which, if they are not satisfactory, the employee's contract may be terminated.

46 The explanation put forward on behalf of the CPS is that the applicant should not be appointed if they had good reason to believe that she would not be a suitable Crown Prosecutor. We do not consider this to be a satisfactory explanation because the panel who interviewed the applicant had considered her to be a suitable candidate and that view would undoubtedly have been endorsed by her referees had those been taken up. In effect, the CPS was having regard to what could be described as being no more than "tittle tattle" as opposed to the views of their interview panel who were experienced in selection procedures and who had, in accordance with the recommendation contained in the Code of Practice, been trained in the provisions of the Act.

47 We were also concerned by the sobriquet applied to the applicant of "mad Mary" and which we would regard as being per se discriminatory in the same way as "mad Mick" when applied to somebody of Irish descent. Again, the explanation put forward by the CPS for its use, that this was a name by which she was known in the Birmingham Magistrates Court fraternity and this indicated that she had a "poor reputation", cannot excuse the name being repeated or it in any way being an influencing factor in the decision not to offer the applicant an appointment.

48 We further found the explanations given on behalf of the CPS to be evasive and inadequate. For example, none of the witnesses who had originally suggested that the applicant was not suitable for appointment as a Crown Prosecutor was prepared to admit to having used the name "mad Mary", although it was clear to us that this name, and its implied connotations, had been used in the comments made to Mr Lambden.

49 Had the applicant been male it is likely, in our opinion, that she would simply have been regarded as "one of the lads" and would have been given the opportunity to prove her suitability for appointment as was the case in relation both to Mr McCann and Mr G.

50 Having regard to all of the above, to our finding of discrimination, our finding of their being a difference in sex, and the inadequate and unsatisfactory explanations given on behalf of the respondent, we have come to the conclusion that the applicant was unlawfully discriminated against on the ground of her sex."

41. In clear, concise and well ordered submissions, Ms Jane Mulcahy's first attack was on the Tribunal's finding that the phrase "mad Mary" was "per se discriminatory". She pointed out that Mary was Mrs Clarke's first name and argued that there was no parallel with the phrase "mad Mick" when applied to a person of Irish descent. "Mick" she argued, was a derogatory term for an Irishman: "Mary" was not a derogatory term for a woman. In any event, she argued, if an Irishman termed "mad Mick" had "Mick" as his first name, the term "mad Mick" as applied to him would not be per se discriminatory. Ms Mulcahy argued that this was an important error since the Tribunal had placed great weight on the nickname and it clearly informed the Tribunal's Decision that the CPS had advanced "inadequate and unsatisfactory explanations".
42. For Mrs Clarke, Mr David Brook argued that the phrase "mad Mary" did not exist in a vacuum. It was what he described as a "unit of meaning". He argued that it was a derogatory phrase which would only apply to a woman. The Tribunal was not wrong to rely on it. Its meaning was, in reality and in context, "mad woman" and represented a neurotic stereotype.
43. Whilst there is force in Ms Mulcahy's submission that "mad Mary" is not necessarily discriminatory, we agree with Mr Brook that the phrase "mad Mary" did not exist in a vacuum and was evidence both of a derogatory and a discriminatory attitude against Mrs Clarke. We think it significant, as did the Tribunal, that none of the CPS witnesses was prepared to admit to using the phrase, and it is plain that the word "mad" (the commonest meaning of which is mentally ill or mentally unstable) did not even remotely describe the attributes which Mrs Clarke was said to lack.
44. In our view, the Tribunal was entitled to rely on the phrase "mad Mary" as evidence of discrimination. We do not think that the Tribunal placed undue emphasis on the phrase. It was part of and consistent with the culture which the Tribunal found to be operating within the Birmingham branch of the CPS. Its use reflected and was consistent with other parts of the evidence which the Tribunal found sufficient to make up sex discrimination. It does not, accordingly, stand alone. Whilst the comparison which the Tribunal made with the phrase "mad Mick" is plainly capable of being attacked, we nonetheless think the Tribunal entitled to take the phrase, in the overall context of the case, as meaning - in effect - "mad woman", representing what Mr Brook described as a neurotic stereotype.
45. Ms Mulcahy's next attack was a more general one. She submitted that the Tribunal's reasons did not fulfil the criteria laid down in the well known case of Meek -v- City of Birmingham District Council [1987] IRLR 250 (hereinafter referred to for ease of reference as Meek). She submitted that the Tribunal's findings should be such as to allow the parties to know what it was that they could or should have done. In the instant case, she argued that the Tribunal made no findings of fact as to underline who had discriminated against Mrs Clarke, and precisely the way in which that discrimination had taken place.
46. There are, of course, two parts to the decision in Meek. The first is that relied upon by Ms Mulcahy namely that the decision of an Industrial Tribunal must contain an outline of the story which has given rise to the complaint, and a summary of the Tribunal's basic factual conclusions together with a statement of the reasons that have led the Tribunal to reach the conclusion which it did on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, the Court of Appeal to see whether any question of law arises.
47. The other side of the Meek coin, however, is the judgment of Donaldson LJ (as he then was) in UCATT -v- Brian [1981] IRLR 225 at 227. Donaldson LJ said:

"Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law ……The reasons are then recorded and no doubt tidied up for differences between spoken English and written English. But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose, or as the case may be, win."

