United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS SUSAN MACHIN (of Counsel) Instructed by: Messrs Whittles Solicitors Pearl Assurance House 23 Princess Square Albert Square Manchester M2 4ER
For the Respondent	MISS J EADY (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


MR COMMISSIONER HOWELL QC

1. In this appeal which is before us today for Full Hearing pursuant to the directions earlier given at the Preliminary Hearing on 31 May 2002, Miss Deborah Stewart seeks to have set aside as erroneous in law the decision of the Liverpool Employment Tribunal, given after a hearing over three days in July 2001 and comprised in the statement of Extended Reasons sent to the parties on 15 October 2001, in which the Tribunal dismissed all the complaints that Miss Stewart had made against her continuing employers, Her Majesty's Prison Service, under three separate Originating Applications dated respectively 8 August 2000, 15 November 2000 and 12 February 2001.
2. The facts appearing from the Tribunal's clear and succinct findings, and the evidence (some of which we have been shown), were that Miss Stewart was, as she still is, a Prison Officer, serving at HM Prison Risley since 12 October 1992. In December 1999 she had been away from work on sick leave for about 1 year, the reason given being that she was suffering from lower back pain.
3. There was at this time a serious problem at Risley with extended staff absences being taken through sickness. A new Governor was appointed in December 1999, who determined to do something about this, applying Prison Service Order 8401 on the management of long-term staff sickness. Miss Stewart lived with another prison officer, a man, who had also been absent sick for over a year. There were six officers in total signing off sick for over a year at Risley.
4. The new Governor, Mr McConnell, visited both Miss Stewart and her partner at home in the spring of 2000. She gave him the impression of being in great pain on that occasion and the governor could therefore see little hope of her being able to return to work. He arranged for a medical review of her condition and the Respondents paid for her to have an MRI scan.
5. The medical advice following this was that the scan showed that the state of Miss Stewart's back was perfectly normal and there was no evidence that she was permanently incapacitated. Consequently early retirement on medical grounds could not be considered. The medical advice was that there was no medical reason against the consequences of the normal administrative processes for dealing with non-attendance at work being applied to her.
6. On 16 June 2000 the Governor wrote to Miss Stewart indicating his intention to dismiss her on that ground and telling her that she could make representations about this. Her evidence was that she had written two days before that to say that she was returning to work, but the Tribunal found that the Respondent never received such a letter.
7. On 26 June 2000 Miss Stewart presented herself at work, unexpectedly so far as the Respondents were concerned. The Governor then decided that she should not be allowed to return to normal working until a further medical examination had taken place in view of the previous medical history, and until she had been pronounced fit on that further medical examination. In the meantime his decision was that the disciplinary process, under the notice of intention to dismiss, should continue.
8. On 26 July 2000 she underwent a further medical examination and was found to be fully fit for normal working.
9. On 16 August 2000 the notice of intention to dismiss was withdrawn in consequence of that medical advice, but the governor made a reservation on that withdrawal that he reserved the right to re-implement the dismissal procedure if she again started to take extended sickness absence.
10. He was surprised by her apparent sudden and total recovery when she had been apparently so sick before. Accordingly, as the Tribunal found, she was sensibly given a phased return to work, although not given specially light duties in view of the medical advice that she had completely recovered.
11. Matters then went on until 13 November 2000 when Miss Stewart was absent from a rostered duty at the prison for an entire shift. The reason for that was that she had arranged a hospital appointment for that time and had informed the Respondents about her hospital appointment; but unfortunately she was nevertheless rostered for duty. That was a mistake by the Respondents. The duty officer who was unaware that a mistake had been made telephoned Miss Stewart and spoke sharply to her when she had failed to turn up for duty as he had expected. The Tribunal found that he would have done exactly the same to anyone in that situation.
12. The ground of complaint to which this incident gave rise was that Miss Stewart was initially required to count this day's absence as part of her annual leave, instead of being allowed to take it as working time; although later that was changed so that she was able to take it as sick leave and it was not in the event deducted from her annual leave entitlement.
