United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J L ROBERTSON (the Appellant in Person)
For the Respondent	MR S DEVONSHIRE (of Counsel) Messrs Rollitts Wilberforce Court High Street Hull HU1 1YJ


 


JUDGE J R REID QC:

1. This is an appeal from a decision of an Employment Tribunal sitting in Hull. The decision came after a reading day, 2 days of hearing and a day of consideration in Chambers and was dated 30 October 2000. The decision was in relation to a claim by Miss Robertson in which she alleged sex discrimination and victimisation against Hymers College, her former employers, where she was employed in a capacity in the Information Technology department. The precise job title was a matter of considerable dispute below, but she was paid as a Senior Technician. Her claim was dismissed and she was given limited leave to appeal by the Employment Appeal Tribunal, which said this having dealt with other grounds of appeal:

"17. However, the third matter, it seems to us, gives rise to an arguable ground of appeal and we suspect it may really have been the heart of the Appellant's grievance. In her Notice of Appeal on the third page there is a list of some eight matters which she raised before the Tribunal. Number 1 referred to her being asked to bring forward a departure from the school's employment by 20 days without pay. Number 7 referred to her not being offered a full-time position although one was available at the time her contract ended. It seems to us it is arguable that those issues were not addressed at all by the Employment Tribunal. The Respondents in their Notice of Appearance asserted there was no full-time contract available and that was clearly an important issue raised by the Appellant and it is arguable it was not dealt with by the Tribunal at all."

18. So the ground of appeal, which effectively is that the Employment Tribunal failed to consider the Appellant's complaint that she was unlawfully discriminated against on the grounds of sex, by reason of first the way in which her employment ended and secondly in that she was not considered for any further employment, goes forward to her appeal and we permit the matter to go forward on that ground alone."

2. Following that decision, amended grounds of appeal were lodged in these terms:

"The Employment Tribunal erred in law in that it failed to consider the Appellant's complaint that she was unfairly discriminated against on the grounds of her sex by reason of the way in which her employment ended and that she was not considered for any further employment by the Respondent."

3. The material which was before the Employment Tribunal begins of course with the ET1 which she put in, and by that document she concluded page 3 of the detailed grounds which were annexed to it:

"When I left on Wednesday 8 March 2000, I left the Headmaster form SD74, I included on this form the statement I had been referred to as an assistant in documentation and asked questions, including why I was not offered the full-time technician post that will become available in the near future. I have allowed the school 14 days in which to reply, and they have not done so. I would like to be re-engaged on a permanent full-time contract as a senior technician. There is no doubt in my mind that if I were male, I would have been offered the full-time position and been considered more senior from the technician employed at a lower grade, whereas because I'm female, the school only considered me for a part-time position, and when I turned down the contract for four months I suffered from victimisation. My job title was down graded significantly, which has had a dramatic effect on my career prospects."

She had also said a little earlier:

"I was therefore surprised when on Thursday 10 February 2000, I was asked if was interested in resigning without pay to take effect 7 working days before the end of my contract. As the school was aware at this time, I had not secured any future employment. On Friday 11 February 2000 I wrote to the Headmaster who asked why, when work was ongoing and everyone had expressed satisfaction of my work, I had not been offered a long term fixed contract or a permanent contract, why the school had concerned resignation to be in my interest. The Headmaster told me he had not understood my questions and the passed the letter to the bursar. The bursar did not reply to my first question regarding a future long term contract at the school and I was told the question put to me about resigning was intended to be helpful and had been interpreted otherwise by me."

4. The answer referred to the fact that she had been originally employed as was the case on a two year fixed term contract due to expire on 8 March 2000 and that she had been offered an opportunity to extend her part time employment to the end of the summer term in July 2000, but that she had said that she preferred to seek full time permanent employment elsewhere. The answer continued at paragraph 18 to say:

"The basis of continued employment offered to the Applicant had nothing at all to do with sex and was simply a continuation for a further fixed period of the part time role she was already performing was no full time or permanent position available."

