United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0270/11/ZT

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

  At the Tribunal

  On 28 February 2012

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

MR B R GIBBS

MR J R RIVERS CBE

MS B E DZIEDZIAK APPELLANT

FUTURE ELECTRONICS LTD RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

SEX DISCRIMINATION

Detailed challenges were made to the operation of a redundancy procedure.  The EAT held that regard should be had to the judgment of the Tribunal taken overall and in context, and this was clear.  Thus both appeal and cross appeal as to a finding of unfair dismissal (by a majority) and nil compensation (applying Polkey) were rejected.

A claim for sex discrimination causing the detriment of dismissal, because the Claimant was regularly late for work by reason of her childcare commitments as a single mother, was rejected since no detriment could be shown in consequence: this decision was not perverse.

An appeal against a finding of race discrimination was also rejected.  The act which was held discriminatory was that the Claimant was told not to appeal “in her own tongue” (she being Polish) in a cosmopolitan office, when no one else was so instructed, they being (generally) of other nationalities.  The Employment Tribunal was entitled to regard this as so potentially inherently and directly discriminatory as to cause the burden of proof to shift.  Having no explanation from the employer, it was entitled to find discrimination established.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

Introduction

1.            After hearing evidence and submissions for a total of 11 days and spending 4 days deliberating amongst what the Tribunal described not as a mass but as a “morass” of documentation, the Reading Employment Tribunal determined, in Reasons given on 24 November 2010, to dismiss claims made to it by the Claimant that she had been discriminated against on the grounds of her sex and her age, but they held that a claim that she had been unfairly dismissed succeeded, though awarded no compensation for that dismissal, either basic or compensatory.  It further held that a claim that she had been discriminated against upon the grounds of her nationality succeeded, in that she had been told not to speak Polish at work, or rather that she had been told, she being Polish, not to speak in her own language.  A second act alleging racial discrimination, which asserted that she had been excluded by her colleagues from making hot drinks for each other in the office, was rejected.

2.            The facts giving rise to this extensive hearing can be shortly stated.  The Claimant was employed from September 2005 until the end of January 2009, a period of a little over three years.  She was employed for just over a year of that time, and latterly, as an asset manager.  The business in which she worked was one that sold electronic components manufactured by others.  She was dismissed, it was asserted, by reason of redundancy.  The Claimant, for her part, asserted that that reason was false, and that it had to do with her sex or her age, because she did not understand why she, with the qualities she understood that she possessed, should be subject to dismissal.

3.            The process of redundancy determined on by the employer began in early November 2008.  Although the figures vary, it appears, and the Tribunal accepted, that the employer saw a need to reduce from 16 asset managers to 14.  The Employment Tribunal accepted that (see paragraph 29 of its Reasons).  Given the principal thrust of the employee’s case (see in particular her final submissions, in which she accused her employer of having falsified data, making up an approach to selection for redundancy that was unfair, having lied, and commenting that what they had done was to justify dismissal and not redundancy), the finding that there was a genuine redundancy is one of importance.  So too in that context was the very clear finding, repeated in a number of paragraphs, in which the Employment Tribunal expressed how impressed it was with the evidence of Emma Harle, who was the principal manager concerned in the dismissal by reason of redundancy and who took the initial effective decision to do so, and concluded that she did so diligently and objectively.  That important finding underlies and colours, in our view, the whole of the Employment Tribunal’s decision, read fairly.

4.            The Claimant was told of her provisional selection for dismissal by reason of redundancy on 4 December 2008.  She appealed.  Her appeal raised a number of points of significant detail.  It is plain, and again this colours much of the Tribunal discussion, that she was someone who was meticulous in her attention to and record of detail; indeed, one of the matters held against her in the selection process for redundancy was that she was so concerned with the intimate detail of matters that she failed to see and appreciate the bigger picture.

5.            The appeal was dismissed; she was dismissed at the end of January 2009.  Though not, we think, directly relevant to the dismissal itself, she thereafter pursued a grievance.  She complained that she had been unfairly selected for redundancy, and one suggested explanation was that she had taken extra days off when her son was unwell and in hospital, she being a single mother, and she had then stopped working overtime.  Her assessments and appraisals had been good.  She understood that lateness, a consequence of getting her son, ill at times, ready for school and so forth, was held against her, hence her view that she had been selected not on proper objective criteria fairly applied but by reason of some other factor, such as sex discrimination.