13. Miss Stewart, as we have said, presented three Originating Applications complaining to the Tribunal. The first by her Originating Application of 8 August 2000 complained of direct sex discrimination on 19 June 2000, in her having been initially notified of the Governor's intention to implement the dismissal procedure. She alleged that these formal proceedings had been resorted to because she was a woman. The Respondents denied that and asserted that she had been treated in accordance with the same procedures as were applied to all officers.
14. The second Originating Application of 15 November 2000 made two allegations – first of sex discrimination and, second, victimisation – in the action taken on 16 August 2000 when the notice to dismiss was withdrawn but the reservation was made about re-implementing the dismissal procedure on further sickness absence for anything other than minor or trivial ailments.
15. That too, she alleged, was less favourable treatment because she was female, so as to constitute a further act of direct sex discrimination, and she also alleged that it amounted to victimisation because she had made a previous complaint; although in her second Originating Application it was left far from clear exactly what the protected act relied on for that aspect of the claim was to be.
16. The Respondents again denied the allegations. Again they asserted that she had been treated in accordance with procedures applicable to all officers. No other officer, it was admitted, had received a letter in the same terms as that of 16 August; but that was because no other officer had had a dismissal withdrawn on a sudden and complete recovery in comparable circumstances to that of Miss Stewart.
17. The third Originating Application, dated 12 February 2001, alleged a further act of victimisation on 13 November 2000; in that the shift when she had had the hospital appointment had been deducted from her annual leave. She again asserted that this was victimisation (in this complaint she alleged only victimisation) and referred to her being victimised "for complaining about acts which have been committed against her in contravention of the Sex Discrimination Act 1975" but apart from referring to her previous Originating Applications it did not further identify the protected act on which she was relying for the purposes of this victimisation claim.
18. The Respondents again denied this further claim and said that it was normal procedure for a full day's absence for a planned hospital appointment to be counted as either sick leave or annual leave in all cases; credit for working time was not given for such appointments because they could be planned for and arranged in advance.
19. It is apparent that the second and third Originating Applications – those which contain the allegations of victimisation – although not the first, had been drafted with the benefit of at least some professional assistance and indeed they were both submitted on behalf of the Applicant by the solicitors then acting for her.
20. The Employment Tribunal held a directions hearing on 8 January 2001, at which the Applicant was represented by the same firm of solicitors and the Respondent by Counsel, instructed by the Treasury Solicitor, and directions were given by agreement that the hearing should be listed for three days and it was recorded "the issue being sex discrimination." The direction was then given that evidence was to be given by written statements being exchanged no later than 14 days before the hearing and further directions for documents and preparation of bundles by the Applicant were added in the letter recording the directions, sent to the solicitors still acting for Miss Stewart, on 12 February 2001.
21. At some time after that and before the applications actually came on for hearing, the solicitors ceased to act for Miss Stewart and she continued with the proceedings representing herself.
22. She did however comply with the direction as to preparation and service of witness statements and it is apparent that the two main witness statements (of which we have been supplied with copies in the appeal file), namely a long witness statement by herself and a shorter supplemental witness statement by her partner as to his treatment by the Prison Service when he had been off sick for a long period, had been prepared with at any rate some professional assistance.
23. In addition to those two witness statements Miss Stewart also submitted two further documents as witness statements, one of them bearing a later date than the two previous ones and the other undated. One was a statement headed "to whom it may concern" by a Mrs Catherine Ellis to the effect that she had been dismissed for unsatisfactory attendance and believed that this had been because she was female. The other was by a Miss Tracy Hackett who was employed as a Prison Officer at Risley and detailed a conversation she had had in March 2001 with another officer when she had been told that it was no longer possible to attend a hospital appointment in working time "due to a female officer ruining it for everybody."
