United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS A BROWN (of Counsel) Instructed by: Messrs Graham Clayton Solicitors Hamilton House Mabledon Place London WC1H 9BD
For the Respondent	MR P EDWARDS (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE

SUMMARY

Sex Discrimination: Burden of proof; Pregnancy and discrimination

Tribunal found that the Respondent had been discriminated against on grounds relating to pregnancy. They held that as a consequence she may have lost the chance of a certain post. Was there a prima facie case shifting the burden of proof, and if so, was the Tribunal entitled to find that the employers had failed to discharge that burden? Uncertainty about precisely what the Tribunal had found and in particular whether it had concluded that the employee had lost the job because of substantive discrimination or whether she had merely lost the opportunity to obtain the job because of procedural defects in the manner of appointment.
 


THE HONOURABLE MR JUSTICE ELIAS

1. This is an appeal against the decision of the Tribunal sitting at London Central, where it unanimously held that the Respondent had been directly discriminated against on the grounds of her sex in connection with the failure to appoint her to the post of Office and Membership Applications Administrator. The Appellant, The National Union of Teachers, was the Respondent's employer, and now appeals against that conclusion.

Background

2. The background is this. The Claimant was employed by the Union from 1991 as a clerical administrative assistant. She took a period of maternity leave from 12 August 2002 until 18 April 2003 and then, a second later period, from 22 June 2004 until 22 December 2004. She worked throughout in the Union's Records and Subscriptions Unit (RSS). She applied for a number of promotions but these were unsuccessful. At all relevant times, the head of her Department was a Mr Michael Hammond. He was the principal officer in the RSS.
3. During the period of her second maternity leave, she visited the Office on 21 September 2004. She discovered that two posts were to be advertised at Band 5. As a clerical assistant, she was banded Grade 7.
4. On 29 September she emailed the principal officer of Personnel, Christine Howley, and expressed an interest in these posts. She asked if the closing date could be extended to enable her to complete and return the Application. It was extended, in fact twice, first to 8^th October and then 11 October, and she put in her Application by 8 October. We are told, but this was not in the decision, that the other candidates would have heard of the vacancy on the 22 September and would have had to put in their applications by 6 October. She said that she had felt under some pressure to submit the Application as soon as possible. She was not required, as an internal candidate, to complete the whole of the Application Form and the Tribunal was critical of that because they said the effect appeared to be that the Panel making the appointment did not have the same information with respect to all candidates. This may have placed the Respondent, as well as other candidates, at a disadvantage.
5. She was then interviewed on 22 October, together with three other internal candidates, and although the decision does not say so, they were in fact all women. She was unsuccessful and sought feedback. In particular, she wanted the notes made in the interview, but she was told that all the notes had been immediately destroyed after the interview. She was invited to a debrief meeting which she had to put off for childcare reasons. She requested a further appointment, but it was not possible to arrange one until January, and by then she was on sick leave.
6. The Tribunal also noted that as far as the interview was concerned, there ought to have been a checklist of questions that were to be posed, and also notes of the interview itself. They were told by Mr Hammond that they had no checklist on any of the Panels on which he had sat - some ten or so in all - but the Tribunal commented that it was not convinced by that evidence.
7. The Tribunal were also critical of the fact that Mr Hammond had expressed the view that he was looking for someone "personable", and who could "act as a member of the team". These were not identified as essential qualities in the job description. Conversely, the candidate was not asked about data protection and equal opportunities policy, both of which were regarded in the job specification as being essential.
8. Her case was that she had been employed in the Department for 12 years, and had more experience than the successful candidate who had been there for only one year. (We were in fact told that there were four candidates and another also had long experience, but that again is not mentioned in the decision.)
9. The Tribunal considered but rejected certain evidence which was adduced by Ms Watson to show that Mr Hammond was hostile to her because of her maternity absence. They, in terms, rejected an allegation by her that she had been asked about her childcare arrangements in circumstances which might have suggested discrimination. They also rejected certain allegations that Mr Hammond had, on two occasions, made remarks which suggested that he might be discriminating against the Respondent because of her absence on maternity leave.
10. The Tribunal recognised that sickness absence was a genuine concern, and that the comments attributed to him were not improper. They also rejected a contention that he was seeking to promote the successful candidate by giving her additional responsibility.
11. Nonetheless they concluded for reasons we set out below that she had been discriminated against on maternity grounds. That is the issue in dispute in this appeal.

