United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS JANE RUSSELL (of Counsel) Instructed by: Messrs Thompsons Congress House Great Russell Street London WC1B 3LU
For the Respondents	MR PAUL NICHOLLS MS HELEN BELL (of Counsel) Instructed by: The Treasury Solicitor One Kemble Street London WC2B 4TS


 


SUMMARY

SEX DISCRIMINATION – Pregnancy and discrimination

SEX DISCRIMINATION – Detriment

HARASSMENT

Sex discrimination/harassment claims by claimant undergoing IVF treatment – Held that the Tribunal was entitled to find that the acts complained of either, in some cases, did not amount to a detriment/harassment or, in the remainder, even if they arose out of it or of circumstances connected with it were not done on the grounds that the Claimant was undergoing IVF treatment – Discussion of extent to which discrimination on the ground that an employee is receiving IVF treatment is to be regarded as discrimination on the ground of her sex or of pregnancy – London Borough of Greenwich v Robinson (unreported; EAT/745/94) and Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG [2008] IRLR 387.


 


THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1. This is an appeal against the decision of an Employment Tribunal sitting at Ashford, chaired by Employment Judge Kurrein, dismissing the Appellant's claims of sex discrimination. The Tribunal sat for six days in March and April 2009, and the Reasons, which are clear and thorough, were sent to the parties on 26 May. The Appellant had originally made claims also of race discrimination and under s. 47C of the Employment Rights Act 1996, but those were withdrawn.
2. The Appellant was represented before us by Mrs Jane Russell and the Respondents by Mr  Paul Nicholls, leading Ms Helen Bell. Mrs Russell and Ms Bell also appeared before the Tribunal.
3. The Appellant has been employed in the Border and Immigration Agency, an executive agency of the Home Office, since 1996. She was in late 2007 nearing the end of a three-year posting at the Gare du Nord in Paris: she was in fact due to start work on a new posting in Folkestone from 27 January 2008. While in Paris she had married a French police officer. She had unfortunately experienced difficulty becoming pregnant and had recently commenced a course of IVF treatment in Paris. The essence of her claim is that between January and March 2008 she was subjected to various detriments because she was undergoing that treatment.
4. It is necessary that we say something about what the IVF process involves. The Tribunal did not hear any medical evidence, and we are dependent on explanations from counsel, supplemented by what can be gleaned from the case-law. However only a very summary outline is required. The core process consists of (a) the "retrieval" of one or more ova (typically several) from the follicle of an ovary – so-called "follicular puncture"; (b) the fertilisation of the retrieved ovum or ova in vitro by the father's sperm; and (c) the implantation into the uterus of one or more fertilised ova. The process will have been preceded by a period of assessment and, in particular, of hormonal treatment in order to stimulate the production of mature ova for retrieval. The interval between stages (a) and (c) on the first attempt will typically be a matter of a few days. Fertilised ova not used on that occasion will be frozen for use in case the first attempt is unsuccessful and it is decided to make a further attempt or attempts. There is no particular time limit for any subsequent attempts, and the fertilised ova can be stored for many years.
5. In the Claimant's case the relevant sequence of events as regards her treatment was as follows:

- The follicular puncture procedure took place in early or mid-November 2007: there is no finding as to the precise date.

- The first attempted implantation was on 26 November 2007.

- On 30 December 2007 the Appellant learnt that that attempt had failed.

- On 26 February 2008 a second implantation was attempted.

- On 17 March 2008 the Appellant learnt that that attempt also had failed.

It is common ground that for a period following each of the two implantations the Appellant is to be regarded as having been pregnant. Precisely when those pregnancies came to an end did not fall for decision, but it can have been no later than, respectively, 30 December 2007 and 17 March 2008 (although, to anticipate, for the purpose of s. 3A (3) (a) (iii) of the Sex Discrimination Act 1975, the protected period will have ended 14 days later – see para. 8 below).

THE RELEVANT LAW

6. Although we are primarily concerned with the law as it affects women undergoing IVF treatment, it is necessary to start with the law relating to discrimination against pregnant women (although we need not be concerned with the specific regimes relating to maternity leave).
7. As a matter of EC/EU law it has long been recognised that discrimination against a woman on the ground of her pregnancy – most typically because of the absence from work which it entails – constitutes direct discrimination contrary to Council Directive 76/207/EEC (the "Equal Treatment Directive" – now replaced by Directive 2006/54/EEC). This was first authoritatively decided in the twin cases of Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus, [1992] ICR 325 and Danmark A/S and Handels-og Kontorfunktionaerernes Forbund i Danmark (HK) v Dansk Arbejdsgiverforening [1992] ICR 333 (we will refer to the latter case as Hertz, being the name of the individual claimant employee). As subsequently confirmed by the Court in Webb v Emo Air Cargo (UK) Ltd. [1994] ICR 770, one corollary of those decisions is that it is unnecessary and inappropriate to ask whether a male employee who was absent for some other reason – typically sickness – would have been treated in the same way. The case-law, however, also clearly recognises that when a worker is absent as a result of a gender-specific illness, even one attributable to pregnancy or confinement, less favourable treatment on account of that absence does not constitute sex discrimination - though a woman may be protected by another route by virtue of the maternity leave provisions. As it was put in Hertz, at pp. 335-6:

"15. The Directive does not envisage the case of an illness attributable to pregnancy or confinement. It does, however, admit of national provisions guaranteeing women specific rights on account of pregnancy and maternity, such as maternity leave. During the maternity leave accorded to her pursuant to national law a woman is accordingly protected against dismissal due to absence. It is for every member state to fix periods of maternity leave in such a way as to enable female workers to absent themselves during the period in which the disorders inherent in pregnancy and confinement occur.

16. In the case of an illness manifesting itself after the maternity leave, there is no reason to distinguish an illness attributable to pregnancy or confinement from any other illness. Such a pathological condition is therefore covered by the general rules applicable in the event of illness.

17. Male and female workers are equally exposed to illness. Although certain disorders are, it is true, specific to one sex, the only question is whether a woman is dismissed on account of absence due to illness in the same circumstances as a man; if that is the case, then there is no direct discrimination on the ground of sex."

