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At the Tribunal | |
On 12 December 2008 | |
Before
HIS HONOUR JUDGE BIRTLES
MR D J JENKINS OBE
MR T MOTTURE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
APPEARANCES
For the Appellants | MR H KNILL (Solicitor) MILS Solicitors 27b The Mansions 252 Old Brompton Road London SW5 9HW |
For the Respondent | MR P STRELITZ (of Counsel) Instructed by: Messrs Kester Cunningham John Solicitors Chequers House 77-81 Newmarket Road Cambridge CB5 8EU |
SUMMARY
SEX DISCRIMINATION: Justification / Burden of proof
Employment Tribunal found direct sex discrimination and that the employer was unable to justify it. The EAT held reasoning of Tribunal inadequate and failed to properly apply the burden of proof. The Employment Tribunal also made an order for costs when there was no basis to do so. Appeal allowed and case remitted to a fresh Tribunal. Costs order vacated.
HIS HONOUR JUDGE BIRTLES
Introduction
The material facts
"This procedure does not form part of your contract of employment."
"The Claimant agreed with the criticism and said that she had found it difficult to control the sales team, but agreed she would try to do so. One of the problems highlighted at the meeting was the fact that members of staff sometimes ate their lunch and sandwiches in the Claimant's office and she was asked to stop this happening. The sales force itself was also spoken to in firm terms about their performance and the instruction about where not to eat sandwiches was repeated to them."
"Dear Liza,
Following our meeting on 8/02/2007 where your employment was terminated I am writing to confirm the reasons for our decision.
You attended a meeting on 24/01/2007 where we discussed the following areas of concern regarding your performance.
1/ Poor level of Finance Income.
2/ Administration of Finance Payouts and Vehicle Debtors.
3/ Management and control of the sales team.
Following that meeting your performance and conduct remained unsatisfactory and it was therefore decided to terminate your employment with immediate effect."
The letter was signed was by Mr Nicol.
The Employment Tribunal reasons
"28. Against that background of fact, the Tribunal must ask whether the Claimant has shown circumstances from which an inference of sex discrimination can be drawn. If we find that such an inference can be drawn, then the burden of proof shifts to the Respondent to show that any detriments suffered by the Claimant were not for a reason relating to sex.
29. We find that we can draw an inference that the Claimant was discriminated against and treated less favourably than her male colleagues, in several ways. Of course, she was not singled out 'as a woman' to be dismissed. However, we feel that the bullying exercised by the Second Respondent, which we believe took place not only on 30 or 31 January 2007 but also on the other occasions referred to by the Claimant when she was subsequently seen to be in tears, was bullying by a man of a woman because she was a woman. There is no evidence that Mr Haigh behaved in that way towards other employees. It is only a small matter but very significant that whereas the Claimant was criticised, and indeed it formed part of her dismissal, for not applying the sandwich rule, the one of the two salesmen who did know of the sandwich rule and who was found by Mr Haigh to be breaking it, was not disciplined. The Claimant was disciplined and indeed it was the substantial reason for her dismissal in regard to the 'Sillett' case, whereas the man who altered the papers and failed to draw that alteration to the Claimant's attention or take the steps that good business practice would have required to draw to the attention of a person returning from holiday an important change in the terms of a contract which had occurred whilst that person was on holiday, was not disciplined.
30. The material relating to the Claimant's performance was a best hazy. There were generalised allegations of failure to manage paperwork properly and specific allegations of failing to achieve targets, but it seems to have been totally overlooked that, as we have quoted from the Claimant's evidence which we believe, that Mr Haigh told her that the December targets had been wrongly written, primarily for the reason we have already referred to, the emission point, in December 2006.
31. All these things happened to the Claimant as a woman and we find that we are able to draw an inference from them that they say were because she was a woman and that she was discriminated against.
