United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN HORAM (Of Counsel) Instructed by: Messrs JST Mackintosh Solicitors Colonial Chambers Temple Street Liverpool L2 5RH
For the Respondent	MR SIMON GORTON (Of Counsel) Instructed by: Messrs Weightmans Solicitors India Buildings Water Street Liverpool L2 OGA

SUMMARY

The Employment Tribunal failed to make a critical finding of fact which meant it misapplied Igen Limited v K Wong [2005] IRLR 258. For the same reason its decision did not comply with Anya v University of Oxford [2001] IRLR 377 and Tran v Greenwich Vietnam Community Centre [2002] IRLR 735.


 


HIS HONOUR JUDGE BIRTLES

Judgment

Introduction

1. This is an appeal from the Decision of an Employment Tribunal sitting in Liverpool on 9 October 2003, 21 November 2003, 19 January 2004 and 11 March 2004. The Chairman was Mr E Lloyd Parry and the members were Miss C Connell and Mr F D Lindsay. The unanimous decision of the Tribunal was that Mrs Athis' complaint of sex discrimination failed and was dismissed.

The Material Facts

2. The Employment Tribunal made findings of fact in paragraphs 4(a)-4(t). They were as follows:

"4. Here are our findings of fact:-

(a) The respondents are a private secondary school. They have a fine academic record, they strive to maintain high academic standards, and they regard their results in public examinations as an important indication of their success. Their aim is that their students achieve top grades: that is avowedly the first "central pillar" of the school.

(b) The applicant started her employment with the respondents in September 1996. She is a talented teacher of history. She teaches at "A" level. Her ability was in 1998 (while she was on maternity leave) recognised by her appointment to the school's Research and Development Group, which considered how to improve teaching and learning strategies. She was also in 2001 adjudged to have met the 8 criteria (set out on page 172 of AR1) that earned a back-dated passage through the first threshold, CPS1, of the newly-introduced pay spine; that is further explained in the next paragraph.

(c) Until 2000, teachers were paid on a Common Pay Spine that gave a starting salary and eight annual increments. That year, the Department for Education and Skills replaced the old arrangement with a new method of performance-related pay. In order to move up the pay spine after the threshold, a teacher's performance has to be adjudged to have earned her passage. In 2002, the applicant fell to be assessed for further upward movement, to Upper Pay spine 2 (CPS2). The guidance for the assessor is set out at pages 72 to 76 of AR1. The sole criterion for progression is that "the achievement of the post threshold teacher and her contribution to the school have been substantial and sustained" (page 72). It was for a head teacher to recommend to the appropriate committee that a teacher should move up the spine if she has throughout the 2-year period met 3 requirements: that she has maintained standards, addressed further development, and progressed well towards targets (page 73). Further paragraphs (on page 74) discourse on those 3 matters. The Senior Teachers' Pay Review Body said that while movement up the scale was not automatic, they expected "a substantially majority of teachers to meet the criteria for progression.

(d) The applicant went on maternity leave in June 2002. She returned part-time at the end of that year. She started maternity leave again in June 2003.

(e) There was unease about the A-level history syllabus earlier in the academic year (it starts in September). But no one drew it to Mr Tittershill's attention. From page 135 onwards in the bundle, there is correspondence between Ms Holland, Head of History, and AQA, the examination board. She sought, and was given assurance and explanations about changes in the history examination. After the examination, she and the applicant were horrified at the paper the applicant's students were given, and Ms Holland made representations; her letters are in the bundle. AQA remained satisfied that they had behaved properly. Clearly there can be differing opinions about the history paper that year.

(f) A student's grade at A-level is determined partly by the mark attained in the examinations and partly by coursework. The applicant did not in the academic year 2001 to 2002 teach any GCSE students. She taught 5 A-level students for the examination in June 2002. They studied the material in Module 5, the Tudors. Four of the students underperformed badly. One, a bright boy, scored zero. Their poor performance in the paper she prepared them for must have adversely affected the overall grades they were awarded in history. The results for coursework were better, but they represent the efforts of two teachers, one the applicant, and the marks are indivisible between the 2. There were in the history department dismay at the paper the examiners set. They were not at all what had been expected. The applicant had not taught her students to prepare for the type of questions they were given.

(g) The material contained in pages 172 to 186 of AR1 exemplifies the kind of detailed material Mr Tittershill gave to the Governors' Salary Review Committee. The documents include analysis of examination results, teacher by teacher, and a piece written by Ms Holland, senior history teacher, on the history results in the examinations of 2002.

