United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms. N Cunningham (of Counsel) Instructed by: Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TW
For the Respondents	Miss. B Sunderland (Solicitor) Messrs Doyle Clayton Solicitors 33 Blagrave Street Reading RG1 1PW


 


SUMMARY

Sex Discrimination – Victimisation

A schoolteacher appealed from dismissal of her claims for sex (pregnancy) discrimination against school and her head teacher, in expressing anger at her being pregnant and its consequences for the school, and in allocating her to teach a different class on return from that she had taught before taking maternity leave. Her appeal was allowed where the Tribunal had applied the wrong test to determine "detriment" by failing to consider that loss of a chance of influencing the choice of class to be taught, through a discussion process open to all other non-pregnant employees, was indeed a detriment, but otherwise rejected.

The judgment is the first appellate decision to consider what "the same job" means in the context of maternity leave.
 


THE HONOURABLE MR JUSTICE LANGSTAFF

1. In Brown v Stockton on Tees Borough Council [1998] ICR 410, HL, Lord Griffiths observed:-

"I have no doubt that it is often a considerable inconvenience to an employer to have to make the necessary arrangements to keep a woman's job open for her while she is absent from work in order to have a baby, but this is a price which has to be paid as part of the social and legal recognition of the equal status of woman in the workplace."

2. A woman is particularly vulnerable when pregnant. The pressures which she is subject to, and absences from work she may take, in consequence of pregnancy, cannot be compared with pressures and absences faced by men (or for that matter other women), for no like to like comparison can properly be made. If pregnancy is the reason for treatment she reasonably regards as detrimental to her at the workplace, she will succeed in a claim that she has been discriminated against on the ground of her sex, for her employer can point to no man who has been equally badly treated. However, a question may arise whether pregnancy is truly the reason for detrimental treatment of her: or whether there is some other reason, in which case comparison of the way she has been treated with the way in she herself would have been treated, if not pregnant, or (before the change effected by s.3A of the Sex Discrimination Act 1975, which came into force after the facts giving rise to the present case) in which a man has been, or hypothetically would be, treated is not only possible but necessary in order to determine her claim.
3. This case arises by way of appeal from a decision of the Employment Tribunal at London (South) whose reasons were promulgated on 6 April 2006. It had considered a case in which the Appellant alleged she had suffered a number of detriments by reason of her pregnancy, and was thus entitled to a declaration to that effect, and compensation for the injury her employer's actions had caused to her feelings. Her employer asserted either that pregnancy was not the reason, or that no reasonable employee would think she had suffered any detriment, or both.

Background Facts

4. The claims were focussed on five areas of complaint. They arose in this way. The Appellant taught at St Andrew's Primary School since 1992 as one of eighteen teachers. She still teaches there. In school year 2002 to 2003 she was allocated as teacher of Reception Yellow. In June 2003 she told the Head, the second Respondent, Mrs Assid, that she was pregnant. Mrs Assid's practice towards the end of the school year was to ask teachers for their preferences as to class allocation for the coming academic year. She would usually try to keep a teacher in a particular role (such as Reception Class teacher) for 2 years, and then change their class for the sake of breadth of experience. Having been told of the impending maternity leave, Mrs Assid asked the Appellant on June 23 if she would undertake "floating" duties in the following year, for as long as she was able, rather that accept an assignation to a particular class. The Appellant originally agreed to this, but thought better of it (from her point of view), and the next day told Mrs Assid she did not wish a "floating" role. Discussions followed over the next few days, until on 1 July Mrs Assid said that she had decided, albeit reluctantly, to allow the Appellant to teach Reception yellow again. She had been concerned that her leaving during the year might cause disruption to the education of children, for whom she regarded a consistency of educational approach as important.
5. The Appellant's case, as put to us, is not that "floating" duties were plainly a detriment in comparison to being assigned a class (although it is plain that is her view) but that the attempt to persuade her, persisted in over some days and distressing to her, was an act of less favourable treatment on the ground of her pregnancy. This was the first focus of complaint.
6. The Appellant complained to the Tribunal that, from the moment Mrs Assid reluctantly permitted her to continue as reception teacher until the intended commencement of her maternity leave at the start of the January term following, Mrs Assid was frosty and distant toward her. This behaviour, causally related to the impending absence, was itself a discrete act of discrimination. This was the second.
7. On 5 December before the end of the school term, the Appellant suffered from varicose veins (which it was accepted below was a pregnancy related condition). She then told Mrs Assid that she wished to take sick leave, from that date onward. Mrs Assid was angry, put her head in her hands, and indicated her annoyance that disruption had been caused to the reception class. She accepted in a witness statement that she raised her voice. The Claimant's case (which was in part that Mrs. Assid shouted at her) was that the head's reaction, which was distressing, was treatment afforded to her because of her impending pregnancy, was thus less favourable treatment, and to her detriment. This was the third.
8. The Appellant had a baby in January 2004. She was not due to return to work at the start of the autumn term. For that reason – that is because she was absent – Mrs Assid did not ask her for her preferences as to class allocation for the forthcoming year as she did all other members of staff who were then employed by the school. This was the fourth focus of complaint., since the Appellant argues that this, too, was an act of less favourable treatment, to her detriment, to which she was subject because she was absent and therefore, because her absence was on maternity leave, treatment because of her pregnancy.
9. Shortly before the Claimant returned to work, she did meet and discuss with Mrs Assid the specific duties she was to perform as teacher during the following year. Mrs Assid offered her two options: she could either take up a floating role, or she could become a class teacher of year two. She opted for the latter, but complains it was a particularly onerous duty to offer her because she had never taught year two previously, and (on her case) year two involved heavy responsibility because it was a year in which the children were expected to take nationally based assessment tests: standard assessment tests ("SATS"). She maintained that she was entitled by law to return to the same job she had left in the previous December, namely that of a teacher of reception yellow. This, the fifth focus of complaint, involves us determining that about which there is no appellate authority (yet) which the advocates could discover – what is the proper meaning of the "same job" to which legislation gives a right to return?

