United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS N BRAGANZA (of Counsel) Instructed by: Messrs Woolsey Morris & Kennedy Solicitors 100 Station Road Sidcup Kent DA15 7DT
For the Respondent	MR T KIBLING (of Counsel) Instructed by: Messrs Eversheds LLP Solicitors Holland Court The Close Norwich NR1 4DX)


 


SUMMARY

Sex Discrimination

Employment Tribunal made no reference to the law (statutes or authorities) in dismissing claims for sex discrimination and pregnancy related dismissal and unfair dismissal. Wholly unclear whether it applied either the Barton guidelines or in particular s63A of Sex Discrimination Act 1975: no contest that case should be remitted to the Employment Tribunal and resolved that it should be differently constituted (Sinclair Roche & Temperley v Heard [2004] IRLR 763 considered)


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of an appeal by Mrs Ursell against the unanimous Decision of the Tribunal at Reading, chaired by Mrs Hill, after a three day hearing on the 28, 29 and 30 July 2004, in Reasons sent to the parties on 10 August 2004, that the Applicant's complaints of unfair dismissal, including unfair dismissal, on the grounds of her pregnancy and direct sex discrimination be dismissed. The matter has come on today in which the parties have been represented by the same Counsel as ably represented them below, Miss Braganza of Counsel, for the Applicant as Appellant, and Mr Kibling of Counsel, on behalf of the Respondent.
2. On the 18 February, that is last Friday, there was handed down by the Court of Appeal judgment in three conjoined appeals, of which the lead appeal is the case of Igen Ltd v Wong [2005] EWCA 142 (unreported) .This was not made a substantial difference to the outcome of this appeal, but it has certainly crystallised the thinking of the parties, because it restates the significance of the Barton guidelines, now as slightly revised by the Court in paragraph 76 of the judgment of Peter Gibson LJ, and indeed resurrects them almost in their original entirety, overruling the amendment of one of the guidelines previously put forward, and successfully, on more than one occasion in this Appeal Tribunal, as enunciated particularly in Chamberlain Solicitors v Emokpae [2004] IRLR 592 EAT. The result of that case, coupled with the recognition by Mr Kibling of inadequacies in the Tribunal's Decision, has led to the appeal not being opposed, on the basis of its being remitted to the Employment Tribunal; and although it is now done effectively by agreement, because it is a Decision of the Employment Tribunal which is being set aside, we cannot leave it there, but shall give our reasons for agreeing to, indeed powerfully approving, that course. The one matter that has remained at large has been whether it should be remitted to the same Tribunal, and we shall deal with that at the end of this judgment.
3. The Applicant was employed eventually as Marketing Controller by the Respondent Company. She was in a senior position and had been employed for some years, and with some considerable success and approbation, by the Respondent Company. A problem may well have been her relationship with, and eventual marriage to, another senior employee at the Company who subsequently left. But that at any rate directly was not what caused the problems at the Respondent Company, which culminated in the complaints she now makes. Those complaints are said, and indeed found by the Tribunal below, to have been founded, or based, upon economic or strategic difficulties in which the Respondent Company found itself. From the Applicant's point of view that may or may not have been a factor, but her complaint is that her treatment and the subsequent termination of her employment were discriminatory on the grounds of her pregnancy, and hence her sex. The Tribunal found that the three matters on which the Applicant made complaint were all justified, on the basis of being by reason of 'business reasons', or 'business needs', or 'commercial reasons', and that none of the unfavourable treatment, of which the Applicant complains, was on grounds of her pregnancy, or hence her sex; and that the dismissal was not therefore a discriminatory one, but was one for a substantial other reason, namely those same business needs or commercial reasons, and that it was, notwithstanding that it was carried out while she was absent on maternity leave, carried out fairly, and was not an unfair dismissal.