Two other grievances

12. Before analysing that issue we should note the other two alleged acts of discrimination which were raised. First, the Tribunal found that, even following an email on 29 September, she was not notified of further vacancies that arose. She ought to have been, along with all other absent employees, but she was not. She alleged that this constituted both direct and indirect discrimination related to her pregnancy, namely the fact that she was on maternity leave.
13. She returned from maternity leave on 23 December 2004. She made a complaint that thereafter she was subject to direct discrimination and victimisation in the way she was treated.
14. The Tribunal held that there had been direct and indirect discrimination concerning the failure to notify her of vacancies. They recognise that this was something that had occurred not only to her, but also to others who were absent, but in circumstances where she was absent by reason of pregnancy, they concluded that this was direct discrimination - and indeed, indirect also - on grounds of her being on maternity leave. There is no challenge to that conclusion.
15. The allegation that she had been discriminated against in the treatment she received on return from maternity leave was, however, rejected. That is not appealed either.

Discrimination relating to the non-appointment

16. As we have said, the Tribunal found that the Respondent had been discriminated against on grounds of sex regarding the failure to appoint her to the post of Office and Membership Applications Administrator.
17. The Tribunal's reasons for so concluding were set out at paragraph 64 of its decision:

"64. Ms Watson complains that she was the victim of direct discrimination in relation to the Respondent's failure to appoint her to the post of Office and Membership Administrator. We have found that the Respondent had no transparent system of recruitment. They blatantly disregarded their own arrangements for scoring candidates against a checklist in an objective manner, using the "essential criteria" in the person specification. Neither witness who sat on the panel was able to give any coherent explanation for why one candidate was successful and the Claimant was not. Mr Hammond referred to criteria which appear nowhere in the person specification. We cannot be satisfied that the Respondent was not motivated by a discriminatory intent and we find that the Claimant has made out primary facts from which we must infer discrimination in the absence of an explanation by the Respondent. It is the Respondent's case that no explanation was necessary and none has been given. We are satisfied that the Claimant's complaint of direct discrimination is made out."

This in fact reflected more fully a finding that they had already made at paragraph 19 in the following terms:

"19. In the face of the Respondent's witnesses' failure to carry out their own interview and selection procedures, and in the absence of any cogent reason why one candidate was preferred to the Claimant, we cannot accept that the procedure was carried out in a non-discriminatory manner."

18. On the face of the decision, we have to say there are two difficulties with the conclusion. The first is that it is not clear on what basis it is alleged there was discrimination on grounds of sex. Was it that she was discriminated against because she was a woman or because she was on maternity leave? Second, there was some lack of clarity as to whether the Tribunal was concluding that but for being on maternity leave she would have got the job, or whether they were saying that there was discrimination in the procedures for appointing to that job, and that as a consequence her chances of getting the job were therefore reduced.
19. We think that on a fair reading of the decision, particularly when set against the original claim, it was always clear that the Tribunal was focusing on the particular form of sex discrimination related to pregnancy. After all, all the candidates were women, as was the successful candidate. We would also have read paragraph 64 as saying that but for the discrimination she would have been appointed to the post.
20. However, there was a further hearing before the Tribunal on 6 February 2006 which casts some light on both these matters. This was the remedy hearing. The Tribunal was faced with an argument by the employers that they wished to adduce evidence to show what Ms Watson's chances were of having obtained the job if there had not been the failures in the appointment process. They were alleging that the Tribunal had merely found that the process was defective, and not that Ms Watson would necessarily have got the job even had proper procedures been employed. The employee was submitting that the effect of their earlier decision was that there was a 100% chance that she would have been appointed; it was a loss of the job and not simply a loss of a chance.
21. The Tribunal gave their understanding of what they had determined in the following way:

"10 The Tribunal considered our judgment and reasons taking into consideration submissions made by the parties' counsel and we believe it is necessary to clarify what was meant by paragraph (ii) of the judgment regarding the failure to appoint the Claimant to the post of Office and Membership and Applications Administrator. The Judgment reads:

"(ii) The complaint of direct discrimination regarding the failure to appoint to the post of office and applications administrator succeeds."

