United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Tariq Sadiq (of Counsel) Messrs Russell Jones & Walker Solicitors 4th Floor Brazennose House Brazennose Street Manchester M2 5AZ
For the Respondent	Mr Jonathan Holl-Allen (of Counsel) West Midlands Police Legal Services Police Headquarters Lloyd House Colmore Circus Birmingham B4 6NQ


 


Summary

Sex Discrimination – Equal Treatment Directive

Discrimination – burden of proof – whether ET's reasoning adequate – decision upheld on one issue, case remitted to ET on the other.


 


THE HONOURABLE MR JUSTICE BEAN

1. The Appellant Nicholas Alldred is a Sergeant in the West Midlands Police, as is his wife Carol. On 17 December 2003 Sergeant Nicholas Alldred presented a complaint to an Employment Tribunal alleging direct sex discrimination and victimisation on a total of 5 grounds. A hearing took place lasting 8 days at the Birmingham Tribunal and on 23 May 2005 the Tribunal announced that the claims were unanimously dismissed for reasons which they subsequently set out in a detailed judgment. Mr Tariq Sadiq, on the Appellant's behalf, appeals in respect of two only of the findings. The appeal came before HHJ McMullen QC under rule 3 and that judge gave a rule 3 direction; however, the Appellant exercised his right to an oral hearing under rule 3(10) and Mr Justice Rimer directed that the matter should go to a full hearing, which is what we have had this morning. We have been greatly assisted by the concise and well judged submissions of Mr Sadiq and of Mr Holl-Allen who appeared for the Respondent Chief Constable.
2. The two complaints subject to the appeal are described in the Tribunal's judgment as the second complaint of the Highfields post and the fourth complaint, lateness for work. We begin with the Highfields post. The Tribunal dealt with this beginning at paragraph 24 of their judgment as follows:-

"24. On 6 January 2003, Sergeant Alldred spoke to Inspector Janette Thomas who had recently taken over the role of operations inspector… He said he had childcare issues as a result of which he would be interested in a position which had arisen known as the Highfields post, a position on the crime fighting team. The vacancy had arisen as a result of a recently retired sergeant. Sergeant Alldred told Inspector Thomas that this position would assist him in his childcare responsibilities; Sergeant Alldred said he was very interested in the post. Inspector Thomas told him that she had also mentioned the vacancy to Sergeant Julie Holmes. Sergeant Holmes had also expressed an interest in taking up the post. On 10 January 2003, Inspector Thomas sent an email to Sergeant Alldred as follows "Nick, Julie has decided that she would like to take on the Highfields team, sorry for giving you a line only to snatch it away again. If you still want to be considered then I can arrange a short interview rather than make an arbitrary decision over your head. Can you let me know?..."

3. The Highfields job, as the Tribunal recorded, went to Sergeant Holmes. She did not give evidence to the Employment Tribunal because at the time of the hearing she was in an advanced stage of pregnancy, but in any event it seems to us that the most significant evidence came from the decision maker rather than the other applicant. Sergeant Alldred claimed that he was treated less favourably than Sergeant Julie Holmes who is also a full time officer and married to another serving police officer, in that he was not selected for the post but Sergeant Holmes was. It was alleged this amounted to sex discrimination. The last sentence of the Tribunal's decision at paragraph 26 is as follows:-

"Sergeant Alldred claims that there is no evidence that Sergeant Holmes's childcare issues were any more problematical than his and that such less favourable treatment was direct discrimination on the grounds of his sex."

4. At page 16 of their judgment (paragraph 35.2, but not the only paragraph with that numbering), the Tribunal expressed the issues on the Highfields post as follows:-

"(1) Did the Respondent treat the Claimant less favourably in relation to the Highfields post than it treated or would have treated a woman in the same or similar circumstances? The Claimant relies upon Sergeant Julie Holmes as an actual comparator. In the alternative the Claimant relies upon a hypothetical comparator who would be a female officer interested and considered for the post; (2) If so, did the Respondent treat the Claimant less favourably on the grounds of his sex? (3) Did the Claimant suffer a detriment?"