48. As Bingham LJ made clear in Meek, there is no inconsistency between these two sides of Meek. In our judgment, the Tribunal in the instant case satisfies the Meek criteria. The Tribunal sets out the facts in some detail. It makes findings of fact and then applies the law to those facts. The CPS can be in little doubt why it lost.
49. Ms Mulcahy complains that the Tribunal made no finding of fact as to who had discriminated against Mrs Clarke, and precisely the way in which that discrimination had taken place. She poses a number of questions. For example, was it discriminatory to advance an opinion as Mr Edwards did?; to transmit that opinion as Mr Lambden did?; or only to allow it to be taken into account (Mr Cameron and Mr Grist)?
50. With respect to Ms Mulcahy, we take the view that this approach falls foul of Donaldson LJ's judgment in Meek. The Tribunal made a number of findings of fact about aspects of the conduct of officers of the CPS. We have set these out above. Having heard the evidence, and made assessment of the parties, the ultimate question which the Tribunal had to answer was whether or not Mrs Clarke had been unlawfully discriminated against by the CPS on the ground of her sex. Putting its findings together, the Tribunal was satisfied that she had. In our view, the findings made are sufficient to justify the conclusion, and accordingly there is no error of law in the Tribunal reaching the conclusion it did.
51. In our judgment, the facts found by the Tribunal in this case fit within the five guidelines set out by Neill LJ in King v The Great Britain China Centre, with particular reference to discrimination being disguised as a belief that an applicant would not "fit in" and the inferences which the Tribunal is entitled to draw from equivocal responses and finding of facts. From listening to and assessing the witnesses, the Tribunal plainly found a discriminatory culture in which Mrs. Clarke, had she been male, would have been accepted and regarded as "one of the lads". That, in our view, was a conclusion which, on all the evidence, the Tribunal was entitled to reach in deciding, as it did, that the CPS had discriminated against Mrs. Clarke on the ground of her sex..
52. Ms Mulcahy then complained that the Tribunal erred in law by taking into account evidence allowed to be adduced on the second part of a part heard hearing, after the close of Mrs Clarke's case. This refers, in particular, to the evidence of Ms Diane Carman. Further or in the alternative Ms Mulcahy argued that the Tribunal erred in law by:

(1) taking into account evidence of incidents that were irrelevant to Mrs Clarke's case and/or several years old;

(2) accepting Ms Carman's view of those incidents as determinative of such matters, and

(3) failing to decide that such incidents constituted sex discrimination, even though later relying on the same matters as "incidents of discrimination".

53. As to the first point, we see no error of law in the Tribunal admitting further evidence after due consideration and having heard arguments on both sides. We were told by Mr Brook that Ms Carman's ability to give such evidence only became known to Mrs Clarke late in the day and by chance, and would not have emerged by earlier reasonable enquiry. Furthermore, he argues, that Tribunal was entitled to prefer her evidence to that of another witness and/or to give differing weight to the evidence of each.
54. We accept Mr Brook's submission on these points. Credibility is plainly a matter for the Tribunal, not for us, and provided there was material upon which the Tribunal could properly make relevant findings of fact, its Decision cannot be said to be wrong. Furthermore, it is plain that the Tribunal did not treat Ms Carman's evidence as evidence of direct discrimination against Mrs. Clarke, but as evidence of the culture which existed within the organisation. This, in our judgment, it was plainly entitled to do.
55. Ms Mulcahy then attacked what she submitted was the Tribunal's failure to identify an appropriate comparator. She argued that the Tribunal erred in law by merely asking itself whether or not Mrs Clarke was treated "less favourably", when it should have asked itself whether Mrs Clarke was treated less favourably than a man in the same circumstances. Had it asked that question, it would have found that Mr McCann was an appropriate comparator.
56. We do not accept this submission. We agree with Mr Brook that Mr McCann can be distinguished as a comparator for the reasons set out in paragraph 41 of the judgment on liability. Furthermore, in our view, the Tribunal was entitled to find, on the evidence, that had Mrs Clarke been a man, she would have been regarded as "one of the lads" and have been given the opportunity to prove her suitability for employment during a probationary period.
57. The "one of the lads" finding is attacked by Ms Mulcahy as an error of law. She submitted there was no basis for such a finding. We respectfully disagree. As we have already made clear, credibility and assessment of witnesses is a matter for the Tribunal. The CPS witnesses plainly made a unfavourable impression on the Tribunal, no doubt in part fuelled by their refusal to recognise the use of the term "mad Mary" when applied to Mrs Clarke. As Mr Brook submitted, the Tribunal was entitled to draw inferences from primary facts, and in our judgment there was adequate and sufficient evidence for the Tribunal to form the view set out in paragraph 49 of the Extended Reasons and to reach the conclusions set out in paragraph 50.
58. In all these circumstances, we are not satisfied that there is any error of law in the Tribunal's determination of the liability issue, with the result that the CPS's appeal against the liability Decision fails and will be dismissed.