6.            The criteria that the employer purported to adopt were four in number, as told to the Claimant throughout this process: (1) attendance; (2) experience and skill; (3) effectiveness (work performance); and (4) development potential.  A chart exhibited to the end of Miss Harle’s statement consisted of a scoring matrix.  That demonstrated that each of the scores, 1 being good and 4 being poor, in respect of each of the criteria was multiplied by a factor (in the case of attendance, and experience and skill, by a factor of 3; in the case of effectiveness (work performance) and development potential, by a factor of 5).  The employer’s evidence, which the Tribunal accepted, was that the Claimant had been shown by the scoring to be one of the bottom two.  She had scored 50; there was one lower, and the next higher was at 39.  There was thus on any showing, if that was a fair system to adopt and fairly applied, a significant gap between the Claimant and others who were also in the potential pool for selection.

7.            It was argued before the Tribunal, as we have noted, that the dismissal in her case was deliberately designed, and that in her case the scoring and details had been manipulated, so as to produce that result.  That is our summary of her closing statement; the Tribunal dealt with it by setting out its view of the witnesses.  As to Emma Harle (see paragraph 4(i)), it said specifically, “She was straightforward in the way in which she gave her evidence, directly answering all questions put to her”.  At paragraph 33 it said that she was adamant in her evidence that the provisional selection of the Claimant’s role for redundancy was based on no other reason than the operation of the selection criteria, and immediately commented:

8.            It is plain to us that the Tribunal accepted that Miss Harle had no other reason than the selection criteria for selecting the Claimant for dismissal.

9.            The Tribunal concluded (paragraph 55) that it was “entirely satisfied” that this was a “genuine redundancy situation”.  It gave short reasons for that conclusion.  At the conclusion section of its decision, later in the Judgment, the Tribunal said (paragraph 63), “Was there a genuine redundancy situation?” and simply, “On the facts before the Tribunal there was”.  In the light of what had gone before, one can see why the Tribunal reasoned that as it did; it had accepted the evidence, principally, of Miss Harle, though also of others.  It further commented (paragraph 71) that in the view of the minority who would not have found the dismissal to be unfair (a view to which we will return):

10.         We shall come to the sub‑criteria in a moment.  The majority said nothing contrary, but relied also on what Miss Harle had said.

11.         The criteria had been amplified by Miss Harle privately by developing sub‑criteria.  Those sub‑criteria applied to all of the principal criteria except attendance.  It is unnecessary for present purposes to identify each of those criteria except to note that under the heading of effectiveness there were seven sub‑criteria.  None of those sub‑criteria were given to the Claimant at the time of the redundancy consultation, despite there being some five meetings at which redundancies both collectively and with her individually were discussed.  It was that failure to provide the sub‑criteria that led to a difference of view between the members of the Tribunal.  The majority took the view that it was unfair not to have provided those criteria at the time of the consultation so that the Claimant would know to what points to address her evidence and submissions.  The minority differed; it concluded that there was in truth no reason for the employer to disclose the sub‑criteria and that it was a council of perfection to have required the employer to do so.

12.         The view having been reached by a majority that the dismissal was unfair because of a failure to provide the Claimant with the headings for the sub‑criteria, an issue then arose as to whether in any event the dismissal would have taken place.  The Tribunal considered that under two short paragraphs, headed “Polkey” for obvious reasons:

“77. The members have approached Polkey [v A E Dayton Services Ltd [1987] IRLR 503] by considering had the Claimant been able to challenge those areas she was unable to challenge as detailed in [other paragraphs], what would the outcome have been?

In their consideration the assessment that might have been altered was under the main criterion of ‘Effectiveness’ and the sub‑heading ‘Shows clear understanding of the business’ and ‘adding value to the company’ from 3 to 2 would have resulted in her scoring under ‘Effectiveness’ 3.  Overall it would not have made any difference to where she was placed in the ranking and she would still have been selected for redundancy.

Accordingly, applying Polkey, any award of compensation would be reduced to nil.

78. The members have also taken into account whether, had the sub criteria been disclosed at 4 December 2008 [the date of the initial face‑to‑face consultation], the overall process would have taken any longer.  They are satisfied that the timescales would have been identical.”

13.         There is no challenge in this appeal to the finding in paragraph 78.

14.         The claim in respect of sex discrimination we shall return to later, observing that we have not lost sight of the fact that in any case the facts in respect of one head of claim may have a bearing on the facts to be found upon another head of claim, particularly if they relate to the credibility of a particular witness.