5. In her witness statement at page 58 of the supplemental bundle in paragraphs 10 and 11, she said:

"Future staffing requirements were discussed with me on 25 February 1999 and in October 1999. They were not discussed with me again after October 1999. I did not state that I preferred to seek full-time permanent employment elsewhere as this is not what I wanted to do. I was very happy at the school and had been waiting for seven months (25^th February 1999 to October 1999) to be informed of the Committees' decision on a full-time permanent contract. I was extremely disappointed that the only offer being made to me in October 1999 was a four month part-time contract, which was a significant change from the permanent contract offered some seven months earlier."

And at paragraph 20 she said:

"There is no doubt in my mind that if I were male, I would have been offered the full-time position and been considered more senior than the technician employed at a lower grade. Whereas because I am female, the school only considered me for a part-time position (both permanent and temporary) and when I turned down the contract of four months was subjected to victimisation."

6. That is the bones of the issues which appeared on paper before the Tribunal, though obviously it was fleshed out. The Tribunal in its decision at paragraph 2(g) on page 25 of the main bundle said this, making findings of fact:

"Shortly before her Contract was due to expire the Bursar, Mr Noble, asked the applicant if it would assist in her job search if her departure was brought forward. The applicant indicated that it would not. This offer appears to have significantly aggrieved the applicant who wrote to the Headmaster on 11 February asking why she had not been offered a long term fixed Contract or a permanent Contract and why she had been asked if she would consider leaving 7 working days before the end of her Contract. There was some conflict between the witnesses as to whether the applicant had been offered a part-time or full-time extension to her post for a further fixed term. There was further conflict on whether she was made aware that there was any imminent full-time post for which she might be considered had she remained with the respondent and whether the offer was made was for a full-time or part-time extension. It does appear clear to the Tribunal that prior to her departure the applicant was offered an extension to the end of the Academic Year. However by the end of her employment the applicant focused on the fact that her references did not refer to her as a Senior Technician. The respondent's reply was to confirm by a letter from Mr Tinnion dated 15 March that he was happy to confirm that he would refer to her as paid on a Senior Technicians Scale although he correctly pointed out that the term had not been used internally."

Then at paragraph (i)

"After the applicant left the respondent employed a specialist IT teacher who took some of her duties and also had a teaching load."

7. I should say in parenthesis that that specialist IT teacher was appointed at round about the end of March to start the following September and that appointment only became a confirmed appointment when the budget for the school was passed in June, though the engagement had been made in the clear expectation that the budgetary provision for the post would be made available.
8. In the Notice of Appeal, in its original form, see page 4 of the original bundle. She said at paragraph 2(g) dealing with the question of whether she would like to leave early:

"To leave seven working days before the end of the contract would have meant losing twenty days' pay and leaving 20 days before the end of the contract."

and then at 2(i)

"One week after the end of my contract the position of IT Teacher was advertised in the Hull Daily Mail. On 31^st March 2000 Mr M Brooks was appointed to the position. The appointee told me in April 2000 that he was to take over my duties. This did not accord with the statements of the respondent's witnesses in which it is stated that the decision to appoint a Teacher and not Network Manager was made in June 2000. I presented these facts and inconsistencies as evidence."

And further down that page:

"4. Mr G D Noble confirmed my evidence that I had not been informed of the full-time permanent position which was advertised exactly one week after I had left the employment of the respondent and for which I was appropriately qualified and experienced."

9. The remaining matter which I shall refer to at this stage is that as a result of some of the matters in Miss Robertson's Original Notice of Appeal, comments were sought from the members and one of those members, Lynn Lloyd, responded at page 14 in the seventh paragraph in response says this:

"There does seem to me to be a new material in the details provided by the Applicant to back up her Affidavit which I do not recollect being presented to the Tribunal. For example, a new comparator, Malcolm Brooks appears to be added to her list. He was not to my recollection named as a comparator during the Tribunal proceedings, nor does his name appear at all, on any context, on her witness statement or on her IT1, nor was he named when the comparators were clarified at the Chair's request at the start of the Tribunal."