They give their conclusions at paragraphs 53 and 54:-

"53. We are satisfied that a job vacancy had arisen in relation to this post and that this vacancy was not advertised which, in the ordinary scheme of things, it ought to have been. We know from a similar situation in September 2004 that a similar vacancy was advertised. There is therefore no reason why on this occasion, it was not and why the claimant was not given a fair opportunity to apply for the post in the usual way. The whole incident seems to have been an example of a poor recruitment procedure. There were no formal applications forms invited or received. There was no interview process. There is no evidence of any consideration of the relative merits of the contenders for the position. Sergeant Holmes was simply slotted into the post. We do not accept Inspector Thomas' explanation that at the time she sent her e-mail to Sergeant Alldred saying "sorry giving you a line only to snatch it away again" that the decision had not yet been made. It is clear from the context of this message that Inspector Thomas had by this stage already made a decision otherwise there was nothing to snatch away. We also accept that Sergeant Alldred had indicated his very clear desire that he wished to be appointed. The clear unambiguous wording of the e-mail ("Julie has decided") gives the impression that the post had initially been offered to Sergeant Holmes and then Inspector Thomas had put it on hold after Inspector Thomas had spoken to Sergeant Alldred. To suggest, as Inspector Thomas does, that nothing had been decided at the point at which she sent her e-mail is simply not credible.

54. However, the claimant has to show not unfair treatment but less favourable treatment in relation to an appropriate comparator. The comparator is of course Sergeant Holmes. There is no need to construct a hypothetical comparator. When we consider the relevant circumstances, in line with the statutory guidance under s.5 of the SDA 1975, i.e. that the circumstances, are the same or not materially different, we have no alternative but to conclude that there was no less favourable treatment. It is not being suggested that Sergeant Holmes is also married to a full-time police officer and had childcare issues were more problematic than the claimant's. The fact is that there were no issues in relation to childcare for either Sergeant Holmes or Sergeant Alldred at the time. No evidence has been given about any childcare concerns of Sergeant Holmes and we must therefore assume that there were none. On the evidence before us there were no childcare issues for the claimant either. The decision to appoint Sergeant Holmes was nothing to do with childcare issues. It simply did not come into the equation. The process of appointment might have been otherwise unsatisfactory but it was not tainted by sex discrimination because the circumstances of the claimant and the comparator were not materially different. They were both police officers married to other police officers with childcare responsibilities. Accordingly, this complaint is therefore dismissed."