15.         The appeal hearing before us began with a challenge by the Respondent by way of cross‑appeal to the conclusions of the majority as to the unfairness of the dismissal by reason of a failure properly to facilitate consultation.  Ms Cunningham argued that the minority was plainly and obviously right, and she referred us in support of that submission to the well‑known authority of British Aerospace PLC v Green and Ors [1995] ICR 1006.  In that Court of Appeal case Waite LJ observed (1016(F) - 1017(B)) that it had become well recognised in aid of any fair process of redundancy selection that there should be a scoring system.  He observed that did not render any selection automatically fair, because each system had to be examined for its own inherent fairness, judging the criteria employed and the methods of marking in conjunction with any factors relevant to its fair application, but he observed that one thing was clear:

“If such a system is to function effectively, its workings are not to be scrutinised officiously.  The whole tenor of the authorities […] is […] moving towards a clear recognition that if a graded assessment system is to achieve its purpose it must not be subjected to an over‑minute analysis.  This applies both at the stage when the system is being actually applied and also at any later stage when its operation is being called into question before an Industrial [as it was] Tribunal.  To allow otherwise would involve a serious risk that the system itself would lose the respect with which it is at present regarded on both sides of industry, and that tribunal hearings will become hopelessly protracted.”

16.         Millett LJ, at page 1019(F) - (H), said that the question for a Tribunal was whether an applicant had been unfairly dismissed, not whether some other employee could have been fairly dismissed.  It will not help an applicant to show that by the same criteria as applied to him some other employee might not have been retained:

17.         It should be noted that the decision in Eaton to which Millett LJ referred was a decision reversed on appeal, but that was on other grounds.  Stuart‑Smith LJ said (1012(G) ‑ 1021(B)):

18.         He continued in the same vein.  In the case of John Brown Engineering v Brown and Ors [1997] IRLR 90, the Employment Appeal Tribunal had held that an Employment Tribunal did not make an error of law when it held that employees had been unfairly selected for redundancy on the basis of a points system, in circumstances in which the individual employees had not been told their own marks.  However, it thought (paragraph 2) that an employee should be put in a position when he could at least complain as to his own assessment.  Ms Cunningham notes that paragraph 9 is expressed in such a way as to suggest that the Appeal Tribunal, had it been exercising its own decision‑making powers in place of the Employment Tribunal, might very well have come on the facts of that particular case to a different conclusion.  She argued that the majority had wrongly substituted its own view as to the detail; it had taken its eye off the ball.  The requirement in section 98 of the Employment Rights Act is central; that, in 98(4), asks that the Tribunal answer the question whether the dismissal is fair or unfair, and that answer depends upon whether the employer acted reasonably or unreasonably in treating the reason (here, redundancy) as a sufficient reason for dismissing the employee.  The approach that the Tribunal took was over‑minute.

19.         On analysis it seems to us that the difference between the majority and minority views is this.  The minority (see paragraph 71) concluded that the matters that told against the Claimant had in essence been raised with her in the course of the consultations that had taken place.  Therefore it would follow she did not need specifically to know the sub‑criteria to which they might go, since she had been sufficiently informed.  The majority (see paragraphs 72‑76) took a different view.  They thought that she was, “only able to address the matters raised in the sub criteria to some extent”.  Thus one essential difference that amounts to a finding of fact is that the Claimant was unable to address some of the sub‑criteria in essence or at all.  Secondly, it said that the Claimant, “was not able to address them in a structured way as set out in the sub criteria document”.  That was, again, a finding of fact.  It added that the fact that the Claimant was able to address a large number of the sub‑criteria was more through luck than judgement, but that comment does not in our view detract from the two findings of fact that are central.  Its conclusion was that the failure of the Respondent to tell the Claimant what the headings of the sub‑criteria were, “prevented her from properly engaging in the consultation process”.  No doubt the majority had in mind, if implicitly, authorities such as Rowell v Hubbard Group Services Ltd [1995] IRLR 195, which emphasise that fair consultation involves giving the person consulted a fair and proper opportunity to understand fully the matters about which she is being consulted, so that she may express her views upon those subjects properly and genuinely.