24. The Employment Tribunal decided, having heard evidence from both Miss Stewart and the Respondents, to dismiss all her complaints. It gave a combined decision on all three Originating Applications. The statement of reasons at the outset identifies both direct discrimination and victimisation as being the issues required to be addressed by the Tribunal and, in relation to the victimisation issues, in particular recorded the allegations on which the Applicant appeared to be relying, that the Respondents had said she would be dismissed if her sickness absence recurred and had deducted annual leave to make up for her attendance at hospital.
25. The Tribunal's decision then went on to explain in, as we have said, very clear and succinct terms, the facts which we have outlined already; and then expressed the Tribunal's conclusions and the reasons for them in another paragraph containing four sub-paragraphs, which we have to say was in the light of the evidence and the issues before the Tribunal, expressed with a brevity bordering on the laconic. What they said was this:

4 (a) "Did the Respondent subject the Applicant to a detriment? They did. They imposed various requirements upon her as to medical examination and the entire management of her sickness absence, and attendance at work while visiting hospital, that are properly to be regarded as detriments, in the sense of unwelcome obligations. The decision to dismiss her, later withdrawn, was also a detriment.

(b) Was there a difference of sex? There was, patently to a certain extent. The Respondents did not require the Applicant's partner to submit to a medical examination before his return to work. Was this difference of treatment a pointer to their entire attitude to the Applicant, so that we might infer that there was discrimination in the instances where the partner was not so concerned? Might we from all the other circumstances infer that the Respondents discriminated against the Applicant? Did the Respondents treat her as they did because she was a woman? Since discrimination will rarely be admitted and is likely to be disguised, we must look for evidence that might justify the inference. Our answer appears below.

(c) What was the Respondents' explanation for the difference in treatment? They said that the Applicant was required to have a medical examination before her return to work in June 2000 because there was a good reason to doubt whether she was fit to return; notwithstanding her wishes, it was a sensible health and safety measure. When the doctors pronounced her fit, she was given a phased return in accordance with procedure. When the partner returned to work, there was no particular reason to think that he needed to be examined.

(d) Did we accept the Respondents' explanation for that part of the complaint? We did. Mr McConnell was genuinely surprised by the great and sudden improvement in the Applicant's condition. Shortly before, she needed a further consultation and a scan. She might be coming back too soon. Hence his wish to have her examined. Her case was different from that of her partner. It was impossible to find that Mr McConnell would have treated a man in her situation differently. The incident neither amounted to discrimination nor afforded material for an inference."

There the Tribunal's explanation of their decision and the reasons for it ends.

26. The amended Notice of Appeal, dated 8 July 2002, alleged two substantial defects in that decision. First, a failure to apply the correct test and a failure to differentiate between the complaints of discrimination and victimisation, and a defect in the reasoning in the way the Tribunal explained their conclusion to dismiss the claims on both of those aspects. Secondly, an alleged procedural unfairness in that according to the Applicant she had not been allowed to refer to documents or call witnesses, which was alleged to constitute a breach of natural justice. A reference was also made to the requirements of Article 6 of the Convention on Fundamental Rights and Freedoms, as to a fair hearing; but it was common ground in the argument before us that that added nothing substantive to the existing requirements well-established in the law of this country as to natural justice and affording parties a fair hearing.
27. In the Appellant's Skeleton Argument, and in the amended Notice of Appeal, a further point was taken on the Tribunal having not directed themselves correctly to the proper comparators for the purpose of the sex discrimination complaint, but that was quite properly not pursued before us by Ms Machin who appeared on her behalf since, as she conceded, in our view entirely rightly, that was not included in the issues directed in the judgment of Mr Recorder Burke QC to proceed to a full hearing before us when the case was being considered at the Preliminary Hearing on 31 May 2002.