The Tribunal Decision

10. The Tribunal dismissed all these claims.
11. It made general findings as to the role of the Appellant as a teacher. These were that the Appellant was employed as a teacher, and not more specifically as a teacher of a particular class. As a teacher she could be required to teach any class within her school. It was within the remit of Mrs Assid to place the Appellant in any class she chose within her discretion as head teacher. Thus, for instance, the expression of a preference by a teacher could not be, and was not, determinative of the class that that teacher would in fact be allocated.
12. Further, the Tribunal found that Mrs Assid was keen to avoid disruption of classes.
13. As to the complaint about the approach taken by Mrs Assid toward the Appellant in June 2003, the Tribunal found that the Appellant's unwillingness to do as she had agreed to do, namely accept a floating role, was first expressed because of an approach to her by Mrs Assid. It had been suggested by the Appellant that Mrs Assid had shouted at her, in front of the children. This was denied by Mrs Assid. The Tribunal thought it unlikely that either party would have acted in an unprofessional way in front of the school children. They did not, therefore, accept the Claimant's detailed case on this.
14. The findings of fact on this concluded at paragraphs 22 to 25 as follows:-

"On 1 July, Mrs Assid and the Claimant held a further discussion and Mrs Assid had said she had decided to allow the Claimant to teach the reception class, as she wished, rather than taking a floating role. Mrs Assid pointed out to the Claimant – correctly – that it was within her remit as head teacher to place the Claimant with any class. She also said that was, in terms, going against her better judgment in agreeing to this.

23. The Claimant alleged that thereafter Mrs Assid adopted "a frosty and detached attitude" for the remainder of her pregnancy. Mrs Assid denied this. As this was an allegation of less favourable treatment, the Tribunal needed to make a finding as to how Mrs Assid treated the Claimant from when she was told the Claimant did not want the floating role.

24. This was difficult to do, because there was simply the competing evidence of two witnesses who were no doubt doing their best to assist the Tribunal. However, the Tribunal found that Mrs Assid was a very professional and committed person, who was dedicated to the school, its children and the staff. From this, the Tribunal drew the inference that it was unlikely that Mrs Assid would have acted in such an unprofessional way as to adopt an inappropriate manner in dealing with a senior member of staff. It also seemed to the Tribunal unlikely that she would have allowed any personal feelings – were that the case – to have interfered with her professional obligations.

25. In addition, the Tribunal found that the Claimant carried some resentment over the Deputy Head process…."

(This was a reference to the fact that shortly after Mrs Assid was appointed as Head, the Appellant had applied for the post of Deputy Head and was short listed, only for appointment to the post to be put on hold. The Appellant had not been happy with that decision)

"…and that it was likely that, if there was a strained relationship between the Claimant and Mrs Assid, it pre-dated her second pregnancy, and therefore had nothing to do with it"

15. Ms. Cunningham, who appeared for the Appellant below as she does for her in this appeal, argued in her closing skeleton argument to the Tribunal that the issue was whether it was to the Appellant's detriment that Mrs Assid attempted to persuade her to float from September 2003. This is subtly different from the issue as she had identified it at the outset of the Tribunal hearing, which had been agreed to by the Respondent:

"3.1. Did the following amount to less favourable treatment??

3.1.1. Intending the Claimant to act as a "floating teacher" from June 2003."

Nonetheless, it was clearly and cogently developed as put in closing. The Tribunal addressed the issue as it had been agreed at the outset between the parties. It answered it by saying at paragraph 52:

"There was nothing in the role of floating teacher that was adverse or disadvantageous. It was simply another position within the school which the head teacher could reasonably request any teacher to fill. Therefore, Mrs Assid's intention that the Claimant should act as a "floating teacher" from June 2003 did not amount to a detriment".

