United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS N CUNNINGHAM (of Counsel) Free Representation Unit 4th Floor Peer House 8-14 Verulam Street London WC1X 8LX
For the Respondent	JOHN STAMFORD Consultant Integrated Asian Advice Service 24 Greens End Woolwich London SE18 6JY


 


HIS HONOUR JUDGE ANSELL
1. This is a hearing of an appeal from a decision of an Employment Tribunal sitting at London South on 30 June 2003 who in a decision promulgated on 27 August held that the originating application could be amended to add a complaint of unpaid wages for a period of 6 -24 January 2003 that allowed a claim of Equal Pay to be added as an alternative claim. They dismissed the claim for wrongful dismissal, dismissed the Sex Discrimination Act claim but awarded unauthorised deduction of wages effectively based on Equal Pay in the sum of £1,325.48.
2. Leave for this hearing was given by Mrs Justice Cox in chambers on 29 October of last year. The facts of the matter were substantially in dispute but the Tribunal clearly preferred the employee’'s version of events and in particular found that the employers had in particular put forward a version of events and indeed documents which they did not accept.
3. The Respondent’'s are an organisation providing Community Health Services to the Asian community and one of Health outreach workers is a Mr Umar. Sometime in 2002 they wished to appoint an additional outreach worker and advertised the position at the same salary that Mr Umar was then receiving namely £22,975.00. The Applicant applied for the job giving the names and addresses of two referees and she was interviewed for the post on 4 November by a panel including a manager Mr Haq.
4. She claims that she received a letter dated 22 November informing her that she had been successful in her application for the post pending receipt of satisfactory references. She was asked to confirm her acceptance and to arrange a convenient date for an initial introductory meeting. The letter stated that further employment details shall be discussed in due course and there would be an initial six months probationary period.
5. There was a second letter of 22 November produced by the employers which the Tribunal found was certainly never received by the employee. On 30 November she accepted the position subject to training and salary arrangements and there was to be a meeting on 6 December which indeed took place and the Tribunal accepted it was agreed at that meeting that she would start on 6 January 2003. Terms and conditions were again discussed though it seems never finalised. There were certainly some discussion from one of the members of the panel about a reduced salary and Mr Haq said that he would go into this further and hopefully deal with it.
6. The referees were apparently contacted and the Tribunal found that she started work on 6 January despite the fact that conditions had not been finalised. By 14 January there was a further meeting with Mr Haq. The Applicant discovered that in fact no requests had been sent for a reference; the requests were prepared and the Tribunal accepted that the Applicant was asked by Mr Haq to deliver these letters to her referees and to ask them to back-date them.
7. Shortly afterwards in further correspondence and meetings particularly at meetings on 15 and 17 January it became clear that the employers were only willing to offer a rate of £20,000 a year and there were further meetings and letters between the parties where the employee clearly not willing to accept this situation and indeed made it clear that she was going to take the matter further and she referred to taking the matter to arbitration.
8. Eventually on 24 January she received a letter from Mr Haq saying that they had received unsatisfactory references and they were withdrawing the offer of employment with immediate effect.
9. The Tribunal found that “"by no stretch of imagination could the references be referred to as unsatisfactory”". They found that the letter of 24 January purporting to withdraw the offer of employment amounted to summary dismissal.
10. The Tribunal found that the employee did not qualify for statutory minimum notice as she did not have the requisite minimum period and they rejected the argument that there was an implied term that she was entitled to a minimum of one week’'s notice. That finding initially was one ground of this appeal but is no longer pursued.
11. The Tribunal awarded a period of equality of wages at the same rate as Mr Uma for the three or so weeks that she did work. We understand that sum has been paid. The substance of the appeal today relates to the Sex Discrimination Act claim and the manner in which the Tribunal dealt with it.
12. In the IT1 under the heading Sex Discrimination Act the employee had briefly set out the background circumstances and made it clear in that IT1 that she was saying that effectively the dismissal had taken place because she was not willing to work at the reduced salary. Indeed that was confirmed on two occasions within the submissions before the Tribunal: on page 40 of our bundle, paragraph 12 of the counsel’'s submissions under the heading Discrimination and Equal Pay. The submissions said this: “"The Applicant’'s case is that she was dismissed because she refused to accept Mr Haq’'s discriminatory (and unequal) proposal that she be paid £20,000, in particular in circumstances Mr Umar was paid the full £22,295 for (she maintains) the same work”".
13. And again on page 42, under the heading Quantum, because of course a claim under the Sex Discrimination Act would entitle her to damages for injury to feelings and other headings, she said this. “"The Applicant lost her job because she stood up to Mr Haq and refused to accept his discriminatory pay proposal”". When the Tribunal in paragraph 32 came to deal with this claim they rejected any claim under the Sex Discrimination Act citing Section 8(5) of that Act. Section 8(5) prevents effectively double counting in other words prevents someone claiming under the Sex Discrimination Act when there is a claim under the Equal Pay Act and it reads as follows:

“"An Act does not contravene Section 6(2) if

(a) it contravenes a term modified or included by virtue of an equality clause or

(b) would contravene such a term but for the fact that the equality clauses prevented from operating by section 1(3) of the Equal Pay Act 1970

The Tribunal took the view that the claims under the Sex Discrimination Act were effectively barred because of that clause.

14. We are of the view however that clause only prevented a Sex Discrimination Act claim being made in relation to the failure to pay equal pay during the period of her employment when as the Tribunal found she had a perfectly valid claim under the Equal Pay Act. However, the Tribunal did not go on to deal with what was the essence of her claim under the Sex Discrimination Act namely that effectively she was subject to a detriment in being given the choice of either accepting a lesser wage or being dismissed or simply being dismissed.
15. At first sight we raised the issue as to whether this was more properly described as a victimisation claim under Section 4 of the Act. But Ms Cunningham carefully took us through that section and made the concession that the employee in this case had certainly not directly at that stage alleged that an act contrary to the Equal Pay Act had been carried out by the employers although it might have been inferred from what she was saying. Ms Cunningham’'s submission is that claim is more properly brought under the heading of detriment under Section 6(2) which provides that it is unlawful for a person in the case of woman employed by him at any establishment in Great Britain to discriminate against her

(a) in the way he affords her access opportunities promotion transfer or and training or to any other benefits, facilities or services or by refusing or deliberately omitting to afford her access to them or

(b) by dismissing her or subjecting her to any other detriment

16. As we have indicated already it is a combination of dismissal and or detriment, which she says arises in this case which the Tribunal failed to deal with. It may well be that they thought that all Sex Discrimination claims were barred because of the Section 8(5) but as we have indicated already that is not the correct view, in our view Section 8(5) is only meant to prevent double claims both under the Equal Pay Act and under the Sex Discrimination Act.
17. In our view therefore, the Tribunal’'s decision although carefully setting out the facts was indeed flawed and we have indicated they failed to deal properly with the issue under the Sex Discrimination Act and particularly the issue of detriment and dismissal that we have set out. Accordingly our view is that the matter must therefore be remitted back to them for them to consider this particular issue, make findings upon it and if necessary to make suitable financial awards if that be the case. The case will be remitted for a rehearing of claims under Sex Discrimination Act.