The Remedies Appeal

59. We turn now to examine the remedies appeal. Here, we feel that Ms Mulcahy's submissions have much greater substance. It will be recalled that the Tribunal awarded £1032.50 for loss of income to the date of the hearing: there was no future loss of income found: the pension loss was assessed at £45,000 and the injuries to feelings were assessed as £10,000, of which £5,000 was by way of aggravated damages. There is, as we understand it, no appeal against the loss of income award and Ms Mulcahy accepted that an award of £5,000 was within the reasonable bracket of awards for injuries to feelings. Her attack, accordingly, was on the figures for pension loss and aggravated damages.
60. As to the former, the Tribunal approached its assessment by finding that it was likely Mrs Clarke would, over time, reach the top of the C2 level of pay, currently £41,631 per annum.
61. Having made their calculation as to Mrs Clarke's loss of earnings they calculated her loss in relation to pension in the following way:

"8 As a Crown Prosecutor the applicant would have been entitled to be a member of the Principal Civil Service Pension Scheme. This is a non-contributory scheme although the employee is required to pay 1.5% of their pay towards the cost of providing benefits for their widow or widower. Under this scheme the applicant would have been entitled to a pension at age 60 based on her final salary and length of service calculated as follows:-

Pensionable pay x Reckonable service
80

9 That pension would have increased annually in line with the increase in the cost of living and her widower would have been entitled to a pension equal to one half of the applicant's own pension. In addition on retirement the applicant would have been entitled to a lump sum equal to three times her annual pension. There is also a death in service payment equal to two years pensionable pay.

10 We find that if the applicant had been confirmed in the position of a Crown Prosecutor it is more likely than not that she would have remained in that until she reached the age of 60 years and would have been entitled to a pension as set out above. At that time the applicant would have had 17 years reckonable service.

11 The cost of providing a pension as set out above is very considerable. We also find that working in private practice it is unlikely that the applicant will be provided with a pension and that she will have to fund that herself out of her income. While it is possible that the applicant will earn slightly more in private practice than she would have done as a Crown Prosecutor, that is largely if not entirely as a result of the overtime she is required to work and as such we do not feel that such increased earnings (if any) should be taken into account in calculating the amount of the applicant's pension loss.

12 Allowing for that to increase at the rate of 3% per annum the maximum pay for a Level C2 Crown Prosecutor in 16 years will be £66,157. That would entitle the applicant to a pension of £14,058 per annum.

13 We have calculated that taking into account an annuity rate of 6% the amount required to fund that level of pension is £234,300. In addition, there is the lump sum to which the applicant would have been entitled on retirement of £42,174 to give a total of £276,474. We have further calculated that the amount required to be invested now to produce a lump sum of the amount in 17 years is £45,000; based on the value of investments doubling approximately every seven years."