16. The issue as originally posed to the Tribunal may have been ineptly put. It is difficult to see how an "intention" (if unexpressed) could act as a detriment. It is, perhaps, not surprising that the Tribunal focussed upon the nature of the role, and the quality of the Appellant's objections to it, rather than the way in which the head teacher had approached attempting to persuade the Claimant to adopt it. Although at first it seemed to us arguable that the Tribunal may here have missed the point which the Appellant was making (as she argued before us) we have ultimately been persuaded that the Tribunal answered the submission factually, rather than by a process of legal analysis, and that this answer is sufficient. At paragraph 23, as already set out above, the Tribunal asked how Mrs Assid treated the Appellant "from the time she was told" that the Appellant did not want the floating role. If that phrase is taken at face value, it describes treatment beginning on June 24, when Mrs Assid approached the Claimant and was first told of the Claimant's real wishes. The Tribunal in paragraph 24 and 25 were clearly finding that on the balance of probability Mrs Assid had not acted in any inappropriate way. This was repeated at paragraph 53, where the Tribunal rejected the case that Mrs Assid had treated the Claimant coldly or avoided contact with her after she refused a floating role.
17. Further, the Tribunal (at paragraph 25) attributed a cause other than pregnancy to any strain that there might have been.
18. These are findings of fact which deny the factual basis upon which the Appellant predicates her case, and hence her appeal. If it approached the gathering of evidence correctly, and if this decision was not perverse, matters with which we deal below, those findings of fact are fatal to the Appellant's success in this appeal.

The Tribunal's Decision: December 2003, June and Autumn 2004

19. The Tribunal concluded at paragraph 54 that Mrs Assid had by reacting as she did on 5 December 2003 when the Claimant announced that she was leaving done so unfavourably to the Claimant. It accepted that this could be to the Claimant's detriment. It rejected the case, here, upon a causation basis:

"55. Was it a detriment to which the Claimant was subjected because she was pregnant? The Tribunal was of the clear view that it was not. The findings of fact and the inferences drawn from those facts led to the conclusion that Mrs Assid was annoyed because the reception class would be disrupted by the teacher's absence, not for any reason connected with the cause of that absence. These findings also supported the conclusion that Mrs Assid's reaction had nothing to do with the Claimant exercising her maternity rights."

20. As to the failure to "consult" in June 2004 as to class teaching preferences, the Tribunal (at paragraph 54):

"…found that there was no "consultation", only an opportunity to express preferences which may or may not have been agreed. It was not to the Claimant's detriment because there was no guarantee that expressing her preferences would have led to the class of her choice. She was also given the opportunity at a later stage to discuss her options (again, without any guarantee)."

21. As to the allocation of the year two class to the Claimant, and her asserted right to return to the same job, the Tribunal found that (at paragraph 57):-

"…whatever class the Claimant was allocated would be one she was contractually required to teach. Insofar as it is relevant, "the job in which she was employed before her absence" means the job as teacher, not the temporary position as teacher of reception class."

Submissions

22. Ms Cunningham, in careful and well constructed submissions, complained that these decisions displayed four categories of error. First, the Tribunal had failed to resolve key factual disputes, necessary for it to resolve issues of credibility between on the one hand the Appellant, and the other the second Respondent, Mrs Assid. Thus (she argued, as we have set out above) the Tribunal had not addressed whether Mrs Assid's attempts to persuade the Appellant to accept a floating role were to her detriment; and in relation to this whether, when she relented, she did so out of concern for the Appellant (as she testified) or because she was advised by the National Association of Head Teachers that she could not lawfully impose floating duties upon a pregnant teacher who did not wish to do them. (The Appellant had asserted that she had received such advice, without direct evidence but by drawing an inference to this effect, which was supported, we were told, by Mrs Assid's acceptance in her witness statement (paragraph 23) that she took some advice, and the Tribunal's recognition that she had done so, albeit that the advice she said she had had was that as she was the Head she could decide which teacher taught which class). It was inherently improbable that Mrs Assid, wishing the Appellant to take a floating role, would have received such advice as she claimed and yet relented, whereas it was entirely understandable that if she had had to implement unwelcome advice she should adopt the allegedly frosty demeanour thereafter. A Tribunal confessing a difficulty in determining which of two apparently respectable witnesses was right should have resolved this issue. As Sedley LJ put it in Anya v University of Oxford [2001] ICR 847 at paragraph 25, it was the job of a Tribunal at first instance not simply to set out the relevant evidential issues, but to follow them through to a reasoned conclusion except to the extent they became otiose. Next, the Tribunal had not resolved whether year two was a "high pressure year" in that it was a year when children would be subject to national assessment tests. The Appellant said there were such tests. Mrs. Assid said not. This issue – which should have been capable of relatively simple determination – might indicate whether the Claimant or Mrs Assid was impermissibly stretching the evidence to suit her particular case, and thus indicate where the truth lay on other factual issues in direct contention.
23. Second, she submitted that since no male employee could have suffered a pregnancy related illness, nor would have been permitted a predetermined maternity leave, and since what caused Mrs Assid to raise her voice, put her head in her hands, and react as she did in December was the indication that the Appellant was to take sick leave for a pregnancy related sickness, additional to the pre-arranged maternity leave, this reaction must have been caused by the sex of the Appellant. It was no answer for the Respondent to suggest that Mrs Assid would have been equally annoyed with a male teacher who had needed to be absent for a different reason: to cause detriment to an employee because she is absent on maternity leave is to cause detriment for a reason inherently bound up with her being a woman. A similar point arose in respect of Grounds 5 and 6 of the Notice of Appeal, which related to the failure to "consult" in June 2004. . The reason for this failure was that the Appellant was absent being on maternity leave. She could not be compared with a male teacher absent for a reason which was not pregnancy. To compare an absence for reasons of maternity with absence for a gender-neutral cause would be to repeat the mistake which Webb v Emo Air Cargo UK Ltd [1994] ICR 770 identified.
24. Next, when she did return, she was not secured a return to "the job in which she was employed before her absence", as provided for by Regulation 18 of the Maternity and Parental Leave (etc) Regulations 1999. Those regulations define "job" as:

"..the nature of the work she is employed to do in accordance with the contract and the capacity and place in which she is so employed."

25. This looks at the factual circumstances: it does not simply ask whether the contractual terms are unchanged. A legal secretary, employed as such, who works for the senior partner when she begins maternity leave is entitled to return to work after that leave as the secretary to the senior partner – and not to the typing pool, even if her terms and conditions of employment would encompass that. The underlying purpose of maternity rights is to protect women at a uniquely vulnerable time of their lives, and it is to advance this purpose that they should be returned to the same kind of work in as near as possible the same circumstances as those they left. To return to less familiar work, in different surroundings, is to incur insecurity, and additional stresses, which the statutory rights are designed to avoid.
26. Underlying these submissions was an argument that the Tribunal had paid scant, if any, regard to the way in which "detriment" had been interpreted by the House of Lords in the case of Shamoon v The Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, HL. "Detriment" existed if a reasonable worker would, or might take the view that the treatment accorded to her had in all the circumstances been to her detriment. It was not necessary to demonstrate some physical or economic consequence: see per Lord Hope at paragraphs 34, 35, with which Lords Hutton and Scott expressly agreed. Here, it could not sensibly be argued that the Appellant was not entitled to regard the reaction of Mrs Assid, in December, her failure to invite the statement of preferences for the following years teaching in the summer of 2004, or the allocation of the year two class in the autumn as being detriments within that meaning.
27. Miss. Sunderland, the solicitor appearing for the Respondent, argued that some of Ms. Cunningham's submissions sought to put the Appellant in a better position than she would have been had she not been pregnant. She referred to Ministry of Defence v Williams (8 October 2003) EAT/LA33/02, a decision of this Tribunal presided over by HHJ Clark. An employment Tribunal had held that it was direct discrimination not to pre-select a female employee for an advanced course in September 2001, when she had previously been selected for such a course in September 2000 which she had been unable to attend due to pregnancy. Though upholding the Tribunal's actual decision, the Employment Appeal Tribunal warned of the dangers of elevating the findings of a tribunal in such a case to a statement of principle of general application, namely that in every case when an officer is unable to attend a course due to pregnancy she must be pre-selected for such a course the following year. The Employment Appeal Tribunal observed that if that were so it would be positive discrimination in favour of pregnant woman, contrary to the judgment of the European Court of Justice in Kalanke v Freie Hansestadt Bremen [1996] ICR 314.
28. The Respondent suggested that the Appellant, here, was seeking an advantage from her pregnancy, in much the same way as was deprecated by these obiter remarks in Williams. She was entitled to be treated no less favourably: but she had no right to demand that she should be treated more favourably.

Discussion

29. Although Ms Cunningham countered this last point by reminding us of Section 2 (2) of the Sex Discrimination Act 1975 – that it was not sex discrimination against a man to afford a woman special treatment in connection with pregnancy – this did not answer the point. A woman may not be disadvantaged because she is pregnant. If an employer affords her special treatment, no man in his employment has a right to complain. But it does not follow that she has a right to demand preferential treatment. Her right is to be treated no less favourably. In the context of a return to work this, viewed generally, means that she is entitled to be put back in the same, but no better a position that that she left to begin her period of maternity leave.
30. As to the incident in December 2003, the Tribunal made clear findings at paragraph 33:

"Mrs Assid was annoyed because what had occurred was what she had wished to avoid, namely that the reception class would have additional disruption. It was very clear from her evidence that the disruption of classes was something she, as Head Teacher was keen to avoid. That was a proper concern for a Head Teacher to have, given her duty the Governors and to parents. From these facts the Tribunal inferred that she was likely to have reacted in the same way to being told that any class was being disrupted by a change of teacher. What was in mind – the Tribunal inferred – was the disruption to the class, rather than the reason why the particular teacher was absent. To put it another way, the reason for her annoyance was the disruption, not anything to do with the reason why this teacher was going to be absent."

31. This is a clear finding as to the reason for the treatment said to constitute less favourable treatment, and a detriment.
32. The 1975 Act provides by Section 1:-

"(1)…a person discriminates against a woman if (a) on the ground of her sex he treats her less favourably than he treats or would treat a man…" (This is "direct discrimination").