28. Accordingly, Ms Machin advanced the appeal against the Tribunal's decision on three grounds. First, there had been a failure on the part of the Tribunal to consider and evaluate the direct sex discrimination and victimisation claims separately, as they should have done. Second, the reasons given for the Tribunal's decision on either or both of those complaints were insufficient for the Applicant to have a reasonable and clear understanding of why the case had gone against her. Third, there had been procedural unfairness in that the Employment Tribunal had accepted the written witness statements of the parties as evidence without having them read out, and had then proceeded straight to cross-examination of the Applicant on her witness statement, which was not what she had been expecting as she had assumed there would be an opportunity for her to read out and amplify her own witness statements to the Tribunal before matters went on. It was submitted on her behalf that she should have been given more explanation and assistance by the Chairman in conducting her own case than she was, and that she had been, in the way the proceedings had been conducted, wrongly deprived of the opportunity of supplementing her case with material evidence that could or might have made a difference to the result.
29. Dealing with that procedural point, first, we have not been satisfied that any arguable breach of natural justice has been demonstrated in the way the matter was dealt with at the Tribunal, such as to warrant our setting the decision aside on that ground. It is true that the Applicant was unrepresented by the time of the hearing, but the extremely helpful transcript of the notes taken at the hearing itself, with which we have been provided as an exhibit to the affidavit of Miss Cribb of the Treasury Solicitor's Department, does demonstrate that at the hearing Miss Stewart showed herself to be an articulate person, well able to understand and pursue points that she considered of importance. In addition of course she had had the benefit of a professionally prepared statement of her case on the second and third Originating Applications, and we think it is apparent that there had been some assistance in the preparation of the two main witness statements as well. There is nothing to indicate that she was unable to make any reference to the documents which were before the Tribunal in order to support her case as and when she thought that necessary.
30. We have not been persuaded that there is any injustice demonstrated in her not having pursued any opportunity of supplementing the evidence contained in her own witness statement and that of her own witnesses by making further oral observations before the hearing proceeded to cross-examination. Even as a lay person, it seems to us that she must have understood the significance of being required to submit statements of evidence to the Tribunal in advance of the hearing; the whole purpose of a witness statement is to set out what that party's evidence at the hearing is to be, and no legal expertise is required to understand that.
31. There is no indication that she suggested to the Chairman or the Tribunal at any stage that she had further relevant evidence to be given in chief by way of supplementation of her own witness statement. On the contrary; her main complaint appears to be that she was not allowed to read through the contents of the witness statement herself at the hearing and to use that as a basis for making references to passages in the documents in the case, despite the fact that of course the Tribunal themselves already had the witness statement and the documents and had read them in the course of preparing for the hearing themselves in the normal way.
32. Reference to documents and emphasis on particular points is of course a matter for submissions, not evidence, and there was of course the opportunity, which the transcript shows Miss Stewart took, of making reference to particular documents in cross-examination of the Respondent's witnesses so as to elicit any points she desired to draw to the attention of the Tribunal.
33. Ms Machin was not able, despite some rather detailed questioning from ourselves, to identify any relevant evidence on an issue of fact which the course the proceedings took had deprived Miss Stewart of the opportunity of giving. First it was said that she would have wished to explain to the Tribunal the impact of the acts of victimisation on herself and how this had adversely affected her. Such an impact statement is of course, as Miss Eady on behalf of the Respondent pointed out, irrelevant in the legal sense to establishing any victimisation claim, for which the only two relevant issues are whether there has been less favourable treatment of the Applicant on a proper like for like comparison and whether the reason for that less favourable treatment was the fact that she had done a protected act. The first is a matter of objective fact and the second a matter of enquiring into the reasons on the part of those concerned at the Respondents for acting the way they did; neither could depend on any subjective evidence that Miss Stewart herself might have wished to give.
34. Secondly it was said that there had been a wrongful deprivation of an opportunity for further evidence to be given by or about the position of one of Miss Stewart's witnesses, Miss Hackett (the one who had had the conversation with another prison officer about the tightening up of the hospital appointment arrangements). The point taken on that was by reference to something that was said in the course of the hearing itself when (on page 87 of the transcript) on the morning of 10 July 2001 Miss Stewart had herself intervened in the proceedings, referred to Miss Hackett as being the person mentioned in one of the documents in the Tribunal bundle (at page 436) as another female who had returned with a medical recommendation of being given only light duties after returning from sick leave.