(h) Mr Tittershill had to decide for 21 teachers which ones should be recommended to move up the pay spine. His first consideration produced 13 recommendations. They were selected because a significant "value added" (determined in a widely-accepted exercise devised at the University of Durham). At pages 4 and 5 of his supplementary statement, Mr Tittershill sets out the value added marks gained by the teachers he was considering. It was only possible for him to allot a mark where the value added was attributable exclusively to a particular teacher. This could not be done for the applicant, for the recorded value added in respect of the students she taught was the product of 3 teachers' efforts.

(i) Mr Tittershill did not think that the poor A-level results of the applicant's pupils in the written paper justified attributing to her a "substantial and sustained" contribution to the school. He decided in January 2003 that the applicant should not be recommended that year to move up beyond UPS2. She was one of 8 at that stage not recommended. Sixteen teachers were recommended for a move up. The applicant's accusation is that that decision discriminated against her on the ground of her sex the decision, she said, was effectively determined by her absence from school on maternity leave. The Salary Review Committee accepted the recommendation. Thus the applicant would have to wait a year before being again considered.

(k) On 27 January 2003, the applicant asked for, and was by letter of 28 January given, feedback on the decision (pages 154 and 155 of AR1). She appealed the decision. On 14 May 2003, the Salary Review Committee heard the appeal and rejected it (pages 165 to 166). On 10 February 2003, the applicant applied for a review (page 160 of AR1). The Salary Review Committee reviewed the decision but refused to change it (page 164) because no new evidence had been presented.

(l) On Mr Tittershill's later consideration, Mr Cowan, who is Head of Chemistry was added to the list of recommendations. In Chemistry the A-level value added score was very good. But, it was a team score not attributable to Mr Cowan alone. But MrTittershill took into consideration Mr Cowan's great influence on increasing the number of students who gained entry to Oxbridge in 2002; there were 11 in chemistry alone. For this substantial contribution, Mr Cowan was moved up the spine. In fact, it was later discovered that Mr Cowan's value added score at GCSE should have been a small negative not a small positive. Someone had made a mistake; but that was not realised until later.

(m) Mr Kershaw was the third name to be added to the recommendations. The department's very good A-level results were a team effort. His student's results is the module he exclusively taught were good (they are seen at page 201 of AR1). Moreover, he had written and directed the year's school play, reviving drama there after a period of barrenness. Again, a "substantial and sustained" contribution. The applicant organized an evening of poetry-reading for the school. This, however, did not rank in substance with Mr Kershaw's contribution to drama and did not help to swell the applicant's into a sustained contribution. Its failure to ensure her movement up the spine did not influence the view we took of the respondents' action.

(q) Mr Keating taught computing. The A level results were poor. At first, he was not recommended for progression, but on reconsideration, Mr Tittershill realised that the poor result was not his exclusively, but shared with another teacher. Mr Keating's GCSE results were very good, and his name was put on the list (page 184 contains a table that shows the "value added" he exclusively gave his students). Mr Tittershill on balance decided that he had earned his promotion up the spine.

(r) Ms Holland, too, as head of history, had very good GCSE results. Thus despite poor A-level results in history, she was recommended for promotion up the spine.

(s) Mr Rees was also added to the list. He teaches PE. His substantial and sustained contribution was in his appointment as the national coach of the English Schools Basketball Association, and the progress of the first football XI to the final of the English Schools' Competion. It is difficult to make useful comparisons between PE and more academic, literary subjects.

(t) Mr Schofield, who taught Geography, after being initially omitted from MrTittershill's recommendations, was in the end admitted to them. The poorest of the A-level results were exaggerated by a computing error. Moreover, a zero score for one student was incurred only because the boy missed all his examinations suffering from a medical problem: Mr Schofield's GCSE results were excellent."

The Employment Tribunal Decision

3. Having set out the relevant law in summary form in paragraph 6 of its Judgment the Employment Tribunal went on to consider its conclusions in paragraph 7(a)-7(j) of its Judgment:

"7(a) Did the respondents refuse the applicant access to promotion or subject her to a detriment? They did. They refused to advance her up the pay spine.

(b) Was there a difference of sex between the applicant and those who were advanced? There was, between her and many who were.

(c) Was the reason why the applicant was not advanced that she was a woman? We looked at the explanation offered by the respondents and asked ourselves whether they had proved that their action was not discriminatory. We might have found, on what the applicant told us, that there had been discrimination. The applicant was kept back. Several men were raised, some after a reconsideration of their claims. We needed an explanation from the respondents, for here, on the applicant's account, might be a case of discrimination.