33. Although Section 3A of the Act deals with discrimination on the ground of pregnancy or maternity leave, this was not in force at any time relevant to the present case, which therefore stands or falls by reference to well established law in relation to direct discrimination. That recognises that treatment complained of is not on the ground of sex if it is on some other ground, which is not gender specific. Although the "but for" test is often helpful in identifying whether treatment is on the ground of sex, and in circumstances such as those in James v Eastleigh Borough Council [1990] ICR 554, H.L. may be determinative, it is worth remembering that the focus of the enquiry is as to the reason for the treatment – the "reason why?" as it has been described in Shamoon (see paragraph 7 in the speech of Lord Nicholls of Birkenhead). The "but for" test has limitations in resolving disputes as to causation upon which rights to compensation depend. For example, the claim that "but for" my leaving home in the country to travel to London I would not have been knocked down by a car in Fleet Street may entitle the philosopher to muse that my doing so was the cause of my injuries, but such musing is completely unhelpful in determining the cause of the accident for the purposes of deciding whether I or the driver of the car should be financially responsible for the damage to man and to car involved in the accident. Thus for these purposes a court adopts what has been termed a robust, or pragmatic, approach to causation. Such an approach often leaves a broad margin within which a decision may fall. Courts and Tribunals alike are entitled to the respect of the appellate courts when they give an answer as to the reason why treatment has happened, unless the approach is obviously wrong or the answer clearly perverse.
34. The approach of the Tribunal must of course be particularly scrupulous where issues of discrimination are concerned. It is trite that discrimination is rarely admitted. Experience suggests that many of the phrases with which those anxious to hide discrimination sought to conceal their reasons for treating a woman as they did have become so familiar to Tribunals as falsely exculpatory phrases that nowadays knowing parties may avoid them in the search for some other apparently neutral label. The boundary between the robust and pragmatic on the one hand, and the philosophical on the other is imprecise. Tribunals must take care that the reason they accept, if apparently neutral as to gender, does not in fact hide gender favouritism. Hence the importance of decisions such as Anya, which emphasises the need for a Tribunal to make proper findings of primary fact if it is to draw inferences. The presence of discrimination is almost always a matter of inference rather than direct proof – even after the change in the burden of proof, it is still for a Claimant to establish matters from which the presence of discrimination could be inferred, before any burden passes to her employer. In drawing inferences, an uncritical belief in credibility is insufficient: as Sedley L.J. pointed out in Anya (paragraph 25) it may be very difficult to say whether a witness is telling the truth or not. Where there is a conflict of evidence, reference to the objective facts and documents, to the likely motives of a witness and the overall probabilities can give a court very great assistance in ascertaining the truth.
35. In Anya the Tribunal had simply failed in that task. Although in the present case the Tribunal said that it was difficult for it to prefer one version to another (as to a conversation on June 24), as it was to decide as to the evidence of the relationship between Mrs Assid and the Appellant from that date onward (paragraph 24), and although those words may seem resonant of those used by the Tribunal whose approach was condemned in Anya, in our view this Tribunal, by contrast with that in Anya, did not shirk its task.
36. As to June the 24, the Appellant had alleged that Mrs Assid had shouted at her in public in front of the children, in a conversation which was very upsetting to her (paragraph 18, witness statement). Mrs Assid did not suggest that there had been any shouting. The Tribunal's conclusion in paragraph 19, after recognising the difficulty for the Tribunal in preferring one version over the other, nonetheless continued:

"However, it seemed unlikely that either party – both of whom are dedicated and responsible teachers – would have acted in an unprofessional way in front of the school children".

This accepts Mrs Assid's account, having examined the probabilities of it in accordance with the approach commended in Anya, and not that condemned by it: see the citation in that case from Robert Goff LJ, the effect of which we have quoted above in the last sentence of our paragraph 30. It seems likely that the reason for expressing somewhat obliquely the conclusion that it did not accept the Appellant's account is plain from its paragraph 60: the Tribunal recognised that both the Appellant and Mrs Assid remained as members of a small staff at the school, and seemed conscious that its decision was capable of adversely affecting staffroom relationships further, a situation the Tribunal wished to avoid. Miss. Sunderland argued, we think with some force, that this was a case of a Tribunal wishing to let the Claimant down gently.