20.         So analysed, we have to ask in the light of the Respondent’s cross‑appeal whether the majority erred in their approach.  They specifically stated that the approach they were taking was to apply the general principles of fairness referred to in section 98(4) of the Employment Rights Act.  That is exactly the right approach.  The only way, then, in which the decision could be challenged would be to show that it was perverse.  Perversity is rightly a high hurdle.  We do not need to set out in this Judgment the copious authorities that have expressed the test in various different ways, each emphasising that if one permissible view of the facts leads to the conclusion, that conclusion cannot be said to be perverse.  To be perverse, a finding must be “wholly impermissible”.  In other cases it is described as exciting in an observer an exclamation of horror at the possibility of the finding.  It is very easy in a case in which there is a great emphasis upon particular detail to lose sight of the wood for the trees.  Matters of detail are hardly ever likely to result in a finding that a decision is perverse unless they are totally and utterly compelling.

21.         Here, we simply have to ask whether the majority was entitled in the factual circumstances it identified to conclude that there had been an unfair process of consultation.  So put, this admits of only one answer: they were.  This cross‑appeal must fail.

22.         What we have just said about the scope of perversity applies with equal and greater force to the appeal raised by the Claimant.  In a number of respects the appeal itself is somewhat curious.  It seeks in the first two grounds of appeal to challenge the decision as to unfair dismissal, but this decision was favourable to the Claimant.  Ms Crasnow, in the course of her well thought out and researched submissions, and for whose presence, appearing pro bono as she does, we are very grateful, argues that it should be no bar to the Claimant raising the points she does that she is attacking much of the Tribunal’s reasoning rather than the result.  Ms Cunningham, in opposition, argues that it is simply not permissible to appeal the reasons for a decision; it is the decision or order that is the true subject of an appeal.

23.         In general terms, on this point Ms Cunningham is in our view correct.  It is right that once a decision has been made in favour of a party upon the issue that is contentious, the process of reasoning by which that result is reached cannot be appealed by the individual in whose favour the ultimate conclusion is.  But that is a general proposition.  Here, we have to take into account, as it seems to us, that the Notice of Appeal, though redrafted with the assistance of Ms Crasnow, was essentially the product of a self‑represented party.  We note the decision of the Court of Appeal in the case of Williams v The Home Office [2005] EWCA Civ 1648, in which there are two pertinent paragraphs in the Judgment of Maurice Kay LJ.  They read:

“32. The final ground of appeal relates to the finding that the decision not to extend sick leave on full pay until Mrs Williams was well enough to return to work […] was an act of unlawful discrimination.  The complaint is that having found discrimination the Employment Tribunal ought not to have put a terminal date on its consequences because that is, more appropriately, a matter for the remedies hearing which is yet to take place.

33. There was some debate as to whether it is open to Mrs Williams to appeal this part of the Tribunal decision because it is the part in which she succeeded. For my part, I see no technical difficulty when there remains the live issue of remedy.  The decision of the Employment Appeal Tribunal in Harrod v Ministry of Defence [1981] ICR 8 is readily distinguishable.  […]”

24.         Ms Crasnow, for obvious reasons, relied upon those words.  What followed is, however, also instructive:

25.         In the light of the general principle, as we have expressed it, and in the light both of Harrod and Williams, we have approached the appeal as essentially being related to the decision made by the Tribunal under the head of Polkey.  The point being raised is effectively that the findings of a Tribunal in reaching a conclusion as to unfair dismissal would ordinarily be the basis upon which the Tribunal would then proceed to determine whether or not there should be a reduction in the overall level of compensation by reason of the chance that there may not have been a dismissal had the unfairness been remedied.  Those facts, however, might be contentious for very good reason.  On an appeal at any rate it ought to be open to the Appellant to revisit those findings of fact if an appropriate case is shown.  Accordingly we should examine in this case the third ground of appeal, which does relate clearly to Polkey, in the light not just of the facts as found by the Tribunal but the facts as any Tribunal properly directing itself should have found them to be.  In this case, as it seems to us, what the Appellant is asking us to do is effectively to hold perverse the findings of fact that acted as a springboard for the decision it was to make in respect of Polkey.  That is why we began this section of our Judgment to referring to the well‑known law as to perversity.