(d) We had to be vigilant in examining the respondents' explanation. We reflected that discrimination is not normally obviously discernible. It would, for example, be very surprising if anyone now confessed to having discriminated, or to being prejudiced. Discrimination will be concealed or disguised. It may be unconscious or even well intentioned. It cannot seriously be conceived that Mr Tittershill or MrHallows (for example) took the course they did with the applicant deliberately she was a woman. We had to recognize, however, they might, as many might, be unconsciously influenced by the assumptions of a masculine culture; or that prejudice might in them take a less overt, palpable form. We had to scrutinize the evidence carefully, even sceptically, to see whether there was anything in the circumstances that justified the inference that there had been discrimination.

(e) We decided that the respondents' explanation satisfied us: their refusal to advance the applicant was not occasioned, deliberately or otherwise, by her sex. Mr Tittershill in making the original decision, and the governors in following and upholding it, took their action purely because they saw the poor examination result as fatal to the applicants' prospect of being raised on that occasion. They would have treated her no differently had she been a man. It was not a question whether the importance attached to the examination result was proper or reasonable. The questions may have been unexpected. The applicant did not teach GCSE or have a very big class. Nonetheless, the examination result alone in fact accounted for the course taken with the applicant, and not her sex nor any other consideration. In making that the sole reason for his decision, Mr Tittershill did nothing to justify our inferring discrimination on his part, on the contrary, his decision appeared rationally permissible in this school.

(f) We did not think that the applicant's case was advanced by her criticisms of the examination paper. Mr Tittershill was looking for positive good results. When someone as able as the applicant does not achieve them, then to be sure, there must be a particular reason. But without good A-level results the predominant part of the applicant's work did not qualify for her advancement. It would be very difficult if Mr Tittershill had, across the academic spectrum, to make judgments, perhaps fine ones, about the quality of examination questions, awarding advancement to teachers whose results were poor, because of disagreement with the examiners.

(g) In each case, the distinction (summarized above) Mr Titterhill made between the applicant and the male teachers who were advanced was rational. He looked, as he was entitled to, at a teacher's entire contribution, emphasizing the academic, and he convincingly proved a consistent justification for his promotion of all the men the applicant compared herself with. There was no question of favouring them, even unconsciously, because they were men.

(h) The applicant said that to take into account another's GCSE results as well as their A-level results was indirect discrimination: because she had child caring duties she taught only part-time, A-levels only; women are the predominant child carers; to extend the scope of consideration to GCSE results amounted to a condition or requirement she could not meet. What was she saying? That Mr Keating and Mr Schofield should not have been given credit for their GCSE results? Hardly, for that could not benefit her. That she should have been given a notional credit for what her GCSE results would probably have been? A difficult result to achieve with any confidence, and potentially unfair to any others whose GCSE results might have been unexpectedly poor.

(i) The fact that the applicant, as a part-timer, could offer only a relatively small scope of work for consideration was not intrinsically a disadvantage to her. Her lack of GCSE work and the weight attached to that work when others were being considered did not amount to a condition or requirement that she could not comply with. She was not in effect told: "You must teach GCSE level or have a worse chance of being moved up the spine". She was (in effect) told: "You, like all your colleagues, will be adjudged on the totality of your work, whatever that amounts to". To teach at GCSE level does not give an intrinsic advantage in the bid to achieve promotion up the spine; perhaps, on the contrary it might provide a teacher with a better chance only to have 5 bright students at A-level than a larger number of mixed ability at GCSE. The condition, expressed above, applied equally to all.

(j) The applicant said that had she not been on maternity leave, she would have had the benefit of consultation with Mr Titterhill on the question of her promotion up the spine. She cited Mr Kating as one who had been consulted. But Mr Tittershill did not consult anyone as a matter of regular procedure. He spoke only to Mr Keating because there were specific mattes he wanted to know. There was no question he needed to go to into with her; the decision in her case was clear. It no more occurred to him to speak to her than it did to speak to the others under consideration; he had enough information about them all to enable a decision to be made."

The Application for a Review

4. By letter dated 22 June 2004 Mrs Athis made an application for a review. By a decision sent to the parties and entered in the register on 15 June 2004 the Chairman refused the application for a review.