37. In similar vein, in paragraph 24 the Tribunal plainly rejected, on the probabilities, that Mrs Assid acted as the Appellant had contended. These probabilities were strengthened by the resentment it found the Claimant had over her view that Mrs Assid may have been responsible for the failure to proceed with appointment to the post of Deputy Head Teacher, for which, she, the Appellant, had been a prime candidate. It did not duck the issue, as Ms Cunningham claimed: it determined it.
38. In paragraph 12 of her closing submissions, Ms Cunningham raised the Appellant's belief that Mrs Assid had only relented on the question of floating from September 2003 because she, Mrs Assid, had been advised by her Union that she must do so. She argued that there was compelling evidence that Mrs Assid must have sought such advice: why else would she change her mind? If so, it added to the probability that she had been frosty and detached as the Appellant claimed, and the Tribunal rejected. This was a necessary finding of fact.
39. We do not accept this. First, as Miss. Sunderland pointed out, the Tribunal dealt with the substance of the point where, at paragraph 22, it observed that "Mrs Assid pointed out to the Claimant - correctly – that it was in her remit as Head Teacher to place the Claimant with any class. She also said that she was, in terms, going against her better judgment in agreeing to this." (Our emphasis). Mrs Assid had said she had advice, to that effect. The use of the word "correctly" indicated the Tribunal's acceptance of that evidence. Second, given the Tribunal's own conclusion that the Claimant was employed as a teacher, and could be allocated any duty, whether classroom or floating, and that floating duties in the view of the Tribunal did not constitute a detriment, it is difficult to see why the Tribunal should have determined that the Head or her union would have concluded that was not so. Thirdly, there is simply no evidence, other than speculation, to show what was the nature of any advice received (except that which Mrs Assid herself deposed to, which was adverse to the Claimant's case). Fourthly, to resolve this issue would not resolve the likelihood of the behaviour afterwards being as the Claimant asserted – for it is just as likely to have been, on her case, resentment at having been made to change her mind by a teacher who had (on her own case) blown hot and cold over accepting floating duties, and whose absence would later disrupt the class, than it is to have been being forced to make a decision against her will. In each case, the Tribunal had had established before it that Mrs Assid had done something which she considered had been against her better judgment.
40. Similarly, we do not think that the dispute as to the question whether year two was a year in which children would have to undergo national assessment tests, and for that reason involve a heavier working commitment than other classes was something which it was necessary for the Tribunal to resolve. The suggestion that, taken in isolation, it would have cast a long shadow over the quality of Mrs Assid's evidence had the Claimant been shown to be right on this, is placing too much weight upon one particular feature of the evidence.
41. Although the Tribunal may well have made findings about both matters, it bears repeating that a Tribunal does not have to decide every issue before it. Where it does not do so, as here, it is likely to find its reasoning subject to scrutiny. That is no reason, however, to overburden lengthy Tribunal judgments with further facts which are of tangential relevance.
42. The appeal insofar as it rests upon failure to resolve factual issues said to be "key" must thus be dismissed: overall, the approach was both careful and considered, and the sensitive, somewhat confessional approach of the Tribunal to the difficulties of determining a case with two central rival witnesses is not here a suitable basis upon which to sustain an appeal.
43. A conclusion that the Tribunal was entitled to approach the evidence as it did interrelates with the causation finding in respect of the December conversation. The background and context to the conversation undoubtedly was the fact that the Appellant was shortly to be absent on maternity leave. But this does not disable an Employment Tribunal from asking whether in relation to matters occurring in such a conversation a hypothetical male comparator would have been treated in the same way (or, nowadays, whether the complainant herself, if not pregnant, would have been): such an enquiry might help to elucidate what was the reason for the treatment, which might be pregnancy, but which might not be. (See Madarassy v Nomura International Plc [2007] EWCA Civ 33, at paragraphs 118, 119.) If the relevant facts were those of an announcement of sudden impending disruption to a class, as the tribunal was entitled to regard them, the conclusion it reached would follow. We cannot see that the Tribunal here was wrong to come to such a conclusion. We do not accept that the "failure" to deal with the evidential conflicts referred to rendered it wrong. The Tribunal was entitled to determine the cause of the head's behaviour as it did.

June 2004

44. In paragraph 42 the Tribunal accepted evidence that the indication by a teacher of her preference for class allocation for the forthcoming year should not guarantee that result. It was for that reason that the Tribunal concluded (paragraph 56) that it was not to the Claimant's detriment to be denied such an opportunity, because there was no guarantee that expressing her preferences would have led to her teaching the class of her choice. It noted that she was also given the opportunity at a later stage to discuss her options (again, without any guarantee).
45. The Tribunal's conclusion here rested squarely upon whether there was a detriment, or not, in not being invited to express a preference. The reason for not doing so (paragraph 43) was that the Head never discussed with teachers who were not due to start back at the beginning of the school year what their preferences would be. The reason why the Appellant would not be present at the start of the school year was because she was on maternity leave. It would be difficult, therefore, to argue that – if the treatment was a detriment, in the Shamoon sense – it was not less favourable treatment on the ground of her sex. The lay members of this Tribunal note that when the Claimant brought a grievance about her treatment to a panel of Governors, that panel thought the head's treatment of her was "not ideal in terms of equal treatment of all other teachers" but agreed that the Appellant did not suffer a detriment because it was not possible to speculate whether or not she would have been allocated a reception class. They draw from this confirmation that the respondents themselves took the view that, but for the absence of detriment, there would here have been unequal treatment on the ground of sex. Indeed, this is obvious: all the teachers in full time employment at the school were invited to express a preference with the exception of the Appellant, and the only reason she was not was that she was absent on maternity leave.
46. The reason given, by panel and then by Tribunal alike, for there being no detriment was that there was no guarantee that the Appellant would have been allocated to the class of her choice. That there was no certainty of this, we freely accept – but this does not answer the Appellant's case. On the findings of fact made by the Tribunal, she lost the opportunity of putting forward her preference, and thereby lost a chance of being allocated to one of a number of classes – of which there were two per year, throughout the primary school. To be able to discuss choices with a head, after other teachers have had their preferences considered and accepted or rejected, is not capable of being a substitute for being able to influence the eventual choice at the outset. It is likely to give rise to limited options, if any. In the present case, it was pointed out to us that whereas in June 2004 the Appellant would have had some 14 class options, plus four "floating" preferences available, she was ultimately offered a choice of two, neither of which she was keen on. Although not every teacher asked to state a preference in June was given first preference, all were invited to state three. We were told that the proportion of those allocated first preference was high. Although it may be understandable that the Tribunal thought it speculation to decide whether the Appellant would have been allocated a class of her preference, this was because there was an absence of certainty about it. This is the wrong approach. We do not have to decide whether on the lesser test of a balance of probabilities she would have been allocated her preference (though on a purely mathematical basis, as presented to us by the parties, this seems likely to have been satisfied) but whether she has lost something she might reasonably think it of value to have been afforded. There is only one possible answer to this. She did. She lost the chance of putting forward her choice, and thereby securing her first (or even second) preference class.
47. It follows that the appeal on this point must be allowed.