26.         With that introduction we turn to the grounds as they are set out.  The first ground is that the Tribunal erred in law, in that no reasonable Tribunal could have reached the conclusion that the dismissal would have been fair but for the failure to notify the Claimant of the sub‑criteria on the evidence, because in particular it failed to take account of various matters that the Claimant was raising.  A point of principle arises here at the outset.  The principle is that an Employment Tribunal does not have to resolve every fact and argument put before it.  It has to resolve sufficient for it to answer the issue that is in dispute; that is, the broad issue (in this case, whether there had been unfair dismissal as judged by application of section 98(4) of the Employment Rights Act 1996).  Resolving the issues between parties does not, except where the issue can truly be said to be of central importance, mean reaching a conclusion upon each and every component argument of fact which may lead to that conclusion.  Employment Tribunal decisions in many cases are long.  There may be significant merit in them being much shorter than they are where they may properly focus on the issues (that is, the legal issues and central factual issues) which are truly in dispute.

27.         Secondly, it must be remembered that an Employment Tribunal decision is not the product of elaborate draughtsmanship, and should not be so approached.  It must be read as a whole.  Allowance must be made, particularly in a long decision and particularly in one where there is much exploration of factual minutiae, with a regard for what, broadly viewed, the Tribunal is saying, without an over‑concentration upon minor infelicities, if they can properly so be regarded.

28.         Here, then, the points that are raised by the substituted grounds of appeal in paragraphs 1(a) ((i), (ii), (iii) and (iv)), (b), (c) and (d) ((i), (ii) and (iii)) relate to points of detail.  The thrust of those points is that the Claimant drew attention to a document produced by Emma Harle which she said contained her justification for deciding that the Claimant should be one of the two selected for dismissal by reason of redundancy.  That document was saved to a computer on 25 November 2008.  It refers within it, however, to an email that has to have been sent on 26 November 2008.  The justification document contains a table that includes financial results that could not have been available in time for the meeting of 4 December but only afterward.  There is criticism that the Claimant took into account the question of margins on the sale of products without appreciating that those would be applicable to all asset managers and not simply the Claimant; that there were mathematical errors in the documentation, and the Tribunal was wrong to accept the evidence of Miss Harle as to the genuineness of the mistake; and, perhaps more importantly, that Miss Harle had excluded from the pool for selection two people who would properly be described as asset managers who, if they had been included, would have been the two who would have been selected and therefore whose presence in the pool would have meant that the Claimant would have continued in employment.

29.         Those points were made, we understand, at the Tribunal.  Although neither Ms Crasnow nor Ms Cunningham were there, Ms Crasnow told us that Miss Harle was subject to questioning and challenge about her evidence. 

30.         The effect of much of those points is to support the assertion that, so far as the Claimant was concerned, the redundancy exercise was a false one, and that she was, for reasons that she has never properly understood, the target of her employer in seeking dismissal.  As to that, we note that this argument depends upon particular details of fact in a case in which it is plain there were many facts and documents; it would not otherwise have taken so long to hear and decide it.  The matters were plainly explored by the Claimant.  Her final court statement, which we were handed during the course of these proceedings, shows she made copious reference to some of the points she had made.  What matters, as it seems to us, is the overall assessment that the Tribunal had to make.  The challenge is essentially to the reasoning and evidence of Miss Harle.  The Tribunal were clear as to that.  It must not be forgotten that a Tribunal is entrusted with evaluating the witnesses before it.  It hears them, it sees them, and it understands the detail of the challenge; we are not in that position.  That is one of the reasons why perversity is such a high hurdle as it is.  We are satisfied that in order to make out these points the Claimant has to show that the overall decision to which the Tribunal came and the overall findings of fact as to the redundancy exercise were perverse.  We cannot say that they were.

31.         As a second string to the bow, Ms Crasnow argues that the Tribunal did not deal with the arguments.  The Tribunal, as we have noted, does not have to deal with every argument.  Here, there is a danger of elevating points to an importance that they do not properly occupy in the scheme of things broadly and properly viewed.  We cannot therefore say that even if the Tribunal had descended to further reasoning we would have been able to see whether there was truly a case of perversity here; it seems to us there was ample evidence before the Tribunal upon which it could conclude properly, as it did at paragraph 63, that there was a genuine redundancy situation; at 64, that the pool was an appropriate pool; at 65, that the criteria adopted for selection were rational and not unreasonable; and at 66 and 67, that there had been correct collective and individual consultation, subject only to the point we have already mentioned, and that alternative employment had been considered.  In short, ground 1 has no material force.