32. The Respondents must now severally discharge their burden of proof. We find that they have failed to do so. The direct discrimination by Mr Haigh, the bullying, as well as his participation in the dismissal process, which was process was manifestly unfair, can easily sit with the claim that it was by reason of the Claimant's sex that these things were done. Indeed, it was he who failed to discipline the sandwich-eating salesman or the person who had altered the contract in the 'Sillett' case. So far as Mr Nicol is concerned, the same criticism can be made of him, but additionally the Tribunal were unimpressed by his statement that he believed that employees with less than 12 months' service need not be put through the capability/performance procedure, nor need any formal procedure be adopted in regard to them. The Respondent needs to be reminded that apart form the rights recently promulgated applicable to employees after 6 months, there are a raft of other rights the breach of which can lead to potential claims from the day one-from whistle blowing to the range of discrimination jurisdictions. But that apart, and apart from the contractual rights granted in the contract of employment, good business practice and common courtesy in dealing with human beings demands that something more should be done before dismissing somebody that that they should be summoned to a meeting 'for a little chat' resulting in dismissal. It may be that Mr Nicol did not consciously discriminate against the Claimant by reason of her sex. However, his cavalier approach to the application of good employment practice, as embodied in the employment legislation, never mind completely bypassing and ignoring the capability provisions of the contract of employment, lead us to the conclusion that he may well have exercised subconscious discrimination in relation to the Claimant and wanted to be rid of her because she was a woman, though he did not express it openly in those terms.
33. For these reasons, we find that the Claimant was discriminated against. The substantial detriments she suffered was the matters that we have referred to but in particular dismissal."
The Notice of Appeal
Ground 1: Burden of proof
(a) The bullying by Mr Haigh, which the Tribunal believed took place on 30 or 31 January 2007, but also on other occasions, "was bullying by a man of a woman because she was a woman. There is no evidence that Mr Haigh behaved in that way towards other employees." The only evidence which the Employment Tribunal relied on in support of this conclusion was paragraph 17 of the Respondent's witness statement (judgment, paragraph 11). That says this:
"17. Mr Haigh, who was my Line Manager, pursued a campaign of harassment against me. I believe he did this with the intention of making me give up my employment. Examples include on or around 30th/31st January 2007, I was off sick with a migraine, although I came in to complete some outstanding paperwork. He shut the office door behind me and started to shout at me. He believed that I had been complaining about my Company Demonstrator to my colleagues. He continued to shout to get his point across even when I told him I found it upsetting. His behaviour was always like this when there were no witnesses present, although others have witnessed me in tears afterwards."
In paragraph 31 the Tribunal say:
"All these things happened to the Claimant as a woman and we find that we are able to draw an inference from them that they were because she was a woman and that she was discriminated against."
This is tautologous when seen against the background of (a) of poor performance by the Respondent; and (b) a poor personal relationship between Mr Haigh and herself. There is simply an assertion by the Tribunal but no reasoning.
(b) The sandwich rule. The Tribunal in paragraph 29 go on to say this:
"It is only a small matter but very significant that whereas the Claimant was criticised, and indeed it formed part of her dismissal, for not applying the sandwich rule, the one of the two salesmen who did know of the sandwich rule and was found by Mr Haigh to be breaking it, was not disciplined."
Mr Haigh and the Claimant shared an office. Mr Haigh did not want sales staff for whom he was responsible eating their sandwiches in his office. He made this clear. A comparator would have been a man doing the Respondent's job. There is no evidence that such a person would not have been treated in the same way as the Respondent. Again, there is no reasoning by the Tribunal as to a hypothetical comparator, i.e. a person doing the Respondent's job who would not have been treated in the same way as the Respondent.
(c) The third ground given by the Tribunal is the Sillett case. Before turning to the Tribunal's reasoning it is important to set out the facts of the Sillett case as found by them. It appears at paragraphs 14-16 of the Tribunal judgment and it says this:
"14. However, the case of 'Sillett' must be considered. Mr Sillett had apparently agreed to purchase an Audi motorcar some time before the Claimant went on holiday. At that stage, there was to be a trade-in of his current vehicle and the balance was to be paid we know not how. The Claimant completed all the paperwork on the basis of the transaction proceedings on that basis.