5. It seems to us, with respect to the Tribunal, that this reasoning is inadequate. It is common ground between counsel that on the present state of the law the leading authority on the burden of proof in discrimination cases, Igen v Wong [2005] ICR 931, envisages a two stage process. Compressing the guidelines in the Annex to Igen v Wong a great deal, the Claimant must prove on the balance of probabilities facts from which the Tribunal could conclude that the Respondent has committed a discriminatory act. If the Claimant does do that then the burden passes to the Respondent under paragraph 9 of the guidelines to prove that he did not commit a discriminatory act. To discharge that burden, by paragraph 11, it is necessary for the Respondent to prove on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of sex. Here the facts as found by the Tribunal are that on 6 January Sergeant Alldred expressed an interest in the Highfield post, but that on 10 January when Inspector Thomas sent her email to Sergeant Alldred saying "sorry giving you a line only to snatch it away again" the decision had been taken, notwithstanding Inspector Thomas's evidence to the contrary which the Tribunal found not to be credible. There was no interview process, no evidence of any consideration of the relative merits of the contenders for the position; in short a poor recruitment procedure which the Tribunal summarised by saying that Sergeant Holmes was simply slotted into the post. Those seem to us facts which get the Claimant over the first stage of Igen v Wong. It is as simple as saying that where a man and a woman apply for a post, they are both on the face of it properly qualified, the post is given to the woman, and no reasons are given or found by the Tribunal of why this should be so, the Claimant has satisfied the first stage of the process.
6. The Tribunal's only finding as to possible reasons or lack of them is in paragraph 54 where they say that on the evidence before them there were no childcare issues for either Sergeant Holmes or the Claimant. They find that the decision to appoint Sergeant Holmes was nothing to do with childcare issues; it simply did not come into the equation. Mr Holl-Allen argues therefore that the Claimant has not made out the case on the basis which he put it. The argument goes that the Claimant's case was that he had childcare issues, that is to say difficulties with childcare, and that the reason in his view why Sergeant Holmes was given the Highfields post was that a mother experiencing difficulties with childcare was a higher priority for the decision makers than a father experiencing difficulties with childcare. The Tribunal however found as a fact that there were no issues (i.e. difficulties) for the Claimant or for that matter for Sergeant Holmes in respect of childcare; and therefore, it is argued, the claim simply failed on the facts. However, that seems to us to attach excessive importance to the use of the word "issues" or its interpretation to mean "difficulties". If one rephrases the same problem and uses the words "childcare responsibilities" then all we get from paragraphs 53 and 54 of the Tribunal's decision is this: both Sergeant Julie Holmes and the Appellant (and for that matter their respective spouses) had childcare responsibilities. The Appellant's case was that the childcare responsibilities of a mother seem to have been given preference over the childcare responsibilities of the father. If the matter is phrased in that way, as we think it fairly can be, the Tribunal gives no explanation of why, in their view, Sergeant Holmes was slotted into the post.
7. Inspector Thomas' witness statements alleged that Sergeant Holmes was enthusiastic and had skills which would be of benefit to the Highfields team. That may be so. We simply do not know whether the Tribunal accepted that evidence and found that it was in fact the reason why Sergeant Holmes was preferred over Sergeant Alldred. The only aspect of Inspector Thomas's evidence on the issue on which they did make a finding was that Inspector Thomas said that Sergeant Julie Holmes was the only officer who asked to be considered for the role; the Tribunal rejected that. We consider therefore that the reasoning in paragraphs 53 and 54 is inadequate. We consider that the case should be remitted for the complaint in relation to the Highfields post to be reheard by the same Employment Tribunal so far as is available. That is to say, if all three members can sit again at the remitted hearing, that would be ideal; if not, then so many of them as are available should be asked to sit with others making up the full complement of the panel. This is plainly a case where in accordance with the decision of this Appeal Tribunal in Sinclair Roche & Temperley v Heard it is proportionate for the same Tribunal to hear the case. No allegation has been made against them of bias; it is obviously far more efficient for the same Tribunal to hear the case if possible. They should do so on the basis that all their original findings of fact on the other complaints other than the Highfields post must stand. As to the Highfields post itself it will be open to them if the parties wish to put forward further evidence on the Highfields post to hear that evidence as well as submissions before coming to a conclusion.