The Same Job

48. The right to return after maternity leave is provided by regulation 18 of the Maternity and Parental Leave (etc.) Regulations 1999, SI 1999/3312. The right is to return to "the job in which she was employed before her absence", under paragraph (2). The full text of the relevant portions of the 1999 Regulations is as follows:

"18. — ………

(2) An employee who takes additional maternity leave, or parental leave for a period of more than four weeks, is entitled to return from leave to the job in which she was employed before her absence, or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.

………..

(5) An employee's right to return under paragraph … (2) …. is to return— …….

(c) …… on terms and conditions not less favourable than those which would have been applicable to her had she not been absent from work after the end of her ordinary maternity leave period or (as the case may be) during her period of parental leave."

"Job" is defined at Regulation 2(1) as follows: "' 'job', in relation to an employee returning after additional maternity leave or parental leave, means the nature of the work which she is employed to do in accordance with her contract and the capacity and place in which she is so employed;"

49. There is no appellate authority which explores the meaning of "job", thus defined, nor how a Tribunal should approach determining whether a job is the "the job in which she was employed before her absence". However, in 1977 in Edgell v Lloyds Register of Shipping [1977] IRLR 463 an industrial tribunal considered cognate provisions in s.48 of the Employment Protection Act 1975, which provided a right to return to the job "in which she was employed under the original contract of employment". "Job" was defined in identical terms to those used in the 1999 Regulations. On return to work as a book-keeper grade 13 after maternity leave, the applicant found that although she was still employed at that grade she no longer was asked to deal with book-keeping for the division of her employers for whom she had previously done so, no longer had authority to sign cheques, and was expected to report to a supervisor whereas previously she had been a direct report of the manager. She claimed a breach of section 48, and constructive dismissal. Her claim was rejected.
50. In a central passage in its decision, the Tribunal said:

"The representative of the applicant tried to argue that the case depended upon the meaning of the words "nature of the work" and "capacity". We do not agree. This is not an exercise in theology or semantics. It is a simple matter of asking two questions: what work was the applicant doing before her leave, and what work was she doing or given to do on her return to work?.....it is quite clear that the nature of the work was book-keeping, and her capacity was that of an employee in grade 13. The question of the place in which she was so employed of course does not arise because she went back to the same office…… it must be borne in mind that a job description is not a contract of employment. It sets out defined limits within which the employee's work is carried out, so that there can be no dispute as to whether instructions or orders given by an employer to an employee are within the four corners of the contract of employment or outside it, and of course if the orders were outside it then the employee would be justified in refusing to carry out those orders as being outside her contract of employment…The Act does not say that an employee who returns after maternity leave is entitled to exactly the same job back again or anything like that. It says that the job means the nature of the work which she is employed to do, in accordance with her contract and the capacity and place in which she was so employed. This lady was re-engaged after maternity leave on exactly the same sort of work, ie book-keeping as she was engaged in doing before she had her baby. Her capacity was the same, that is to say she did not lose status at all. She was grade 13 when she left and she was grade 13 when she returned after maternity leave…."