15. Whilst the Claimant was on holiday, Mr Sillett changed his mind about he trade-in, he sold his car privately or for whatever reason decided not to trade it in, and when he came to collect his vehicle he did so without the proper paperwork having been completed. During the Claimant's absence on holiday, a Mr McLean was responsible for her desk and when the Claimant returned from holiday Mr Sillett's car was delivered, she not knowing the change of circumstances.
16. It is Mr Nicol's evidence that, upon receipt of this memorandum on Wednesday 7 February, he decided to dismiss the Claimant. He was particularly annoyed about the 'Sillett' case because, since this car had left the depot's premises without the appropriate paperwork having been created, the Respondent was liable for £30,000 until the paperwork had been corrected and Audi Finance were able to process the transaction."
The Tribunal say this at paragraph 29:
"The Claimant was disciplined and indeed it was the substantial reason for her dismissal in regard to the 'Sillett' case, whereas the man who altered the papers and failed to draw that alteration to the Claimant's attention or to take the steps that good business practice would have required to draw to the attention of a person returning from holiday an important change in the terms of a contract which had occurred whilst that person was on holiday, was not disciplined."
It might be the case that the man who altered the papers, a Mr McLean, was a proper comparator, but there is insufficient fact finding by the Employment Tribunal in paragraphs 14-16 to enable the Respondent to know why Mr McLean was the appropriate comparator. Detail of what Mr McLean did do, or should have done, is unclear. A more appropriator comparator would have been a man occupying the Respondent's position who went away for a four week holiday and where Mr McLean acted in the same way. If such a comparator would have been disciplined because of the Sillett affair then no inference of discrimination can be made.
(d) The Tribunal found that the material relating to the Respondent's performance was at best hazy. This is despite the fact of the Tribunal's findings that:
(1) The Respondent herself admitted that part of the problem was her relationship with the sales team (judgment, paragraph 4);
(2) Mr Haigh's continuing concerns about the Respondent's performance (judgment, paragraph 6);
(3) The actual figures showing that the income per unit sold by the Respondent was down on that generated by her predecessor (judgment, paragraph 8);
(4) The assessment of the income generated by the Respondent did not depend on the numbers sold, but on the additional insurance contract and units sold, i.e. in this way the Respondent was not dependent on the sales force (judgment, paragraph 9).
It is difficult to see how this evidence can be called "at best hazy". Neither has the Tribunal made any attempt to identify whether the Respondent would have taken the same view of the performance of a male comparator in the Respondent's position.
Ground 2: The why question?
Ground 3: The correct comparator
Ground 4: Unreasonableness
Ground 5: Reasons
"It is not the case that an alleged discriminator can only avoid an adverse inference by proving that he behaves equally unreasonably to everybody. As Elias J observed (paragraph 97):
'Were it so, [common] the employer could never do so where the situation he was dealing with was a novel one, as in this case.'
Accordingly, proof of equally unreasonable treatment of all is merely one way of avoiding an inference of unlawful discrimination. It is not the only way. He added:
'The inference may also be rebutted - and indeed this will, we suspect, be far more common - by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made. Even if they were not accepted, the tribunal's own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason.' "
Conclusion on liability
Appeal on costs
The Employment Tribunal judgment on review
"5. The case was listed for hearing before this Tribunal for 16 July 2007 and on that occasion the Claimant was represented by Mr Stelitz of counsel and the Respondent by Mr M Grant of counsel. Mr Strelitz was accompanied by a trainee solicitor.
6. At the hearing, it was indicated to the Tribunal that Mr Norris was not being called as a witness. It was confirmed that witness statements, including a statement from Mr Norris, had been exchanged in accordance with the order, and as we have described, and the Claimant's side told the Tribunal that the Claimant had been assured that all the witnesses, including Mr Norris, would be present. In fact, a Mr Grout, whose statement had also been exchanged, was also not present. The Claimant's position was that Mr Norris had been her line manger at other companies and had, as she understood, recommended her as an employee. Her knowledge of him went back to December 2005 and in particular she wished him to give evidence supporting her good performance. The Respondent's position being that she was dismissed for a reason relating to her capability and not her sex.
