United Kingdom Employment Appeal Tribunal
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URL: http://www.bailii.org/uk/cases/UKEAT/2016/0190_15_2303.html
Cite as: [2016] UKEAT 190_15_2303, [2016] ICR 1028, [2016] UKEAT 0190_15_2303
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Before
THE HONOURABLE MR JUSTICE KERR
(2) MR A GELLER
YESHURUN HEBREW CONGREGATION RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(of Counsel) Instructed by: Employment Rights Advice 26 Mode Hill Lane Whitefield Manchester M45 8JE
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(of Counsel) Instructed by: DWF LLP Solicitors 1 Scott Place 2 Hardman Street Manchester M3 3AA
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SUMMARY
SEX DISCRIMINATION - Direct
SEX DISCRIMINATION - Inferring discrimination
In a direct sex discrimination claim, the Tribunal had erroneously approached the question of subconscious discrimination by considering the subjective state of mind of the employer’s representative, rather than whether it should conclude that there had been unconscious discrimination by drawing inferences from objective facts.
THE HONOURABLE MR JUSTICE KERR
1. This is an appeal in another difficult discrimination case that raises issues about how Employment Tribunals should approach the task of ascertaining whether a Claimant has been directly discriminated against on the ground of her sex. The Decision of the Employment Tribunal, sitting in Manchester in January 2015 over four days including one day for deliberations, was signed and sent to the parties on 4 February 2015 and was a Decision of Employment Judge Ross sitting with Mr Cook and Ms Khan.
2. The background was as follows. The Claimants are husband and wife, Mr and Mrs Geller. Only Mrs Geller remains as an Appellant in this appeal. Her husband began employment with the Respondent in September 2011. At that stage the Claimants were not yet married. A little over a year later, in December 2012, when they were due to get married, the question of her becoming involved in working for the Respondent arose. She was willing to do work for the Respondent if it were remunerated.
3. At about that time or shortly afterwards, the Claimants got married, and in January 2013 she did indeed start working for the Respondent. At that stage and into later in 2013 the Respondent did not consider her to be a regular employee but was considering how to remunerate her on a time basis for work done by her, considered to be ad hoc. From about May 2013, the Respondent considered employing her on a regular footing as a normal employee like her husband but did not at that stage do so.
4. At a meeting on 29 May 2013, a committee of the Respondent met, and there was a proposal to provide a joint salary of £12,500 to the Claimants between them. About a week later, on 4 June 2013, it was reported back to the Respondent that the Claimants were prepared to work on a joint basis for that amount of salary. At this stage the Appellant had not yet been paid for the work that she had done for the Respondent, and she and her husband were chasing the Respondent for payment. The evidence before the Tribunal included communications in emails and notes of meetings showing that the issue of how to remunerate the Appellant and in what sum, was unresolved as at the end of May 2013 but was being actively pursued by the Claimants.
5. At that stage, in or around June 2013, a gentleman by the name of Mr Bor, who worked for the Respondent in a finance capacity, required hospital treatment and went to hospital for an operation. The date or period of his absence as a result is not entirely clear, but it must have been around June 2013. There was evidence before the Tribunal, which the Tribunal accepted, that he, Mr Bor, was the person who had it in his authority to authorise payment to the Appellant for the services she had rendered the Respondent, and to sign off the figure, which was at that stage not agreed.
6. On 2 July 2013, there was a board meeting of the Respondent in which the performance of the Claimants was discussed, and a decision was made to terminate their employment but subject to taking advice from the Respondent’s solicitor. On 10 July 2013, Mr Geller informed the Respondent’s Dr Kaye that his wife was pregnant. That was an issue that was relevant to issues in the proceedings before the Tribunal but is no longer directly relevant and is now merely part of the background.
7. On 23 July 2013, the Respondent informed Mr Geller that he had been provisionally selected for redundancy. The Appellant took the position with the Respondent that she considered herself to be an employee and should therefore be involved in any consideration of redundancy. Dr Kaye responded that he would take advice on the matter.
8. On 26 July 2013, the Appellant presented a claim to the Employment Tribunal of sex discrimination, equal pay, unfair dismissal and wrongful deduction from wages. While that claim was pending before the Employment Tribunal, the Respondent on 2 September 2013 agreed to pay the Appellant in accordance with the timesheets that she had submitted. Later the same month, on 18 September, the Respondent accepted that the Appellant was an employee of the Respondent and should therefore be included in the proposed redundancy selection exercise.