51. Two things are clear. First, the contract is not definitive (despite the approach taken in Edgell). Otherwise the Regulations could, and probably would, in simple terms, require the contract to be honoured, whereas they refer only to the contractual provision(s) as to the nature of the job. This most obviously encompasses the job description, if it is contractual, but may not be limited to it, since where a contract consists of two parts as a contract of employment often does – the job description as one part, and particular terms and conditions of employment as another – those other terms may have some impact upon the "nature" of the work. Secondly, the phrase "in accordance with her contract" qualifies only the "nature" of the work. If it had been intended that "capacity" was to be defined by the contract of employment, or "place", the phrase would have read: "..the nature of the work, and the capacity and place in which she is employed to do it, in accordance with her contract.." or to similar effect.
52. "Capacity" is more than "status", though may encompass it. It seems to us to be a factual label, descriptive of the function which the employee serves in doing work of the nature she does.
53. That this is a factual label, not determined purely by the contract, is most readily demonstrated by considering the word "place". This too is not purely contractual, for it too is not subject to the qualification ("in accordance with her contract") which applies to "nature". This makes sense in the context of the Regulations, for if (for example) a contract had a mobility clause by virtue of which the returnee could be assigned to a different workplace, and if it was permissible for her to be so assigned, she would suffer the dislocation and unsettling need to familiarise herself with that workplace at a time when she was vulnerable, and still learning to accommodate the needs of her newborn alongside those of work. The Regulations aim, as we see it, to provide that a returnee comes back to a work situation as near as possible to that she left. Continuity, avoiding dislocation, is the aim.
54. The level of specificity with which the three matters, "nature", "capacity" and "place" are to be addressed is likely to be critical. Does the secretary to the boss return to the job she did before maternity leave if she returns to the typing pool? At one level, the work is secretarial; the capacity is as a secretary. At another, it is more specific: personal secretary to the boss. Whereas the "nature of the work" is to be as provided for by the contract, which will thus within its terms (if written) tend to indicate the level of specificity there is to be about it, this will not be so where the contract is an oral one, or where nothing which is written indicates clearly the job to be done. So far as "capacity" and "place" are concerned, much will depend upon the level to which specificity is taken. For someone working on a conveyor belt, is the place of work to be the particular position at the belt (which may, if she is particularly friendly with those immediately beside her, be a matter of some importance to her)? Or at that section of the belt? In that workroom? On that floor of the factory? The central question is how the level of specificity should be determined, and by whom.
55. It seems to us that the answer to this question is essentially one of factual determination and judgment, and hence for the Tribunal at first instance. Unless it is obviously so wildly wrong as to be perverse, or wrong considerations have clearly informed it, the level of specificity it regards as appropriate having listened to the evidence will be respected on appeal. However, to say that the decision is a judgment of this category is not to assist a Tribunal in the approach – for by what approach is it to be reached?
56. The answer as we see it is to have in mind both (i) the purposes of the legislation, and (ii) the fact that the Regulations themselves provide for exceptional cases – namely that where it is not reasonably practicable for the employer to permit her to return to her previous job, he may provide for her return to another job which is both suitable for her and appropriate for her to do in the circumstances. As to (i), the legislation seeks to ensure that there is as little dislocation as reasonably possible in her working life, so as to avoid adding to the burdens which will inevitably exist in her family or private life simply because she has a very young infant making new demands upon her. As to (ii), even given that the purpose of the legislation is to protect the employee there is no need to construe "same job" as covering a broad spectrum of work in order to ensure an appropriate balance between employer and employee. "Job" can be quite specifically defined. Latitude is provided by an employer being able to provide a job which is not the same job, but is nonetheless suitable.
57. The Tribunal here dealt with these issues tersely in its paragraph 57, in the words set out at our paragraph 19 above. It did not analyse the issues as we have sought to analyse the Regulations. Nonetheless, we regard the answer it gave as sufficient. It was the right answer in this case, on the findings of fact it made. Running throughout its decision is the theme that the Appellant could be required to teach any class as asked by her head, and that this was a real, not simply a theoretical requirement deriving from the contract alone. The nature of her work, according to her contract, was as a teacher. Her capacity (as a matter of fact) was viewed more realistically as a class teacher than as teacher of Reception Yellow, since she would in any event have been asked to move after each two year period, and anyway the identity of the pupils in the Reception class would change from year to year simply through age. The place of work could not be said to be the Reception Classroom, but the school. The Claimant complains that the precise position she occupied was as Reception teacher. The Tribunal held that being a teacher of Reception class as such was temporary: it seems plain to us that, where a precise position is variable, a Tribunal is not obliged to freeze time at the precise moment its occupant takes maternity leave, but may have regard to the normal range within which variation has previously occurred. The post to which the Appellant here was returned was the same post, if the level of specificity was properly to be regarded as "teacher". If it was temporarily more specific, because the precise post varied, the question is whether the job on return fell outside the boundary of what was permissible. Was it outside the normal range of variability which the Appellant could reasonably have expected? It is clear the Tribunal found it was not.
58. Accordingly, though we have set out our reasoning in some detail because we have been told this is the first appellate decision to grapple with the meaning of, and approach to, "the same job", we see no error in the Tribunal decision on this point.

Conclusions

59. In conclusion, therefore, we dismiss the appeal on all grounds save that in relation to the failure to ask the Appellant in June 2004 to state a preference as to the class she wished to teach in the following year.
60. No new finding of fact is required in order to determine the Appellant's case. As we have pointed out, the critical question was whether she had suffered a detriment or not, and it was only on the basis that she had to show that she would inevitably have been allocated her preference that she failed. We therefore substitute a finding that by failing to give the Appellant an opportunity to state a preference, the respondents discriminated against her on the ground of her sex.
61. Determination of what, if any, compensation should be awarded for this must be remitted to the tribunal for decision. We see no reason why this should not be to the same tribunal, unless this is administratively inconvenient.
62. We should add that given the limited scope of the Appellant's success, and the good sense of the Tribunal's observations in its paragraph 60, there is much to commend a mutually agreeable settlement if one can be reached.