8. UK law did not at first make express provision for discrimination against women on account of pregnancy, although the decision of the House of Lords following the decision of the Court of Justice in Webb v Emo ([1995] ICR 1021) confirmed that s. 1 of the 1975 Act could be construed so as to give effect to the position as declared by the Court. However, s. 3A of the 1975 Act, introduced with effect from 1 October 2005, now deals with the position explicitly. So far as material, s. 3A (1)^[1] provides that:

"(1) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if –

(a) at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably …;

(b) … ."

S. 3A (3) defines the "protected period". For present purposes we need only note that the period begins when the woman "becomes pregnant" and finishes two weeks after "the end of the pregnancy" (see s-s. (3) (a) (iii)). S. 3A (5) provides that s-s. (1) applies, inter alia, to any provision of Part 2 of the Act, which is the Part outlawing discrimination in employment: the relevant provision for present purposes is s. 6 (2) (b), which renders it unlawful for an employer to discriminate against an employee "by dismissing her or subjecting her to any other detriment".

9. Quite apart from the law deriving from the Equal Treatment Directive, Council Directive 92/85/EEC (the "Pregnancy Directive"), which came into force in October 2004, required member states to give a number of specific rights to pregnant workers, including, by art. 10, the right not to be dismissed during pregnancy save for reasons "not connected with their condition".
10. Pregnancy achieved as a result of IVF is of course no different in law from pregnancy achieved by sexual intercourse. But a question arises in the present case as to whether the principle established in Hertz, and re-affirmed in Webb v Emo, extends not only to pregnant employees but to those undergoing IVF treatment who are not pregnant – either because treatment has begun but ovum has not yet been implanted or because an implantation has failed but further implantation is contemplated. The Appellant contends that in such a case, as in the case of pregnancy, it is wrong to treat the position of a female employee undergoing such treatment as comparable with that of a man undergoing medical treatment, and that to subject such an employee to a detriment on the grounds that she is undergoing such treatment constitutes direct sex discrimination. A similar argument was advanced in London Borough of Greenwich v Robinson (unreported; EAT/745/94), where an applicant who took time off work to undergo IVF treatment contended that the absences in question should not count as sickness absence. This Tribunal, Keene J presiding, rejected that argument. It held that infertility was a medical condition requiring medical treatment, and that any absence due to such treatment fell to be treated as sickness absence in the usual way. The situation was different from that considered in Webb v Emo: that case was concerned with absence due to pregnancy, which is not – as the Court had expressly held – a pathological condition. Infertility, and the consequent need for IVF treatment, was no doubt gender-specific, but less favourable treatment on account of gender-specific illness did not constitute sex discrimination: Keene J referred to the decision of this Tribunal in Brook v London Borough of Haringey [1992] IRLR 437, which itself applied the decision in Hertz – see para. 76 (at p. 485).
11. Mrs Russell submitted to us, as she did before the Tribunal, that the decision in Robinson was inconsistent with the recent decision of the European Court of Justice in Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG [2008] IRLR 387. In that case the employee underwent follicular puncture with a view to implantation five days later. She was certified sick during that period. On the third day she was dismissed with immediate effect. The European Court of Justice held that she was not entitled to protection under art. 10 of the Pregnancy Directive because she could not be said to be pregnant until implantation had occurred. But it held that she was entitled to be protected under the Equal Treatment Directive. Having referred to Hertz and other decisions to the same effect, it proceeded (see pp. 397-8):

"49 The court has already held that, given that male and female workers are equally exposed to illness, if a female worker is dismissed on account of absence due to illness in the same circumstances as a man then there is no direct discrimination on grounds of sex (Handels-og Kontorfunktionærernes Forbund, paragraph 17).

50 It is true that workers of both sexes can be temporarily prevented from carrying out their work on account of the medical treatment they must receive. Nevertheless, the treatment in question in the main proceedings – namely a follicular puncture and the transfer to the woman's uterus of the ova removed by way of that follicular puncture immediately after their fertilisation – directly affects only women. It follows that the dismissal of a female worker essentially because she is undergoing that important stage of in vitro fertilisation treatment constitutes direct discrimination on grounds of sex.

51 To allow an employer to dismiss a female worker in circumstances such as those in the main proceedings would, moreover, be contrary to the objective of protection which Article 2(3) of Directive 76/207 pursues, in so far as, admittedly, the dismissal is essentially based on the fact of the in vitro fertilisation treatment and, in particular, on the specific procedures, outlined in the previous paragraph, which such treatment involves.

52 Consequently, Articles 2(1) and 5(1) of Directive 76/207 preclude the dismissal of a female worker who, in circumstances such as those in the main proceedings, is at an advanced stage of in vitro fertilisation treatment, that is, between the follicular puncture and the immediate transfer of the in vitro fertilised ova into the uterus, inasmuch as it is established that the dismissal is essentially based on the fact that the woman has undergone such treatment.

53 Having regard to the foregoing, the reply to the question referred must be that Directive 92/85, and, in particular, the prohibition of dismissal of pregnant workers provided for in Article 10(1) of that Directive, must be interpreted as not extending to a female worker who is undergoing in vitro fertilisation treatment where, on the date she is given notice of her dismissal, her ova have already been fertilised by her partner's sperm cells, so that in vitro fertilised ova exist, but they have not yet been transferred into her uterus.

54 Nevertheless, Articles 2(1) and 5(1) of Directive 76/207 preclude the dismissal of a female worker who, in circumstances such as those in the main proceedings, is at an advanced stage of in vitro fertilisation treatment, that is, between the follicular puncture and the immediate transfer of the in vitro fertilised ova into her uterus, inasmuch as it is established that the dismissal is essentially based on the fact that the woman has undergone such treatment."