The Tribunal's unanimous view is that what was meant by this was that the process that led to the failure to appoint the Claimant was discriminatory on the grounds of sex. We did not find that if the process had not been discriminatory that the Claimant would have been appointed. It is for the Tribunal at this hearing to consider what the chances of the Claimant getting the post would be if she had not been the been the victim of sex discrimination on the grounds of pregnancy."


Accordingly the Tribunal spell out that the basis on which they had found that she had been discriminated against was on grounds relating to her pregnancy, and they claim that it was the process rather than the decision which was demonstrated discrimination. Both parties accept – correctly in our view - that we must read this paragraph as part of the original decision since the Tribunal is explaining what had been perceived as an ambiguity in the decision.

The grounds of appeal

22. These were initially drafted on the basis that the Tribunal had found discrimination directed against Ms Watson because she was a woman rather than because of a pregnancy related reason. The grounds were then amended. Ms Brown, for the Appellants, suggested that it was never clearly part of the case that Ms Watson was complaining that she had been refused promotion because of a pregnancy related reason. Indeed, her original claim merely identified the issue in these terms:

"6. There was also a vacancy for Office and Membership Applications Administrator which had been internally advertised on 22 September 2004 and had an internal closing date of 6 October 2004. The claimant enquired about this job, and was given an extension of time of two (later extended to three) working days in order to submit an application. This was not the same period of time which was afforded to other candidates. The claimant did not get the job and claims that she was hampered in her application by the lack of preparation time for the application and the interview. The claimant was qualified for the job and had 12 years' experience; whereas the successful applicant for the job had only the same qualifications and only one year's experience. To the extent that the Panel's decision on the promotion was referable to the claimant's application and interview (prepared with less notice than other candidates) the claimant's failure to be appointed to the position constituted sex discrimination; or alternatively, damage resulting from the Respondent's indirectly discriminatory policy relating to internal vacancies."

23. Ms Brown submits that it is plain that the claim being advanced is merely that insofar as the application and interview had adversely affected the prospects of Ms Watson obtaining the job, then that should sound in compensation. Mr Edwards, for Ms Watson, says that although that was the way in which the claim was originally advanced, the matter was clarified at a case management discussion on 7 October 2005. There it was stated that the Claimant claimed:

"Direct discrimination pursuant to s.1(1)(a) and s.6(2)(a) of the Sex Discrimination Act 1975 in relation to the Respondent's failure to appoint the Claimant to the post of Office and Membership Administrator"