4. The Tribunal refers in paragraph 3 of the Decision to its having been assisted at the conclusion of the hearing by written submissions, and although we have not studied those submissions it is plain that those submissions contained all the relevant law, at any rate as it stood prior to Igen Ltd, which could possibly give any assistance to the Tribunal. The Tribunal however did not set out any of that law in its Decision. It is quite plain that is not a requirement, indeed it is very often not necessarily helpful, for every jot and tittle of the statutory provisions, and the relevant authorities, to be set out seriatim in a Employment Tribunal's Decision. Indeed that could very often lead to wordprocessitis, with three or four pages of the relevant law simply being slotted into every decision. We are not looking for formulaic decision making, and indeed we welcome decisions which are pithy and well constructed, and such decisions to do need to be lengthy; but it is, in our judgment, necessary that an Appeal Tribunal should be satisfied that the law has indeed been addressed by a Tribunal, particularly where as here, there is no sign of what law it was that was implemented by the Tribunal, or addressed by it in reaching its conclusion; and particularly in the field of discrimination where, as has been so often said, the law is not easy, and the right answer both by an employer and by a Tribunal is often counter-intuitive. The law is skewed, and deliberately so as a result of both Parliamentary intention, and European directives, in favour of protection of employees more so than is ordinarily the case in the commercial field.
5. In this case, such protection is sought by someone who was off on maternity leave when these events occurred. In that regard Miss Braganza has referred in her skeleton argument to Article 10 of The Pregnant Workers Directive 92/85 EC, which, on the face of it, encourages member states to give very substantial protection to workers away from their employment on maternity leave. Although she referred to it before us, she has not been able to assist us in relation to any authorities of these courts in which that Directive has led to any specific decision, and although we therefore have considered it, and it may be that it was before the Tribunal, it has not been in any way determinative in our thinking.
6. However what we have been referred to of course, is the seminal judgment in King v Great Britain China Centre [1991] IRLR 513 CA, which reminds employers and tribunals of how important, but how difficult, it is to root out and combat discrimination, and Anya v University of Oxford & Another [2001] IRLR 377, which gives guidance to tribunals on how to approach fact finding in this regard, and then to Barton v Investec Henderson Crosthwaite Securities [2003] IRLR 332 EAT, which has now been revised by Igen,and has been of very considerable assistance to tribunals .
7. We do not wish it to be thought, although of course there is nothing we can do about it if such turns out to be the case, that the judgment by the Court of Appeal in Igen should now lead to a host of appeals before this Appeal Tribunal, based solely on the fact that the now revised guidelines in Barton were not solemnly or ritualistically set out, or indeed applied in their revised form by Employment Tribunals. But what is clear is that Igen emphasises, yet again, the importance of the correct approach being followed by an Employment Tribunal, and the best way of doing so, and one which is recommended, as we understand it, by the guidance of the President of the Employment Tribunals, Judge Meeran, is for at any rate a brief summary of the correct legal approach to be set out.
8. What has caused us concern, and what has, in our judgment, been likely to have led to Mr Kibling's acceptance of the inevitability of the appeal being accepted, is the absence of any reference by the Tribunal to section 63A of the Sex Discrimination Act 1975, which transfers the onus of proof in appropriate cases from the employee to the employer; where in effect a prima facie case of unfavourable treatment on grounds of sex is established on the Applicant's case, the onus of proof shifts to the Respondent to justify, explain, disprove that case. The concern which we have about this Tribunal's Decision is that there is no sign of any understanding by the Tribunal, or certainly no express recognition, that that is the position, and no mention of where the onus lies, in its narrative account of its decision- making process in the Tribunal Decision.
9. We turn then to the particular facts of the case. We shall not, in the circumstances, deal in any detail with them, as the case will now be reopened and rerun before the Employment Tribunal. Suffice it to say that the central factors appear to be that in January 2003, the Applicant's pregnancy became known to the Respondents, on the findings of the Employment Tribunal. In March 2003, the Applicant complained that she was not considered, or at any rate not adequately considered, for the position of Brands Director of an associated Company, Centura Foods. That is the first matter upon which she makes complaint by way of sex discrimination. In May 2003 she complains that she was not, or not adequately, considered for Marketing Director of the Respondent Company, and that is the second matter of which she complains by way of sex discrimination. In July 2003, she went off on maternity leave, and was expected to return in December 2003, and, while she was absent, in the Autumn of 2003, (and we shall leave open the question of the precise date, as the matter is to be reheard) a conclusion was reached by the Respondent, first that she could not carry on in her present position, and secondly, particularly upon her declining what the Respondent considered to be an appropriate alternative, terminating her employment in December 2004. That is the third matter which is complained of by way of sex discrimination, and the matter of course which founds a case both of automatic unfair dismissal and of ordinary unfair dismissal.