35. The point the Applicant raised was that she disputed that when Miss Hackett had in fact returned she had ever been restricted to light duties only and said that Miss Hackett would confirm that this had not been in fact the case. That appears to us of no relevance on the issues of victimisation which we have already identified. Miss Machin conceded that it could not conceivably be relevant on any question of sex discrimination since of course Miss Hackett is also a female prison officer.
36. We were thus not persuaded that there was anything in that aspect of the complaint, that evidence had wrongly been excluded. In reply Miss Machin took a further point in relation to Miss Hackett, in that on verbal instructions from the Applicant she told us that yet further evidence (not even mentioned in the Applicant's intervention at the Tribunal proceedings) might have been able to be given by Miss Hackett as to why Miss Hackett herself considered that she had been treated differently and potentially more favourably than the Applicant; Miss Hackett herself not having launched any sex discrimination proceedings.
37. The criticism there was that the Chairman had not allowed or embarked upon his own process of enquiry with the Applicant and Miss Hackett with a view to eliciting a further basis for a victimisation claim which had not been put forward before. In our judgment, these Tribunals not being inquisitorial bodies, there is no question of it being a breach of natural justice or an error of law on the part of the Tribunal or the Chairman not to have gone to such lengths as Ms Machin suggested on behalf of Miss Stewart.
38. In her reply observations Ms Machin took a final point on the procedural issues which was that by being deprived of the opportunity to read out her own statement, and possibly expanding on it by reference to the documents, Miss Stewart herself felt that she had been given an insufficient opportunity to establish her credibility before the Tribunal; but again no injustice appears to us to be demonstrable on that ground, since we were not persuaded, when one looked at the Tribunal's findings of fact, that there was any relevant factual issue on which her credibility had been put in issue or on which she had in fact been disbelieved at all.
39. Consequently, we dismiss the appeal on the procedural grounds.
40. Turning now to the other two grounds (the failure to address material issues on victimisation and/or failing to express conclusions with sufficient clarity on that aspect of the case), we have conversely reached the conclusion that despite Miss Eady's well-argued submissions there was here a failure on the part of the Tribunal. We have not found it possible, having read and re-read the Tribunal's statement of reasons, to identify that there has been a sufficiently clear consideration by the Tribunal of the victimisation issues and the separate questions to which they gave rise as distinct from the main claim of sex discrimination, which was obviously the much more substantial part of the factual and legal claim that was being put before the Tribunal by Miss Stewart.
41. Although the directions given following the procedure hearing in January 2001 appear to have identified the issues simply as those of sex discrimination, it is clear there were outstanding issues identified at the hearing itself on victimisation, which were in the Originating Applications and had not been at any point abandoned by or on behalf of Miss Stewart. At page 73 of the appeal documents is the first page of the transcript of the proceedings when, as is entirely normal practice, the Chairman opens by attempting to identify what the complaint is about and identifies it as one of sex discrimination. But then only a few minutes into the cross-examination of the Applicant by Counsel on her own evidence the Chairman asks the Applicant what criticism she was making of the Respondent's conduct and she then, as recorded in Miss Cribb's admirable note, makes quite clear the basis of her claim is being put alternatively as direct sex discrimination and as a victimisation claim, based in particular on the two incidents of the reservation attached to the withdrawal of her dismissal on 16 August 2000 and the requirement to take her hospital appointment day on 13 November as a day of annual leave.
42. That is reflected, in our judgment entirely correctly, in paragraph 2 (a) of the Tribunal's Extended Reasons when, as we have already noted, the continued existence of the victimisation claims on both of those aspects is recorded as a subsisting issue by the Tribunal itself. It is puzzling, therefore, in that context, that paragraph 4 of the Extended Reasons (which we have already quoted in full) addresses the case only in terms of the direct discrimination issue which we think is quite clearly all that that paragraph is dealing with, since it is expressed entirely in terms of comparisons between the Applicant and her partner and whether inferences may properly be drawn, taking into account the Respondents' explanation for the difference in treatment. That is, although succinct, an entirely clear treatment of the direct discrimination issue in the case; but we think the reference, particularly in paragraph 4 (d) to considering the Respondents' explanation for "that part of the complaint" and the reference in the very final sentence to "the incident", i.e. the one incident relied on as direct discrimination on her return from work, makes it quite clear that what the Tribunal are directing their minds to and the conclusions that they are there expressing, relate only to the direct sex discrimination claims and not to the victimisation claims.