8. We turn to complaint 4, lateness for work. This concerned an incident on 29 September which led perhaps surprisingly to the Appellant going on long term sick leave. He was still on that long term sick leave at the time of the Tribunal hearing although we have been told and were glad to learn that he returned to work shortly after that hearing. The findings of fact as to what occurred on 29 September 2003 are set out at length in the Tribunal's judgment beginning at page 11 paragraph 32. On that morning Sergeant Nicholas Alldred ,the Appellant, took his son James to school. He had sent a note several weeks earlier to Inspector Hughes, whose responsibilities included the rota for Sergeants, requesting that on 29 September his duty, which would normally have started at 7am, should begin at 9.30am and then continue to 5.30pm. Inspector Hughes had seen the note and changed the Claimant's hours for that morning but his decision to that effect and indeed the Claimant's request had not been seen by Inspector Thomas.
9. On the fateful morning, the Appellant having dropped his son at school arrived at work at approximately 9.10 or 9.15am, booked on duty and walked past the office of Inspector Thomas. Her door was open. She asked him to come in. She asked him what he was doing coming into work at that time instead of 7am. He said that he had to drop his little boy to school that morning and that the amendment to his hours had been approved some time ago. Inspector Thomas said that she had not had any stage authorised those hours and asked Sergeant Alldred for his pocket book so that she could record a written warning against him for lateness. He refused to hand over his pocked book and demanded that a Police Federation representative be present before any further discussion. Inspector Thomas said that in that case they should go and see Superintendent Williams, to which Sergeant Alldred agreed. Superintendent Williamson who seems as, if we may say so, to have demonstrated sound common sense in dealing with this incident, expressed a view as recorded by the Tribunal in paragraph 32.5 that the whole incident appeared to be a mountain out of a very small mole hill.
10. He heard that the explanation that the changed hours had been agreed with Inspector Hughes some time ago well in advance. He looked at certain documents and then said that so far as he was concerned there had been a misunderstanding between Sergeant Alldred and Inspector Thomas, the matter had been blown out of all proportion and he did not consider the issue to be one of discipline. He recommended that there should be a meeting between all concerned parties to come to a common understanding and to find a way forward (i.e. conciliation) and that Sergeant Alldred could move to a different sector away from Inspector Thomas. The Superintendent indeed was willing to approach headquarters to look into the question of the transfer. None of this was actioned because Sergeant Alldred went home, reported in sick and presented a grievance followed by the ET1.
11. The Tribunal's conclusions are at paragraphs 56 to 64 of the judgment. They said that they had heard considerable evidence on the particular issue. They said the question was whether the Claimant treated less favourably than the Respondent treated or would have treated a woman in the same or similar circumstances. They noted that the Claimant relied on less favourable treatment in relation to a hypothetical female comparator who he argued would not have been threatened with disciplinary actions in there circumstances-that is to say, who had successfully applied for flexible working and told Inspector Thomas that her tour of duty had been authorised by another senior officer and had given the reason for the change of hours that she was dropping off her child at school. At paragraph 59 the Tribunal said that what occurred on 29 September does not reflect well on either Sergeant Alldred or Inspector Thomas and that Sergeant Alldred was confrontational and overly formalistic. That is not a judgment with which we should or would wish to interfere on appeal; nor their conclusion at paragraph 60 that Inspector Thomas must bear the brunt of the blame for the difficulties of the day. They found at paragraph 61 that on the morning of 29 September the Inspector, [Inspector Hughes as the record reads, but that is evidently a misprint for Inspector Thomas,] was very angry with Sergant Alldred because he was late and that she sought to discipline him. They were satisfied that the proposed warning was for lateness and not insubordination. At paragraphs 62-63 they say:-