12. Mr Nicholls accepted that Mayr required some modification to the position as stated by this Tribunal in Robinson; but he submitted that the necessary modification was very limited. In his submission, Mayr was not authority for the proposition that any less favourable treatment of a woman on the ground that she was receiving IVF treatment constituted sex discrimination, and that its effect was confined to the particular circumstances of the case before the Court – i.e. that of an employee dismissed in the interval between follicular puncture and an imminent first implantation attempt. That is indeed unquestionably the literal effect of the decision: the language of para. 52 could not be clearer. The question, however, is whether the Court so expressed itself only because those happened to be the facts in that particular case and whether the underlying principle is not in fact wider. There is certainly a reasonable argument to that effect, particularly in the light of the Court's reference, at para. 50, to the fact that the treatment in question "directly affects only women": that is true of IVF treatment as a whole, and not merely of the particular phase which the claimant in that case was undergoing at the moment of her dismissal. Nevertheless, in our view that wider argument proves too much. If it were accepted, it would cover any kind of gender-specific treatment. The Court had rejected in Hertz the proposition that such treatment was protected by the Equal Treatment Directive (see para. 7 above); and it is evident from para. 49 that the Court Mayr did not intend to go back on that decision. There are in fact other indications in the judgment that the narrow formulation of the Court's ruling was deliberate. As part of the reasoning in support of the rejection of the claimant's argument that pregnancy could be taken as running from the date of the actual fertilisation of the ovum in vitro, i.e. prior to implantation, the Court had attached particular weight to the fact that fertilised ova could be kept for a period of many years and thus that there might be a very long period during which implantation remained contemplated: there would thus be no definitive point at which it could be said that "pregnancy" had come to an end, which would be inconsistent with the principle of legal certainty. But it seems to us that a similar objection applies to the argument that "IVF treatment" should be treated as equivalent to pregnancy. The Court was evidently willing to make a limited, and closely defined, exception only for the "important" stage "between the follicular puncture and the immediate transfer of the in vitro fertilised ova [emphasis supplied]".
13. We have thought it right to express a view on this issue since it may be of relevance in other cases; but, as will appear, on the view which we take of the other issues in the case the outcome of the appeal does not depend on it.
14. We should also set out the terms of s. 4A of the 1975 Act, which defines harassment. They read (so far as material) as follows:

"(1)     For the purposes of this Act, a person subjects a woman to harassment if -

(a)     he engages in unwanted conduct that is related to her sex or that of another person and has the purpose or effect -

   (i) of violating her dignity, or

(ii)    of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,

(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect -

        (i) of violating her dignity, or

(ii)    of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,

(c)     on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct.

(2)     Conduct shall be regarded as having the effect mentioned in sub-paragraph (i) or (ii) of subsection (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect.

(3)-(6) …"

(By way of shorthand, we will refer to the conditions specified as element (ii) in sub-paras. 1 (a) and (b) as "an adverse environment".)

THE ISSUES

15. Before the Tribunal the Appellant complained of ten acts of discrimination, all of which she alleged constituted both direct discrimination contrary to s. 1 (2) (a) of the 1975 Act and harassment contrary to s. 4A. In respect of most, although not all, of them the acts in question were said to have been done by her line manager Mr Pipkin, who is the Second Respondent.
16. The Tribunal found that all the claims against Mr Pipkin were out of time, and it declined to extend time under s. 76 (5) of the 1975 Act. As regards the Home Office, it found that the first two of the complaints were out of time, and it declined to extend time in their case also. In addition, it ruled that it had no jurisdiction to entertain the fifth claim because no grievance had been lodged in relation to it. Notwithstanding those decisions, the Tribunal proceeded to examine and dismiss all ten of the complaints on the merits, irrespective of any point on jurisdiction.
17. The Appellant's grounds of appeal fall under three heads:

(A) She challenges the Tribunal's particular reasoning in relation to each of the ten acts (save the fifth).

(B) She claims that the Tribunal adopted a "fragmented" approach and failed to consider the effect of the alleged incidents viewed as a whole: she relies on Qureshi v Victoria University of Manchester [2001] ICR 863 and Rihal v London Borough of Ealing [2004] IRLR 642.

(C) She challenges the conclusions of the Tribunal on the limitation issues. (It will, however, be observed that this challenge is academic if the first two are unsuccessful.)

We will deal with the grounds of appeal under those heads.

(A) THE FINDINGS ON THE INDIVIDUAL ACTS COMPLAINED OF

18. We will consider each of the acts in turn. We should say something by way of preliminary about the Home Office sickness absence procedure. This was elaborate, and we need not set out the details. For present purposes what matters is that when an employee's sickness absence reached a certain level, a requirement for action was triggered. The form of the action in question would depend on the decision of the manager: the first level was a formal "attendance meeting" with the employee, unaccompanied by a warning. The policy expressly provided that absence for the purpose of receiving IVF treatment did not count for the purpose of calculating whether an employee had reached a trigger point. The Appellant had, as at late 2007 and early 2008, a record of a number of sickness absences, some but not all of which were due to her IVF treatment.

(1) MR PIPKIN'S REMARK ON 27 JANUARY

19. As already mentioned, the Appellant's first day of work at Folkestone, following the end of her posting to Paris, was on 27 January 2008. She met Mr Pipkin in his capacity as her new line manager. They had not met before, although they had been in e-mail communication. Mr Pipkin had been informed of the Appellant's IVF treatment, including the failure of the first attempt, by her previous manager, Mrs Ward, and had also taken advice from the responsible person in HR, Ms Atchia-Green. He raised the subject with her informally in the course of the meeting. It was the Appellant's case that in doing so he said that all that she was interested in now was getting pregnant, and that that remark was made in a demeaning manner which suggested that her career was of trivial importance to her. The Tribunal did not accept that. What it found was (at para. 32 of the Reasons):

"In the course of this relatively informal conversation the Second Respondent said something to the effect that the Claimant's wish to become pregnant was probably the most important thing in her life. We took the view that he did so in order to empathise with her and did not, in any way, suggest that she was or might be a less valuable employee as a consequence of her intention."

It also noted (see para. 30) that, although the Appellant complained to a friend about subsequent conduct on the part of Mr Pipkin, she accepted that she did not do so in relation to this conversation and did not raise it as a complaint until much later.