43. We accept that, as Miss Eady argued, the may indeed be not much to be said on the victimisation claims in any case; but the absence of any apparent findings by the Tribunal on the relevant issues on victimisation leads us to conclude that we cannot take the exceptional course she urged, of confirming the decision anyway on the ground that on the findings the Tribunal did make there could only have been one conceivable answer to the victimisation claims; and that we should infer that the relevant issues had been correctly addressed from the fact that the Tribunal gave their decision that all the complaints failed.
44. In particular Miss Eady relied on the Tribunal's findings of fact in paragraph 3 (i) and (j) on the issue of what happened about annual leave and the hospital appointment; but those (in particular the reference in paragraph 3 (j) to special leave being granted only in exceptional circumstances "to men or women,") again leave it in our judgment insufficiently clear that the Tribunal were correctly directing their minds to victimisation issues as opposed to issues of direct sex discrimination on that aspect of the case. The impression of lack of clarity on that point is reinforced by their apparent finding that her treatment, with regard to attendance at work while visiting hospital, was indeed a "detriment", in paragraph 4 (a) – the opening part of the paragraph, in the remainder of which, as we have already said, they dealt with the case entirely in terms of a direct discrimination claim.
45. Similarly, Miss Eady drew our attention to the Tribunal's findings in paragraph 3 (h) as to the reasons why Mr McConnell (the Governor) had imposed the reservation on the terms of the withdrawal of notice of dismissal in August 2000. But again that simply records that Mr McConnell was surprised by the apparently rapid and complete recovery and understandably feared there might be a relapse and had given her a phased return to work. That paragraph does not directly address questions relevant to victimisation as distinct from direct discrimination. Coupled with the complete absence of any mention of victimisation in paragraph 4 where the Tribunal's own conclusions are being expressed, we are not satisfied that overall the statement demonstrates that the relevant points on victimisation in this case were sufficiently addressed. We say that even allowing for the fact that with the Applicant there in person and the way in which those victimisation claims had been formulated in the Originating Applications, which was plainly inadequate, those aspects of the claim may, quite understandably, not have been to the forefront of anybody's minds by the time of the conclusion of the hearing itself.
46. We therefore conclude that we must set aside the Tribunal's decision on the question of victimisation only and, as both sides agreed, if we did take that view, was the proper course, we have therefore to remit the case to the Tribunal to re-determine those issues. We consider, having heard argument from both sides, that the limited remission of further issues for further determination, should be to the same Tribunal which has already heard the evidence. We do not accept that they would be unable to consider and form an objective view on those separate issues, which we will endeavour, with the assistance of Counsel, to identify for them; and it will of course be for the Tribunal themselves to consider whether, on those issues, as so formulated, any further evidence from either or both sides, is required before they can reach a proper conclusion. That will, incidentally, have the advantage of giving Miss Stewart the opportunity of applying to put forward any further relevant evidence that she is able to demonstrate to the Tribunal, ought to be admitted on the re-hearing on the victimisation issues, even though, for whatever reason, she omitted or was unable to put it forward at the previous hearing when she was acting for herself.
47. Accordingly we will set aside the decision on victimisation only and remit that part of the case for re-consideration; to the same Tribunal, if at all practicable. If it is impracticable to re-convene the same Tribunal panel then it will be a matter for the Tribunal authorities to determine the arrangements for the re-hearing.
48. We will now hear Counsel on the formulation of the issues on victimisation to be remitted to the Tribunal for re-determination. [Directions were then formulated and incorporated in the EAT's order on the appeal].