24. We are not sure whether that was intended to be a statement of a new case or merely a clarification of the original claim. However, the Tribunal reached the decision they did, and we have concluded that we should not assume that the issue was not properly before them, particularly since it is not alleged specifically as a ground of appeal that the Tribunal was not entitled to decide this point.
25. Ms Brown's principal ground is this. She says that, save for one exception, the procedural defects which were identified were not - and could not properly be found to have been - related to pregnancy. As we understand it, she accepted, at least by the end of her argument, that the fact that the applicant was notified late of the fact that the post existed was capable of being less favourable treatment, and because she was only absent because she was on maternity leave, it was discrimination related to pregnancy. She denies that in fact it would have prejudiced her in the event, since Ms Watson had time to put in her application and all the candidates were shortlisted and had the same time to prepare for interviews. That is disputed by Mr Edwards, who submits that other candidates could have been preparing for interview from when the job came to their notice. In any event, whatever the merits of that issue, and whether in practice she was materially disadvantaged in any way, is a matter which can be considered by the Tribunal at the remedies hearing.
26. However, she says that the other procedural defects which were identified by the Tribunal, such as the failure to adopt a checklist, the fact that there was a shift from the job specification criteria and that the notes were not retained, had nothing to do with pregnancy at all. It was not and had never been suggested, for example, that only Ms Watson's notes were destroyed, or that the departure from the job specification was directed specifically at her.
27. Mr Edwards says that this is not to the point. He says that the Tribunal found that Ms Watson had - within the language of Igen Ltd (formerly Leeds Careers Guidance) and others v Wong [2005] ICR 931 - established a prima facie case, and that the burden then fell to the employers to justify their decision. As to that, the Tribunal found that the decision was not transparent and that the Tribunal had looked to the employer to provide an explanation and no coherent or cogent explanation had been provided. The procedural defects may not themselves have been the consequence of pregnancy-related discrimination, but they were part of the employer's explanation – or lack of it - for the decision taken. He says that the Tribunal were fully entitled here to say that the employers had failed to rebut the onus of proof that had shifted to them.
28. Ms Brown submits that even on that analysis, there was no proper basis for inferring discrimination. First, there was no proper basis for finding that there was a prima facie case. Second the defects in procedure were just that; they showed that the procedures had been unsatisfactory, but it was not suggested that this prejudiced only Ms Watson or were causally related to her pregnancy. To infer discrimination from these defects was to make the mistake which the House of Lords cautioned against in Zafar v Glasgow City Council [1998] ICR 120, and to infer discrimination from unreasonable conduct. It is now trite law that this is not a legitimate inference.
29. Mr Edwards counters by saying that whatever the position with the procedures, the Tribunal say in terms that the employers have failed to provide an explanation. If the employer fails to do that, then unlawful discrimination must be inferred following Igen.

Discussion and Conclusions

30. We had doubts whether the Tribunal was entitled to find that there was a prima facie case, simply by relying on the greater experience of Ms Watson to the successful candidate, without at least considering the particulars, such as the experience, of the other unsuccessful candidates. If they too had greater experience than the successful candidate - and it appears that one of them at least did - then that might well affect the assessment of whether there was a prima facie case of discrimination. But we will assume in Ms Watson's favour that this could be established and that the onus did therefore shift in accordance with the Igen approach. The crucial issue then is: was the tribunal entitled to find that the employers had failed to discharge the onus?
31. We see the force of Mr Edward's observation that, since the employers had failed to provide an explanation, that was the end of the case. But ultimately we reject that analysis. The obligation is to provide a genuine reason other than the forbidden one. It is not to provide a reason which the Tribunal considers to be sensible and reasonable, although of course if no sensible reason is given a tribunal may infer that the reason given is not genuine. Here, the Tribunal do not appear to have concluded that the reason advanced by the employer was not genuine; indeed, they have accepted, as we have indicated, that Mr Hammond had not made the discriminatory comments with the adverse overtones attributed to him. We think that when the Tribunal is saying that there was no coherent explanation (paragraph 64) or no cogent reason (paragraph 19) they were saying not that they disbelieved the reason advanced; rather they were concluding that there was no proper rational basis for the decision given the defect in the procedures. The employers could not properly and rationally explain, with the support of proper procedural practices, why they had appointed in the way they did. Any doubts about the proper construction of paragraph 64 are, in our view, laid to rest by the second decision which says that the errors identified were purely procedural. This shows that the Tribunal did not conclude that there was discrimination in the appointment on grounds of pregnancy or maternity leave but that there was discrimination in the procedures which might adversely have affected Ms Watson's chance of obtaining the post.
32. Turning to look at the procedures themselves, as we have said, the only procedural defects conceivably referable to her maternity leave were those identified in her claim, namely the fact that she learnt of the application late. To the extent to which these affected her chances of obtaining the job, if at all, will be a matter for the Tribunal to determine on remedy. But we do not think that the Tribunal could properly find that the other procedural defects which they identified, and which largely stemmed from a failure by the Union to follow its own established procedures, were the result of any discrimination as alleged.
33. It follows that the appeal succeeds. The Tribunal can look at the loss of chance on the basis that we have indicated, namely the fact that Ms Watson was informed late of the fact that the job was available, but not on any other basis.