20. The Tribunal's decision in relation to the claims based on this episode can be summarised as follows:

(a) It first considered whether what Mr Pipkin said constituted discrimination within the meaning of s. 1 (2) (a) of the 1975 Act. It asked itself separately each of the two questions identified by Lord Nicholls in his speech in Shamoon v Chief Constable of Royal Ulster Constabulary [2003] ICR 337 (see para. 7 at p. 341) – the "less favourable treatment" and "reason why" questions. As regards the first, it asked whether a man with "a need to undergo medical treatment to assist conception (by his partner)" would have been treated in the same way and held that Mr Pipkin "would be just as likely to make a similar remark as that he made to the Claimant" (see Reasons paras. 107-8). As regards the second, it said this (at para. 109):

"We have asked ourselves why the Second Respondent made that remark to the Claimant. We accepted his evidence on this issue: he made the remark in a "getting to know you" meeting at which he wished to appear empathetic to the Claimant's situation. It was not made on the grounds of her sex."

Although there can be no objection to the Tribunal asking both questions, in fact, as Lord Nicholls pointed out (see paras. 8-12, at pp. 341-2), they are ultimately both aspects of the same question; and the answer to either will usually dictate the answer to the other.

(b) It then asked the question whether the remark constituted a detriment. Although as so phrased that is a question arising under s. 6 of the Act, it is in practice also relevant to s. 1 (2) (a), since "treatment" which did not constitute a detriment could not in reality be "less favourable". The Tribunal said, at para. 110:

"We also concluded that the Claimant suffered no detriment whatsoever as a consequence of this remark. She made no complaint to anyone about it at the time. We thought that, viewed objectively and in the context in which it was made, the Second Respondent's remark could not reasonably be understood by anyone in the manner in which the Claimant asserts she understood it."

(c) The Tribunal dealt with the harassment claims compendiously at para. 157 of the Reasons, where it said this:

"In light of the above findings of fact in respect of the Second Respondent's conduct we are unanimously of the view that it was such that it could not reasonably be considered as having the effects contended for by the Claimant. It was not intimidating, hostile, degrading, humiliating or offensive."

21. Mrs Russell challenged all three conclusions. We consider her challenges in turn.
22. As to (a), she relied on the submission which we have already considered as to the effect of Mayr. She contended that the remark was plainly made on the ground that the Appellant was receiving IVF treatment and that it therefore necessarily constituted direct discrimination on the ground of her sex; by the same token, there was no appropriate male comparator and the Tribunal had been wrong to pose and answer the question which it did. She referred to the judgment of Sedley LJ in English v Thomas Sanderson Blinds Ltd [2009] ICR 543, at pp. 556H–557A (para. 40), as enjoining a "reason why" approach – though in truth we do not understand Sedley LJ in that passage to be saying anything new. We agree that if Mr Pipkin had, as the Appellant claimed but as the Tribunal did not find, made a remark about her undergoing IVF treatment which demeaned her as a woman – i.e. because it implied that her career was unimportant compared with her wish to be a mother – that would have been an act of sex discrimination, and indeed harassment, at least if it were not simply transient or trivial; and it would have been no defence that his motive was benign. To this extent Mrs Russell's challenge may be well-founded, though it does not help the Appellant in view of the Tribunal's finding of fact. We do not, however, think that this has much to do with the submissions about Robinson and Mayr which we discuss at paras. 11-12 above. The act complained of in those cases relates to the employee's absence from work: although that is in turn the result of the employee undergoing IVF treatment, the employer will not typically be acting on that ground as such but rather on the ground of the employee's absence. The issue raised by Mayr is whether, and in what circumstances, that distinction is acceptable in law. No such issue arises in the case of an offensive or demeaning remark specifically based on the fact that the employee is, or has been, receiving the gender-specific treatment of IVF.
23. As to (b), the Notice of Appeal contends that the Tribunal's conclusion as to detriment was "erroneous" (see para. 8 (b) (vii)). In order to constitute a proper ground of appeal, that would need to be read as an allegation of perversity, and we understood that to be Mrs Russell's submission before us. In our view such a submission is hopeless. The question of precisely what was said, and with what effect, is quintessentially one for an employment tribunal as the judges of fact. The Tribunal in the present case was fully entitled to make findings as to the substance of what Mr Pipkin said and that offence could not reasonably be taken to what it found to have been said. Although at one point Mrs Russell appeared to be suggesting otherwise, she accepted that the question of detriment was to be judged objectively: see in particular per Lord Hope in Shamoon, at para. 35 (p. 349).
24. As to (c), Mrs Russell's submission was essentially the same as in relation to the question of detriment, i.e. that the Tribunal could not reasonably have concluded that Mr Pipkin's remark did not have the effect of violating her dignity or creating an adverse environment for her". Our conclusion likewise is the same: the Tribunal was fully entitled to come to the conclusion which it did. Mrs Russell submitted that it had taken no account of the requirement in s. 4A (2) that a Tribunal should have regard in particular to "the perception of the woman". We see no sign that the Tribunal made any such error. Its finding that Mr Pipkin's remark "could not reasonably been understood by anyone" in the way alleged by the Claimant plainly takes into account her perception; and, as we have already noted, it pointed out that she had made no complaint at the time.
25. Thus, although the Appellant's challenge on point (a) may be good, though not quite on the grounds that she formulated it, our finding on point (b) means that the appeal under this head must fail. Even if the remark was made on the grounds of the Appellant's sex, it was not unlawful if it did not constitute less favourable treatment/detriment.