62. Ms Mulcahy firstly attacks the absence of any reasons given by the Tribunal for the finding that Mrs Clarke would have progressed to the top of level C2 and that she would have remained in the CPS until the age of sixty, thereby giving her seventeen years of reckonable service. She also argues that the Tribunal failed to take into account the general vicissitudes of life in finding that Mrs Clarke would have remained employed until the age of sixty. Further, or alternatively, she argues that this is a perverse finding.
63. As to the first limb of Ms Mulcahy's attack, we take the view that the Tribunal was entitled to form a favourable view of Mrs Clarke and take that view into account when making its award. On the other hand, we agree with Ms Mulcahy's submission that the Tribunal failed to take into account the general vicissitudes of life.
64. We were referred to a decision of the EAT in Ministry of Defence -v- Nathan (Times) 13 February 1996, in which a servicewoman had been dismissed because she was pregnant. The Employment Tribunal had assessed at 100% her chance of returning to the full twenty two year period of her service. The Employment Appeal Tribunal held that finding to be perverse, in a context where the assessment of chance related to a long period of time subsequent to the Tribunal's Decision.
65. The EAT in Ministry of Defence -v- Nathan was at pains to point out that an assessment of a 100% chance which relates to a future period beyond the date on which that assessment is made is not necessarily perverse. Whether it is or not must depend on the facts of the individual case, and how far into the future the Tribunal is having to look. Plainly, the further into the future a Tribunal is having to peer, the more difficult it must become to regard a 100% chance as a permissible option. A similar view was expressed by Morison J giving the judgment of the EAT in Ministry of Defence v Cannock [1994] ICR 918 at 952H. We also note Morison J's opinion, in the section of the judgment giving general guidance, that statistics are likely to be part of the best material available to assist Tribunals in assessing an applicant's future prospects.
66. We are satisfied that the Tribunal did not take into account the general vicissitudes of life when making its pension loss award, and that its assessment of a 100% chance in the instant case cannot stand. At the same time, the CPS may well have only itself to blame for that finding. The statistical material available to demonstrate the likelihood of a female Crown Prosecutor of Mrs Clarke's age continuing to work in the CPS until the age of retirement was plainly within the knowledge of the CPS alone. It would have been the easiest thing in the world to have placed such material before the Tribunal. The CPS did not do so. It is not for us to speculate why. It is, we think, sufficient on this part of the appeal to hold that the Tribunal did not, as Ms Mulcahy argued, give any, or any appropriate weight to the "vicissitudes of life" argument. It follows that we accept Ms Mulcahy's submission that the Tribunal has not given adequate reasons for its finding that Mrs Clarke would have stayed in the CPS until retirement.
67. Ms Mulcahy did not, as we understood her, argue that the manner in which the Tribunal calculated Mrs. Clarke's pension loss was necessarily unsound. The question thus arose as to whether the EAT could reach its own view on the point. After careful consideration, we decided that it would not be proper for us to seek to substitute an award under this head for the award made by the Tribunal. We simply do not have the material upon which we could properly do so. Inevitably, therefore, that part of the liabilities holding, namely the sum of £45,000 related to pension, must go back to a differently constituted Tribunal for reconsideration.
68. We direct that the matter return to a differently constituted Tribunal because we feel that, given the robust findings made by the Tribunal below, justice might not be seen to be done if that Tribunal were to re-assess its finding on this aspect of the case. We appreciate of course, that the Tribunal had made an assessment of Mrs Clarke which forms the basis of its findings, but we see no reason why a freshly constituted Tribunal should not be able to make its own assessment and reach a conclusion on the material which will be placed before it.

Exemplary damages

69. Ms Mulcahy attacked the award of exemplary damages. We agree with her that this award cannot stand. For an award of exemplary damages to be appropriate, there must, in our judgment be conduct on the part of the CPS over and above that which results in an award for £5,000 for injury to feelings. We see nothing in this case to warrant an award of exemplary damages. True, the CPS stuck to its guns after the liability hearing, but that, of itself, cannot in the circumstances of this case warrant an award of exemplary damages.
70. The CPS had behaved very badly in breaching its own procedures in relation to the selection and employment of officers. Mrs Clarke is entitled to be compensated for the sexual discrimination she suffered in that process. However, as the authorities demonstrate, for aggravated damages to be awarded, the defendant must have behaved in a way which was, for example, "high handed, malicious, insulting or oppressive."- see Alexander -v- Home Office [1988] IRLR 190 at 193. Ms Mulcahy referred us to the recent case of H M Prison Service -v- Salmon in which the EAT reviewed a number of the leading authorities and commented: -

It is also clear that aggravated damages are awarded only on the basis, and to the extent, that the aggravating features have increased the impact of the discriminatory act or conduct on the applicant and thus the injury to his or her feelings: in other words, they form part of the compensatory award and do not constitute a separate, punitive award. If this were not already sufficiently clear from Alexander [1988] IRLR 190, it was explicitly decided by the Northern Ireland Court of Appeal in McConnell v. Police Authority for Northern Ireland [IRLR] 625 (see at paragraph 19); and McConnell [IRLR 625] was followed by this Tribunal in Tchoula v ICTS (UK) Ltd [2000] IRLR 643 at 649.

On the facts of that case, where there was "aggravating conduct" of the nature described in Alexander -v- Home Office an award of exemplary damages as part of the damages for injury to feelings was justified. We do not see any such conduct here, and accordingly the award of £5,000 by way of exemplary damages will be discharged.

71. In the result, therefore:-

(1) the liability appeal by the CPS is dismissed;

(2) the remedies appeal is allowed to the extent of

(i) remitting to a freshly constituted Tribunal for reconsideration the pension loss award of £45,000 and

(ii) by discharging the sum of £5,000 awarded to Mrs Clarke by way of aggravated damages.