10. The complaints that Miss Robertson makes today are two-fold, first she complains about the fact that she was asked if she wanted to resign and in her skeleton argument points out that this meant that she would have been losing 20 days' pay although only some 7 days of actual working, that she would be shortening her employment dates and that she might be forfeiting entitlement to National Insurance credits for future pension rights, and as she put it that she was breaking the employment contract. In fact of course, leaving early by agreement would not have been any form of breach contract. So far as that ground is concerned, it was a matter which was to some extent ventilated in the Tribunal. It was not a matter which could be said in any way to have caused her any detriment. It is clear the Tribunal took the view as they said in paragraph (g), that she was asked if it would assist in her job search if her departure was brought forward. The Applicant indicated that it would not.
11. That offer of early termination cannot conceivably amount to any form of detriment, nor was there any evidence (as the Tribunal rightly said) from which it could be suggested that there was any less favourable treatment of her on the grounds of her sex. There was no basis on which any less favourable treatment could be identified and indeed it is clear on the Tribunal's findings of fact that there was in this regard, no "less favourable" reason. There may well have been a variety of reasons why the school would have been glad if she had left early, but there was no sense of her being pushed out and indeed she was not pushed out. She continued working until the end of her contract.
12. So far as that ground of appeal goes therefore, there is no substance in it at all. So far as the second ground of appeal, the Tribunal is required, when approaching a discrimination complaint to make its findings on the totality of the evidence and then look at the totality of the facts found, including the Respondent's explanations, in order to determine whether it is legitimate to infer any discrimination. The second ground relates to a matter which was, in our judgment, clearly not at the forefront of the matters raised before the Tribunal, though we are satisfied that Mr Brooks' name, as a member of staff appointed to take office, some six months after Miss Robertson's departure did come up in the course of the hearing. What is clear is that there was before at that hearing no suggestion (as there has been before us) that the fact that Miss Robertson was not invited to apply for the post which Mr Brooks obtained was in any sense, either discriminatory or a detriment to her. The post which Mr Brooks was appointed to was a post partly dealing with matters which Miss Robertson had dealt with, but it included also a teaching quota. Although Miss Robertson suggests there is some doubt about it, he was the person suitable to be appointed as a teacher and it seems more likely than not, was the holder of a teaching qualification. In any event that is not relevant to any matter that we have to decide today.
13. The substantive point is that it is clear that there was no suggestion before the Employment Tribunal that the post which Mr Brooks occupied as a teaching post was a post which Miss Robertson ought to have been invited to apply for. It was a post which was advertised externally, like as we understand it, other posts at the college. It was not advertised internally and she could, had she wished, once the advertisement came out and she was aware of it, have applied though by then, having left and having lodged her complaint with the Tribunal it is unlikely that her application would have been greeted with much favour. But more to the point, she was not seeking to continue in a new teaching role at the time when the matter came before the Tribunal. What she was looking for was reappointment as a Senior Technician:

"I would like to be re-engaged on a permanent full-time contract as a Senior Technician."

14. There was at the time of her dismissal (and indeed on the evidence there still is) no such post either available now or intended to be made available. It had been hoped at one stage by the Department Head that such post would be created, but in the event no post was created nor is one likely to be created.
15. It follows that in our view, there was no discrimination against Miss Robertson by the college in failing to offer her any form of further employment, either full-time or part-time, beyond the offer that was turned down to the end of the Academic Year in the course of which her previous contract ran out.
16. The Tribunal properly identified the issues which it had to deal with and it dealt with those issues. It made findings which were open to it that she was not discriminated against and no inference could be drawn of discrimination. In those circumstances, in our judgment, the Tribunal was entirely right to hold that she had failed to make out any claim, either victimisation or for sex discrimination on any ground and that the appeal on the 2 limited grounds which were allowed, is in our judgment one which must necessarily fail.