(2) MR PIPKIN'S REMARK ON 2 FEBRUARY 2008

26. Following the meeting of 27 January there was further e-mail correspondence between Mr Pipkin on the one hand and Mrs Ward and Ms Atchia-Green on the other as to how to handle the Appellant's sickness absence record. All three expressed sympathy for the Appellant in undergoing IVF treatment, and Mr Pipkin made it clear that he was prepared to authorise further absences for that purpose; but Mrs Ward and Ms Atchia-Green expressed the view that her absences to date had been handled too informally. No proper documentation had been supplied by the Appellant, and it was not clear which of her recent absences were in fact related to her IVF treatment. Mr Pipkin accordingly asked the Appellant to a meeting on 2 February to discuss the position. This was not a formal attendance meeting under the procedure, but Mr Pipkin wanted to agree with the Appellant a date for such a meeting and to ensure that she supplied all relevant documents for it, including evidence verifying which absences had been due to her receiving IVF treatment.
27. In relation to that meeting the Tribunal, at para. 37^[2] of the Reasons, found as follows:

"We accepted that in the course of that meeting the Claimant told the Second Respondent that the travelling that she was undertaking at that time, her still being resident in Paris but travelling to Folkestone as and when necessary, was making her extremely tired. The Second Respondent thought the Claimant to appear extremely stressed by a combination of her IVF treatment and her commuting and asked her whether she had considered taking annual leave and/or a career break. The Claimant informed the Second Respondent that she could not afford to do so and the Second Respondent took it no further. We accept his evidence that he simply wished to ensure, as her line manager, that she had considered all the options available to her."

(Mrs Russell told us that the Tribunal's reference to the Appellant still being "resident in Paris" was inaccurate, because the evidence was that she had taken digs in Folkestone. But she accepted that this point was not taken in the Notice of Appeal and that accordingly no notes of evidence were available from which the true position could be established. The point seems to us in any event insignificant, because Mrs Russell accepted that the Appellant's husband still lived in Paris and that she was accordingly doing a fair amount of travelling, even if not every day.)

28. It was the Appellant's case before the Tribunal that Mr Pipkin's reference to her taking a holiday or a career break constituted direct discrimination on the basis that she was undergoing IVF treatment (and therefore, because of the decision in Mayr, on the ground of her sex) and/or harassment. The Tribunal's conclusion on the discrimination issue was expressed as follows:

"111. Again, our findings of fact with regard to this allegation are set out above. We accepted the Second Respondent's evidence on this issue. In particular we accepted that he, as the Claimant's line manager, had a pastoral role in addition to that involving his management of her.

112. We have again applied a comparator test pursuant to Section 1(2)(a) Sex Discrimination Act 1975. We thought the use of a comparator as identified in respect of the above issue to be appropriate in the circumstances of this remark as well.

113. Based on such a comparator we thought there to be no evidence from which we could infer that this remark was made for a reason connected with the Claimant's sex or the fact that she was undertaking IVF treatment. The Second Respondent would have suggested career breaks or annual leave as a solution to any other employee who was finding it difficult to cope with the long distance travel and/or medical treatment.

114. We thought this to be an entirely reasonable and proper conversation between a line manager and an employee with concerns for the health of that employee. We took the view that the Claimant suffered no detriment as a consequence of it, quite the contrary; it reminded her of the opportunities open to her so that she could give them consideration.

115. We have also considered this allegation on the basis of the principles in Shamoon. The simple reason why the Second Respondent made this suggestion to the Claimant was out of concern for her well being. It was not because she was undergoing IVF treatment or on the grounds of her sex, but because she had commented to him of the tiredness that resulted from her long distance commuting."

It will be seen that the Tribunal adopted essentially the same approach as in relation to issue (1), holding (a) that, on the basis of both the questions identified in Shamoon, there was no discrimination, and (b) that the Appellant had in any event suffered no detriment. The issue of harassment was, again, covered by the subsequent finding at para. 157 which we set out at para. 20 (c) above.

29. Mrs Russell's challenges to the Tribunal's conclusions essentially reproduce those made in relation to issue (1). There is one preliminary point. The Tribunal at para. 115 appears to suggest that Mr Pipkin's remark was made only because of "the tiredness that resulted from her long distance commuting". If that was so, no issue of sex discrimination could arise. But its finding of fact at para. 37 had referred expressly to a concern on his part about the effect on her of undergoing IVF treatment, and that is also referred to at para. 113. On that basis, the issue of sex discrimination is at least in play. But the short answer is that the Tribunal found no detriment, and we can see no error of law in the Tribunal's conclusion on the detriment issue. On the Tribunal's findings, Mr Pipkin's remark was, and could only reasonably have been understood to be, inoffensive. By the same token, it neither violated her dignity nor created an adverse environment for her. That being so, we need not consider whether, if the remark had amounted to a detriment, the Tribunal was right to find that it was not made "on the ground of her sex". The position is not quite as clear as in relation to the allegation (though not the finding) in relation to the earlier remark, because what Mr Pipkin said was not so specifically related to the Appellant's wish to become pregnant and, on the Tribunal's finding, would equally have been said to a man who was finding it difficult to cope with long-distance travel and/or medical treatment; but those subtleties need not detain us.

(3/4) INVITATION TO ATTENDANCE MEETING

30. Following their discussion on 2 February there were e-mail exchanges between Mr Pipkin and the Appellant as to the sickness absence question. In believing that a trigger-point had been reached even disregarding IVF-related absences, Mr Pipkin, on advice from Ms Atchia-Green, took into account an absence on 2 November 2007. The Appellant, in an e-mail dated 12 February 2008, said that that absence had been IVF-related, but she at that stage supplied no documents. They agreed a date for a formal attendance meeting on 7 March. Accordingly, Mr Pipkin prepared a standard-form letter (although amended in one respect by Ms Atchia-Green) inviting her to a formal attendance meeting on that date. The letter, as one would expect, made clear that formal action was a possible outcome of the meeting. Mr Pipkin delivered the letter in person to the Appellant in Calais, where she was working, on 13 February. She took that occasion to hand him a number of documents relating to her IVF treatment.
31. It is the Appellant's case that the invitation to attend the meeting, and the threat of formal action contained in the letter, constituted direct discrimination and harassment. The two allegations in practice stand or fall together, and the Tribunal dealt with them as follows:

"118. We have considered this allegation in light of provisions of Section 1(2)(a) Sex Discrimination Act 1975. We have identified a hypothetical comparator, being a male immigration officer with exactly the same attributes and absences, including absences the comparator contended should not count toward the trigger because they were, for instance, work-related, as the Claimant.

119. We thought the Second Respondent's decision to invite the Claimant to that meeting to be entirely proper and in accordance with the First Respondent's policies. He had received advice to that effect from Ms Atchia-Green, which was similarly proper and in accordance with the First Respondent's policies, and acted in accordance with it.