32.         As to ground 2, it is said that the Tribunal erred in law when determining the fairness of the redundancy dismissal in that it failed to consider whether the chosen selection criteria were appropriate or transparent.  The answer is that it did; that is what it said in paragraph 65.  Secondly, it is said that it failed to consider whether the selection criteria were applied objectively.  That, too, is wrong; in paragraph 33 the Tribunal make that finding by reference to Miss Harle.  Thirdly, it is said that it failed to consider whether the Respondent permitted consultation to take place constructively as required in Rowell; in particular, it is said that this could not happen without the Appellant having access to relevant information, including the correct criteria relied upon, and in the context of the justification being largely created after the selection for redundancy had taken place.  We do not understand this ground of appeal, since it is precisely what the majority decided and why the majority concluded as it did that there had been unfairness in the dismissal.  Fourthly, it is said that it failed to consider whether the use of corrupt data rendered the dismissal unfair in any event.  Apart from the focus here that suggests that a corruption in data could in the broader picture render a dismissal unfair, a view that requires an over‑narrow and myopic focussing upon individual facts to the exclusion of the general picture, it is plain from any fair reading of this Tribunal decision that it did generally consider the points that had been raised by the Claimant.  It did not enumerate them all and it did not set them all out – it did not have to – but it came to a conclusion that cannot be shown to be perverse.

33.         As to ground 3, it is said that the Tribunal erred in its application of the Polkey principle in that it failed to set out the evidence it relied upon in reaching its conclusions at paragraphs 77 and 78.  We have already set out those paragraphs.  This is, again, to require the Tribunal in coming to the conclusions it set out in those paragraphs to restate much of the material to which it had already paid regard in the earlier paragraphs.  This is not a permissible criticism of a Tribunal decision.  It concluded the Polkey decision plainly by taking the view that the only matter that rendered the dismissal unfair was a failure to put the Claimant in a position where she could express sufficiently her views about all of the sub‑criteria.  It was therefore that that was the focus of the Tribunal’s decision‑making.  Any wider consideration we have just rejected, as the Tribunal did.  In the light of that the Tribunal came to a Judgment; the Judgment is tersely expressed.  Is it a permissible Judgment?  Plainly, in our view, it is.

34.         Ms Crasnow makes the point that the Tribunal did not appreciate in dealing with the scoring of the Claimant that any alteration in scoring or approach would affect not just the Claimant but others, and that in a small pool for redundancy selection what mattered was their relative ranking; nowhere does the Tribunal appreciate this.  In our view this is a false point, because the issue here is, as it seems to us, simply what the Claimant’s score should have been.  She cannot ask, nor can she set out any basis, for her failure to be consulted having any impact upon the propriety of the marks given in the scoring to other candidates for selection.  The only person concerned here is the Claimant, whose individual scoring came for scrutiny.  As to that, plainly, with 11 points separating her from the next lowest candidate, it would be a big ask to suggest that the matters, which it would appear were relatively limited in scope, upon which she was unable to consult effectively would have had such a difference.  We cannot see that the Tribunal was disentitled from expressing the judgment to which it came in paragraph 77; it cannot be shown to be perverse.

35.         It is criticised, next, that the Tribunal failed to take into account the Appellant’s arguments as to what she would have said had she had the relevant information.  The answer to that is it did; that is what the words of paragraph 77 say.  It is then said that it failed to apply the appropriate test, particularly when faced with wholly speculative evidence by the decision‑maker.  That does not pay proper regard to the reasoning.  The Tribunal is not setting out an impermissible burden of proof by using the word “would” in paragraph 77; it is rightly exploring what might have occurred.  It is coming to the conclusion that what might have occurred would at most have resulted in her scoring either the same as she did under “effectiveness” or, if that is an error, because the passage leads to both possible interpretations, and it should be 2 under “effectiveness”, the answer would still be that it would make and could make no difference in the ranking.  As to perversity, which is the final matter relied on under ground 3, we simply repeat what we have previously said; the decision was permissible.