The Appeal

5. By a lengthy Notice of Appeal dated 25 May 2004 Mrs Athis appealed in person to the Employment Appeal Tribunal against the liability decision. The matter came before a different panel of the Employment Appeal Tribunal on 6 October 2004 presided over by His Honour Judge Ansell. Upon hearing Counsel for Mrs Athis under the Employment Law Appeal Advice Scheme (Mr I Hare) the Employment Appeal Tribunal adjourned the appeal and invited the same Employment Tribunal to make findings and conclusions on 4 issues raised on page 3 of the Appellant's closing submissions to it. The Employment Tribunal considered that request and provided a written response dated 5 January 2005. The final answer was as follows:

"EMPLOYMENT APPEAL TRIBUNAL

No. EAT/0541/04/DZM

IN THE MATTER of an Appeal under Section 21(1) of the Employment Tribunals Act 1996 from the decision of an Employment Tribunal sitting at Liverpool

BETWEEN

MRS C ATHIS

-and-

BLUE COAT SCHOOL

The Chairman's response to the order of the Employment Appeal Tribunal made on 6October 2004

1. We were asked "to make findings and conclusions in relation to the issues raised on page 3 of the applicant's closing submissions marked a, b, c and d". We were further invited "to consider whether to request any brief further submissions from the parties before making any further findings or conclusions".

2. On 20 December 2004, we re-convened in Chambers to form our response to these requests.

3. The Tribunal members' endorsements on their copies of the applicant's closing submissions indicate that in our deliberations for making our decision, we expressly considered each point a, b, c and d, and rejected each.

4. Here is our reasoning on each point:-

a .denying Mrs Athis information on the decision-making process, especially her right to present information concerning her contribution to the School to the Head.

This is covered, at least by implication, in paragraph 7(j) of the judgment. Rightly or wrongly, Mr Tittershill made his decision for each teacher without imparting or receiving from the teacher information beforehand. The method was applied equally to male and female teachers, those at school as well as the applicant on leave. Mr Keating was an exception for the reasons given (which we accepted).

b. and denying Mrs Athis her statutory right to complete her performance review.

It was not relevant to decide the question raised here. Her performance review was an exercise distinct from the process of deciding whether she moved up the Spine.

c. and denying Mrs Athis the opportunity of consultation before the adverse decision was published.

This is dealt with at paragraph 7(j) of the judgment. No one, except for Mr Keating, was consulted. Mr Titershill genuinely wanted to know something more about Mr Keating. He genuinely did not feel the same need with the applicant.

d. any denying her access to information to pursue her Review and Appeal.

The applicant is referring to information revealed during the hearing, in particular the information about the other teachers. It was appropriate that the information should be produced as part of the evidence in a discrimination hearing. However, it was confidential, and the view might properly be held (particularly by the Head and the other teachers) that the applicant was not entitled to it. Further, the respondents would have withheld the information from a man no less than a woman whether on maternity leave or not.

Before reaching our decision, we considered and decided all the questions we have been referred to. At our meeting in chambers we were only reminding ourselves of what we had already done. There is no jurisdiction for re-opening the questions to further representation before us."

The Amended Notice of Appeal

6. Mrs Athis was requested to provide an amended Notice of Appeal and did so. At the hearing of the appeal she was represented by Mr John Horan of Counsel. He reduced the grounds of appeal in his skeleton argument to three only and with the consent of Mrs Athis argued those 3 points alone. We are grateful to Mr Horan and to Mr Gordon for the clarity of their submissions and their helpful skeleton arguments. We take each ground of appeal in turn.

Ground 1

Mr Horan submits that before the Employment Tribunal Mr Athis made a submission based upon Webb v Emo Air Cargo (UK) Limited [1994] IRLR 482, that a dismissal on the grounds of pregnancy was to be equated with direct discrimination on the grounds of sex and any comparison with a man was irrelevant: see Mrs Athis' written submissions to the Employment Tribunal at EAT bundle page 102. Mr Horan therefore submits that the Employment Tribunal were in error in thinking that it was a necessary part of her case to compare her treatment with that of a man: Employment Tribunal Decision, paragraphs 6(a), 6(b) and 7(e).

7. We do not accept this. It is quite clear that the Employment Tribunal in paragraphs 5(a) and 5(b) correctly identified the two issues which it had to decide. The reference to paragraphs 6(a) and 6(b) is simply a summary of Section 1(1)(a) and (1)(b) of the Sex Discrimination Act 1975. What the Employment Tribunal was saying in paragraph 7(e) was that the fact that MrsAthis was pregnant or on maternity leave was irrelevant to the decision made by MrTittershill. The Employment Tribunal found as a fact that his decision was both solely on the exam results of her A-level pupil group and that he did not consult any of the five men (save one) and one woman who were advanced on the pay spine. The case of the single man whom MrTittershill did consult, was because he required some further information from that particular teacher.

Ground 2

Ground 2 is based upon the law in relation to the burden of proof now found in Igen Limited v K Wong [2005] ICR 931 which substantially endorses the EAT guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. Mr Athis made the submission in her skeleton argument to the Employment Tribunal: EAT bundle page 103. Mr Horan submits that the Employment Tribunal misunderstood Barton and approached the matter wrongly.