120. Whilst we accept that by her e-mail of 12 February 2008 the Claimant had asserted that her absence of the 2 November 2007 should not be included as a triggering absence as it was IVF related, she had not at this time provided any documentary evidence to substantiate that assertion. It was a matter that might have been clarified at the meeting on the 7 March had the Claimant attended.

121. On that basis we are satisfied that such a comparator would have been treated in exactly the same way as the Claimant. The comparator would, like the Claimant, have been given the opportunity to explain the absences at an Attendance Meeting.

122. The Claimant has failed to satisfy us that she would have been treated in any way differently to any such comparator. The decision involved no discrimination whatsoever.

123. We have also considered this allegation in light of the decision in Shamoon. The answer to the question in this case is simple: the Claimant was invited to that meeting because she had reached the trigger point under the First Respondent's unacceptable attendance policy. It was wholly unconnected with her gender or the fact that she was undergoing IVF treatment."

32. The Appellant submits that those findings are wrong in law, essentially on the basis that one of the absences contributing to the triggering of the procedure, namely the absence of 2 November 2007, was IVF-related: it is said that that should have been apparent to Mr Pipkin because the Appellant had told him so, both in her e-mail of 12 February 2008 and when they met in Calais on the following day.
33. In our view the Tribunal's conclusion is unimpeachable. In the first place, even if Mr Pipkin had activated the sickness absence procedure (partly) on the ground that the Appellant had been absent for IVF treatment on 2 November, that would not fall within the reasoning of Mayr, as we have held it to be, unless it fell into the "protected window": it is not clear to us that that was the case. But in any event the Appellant's challenge misses the point. On the Tribunal's findings, Mr Pipkin did not know or believe that the Appellant's absence on 2 November 2007 was IVF-related. The documents did not show that it was. Part of the purpose of the meeting was to establish the facts. In those circumstances, we do not see how it can be said that he acted "on the ground of" the fact that she was receiving IVF-treatment, or, on Mrs Russell's preferred formulation, that that fact was "the reason why" he so acted. His grounds for action depend on what he knew or believed. Even if, as the Appellant contends, he should have accepted her assurances on this point (unsupported by unequivocal documents), that is irrelevant if he did not in fact do so. Nor do we see how an invitation to an attendance meeting, avowedly for the purpose of establishing facts which were on any view unclear, could constitute harassment.

(5) ALLEGED BREACH OF CONFIDENTIALITY

34. We mention this head only for completeness. No appeal in relation to it is being pursued.

(6)/(7) ATTENDANCE MEETING OF 7 MARCH 2008

35. On 6 March 2008 the Appellant telephoned Mr Pipkin to ask for six days' annual leave starting the following day, i.e. on the day fixed for the attendance meeting. She explained that she had been advised by her doctor that she ought not to travel following the further attempted implantation on 26 February. The Tribunal was critical of her for not telling Mr Pipkin this sooner. The request created a particular difficulty because she had in the meantime applied for, and been given, a posting to Brussels with effect from 23 March, which would make re-fixing the attendance meeting much more difficult. Mr Pipkin nevertheless granted the request: he asked the Appellant to provide documentary evidence of the advice that she was unable to travel (the Tribunal noted that she did not in fact do so until the hearing). He sent a follow-up e-mail the same day, repeating what he had said in the conversation (and wishing the Appellant and her husband luck with the further IVF attempt).
36. Notwithstanding having acceded to the Appellant's request for leave, Mr Pipkin decided to proceed with the attendance meeting the following day. He did so having taken advice from Ms Atchia-Green, who told him that to do so was permissible under the Agency's procedures and that it was legitimate to take this course in view of ...

"… the length of time it had taken to arrange the meeting, the late notice given by the Claimant of her non-attendance, the fact that the meeting had been arranged specifically to fit in with the Claimant's travel arrangements, coupled with the express warning given in the letter of invitation …"

(see Reasons, paras. 45-46). Ms Atchia-Green also said that the Appellant's trade union representative would attend the meeting.

37. The majority of the Tribunal believed that Mr Pipkin's decision to proceed with the meeting, having given the Appellant leave the previous day, was "very poor" (see Reasons para. 133). They commented that they "thought it significant that [Mr Pipkin] had never before had conduct of such a meeting" – which we understand to mean that they regarded him as inexperienced and very much dependent on the advice received from Ms Atchia-Green. It seems to us that that criticism is justified: certainly, we can see how it led to misunderstanding.
38. The meeting accordingly proceeded. In the event, not only did the Appellant not attend but nor did her union representative: the Appellant had notified her that, as she understood, the meeting would not be proceeding, and although Mr Pipkin had attempted to get her to attend she had made other arrangements in the meantime. Thus the only people present were Mr Pipkin and Ms Atchia-Green. Mr Pipkin, as the Tribunal found at para. 50 of the Reasons:

"… examined the records relating to each of the trigger point absences, including Absence Enquiry Notes, Back to Work Interviews and the relevant Self Certified Sickness Absence Forms. He considered each absence individually and applied the relevant criteria to each. He then adjourned the meeting in order to consider the evidence and took a ten minute break. On re-convening the meeting he gave his decision, which was to issue the Claimant with a Stage One written warning pursuant to the unacceptable attendance procedure."

The Tribunal continued, at para. 50:

"We accepted the Second Respondent's evidence that he was fully aware that any IVF related absences should not count as a triggering event, and that he was satisfied that there was no adequate evidence before him to indicate that any of the six triggering events was IVF related. At that time he did not have in mind the content of the Claimant's e-mail to him of the 12 February 2008, in which she had asserted that her absence on the 2 November 2007 was IVF related, and the information she had provided when they met on the 13 February 2008. We accept his evidence that, even if he had those matters in mind, he would have remained of the view that the assertions by the Claimant were not sufficient for him to consider that that absence was in fact IVF related in the absence of any documentary evidence to that effect."