36.         The argument here rested upon findings that the Tribunal made at paragraphs 79‑87.  The Claimant had alleged that it was as a result of changes in her ability to come to work on time following the arrival of her son from Poland and her becoming a single parent of an ill child that she was late for work.  She argued that women are more likely in modern society still to bear the lion’s share of childcare responsibilities.  There are more likely, one suspects, to be more single mothers than there are single fathers.  Ms Crasnow draws attention to the cases of Shackletons Garden Centre Ltd v Lowe [2010] EqLR 138, in which this Appeal Tribunal was prepared to assume that significantly more women than men are primarily responsible for the care of children, and that accordingly the ability of women to work particular hours was substantially restricted because of those childcare commitments when compared to those of men, and Hacking & Paterson v Wilson [2011] EqLR 19, when an Employment Tribunal presided over by Lady Smith in Scotland held that an Employment Judge was right not to strike out a claim of indirect sex discrimination in respect of a failure to agree to a woman’s request for flexible working, the background again being that of childcare arrangements.

37.         The Tribunal was not concerned in its discussion here with any analysis as to whether the discrimination alleged was direct or indirect; as in the view of both counsel before us and our own view it must, properly analysed, have been, nor in that light did it ask what evidence there was that women were disadvantaged generally by the application of a provision, criterion or practice.  It never identified a provision, criterion or practice in terms, but it did deal with whether there had been a particular disadvantage to the Claimant herself.  It examined at paragraph 80 what evidence it had that lateness had been taken into account as a factor amongst those under the heading of attendance in the redundancy scoring.  The argument being put forward was that the discrimination consisted not of the Claimant being subject to managerial criticism for being late but that lateness caused her a particular disadvantage because it rendered her score for attendance worse than it would have been.  The Tribunal said at paragraph 82, having reviewed the evidence, that it was not satisfied on the evidence that lateness was a factor in the scoring of the criteria.  The Claimant challenges that before us as a perverse finding because there was in evidence before the Tribunal a tape recording of a consultation meeting in which Emma Harle had said words to the effect that she was taking lateness into account.

38.         At paragraph 45, however, earlier in the Judgment the Tribunal said that it was clear on analysing the actual days of sickness absence that the Claimant had taken as against the scoring criteria that the score she was given of 2 for her level of attendance was entirely correct.  It had before it evidence that the general manager, Mr Knowles, had on appeal thought that the matter of lateness when referred to by Miss Harle was purely an observation.  On that basis it described itself not as satisfied that the evidence was such that lateness was not a factor but that it was not satisfied that it was; that is a finding applying the burden of proof.  The appeal was that the Employment Tribunal was not entitled to take that approach to the burden of proof.  It should by application of section 63A of the Sex Discrimination Act 1975 have held that the burden had passed; if it had done so, it is plain, submits Ms Crasnow, that there was no explanation that could be given that would show that there had been no discrimination, and the Claimant should be entitled to succeed.  Section 63A, headed “Burden of Proof: Employment Tribunals” provided, when it was in force, as it was at the time of these claims:

39.         Ms Crasnow draws attention to the way in which that section, materially unchanged, appears in the Equality Act 2010, but in respect of a differently expressed test of indirect discrimination.  In the Sex Discrimination Act 1975 section 1(2)(b) states that there is discrimination where one person applies to a woman:

40.         In that definition the hypothetical disadvantage relates to women as a group and not the particular Claimant as one of that group who is subject to that particular disadvantage.  By comparison, section 19(2) of the Equality Act reads in the material part that:

41.         There is a second “would” in respect of the disadvantage.  Ms Crasnow prays this in aid by suggesting, as we understand the argument, that the Equality Act represents a synopsis of European authority as to the proper approach, that the Discrimination Act 1975, though an earlier statute, may helpfully be approached through that lens, and hence that we should read the wording in the 1975 Act as referring to potential disadvantage.  If so, the argument must go, then it is sufficient to raise a prima facie case of discrimination for the facts to be established that there is a provision, criterion or practice that may put women generally at a disadvantage.  The potential for it disadvantaging the Claimant only comes in after the burden of proof has shifted, when, she submits, it is then open to the Respondent, presumably, to prove that there has been no discrimination.

42.         We have done our best to summarise an argument that is not, as it seems to us, an easy one, and which, we have to say, we see as somewhat unreal.  In this case the matters that would have to be established before there could be any reversal of the burden of proof would be, first, that there was a provision, criterion or practice, secondly, that it disadvantaged women generally, and thirdly, that what was a disadvantage to the general created a particular disadvantage to the individual who was claiming.  Only then would the employer be required to justify the provision, criterion or practice, and in that sense the provision as to reversal of the burden of proof makes sense; that is, a burden is on the employer to provide both explanation and justification.  Dealing with this particular case, it is plain that the Tribunal never got, nor could ever have got, to the stage of reversing the burden of proof.  It was not shown on balance that lateness was a factor, i.e. there was on balance no sufficient evidence that the Claimant had suffered the disadvantage that she would have had to be shown to have suffered under the wording of the Sex Discrimination Act 1975 as an actual disadvantage if she was to be found to have been discriminated against on the grounds of sex.  Accordingly, we dismiss that appeal.