10. What is clear is that the prime question before this Employment Tribunal was the sex discrimination, not least because of the clear transfer of the onus of proof so that the issue would be the same in relation to each of the three matters. Both parties accepted that the impact of the relevant provisions which create automatic dismissal in such circumstances is both superfluous if there be sex discrimination proved, and in any event less significant by virtue of the express transfer of the onus under section 63A. It appeared to be common ground between both parties that if sex discrimination were found in respect of the dismissal, then the finding of unfair dismissal would follow. If on the other hand, as this Tribunal found, there was no discrimination so far as the dismissal was concerned, but the dismissal was for a substantial other reason ,then this Tribunal was entitled to and did address the question of whether that was a fair dismissal.
11. Miss Braganza has sought to criticise those findings and the approach of the Tribunal by way of one of her grounds of appeal, including allegations of perversity on the part of the Tribunal. We make no conclusion in that regard, because we have not heard any argument upon it. It is common ground that if we remit, as we are, by agreement between the parties, remitting, the question of sex discrimination, the whole question of unfair dismissal will be at large before the remitted hearing.
12. So far as the three complaints of discrimination are concerned, the Applicant alleges that the Employment Tribunal failed to deal with the case put forward by the Applicant with regard to each of them. With regard to the question of Brands Director of Centura, the Applicant has alleged, particularly in paragraph 13 of her Counsel's Skeleton Argument before us, that the facts upon which a prima facie case, in her submission, would have been bound to be established had the onus been addressed correctly, such as to shift the onus under section 63A, were not addressed by the Tribunal. In particular, there was alleged to have been some kind of assurance given to the Applicant at an earlier date which ought to have been taken into account, and was not, by the Tribunal. We shall say nothing about the facts which at the remitted hearing must be reconsidered. But we are not, and we must so emphasise, interfering on the grounds of irrationality or perversity. We are interfering because we are not, and cannot be satisfied, that the Tribunal did the job it is supposed to do as a result of section 63A in Barton and indeed Igen, and establish the facts on the basis of which the Applicant alleges by unfavourable treatment on grounds of sex, and then if appropriate turn to see whether the Respondent's explanations satisfy the onus.
13. The second matter relates to the appointment as Marketing Director. The Tribunal concentrate, understandably, on the fact that there was a requirement for board experience on the part of the candidate for Marketing Director, and that it was indeed the Applicant herself who withdrew her candidacy once that was appreciated, because she had no prior board experience. However, once again the Applicant, through her Counsel in paragraphs 14-18 of her Skeleton Argument, points out that there was an earlier question, which it may be the Tribunal did not consider, namely as to whether there should not have been consideration of the Applicant even before she herself made an application, not least because of her having previously deputised for her Marketing Director, and at a time when the requirement for board experience had not yet emerged. Once again, this is not a question of our indicating that the Tribunal in some way was perverse in ignoring evidence, but it is simply a consequence of the failure of the Tribunal to set out and consider, on the face of it, the Applicant's case, as to what the unfavourable treatment was, before then going on if appropriate to look to the satisfaction or the onus or otherwise by the Respondent.
14. The third complaint is then of the events leading up to the determination of employment, and the conclusion by the employer that it was not possible for the Applicant, who was at that stage on maternity leave, to continue in her role. The Applicant's Counsel points to the absence of consideration by the Tribunal of good practice. Miss Braganza has pointed to guideline 7, which has now become guideline 8 as a result of Igen in the Barton, guidelines that the provisions of any relevant codes of practice may be relevant, and if so ought to be taken into account in determining the question of discrimination. She alleges that there was a number of breaches of codes of practice, either Equal Opportunities Commission or ACAS inspired; though it is, even in the light of Igen, far from an absolute necessity for that kind of matter to be trotted out by way of rubric by an Employment Tribunal.