7. The Respondent's position was that, whilst Mr Grout could be called to give evidence since he was at the premises in Bury St Edmunds, Mr Norris was then in another division or part of the Respondent's group and was in fact in Yorkshire. It is not in the Chairman's note but it is in the note of one of the Members that he was attending at a VW event. The VW franchise is one of the businesses owned and managed by the Respondent and it was impossible for him to be present at the hearing.
8. The Tribunal adjourned to consider the matter and, upon resuming, granted an adjournment so that Mr Norris could be present. At first an order was made was that costs would be reserved. There was a further adjournment and, upon resuming, the case was adjourned to 25 July, which was a date convenient to everybody and to the Tribunal, and the Tribunal itself issued a witness order, calling Mr Norris as a witness. The Tribunal further indicated that at the re-hearing the Tribunal would have read the documents in the case and expected the case to be completed within a day. It was not in the recollection of any of the Tribunal Members at the review hearing that there was a request for a two-day listing. The Claimant proceeded to ask for costs once again and, after argument, the previous order that costs were reserved was amended and the order was made the costs thrown away on 16 July would be met by the Respondent."
"13. The application to review is limited to the costs order and is set out in five numbered paragraphs and then a summary of grounds for review. The Tribunal propose to deal with these matters in some detail.
14. Looking at paragraph 2, paragraph 1 being a general introduction, the Tribunal are satisfied that on the facts before it, then and on 25 July 2007, Mr Norris's evidence was very important. The Claimant had a burden of proof to discharge to establish facts from which an inference of discrimination could be drawn, and her case was that Mr Norris had no problem with her capability and had in fact recommended her as an employee. She had also made complaint of the recent bullying by Mr Haigh at the meeting as described in Mr Norris's proof of evidence. Looked at on 16 July, the Tribunal had a situation where witness statements had been exchanged in accordance with an order of the Tribunal and took the view that the party receiving the other side's statements was entitled to assume that that person would be called to give evidence unless they were notified to the contrary. No such notification was given to the Claimant's side and the excuse put forward by the Respondent's counsel was that the solicitor having management of the case was away on holiday at the relevant time. That, in the view of the Tribunal, was not a matter which deserved much weight deserved to be given. The disadvantage to the Claimant in not having available for cross-examination a witness whom she regarded, and on the facts at the time the Tribunal regarded, as important to her case. Since Mr Norris would speak as to her capability, and since the Respondent's case was that she was dismissed for want of capability, it was plainly relevant in discharging the burden of proof upon the Claimant to call Mr Norris. Furthermore, at the hearing it was said Mr Norris was at a business event, a Volkswagen presentation, in Yorkshire.
15. When Mr Norris eventually gave evidence, it was brought to the Tribunal's attention, and this is a note not made by the Claimant but by one of the Members but the circumstances are plainly recalled by all the Tribunal, that Mr Norris had not been in Yorkshire at a Volkswagen event but in Windsor. Again, though no note was made of the fact, it is believed he was said to be in Windsor playing golf. Mr Norris also told the Tribunal that he had never been asked to attend the first hearing.
16. Looking at paragraph 3 of the application for review, the Tribunal took the view that costs had become an issue. The Tribunal took the view that costs had become an issue. The Tribunal had regard to regulation 40 of the Rules of Procedure and in particular paragraph 1 and paragraph 3. it was plain to the Tribunal that the adjournment was necessary because, even if the case had proceeded on 16 July 2007, since we were told Mr Norris could not be available that day, there still would have had to have been a second day's hearing. His evidence was plainly relevant and on 16 July 2007 the adjournment, in the view of the Tribunal, was entirely the fault of the Respondent for the reasons we have already given in this judgment.