"62. What was the reason for the treatment of Sergeant Alldred by Inspector Thomas on 29 September 2003? We conclude having regard to all the evidence that it was because Inspector Thomas was angry being under the mistaken impression that Sergeant Alldred was some two and a quarter hours late coming to work. Her anger was intensified by Sergeant Alldred's hostile reaction.

63. We conclude that the real reason for the treatment of Sergeant Alldred by Inspector Thomas on 29 September was nothing to do with childcare issues, nor was it anything to do with the Claimant being a man. It was entirely due to the fact that Inspector Thomas was angry at the Claimant coming in late for work as she saw it. Punctuality was a matter that Inspector Thomas took seriously. She had recently disciplined two female officers for being late on different occasions."

12. The findings of fact constituted by the first 3 of the 4 sentences of paragraph 63, are clear and were conclusions which the Tribunal were plainly entitled to reach. It is argued however, by Mr Sadiq, that the fourth sentence, the reference to two other cases of female officers being disciplined for being late, was misconceived or inadequately reasoned, since there is no examination of whether the female officers disciplined for being late were in any way comparable. As Mr Sadiq points out, they may have been late without any adequate reason for being so. However, we do not read this paragraph as treating the disciplining of the two female officers as essential to their conclusions that Inspector Thomas took punctuality very seriously and that she was angry at the Claimant coming in late for work irrespective of whether it was a man or a woman or whether there were childcare issues involved. The next paragraph reads as follows:-

"64. Whilst we accept that the claimant was treated less favourably than a hypothetical female comparator would have been, the reason for his treatment did not relate to his sex nor childcare responsibilities. We are satisfied that the respondent has proved facts from which the burden of proof, imposed on it by s.63 of the SDA 1975, has been discharged. We are satisfied that he treatment was in no sense whatsoever on the grounds of sex. The reason for the treatment in question was Inspector Thomas' belief that the claimant was late for work. He could have been late for any number of reasons. It would not have made any difference. We do not accept that Sergeant Alldred raised the issue of childcare with Inspector Thomas at the short meeting between the two of them on 29 September or that this triggered the chain of events. The discussion between them was of very short duration and childcare issues were not discussed. Even in his witness statement, apparently drafted by the claimant himself and therefore representing his own actual words, Sergeant Alldred says; "Before I could even explain, she told me to provide her with my police pocket note book, in order that she could record a written warning against me and sign it"

13. We find the first sentence of paragraph 64 of the judgment difficult to understand. The reference to the hypothetical female comparator is not the difficulty; that is the one referred to earlier in the judgment at paragraph 58, and elsewhere, namely an officer who had made a successful application for flexible working, told Inspector Thomas that another senior officer had authorised the changed hours and given the reason of dropping a child off at school. The difficulty is that the Tribunal's acceptance "that the claimant was treated less favourably than a hypothetical female comparator would have been" in paragraph 64 appears to be directly opposite to their conclusion in the previous paragraph that the real reason for his treatment "was nothing to do with childcare issues, nor was it anything to do with his being a man; it was simply due to the fact that Inspector Thomas was angry at him coming in late for work." The reference in the second sentence of paragraph 64 to the discharging of the burden of proof however, gives a clue. We surmise that the first line of the half of paragraph 64 should have read "whilst we accept that the Claimant has shown facts from which it could be inferred that he was treated less favourably then a hypothetical comparator would have been." In other words it appears that the Tribunal were satisfied that the first stage of Igen v Wong had been satisfied by the Claimant but they then went on to find that the Respondent had proved facts from which the burden of proof at the second stage of Igen v Wong had been discharged. They reached that conclusion by their emphatic and repeated findings that the reason for the treatment was simply that Inspector Thomas was furious at the Claimant being late for work.
14. Mr Sadiq submits that the Tribunal failed to mention evidence of a witness PC Wahid Husman who had given evidence which were told was unchallenged, that about 9am on 29 September Inspector Thomas had approached him in the parade room area of the police station, asked him whether he knew where Sergeant Alldred was and that he had replied that he was beginning work at around 9.30am because he was dropping his lad off at school, and that she walked off saying, "it's all right for some", and was quite angry. It is unfortunate that this evidence was not dealt with and we do not know what the Tribunal thought of it. Even so we doubt very much whether it would have altered their conclusion in that the reason for Inspector Thomas's anger was simply the Claimant being apparently late for work. It is evident from the narrative of the confrontation between the two of them that, even when Sergeant Alldred had given his explanation and had made it clear that his working hours on 29 September had been cleared in advance with Inspector Hughes, Inspector Thomas continued in her confrontational attitude and it was not until the attempt of Superintendent Williamson to pour oil on troubled waters that any common sense intervened at all. It was therefore an episode for which the Tribunal found and were entitled to find that the Inspector must bear the brunt of the blame, but they were also entitled to find that her employers had discharged the burden of proof which lay upon them at the second stage of Igen v Wong. In the result we did not find it necessary to call on the Respondents on that issue.
15. Accordingly, on the lateness complaint the appeal is dismissed. On the Highfields complaint the appeal is allowed and remitted to the same Employment Tribunal in accordance with the earlier part of this judgment.