(We should also note that the Tribunal found that Mr Pipkin, who did not speak French, had previously gone through at least some of the documentation supplied by the Appellant on 13 February with Ms Atchia-Green, who did speak French. The Tribunal found in terms that none of the documents related to the absence of 2 November 2007 and that Ms Atchia-Green had advised Mr Pipkin that the documents "did not constitute evidence that any of the trigger point absences were IVF related" (see para. 39).)

39. It was, again, the Appellant's case that the holding of the meeting and the issuing of the stage 1 warning constituted direct sex discrimination because they were on the ground that the Appellant had been undergoing IVF treatment. The Tribunal rejected that case. In relation to the decision to proceed with the meeting in the Appellant's absences, it said, at para. 135:

"However, the Tribunal is unanimous in its view, even taking into account the majority view that the Second Respondent's decision was unreasonable, that that decision was wholly unconnected with the fact that the Claimant was undergoing IVF treatment. We have given careful consideration to the terms of Section 3A Sex Discrimination Act 1975. We were entirely satisfied that the Second Respondent acted as he did for the reasons set out in his evidence. They involved no discrimination whatsoever."

Likewise, in relation to the warning itself the Tribunal said this:

"137. In accordance with the findings of fact we have made on this issue, as set out above, we were satisfied that the Second Respondent acted entirely in accordance with the First Respondent's policies on unsatisfactory attendance in issuing this warning.

138. We have considered the terms of Section 3A Sex Discrimination Act 1975 and all the surrounding circumstances. We have had particular regard to the content of the Claimant's e-mail of the 12 February 2007 and the terms of the First Respondent's policies on this issue. We also bore in mind that the Claimant had been requested, on more that one occasion, to provide documentary evidence with regard to her IVF related absences prior to this meeting. At this date there was no documentary evidence to support her assertion that the 2 November 2007 absence was IVF related.

139. Having given consideration to all the above matters we came to the conclusion that there was no evidence from which we could even infer that the Second Respondent might have taken the decision to issue the warning to the Claimant on the grounds of her pregnancy.

140. We were entirely satisfied that the Second Respondent did so because he took the view that the Claimant's absences had reached the relevant trigger point and it was appropriate, and in accordance with common practice, to issue such a warning in those circumstances."

40. In our view, while the precise wording of the Tribunal's decision may be a little obscure, the gist is clear. The first decision was made on the basis of Ms Atchia-Green's advice, as summarised above. The second decision was taken because Mr Pipkin genuinely believed that the Appellant had failed to show that any of the absences – and, in particular, that of 2 November 2007 – was IVF-related. That finding is fatal to any claim of discrimination. Even if Mr Pipkin's reading of the documents was wrong, if he did not take the decision on the ground that the Appellant was receiving IVF treatment (or was pregnant) no claim of direct discrimination can succeed.

(8) THE EXPENSES/OVERTIME INVESTIGATION

41. The Appellant appealed against the warning given on 7 March. Mr Pipkin sent an e-mail to a colleague in Paris to follow up on some factual queries about the Appellant's attendance which he would have raised with her if she had attended the meeting. As a result, a Mr Gale in Paris looked at the Appellant's file. In the course of doing so he noticed a number of apparently anomalous overtime claims. Mr Pipkin was notified of these on 12 March and, with Ms Atchia-Green's advice, initiated a disciplinary investigation. The Tribunal found expressly that Mr Gale had not been asked by Mr Pipkin to carry out any enquiry into overtime claims and that his findings came as a complete surprise and were wholly unconnected with the sickness absence issue (save that investigation of the latter had been the occasion for the discovery of the former) – see Reasons paras. 58 and 142. To anticipate, the investigation in due course established that although the claims were indeed incorrect they were not dishonesty made: at least twenty other employees had submitted similar incorrect forms and there was, as Mr Gale rather coyly put it, "some corporate responsibility". On 8 April the Appellant was told that no further disciplinary action would be taken and there would be nothing adverse on her record. We should also record that her appeal against the written warning was in due course successful, but only on the basis that she had by that date provided proper evidence that the absence on 2 November 2007 was related to her IVF treatment.
42. The Appellant claimed before the Tribunal that her treatment in this regard was directly discriminatory and/or constituted harassment. There was apparently some uncertainty as to precisely how she put the case, but the Tribunal – see Reasons para. 142 – understood the complaint to be that since the practices which had given rise to the anomalies in question were widespread she had been "singled out" because of her IVF treatment. (There was no claim of victimisation.) The Tribunal found in terms:

"142. … There was no evidence before us to the effect that the Claimant was "singled out". At the time the Second Respondent commissioned the investigation the Claimant was the only person against whom suspicion rested. In our view the Claimant has failed to prove the facts necessary to found the claim she makes.

143. In any event, we were unanimously of the view that the Second Respondent's action in commissioning that report had nothing whatsoever to do with the Claimant's IVF treatment. In reality that course of action was suggested to him by Mr Gale's e-mail. At this date the Second Respondent had only recently been promoted to act up as an HMI [Her Majesty's Inspector of Immigration] a position Mr Gale had held for some time. It was not suggested that Mr Gale acted in anyway improperly.

144. It is our conclusion that there is no basis for this aspect of the Claimant's claim alleging that the Second Respondent took this decision on the grounds of her pregnancy."

43. The Appellant's grounds of appeal in relation to this issue are not very easy to analyse. Before us, however, Mrs Russell's essential point was that, as noted above, it eventually transpired that the anomalies in question were not the result of any dishonesty on the Appellant's part but simply reflected a mistaken practice which she followed in common with a number of other employees. We do not see how this is relevant. The only question is why Mr Pipkin initiated the investigation. The Tribunal clearly found that he did so in good faith, on the basis of Mr Gale's original report. Unless that finding can be shown to be perverse – a task which Mrs Russell did not attempt – it is conclusive.