43.         That leaves us with the final matter that we have to determine, a cross‑appeal as to the decision as to racial discrimination.  The Tribunal set out the allegation made at paragraph 5.  It came to its conclusion as to that allegation at paragraph 88.  The allegation, materially, was that at the end of October 2008 the Claimant, who is Polish, was having a work‑related conversation at work with a colleague in Polish.  She was called to a meeting shortly afterwards with her line manager.  He reprimanded her for speaking Polish; a colleague in the office had complained that that was distracting to her.  She identified the person who might have complained, with whom, it appears, there was some evidence that there was a personality conflict.  The Tribunal concluded:

44.         Ms Cunningham argues that an instruction to an employee to speak English in the workplace is only direct discrimination if she is given that instruction because of her race or nationality.  The correct hypothetical comparator was a national who could speak fluent Polish and who did so in the workplace in the same manner as the Claimant.  If such a person would be asked to speak English at work, then the instruction could not amount to direct discrimination.  Absent an assertion that the Claimant was only asked to speak English in the workplace because she was Polish, this aspect of the claim could only have proceeded as a complaint of indirect discrimination; that is, that the instruction to speak English at work was a provision, criterion or practice that put Polish nationals at a substantial disadvantage compared to other employees and which the Respondent could not show to be a proportionate means of achieving a legitimate aim, but no such complaint was pleaded, and therefore the Tribunal, quite properly, were not required to consider it.

45.         In oral submissions she amplified the argument that language was not the same as nationality, therefore one could not jump from a finding that a particular language had been used to a finding that use of that language was because of the particular nationality of the individual using it.  The workplace, on the evidence, was a highly cosmopolitan workplace.  There was nothing to suggest that there was any reason why the Claimant had been instructed to speak English other than the fact that it was because of the manner of her speaking Polish.  There was no general policy in place that could amount to a provision, criterion or practice.  There was no material from which the burden of proof could have been reversed as the Tribunal plainly reversed it.

46.         Ms Crasnow in her written submissions, rightly, in our view, notes that a Tribunal has considerable discretion as to how it determines the facts.  We would emphasise that a Tribunal faced with an allegation of discrimination is entitled to determine how it sees the facts and to place them in a proper context.  Much may depend upon precisely how it does so.  Here, the opening words of paragraph 88 are of importance.  They were not that the Claimant was instructed to speak in English, and they were not that the Claimant was instructed not to speak Polish; they were that the Claimant was instructed not to speak in her own language.  That is how the Tribunal saw it.  The use of the words “own language” shows a link, which is an intrinsic link, with nationality.  As is well recognised in cases of direct discrimination, there are some labels or descriptions that include within themselves the fact of difference on the ground of race or, as it may be, sex.

47.         We are satisfied that the Tribunal here were finding by use of those words that the Claimant was discriminated against by something that was intrinsically part of her nationality.  Given the evidence that no other person had been so directed, there was evidence of an actual comparator in the workplace.  The fact that she was told not to speak her own language is capable of amounting to a detriment, and so, implicitly, the Tribunal found.  The requirements therefore of the Race Relations Act 1976, section 1, were made out:

48.         There could have been an explanation that might have satisfied the Tribunal this was not on racial grounds, but there was not.  Given a difference in treatment linked to race to the detriment of an individual, the burden is capable of passing, and we see nothing inherently wrong in law in the Tribunal concluding therefore that the Respondent was required to provide an explanation, which, because the Respondent did not do, the Respondent was found to have discriminated against on this basis.  What we have said of course leaves to the Tribunal the task of determining what is appropriate compensation; to do that, it will inevitably have to determine how significant and serious a breach in context this truly is.

49.         In consequence, it follows that both the appeals and the cross‑appeals must be dismissed.  We would like to thank both advocates for their presentations, which have made our decision‑making easier.  We would like in particular to thank Ms Crasnow for demonstrating some of the best characteristics of the Bar in providing her services free of charge and as diligently as she has.  That is no reflection on Ms Cunningham’s submissions, which, by nature of the case, could not have been delivered much more succinctly.