8. Although Mrs Athis referred to the Barton case in her written submissions (now overtaken by Igen) no reference to it is to be found in the Employment Tribunal's decision. We do not think that the Employment Tribunal correctly applied Barton. We reached this conclusion primarily because of our finding on Ground 3 that the Employment Tribunal failed to take account of the fact that because Mrs Athis was on maternity leave she was not therefore coming into the school at all during that period or being sent information by the School or kept informed of the procedure to be followed by Mr Tittershill in considering whether to promote a particular teacher on the pay spine. In particular, the Employment Tribunal completely ignored the significance of the notice placed by Mr Tittershill in the staff common room: EAT bundle page 165. The relevant part of that notice said this:

"The Headmaster will recommend to the Salary Review Committee of the governing Body that one point be awarded to a teacher on the Upper pay spine who, throughout the last two years, has:-

•     Maintain all the eight threshold standards in a fully satisfactory manner

•     Achieved or made good progress towards targets agreed during Performance Management

•     Delivered a sustained and substantial performance and contribution to the school

•     Made a measurable impact on pupil progress at the school

•     Made an impact on School Improvement

•     Contributed towards the Ethos of the school and its special priorities

The Headmaster may take account of the records and comments of Team Leaders via Performance Management. Teachers may, if they wish, provide further evidence of achievement, e.g. a CPD portfolio or record of results."

The Employment Tribunal failed to either understand or deal with that critical matter. MrsAthis was not informed of the existence of the circular or its contents by the school. It followed that she was not aware that she could make representation or provide any further material to Mr Tittershill before he made his recommendation to the Salary Review Committee of the Governining Body. That fact does not appear anywhere in the Employment Tribunal's decision. There is an attempt by the Tribunal to deal with it in its response to the Order of the Employment Appeal Tribunal made on 6 October 2004 in its answer to the first question under paragraph 4(a) as set out above. However, we do not think it is covered "by implication." The short fact is that the school failed to provide MrsAthis, who was on maternity leave with the relevant information. The information was available to the other teachers who were advanced in the pay spine. That would constitute discrimination on the grounds of sex and Barton was not properly applied in this case. That was an error of law on the part of the Employment Tribunal.

Ground 3

9. Mr Horan submits that applying the principles of Meek v City of Birmingham District Council [1987] IRLR 250, Tran v Greenwich Vietnam Community Centre [2002] IRLR 735 and Anya v University of Oxford [2001] IRLR 377 the Employment Tribunal has ignored submissions and statements of Mrs Athis made to it. Those submissions and statements are found at the EAT bundle pages 87-95. In particular, the Employment Tribunal failed to make inferences involving the EOC Code of Practice; inferences based on the individual comparators put forward by the School and common law inferences based upon the School's failure to provide a balanced, fair and reasonable approach to gathering, presenting and analysing information in relation to Mrs Athis' performance. MrHoran further submits that the subsequent answers by the Employment Tribunal to the questions asked of it by the Employment Appeal Tribunal under the procedure in Burns v Consignia [No 2] [2004] IRLR 45 do not meet his objections.
10. We agree with Mr Horan. In particular, we have already noted above that there was no explanation by the Tribunal as to the effect of MrTittershill's notice: EAT Bundle page 165. Second, it follows that Mrs Athis had no opportunity to make representations to MrTittershill. She was shut out from doing so because she was not aware that such a procedure could operate. The fact that other teachers apparently chose not make representations is neither here nor there. The fact of the matter is that the only reason that she did not know of the procedure was because she was on maternity leave. The opportunity to make such representations was potentially critical to MrsAthis before MrTittershill made his recommendations to the Salary Review Committee of the Governing Body. Again the Tribunal made an error of law.

Conclusions

11. For these reasons we think that the Employment Tribunal has made an error of law and the appeal is allowed. We are not in a position to determine this matter ourselves because it involves findings of fact which we are unable to make. Neither do we think that the matter should be remitted to the same Employment Tribunal for a fresh hearing. In view of the fact that that Tribunal has already had the opportunity of answering questions from the Employment Appeal Tribunal we do not think that it would be appropriate for it to conduct a rehearing. Our Order therefore is that the case be remitted to a fresh Employment Tribunal for hearing. A copy of the transcript of this judgment will be supplied to that Tribunal and to the parties. In view of the fact that Mrs Athis is still employed by the School we would hope that the parties would be able to come to some agreement and avoid a further hearing in an Employment Tribunal.