(9) SUSPENSION

44. We can take this ground very shortly. Ms Atchia-Green raised with Mr Pipkin whether, since the claims in question were potentially fraudulent, the Appellant ought to be suspended pending the outcome of the investigation. He raised the question with his Assistant Director, Mrs Wilson, who decided that the Appellant should indeed be suspended. The Tribunal found, at para. 61 of the Reasons:

"We accepted her evidence that she followed the relevant procedures in all cases of suspected gross misconduct. Her view was that the evidence disclosed by Mr Gale's enquiries was of potential gross misconduct, the full extent of which would not be known until an investigation had been completed. She had followed the same procedure in many other cases where she had authorised suspension, and did not consider it appropriate to vary from that procedure in the case of the Claimant. In the light of those findings, the Tribunal held, at para. 148 of the Reasons that it was "quite unable to find in the Claimant's favour that these actions were taken on the grounds of her pregnancy contrary to Section 3A Sex Discrimination Act 1975".

45. We can understand the view that Mrs Wilson's decision was heavy-handed, but we can see no possible basis on which it could be said to have been discriminatory. The Appellant's case before us was as follows:

"In answering the "reason why" question, the Tribunal undertook an impermissibly narrow enquiry and failed to have regard to the fact that a material reason for the investigation and then suspension of the Appellant was the fact that she had been absent in part due to the fact that she was undergoing IVF treatment … as the Second Respondent knew … . As such the reason why the Appellant was suspended was because she was undergoing IVF and/or but for the fact that she was undergoing IVF treatment she would not have been suspended."

That submission is plainly erroneous. The fact that the Appellant's absences for IVF treatment were part of the factual background to the treatment complained of, and that "but for" them the treatment would not have occurred, does not answer the question whether they were part of the grounds of, or reason for, that treatment: see, most recently, the decision of this Tribunal in Amnesty International v Ahmed [2009] ICR 1450, at para. 37 (pp. 1470-1). The Tribunal, on the findings made at paras. 61 and 143 of the Reasons, was clearly right to find that the suspension of the Appellant constituted neither direct discrimination nor harassment.

(10) REFUSAL TO ACCEPT THE CLAIMANT'S GRIEVANCE

46. The Appellant raised a grievance against Mr Pipkin. Mrs Wilson decided, plainly correctly, that the subject matter of the grievance overlapped with her appeal against the stage 1 warning; and that accordingly the one should be considered in the context of the other. That was, as the Tribunal pointed out (see Reasons para. 150), entirely in accordance with the terms of the grievance procedure set out in the Home Office Staff Handbook. In those circumstances, Mrs Wilson's decision was, as it went on to find at para. 154, "wholly unconnected with the fact that the Claimant was undergoing or had undergone IVF treatment".
47. The Appellant challenges that finding on the basis that there was no evidence that Mrs Wilson was in fact aware of the specific provisions of the handbook to which the Tribunal referred. That may be so, but it does not invalidate the Tribunal's basic point: the procedure followed by Mrs Wilson was common sense, and there was no evidence to suggest that it had anything to do with the Appellant's IVF treatment or her pregnancy.

OVERVIEW

48. The Appellant may have been entitled to feel that the Agency rather mishandled the question of her absences for IVF treatment, though she contributed to the problem by her failure to provide full documentation in good time and by pulling out at the last minute from the meeting of 7 March. And it was certainly a misfortune for her that the investigation of those absences led the Agency, reasonably but wrongly, to suspect serious misconduct on her part in relation to a different matter. But the case is a good illustration of the important point that the fact that an act complained of may occur in the context of, or in connection with, a protected characteristic does not necessarily mean that it was done on the grounds of that characteristic.

(B) "FRAGMENTED APPROACH"

49. It is well-established that in cases where a tribunal is required to make findings on a large number of individual incidents of alleged discriminatory conduct it needs to consider whether, viewed cumulatively, the incidents may justify an inference of discrimination that would not arise if each was considered in isolation. But there is no sign whatever that the Tribunal fell into this error in the present case. It considered, as it was obliged to, each allegation of discrimination separately. It plainly had the whole sequence of events – which covered only a period of some two months – in mind. This is not a case like Qureshi (above) where the tribunal fails to see the wood for the trees.

(C) LIMITATION

50. As we have already observed, the limitation point is academic since, on the Tribunal's findings, the claims in question would fail on their merits even if the Tribunal had jurisdiction to determine them. We can accordingly take it very shortly. Mrs Russell advanced three points before us.
51. Her first point was dependent on her submissions in relation to the substantive claims. She submitted that the Tribunal might have reached a different view on the limitation issue if it had, as she contended it should have, concluded that some or all of those claims were well-founded. Since we have not accepted the submissions in question, we need not consider this point further.
52. Secondly, she submitted in her skeleton argument that, since the time for commencing proceedings against the Home Office was extended by reason of reg. 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the Tribunal should have held that it was just and equitable to extend time for bringing proceedings against Mr Pipkin personally to the same extent. We see the force of that argument, but we doubt if there can be any universal rule: one relevant factor would be whether there had been any material advantage to the Appellant in proceeding against the individual employee as well as the employer. But the point is one which is unlikely to arise in future in view of the repeal of the Regulations, and we need say no more about it.
53. Finally, she contended that the events which were prima facie out of time – i.e. those in January and February 2008 – formed part of the same "continuing discriminatory state of affairs" as the subsequent acts complained of. She relied on the well-known cases of Hendricks v Commissioner of Police of the Metropolis [2003] ICR 530 and Lyfar v Brighton & Sussex University Hospitals Trust [2006] EWCA Civ 1548. We need only say that we see nothing wrong with the Tribunal's assessment on this point. The incidents in question were sufficiently different in character to justify the conclusion to which it came.

CONCLUSION

54. We accordingly dismiss this appeal.

Note 1   S. 3A was amended with effect from 6 April 2008 (which is after the date of the last act complained of in these proceedings, although before the decision of the Tribunal) by the Sex Discrimination Act 1975 (Amendment) Regulations 2008, in order to give effect to the decision of the High Court in Equal Opportunities Commission v Secretary of State for Trade & Industry [2007] ICR 1234. The Tribunal proceeded on the basis that the amended statute applied. We are content to assume that that was correct, since, even if it is not, the law as declared in the Equal Opportunities case would be binding on the Home Office as an emanation of the state.    [Back]

Note 2   The paragraphing in the Reasons is awry, because there are two groups of paragraphs numbered 36-39. Our reference is to the first para. 37.    [Back]