15. There is however the more general question which this Tribunal does not appear to have considered, of which the allegation of breaches of codes of practice would only be an exemplification, namely the failure by the Respondent to consult or warn. The Tribunal appears to have met this head on, and concluded that in the circumstances there was not a requirement to have consulted, or warned, the Applicant while she was away on maternity leave of the risk of termination of her job. They reached this conclusion, it seems, on the basis of their decision that the reason for it was due to reason for that was a matter of commercial issues. Miss Braganza has pointed out that in paragraphs 27, 40 and 41 of the Tribunal Decision there was at least an arguable case that the determination of the employment resulted from what she has called 'performance issues', and if there were performance issues then a failure to consult or warn would, even on the face of the Tribunal's own Decision, be more significant, possibly crucially significant. The Tribunal does address this question, as we have indicated, but because it has not specifically approached the issue of onus, we are left entirely unsatisfied that, had it once again approached the question of what the unfavourable treatment was, including the failures to consult and warn, and then turned to consider whether the Respondent had satisfied the onus, considering as appropriate the Barton guidelines, it would necessarily have reached the same Decision, particularly given that all this was occurring while the Applicant was absent on maternity leave. We are satisfied that on all three matters this case should be reheard with specific reference to section 63A and the Barton guidelines as amended.
16. We are left then with the question which remained live between the parties as to whether it should be remitted to the same, or a different, Tribunal. We have been referred by both Counsel to the recent guidance given by this Appeal Tribunal in Sinclair Roche & Temperley v Heard [2004] IRLR 763. It is right that it is always an additional burden both of inconvenience and cost for parties for the matter to be started again effectively from scratch, although of course, as Miss Braganza has pointed out, all the documents have been fully prepared and will be familiar to the parties, and there will be some notes of evidence from the previous hearing on any basis rather than to send it back to the same Tribunal which has familiarity with the case, which would form a good starting board and inevitably save some time. However this is not a case which, as in Sinclair Roche, had lasted many days. As we have indicated, this Tribunal hearing was over in three days, and we suspect that even the same Tribunal would probably take more than one day to resolve this matter on remission, and so the most waste that could be foreseen as a result sending it back to a different Tribunal would be one day's hearing. There is no problem relating to the passage of time on this case, because it was heard in July 2004, and has come on relatively quickly before this Appeal Tribunal. But that is simply ruling out what might have been a neutral factor, if in fact this Tribunal had been likely to have forgotten the facts. We accept that this Tribunal would not be likely to have forgotten the facts, and would therefore have a slight advantage over a fresh Tribunal in that regard. We also entirely accept that it is not suggested that this Tribunal was biased or partial.
17. What, however, concerns us here, is that this is not, as in Sinclair Roche and a number of other cases, where this Appeal Tribunal recently has been making orders sending matters back to the same Tribunal, a situation where a Tribunal will have been told that it has not finished its job. It has made certain findings, for example findings as to what the Applicant's case was, without having adequately considered the case for the Respondent. That is a case in which the Tribunal below can simply be asked to pick up the baton and run on with it. This is a case in which this Tribunal may have to reach an entirely different decision, and, because it did not set out the law at all, we cannot be satisfied as to whether in fact its decision was or was not totally flawed. It may have been, on the other hand, it may not, but we certainly have insufficient confidence by virtue of the way in which this Decision was reached, to be able to say that it was not totally flawed.
18. In those circumstances, we accept that there would be, as Miss Braganza put it, a considerable degree of discomfort on the part of her client, if this was sent back, that there may be the possibility of the Tribunal simply consciously or unconsciously reaching the same Decision by a different route; and given that this is only a three day hearing, and, as Mr Kibling himself has said, not a complicated case, we are satisfied that this is a case in which we should follow the more usual course on remission of sending this back to a different Tribunal. We accordingly quash the Decision of this Employment Tribunal, and remit it for hearing before a differently constituted Tribunal.