17. The situation became more serious in two respects. First of all, there is a suggestion in the grounds for the application for review that the Respondent sought a two-day hearing as being necessary in order to dispose of the case. It is suggested that this submission was correct because in fact two days were needed. The Tribunal have no recollection of an application being made on 16 July for the case to be listed for two days. It was in fact disposed of in one day, being saved from a third day only because the Tribunal had by the second hearing read the statements and relevant documents. A reserved judgment in a case of this sort was inevitable and that is what happened, the case being reconsidered by the Tribunal itself in chambers on 13 August 2007. However, as a second reason for making the costs order, or at least not on 25 July reviewing the order made on 16 July, is the fact that by the end of the hearing on 25 July the Tribunal had evidence that Mr Norris had not [been] in Yorkshire at a business event and therefore unavailable but was in Windsor at a social event and, far more seriously, was not merely not available but had never been asked to attend. In this regard, the Tribunal take the view that they were seriously misled and frankly, had an order not been made on 16 July, the Tribunal would have found it necessary to raise the issue of an order for costs at the close of the hearing on 25 July.
21(b). Far from there being ignorance of a fundamental principle in regard to witnesses, for the reasons we have given the Claimant was entitled to expect Mr Norris to be present unless she was notified to the contrary. Had she been notified to the contrary, she could have requested a witness order. In fact, Mr Norris was never asked to attend that brings the matter fair and square within the provisions of paragraph 40(4) of the Rules of Procedure where the Tribunal take the view the party had not complied with the order since the witness, whose statement had been exchanged, was not called."
It is, of course, to be noted that at the review hearing on 20 March 2008 the Employment Tribunal was in possession of information which it did not know anything about when it made its order for costs on 16 July 2007. What is under challenge in the appeal on costs is the order for costs made on 16 July 2007 and not on any later date. There is a separate appeal on the review decision to which we will come later in this judgment.
Law on costs
"40. When a costs or expenses order may be made-
(1) A Tribunal Chairman may make a costs order when on the application of a party it has postponed the day or time fixed for or adjourned a Hearing or pre-Hearing review. The costs order may be against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.
(2) A Tribunal Chairman shall consider making a costs order against a paying party where, in the opinion of the Tribunal or Chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the Tribunal or Chairman may make a costs order against the paying party if it or he considers it appropriate to do so.
(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.
(4) A Tribunal or Chairman may make a costs order against a party who has not complied with an order or practice direction."
"Looked at on 16 July, the Tribunal had a situation where witness statements had been exchanged in accordance with an order of the Tribunal and took the view that the party receiving the other side's statements was entitled to assume that that person would be called to give evidence unless they were notified to the contrary. No such notification was given to the Claimant's side and the excuse put forward by the Respondent's counsel was that the solicitor having management of the case was away on holiday at the relevant time."
"4. WITNESS STATEMENTS:
Two weeks before the hearing of the parties shall exchange written witness statements (including one from a party who intends to give evidence). The witness statements should set out all of the evidence of the relevant facts which that witness intends to put before the Tribunal. If it is intended to refer to any document, the witness statement should refer to page/s in the agreed bundle. A failure to comply with this order may result in a witness not being permitted to give evidence because it has not been disclosed in a witness statement; or in an adjournment of the hearing and an appropriate order for costs caused by such adjournment. Each party shall bring 4 copies of any such witness statement to the hearing. The Claimant's statement should contain evidence relevant to the schedule of loss."
Notice of Appeal
Ground 1
Ground 2
Ground 3
The appeal against the review judgment
Disposal
General conclusion
(1) The appeal against the judgment and reasons sent to the parties on 27 September 2007 is allowed and the case be remitted to a hearing on the merits before a fresh Employment Tribunal.
(2) The appeal against the order for costs dated 16 July 2007 is set aside and the EAT substitutes an order that there be no order for costs for the adjournment of 16 July 2007.
(3) The appeal against the review judgment and reasons sent to the parties on 25 April 2008 is allowed and that judgment is set aside. No further action is needed as the matter will be resolved by the fresh hearing on the merits.