9. There followed a redundancy selection meeting on 6 October, and after that both the Claimants were made redundant. An appeal against that decision was unsuccessful in early November, and that decision to reject the appeal was on 7 November 2013. A month or so later, on 9 December 2013, both the Claimants lodged a further claim, this time citing other grounds connected to discrimination on the ground of religion or belief. The issues that were raised in that claim again are now no more than part of the background facts.
10. The hearing then took place before the Employment Tribunal in January 2015, leading to the Decision. There was an unsuccessful request for a review of the Decision followed by an appeal, which came before me on 5 November 2015 after consideration by the sift Judge, HHJ Eady QC, who directed a Preliminary Hearing, at which I allowed certain grounds to proceed to a Full Hearing but not others.
11. The Tribunal at paragraph 71 of its Decision set out the issues as follows under the heading “Direct sex discrimination”:
“71.1. Has the respondent treated [the Appellant] less favourably than it treated or would treat others in -
(i) failing to acknowledge her as an employee and/or
(ii) making unlawful deductions from her wages.
71.2. Having regard to the burden of proof provisions, what is the reason for the less favourable treatment? Is it because of the claimant’s sex?”
12. The reasoning and conclusions of the Tribunal were then set out, so far as material in this appeal, under the heading that immediately followed, which was “Applying the law to the facts”. So, there were two limbs to the direct sex discrimination claim of the Appellant. The first was that the Respondent had discriminated against her by failing to acknowledge her as an employee; and the second that it had done so by making unlawful deductions from her wages. As to the first of those two limbs, the Tribunal’s reasoning and conclusions were set out in paragraphs 72 to 83 of its Decision, and it is necessary to set these out in full:
“72. It is not disputed that the respondent conceded that [the Appellant] was an employee on 18 September 2013 (see page 150). We find she started working for the respondent in or around January 2013. We find that before 18 September 2013 [the Appellant] was not acknowledged as an employee. Both Mr Baker and Dr Kaye explained that they considered her to be working on a self-employed ad hoc temporary basis. We are satisfied that the respondents thought of [the Appellant] in this way until [the Appellant] said at the meeting on 23 July said [sic] she regarded herself as an employee and should be part of the redundancy process. At that point the respondent took advice and as a result of that advice conceded in September 2013 that [the Appellant] was an employee.
73. We note that when Mr Geller commenced employment for the respondent he responded to an advertisement that asked either for an individual or a married couple. At that time Mr Geller was not married and applied as an individual and was successful in being appointed.
74. We have considered whether there was any evidence to permit us to draw any inference that the reason the respondent failed to acknowledge [the Appellant] as an employee until September 2013 was because she was a woman or because of her pregnancy.
75. We note that in fact [the Appellant] was in fact treated more favourably because of her marital status as a spouse. The position she held was not advertised. She was not interviewed for the position of employee which she held with the respondent. She started working for the respondent on the basis that she was the wife of Mr Geller.
76. We find the reason why the respondent failed to acknowledge [the Appellant] as an employee was because Mr Baker and Dr Kaye genuinely believed that she was working on an ad hoc self-employed basis submitting timesheets to the respondent.
77. The position remained the same during the time that she worked for them and before and after her pregnancy. We find the evidence is consistent with the fact that Mr Baker was considering placing [the Appellant] on a formal employee status contract and his e-mail of 23 April 2013, p114 is consistent with that. “Can you look at that and see if from May we can start a new contract on a new basis…” However, we find that this never came to fruition because of the significant change in the synagogue’s finances following the publication of the 2013 accounts.
78. Therefore we turn to answer the first question: has the respondent treated [the Appellant] less favourably than it would treat others in failing to acknowledge her as an employee. We were not directed to a real or hypothetical comparator. We find the respondent treated [the Appellant] in the way that they did because she worked for them on an ad hoc basis supplying timesheets for an unspecified number of hours. We find they were seeking to formalise her position. Therefore we are not satisfied that in failing to acknowledge her as an employee having regard to the circumstances in which she worked the respondent treated [the Appellant] less favourably than a hypothetical comparator.
79. However if we are wrong about this and the fact that the respondent conceded that she was an employee in September 2013 means that they treated her less favourably in failing to acknowledge her as an employee before that date we must consider the second question, which is the reason for the less favourable treatment.
80. We find the reason for failing to acknowledge [the Appellant] as an employee was unrelated to her sex. We are satisfied by the evidence of Mr Baker and Dr Kaye that Mr Baker, with whom the respondents [sic] had a cordial relationship and considered to be an honest man, perceived the status of [the Appellant] as ad hoc, self-employed on the basis that she did not have fixed hours, she determined her hours herself and she submitted timesheets. Although [the Appellant] said in evidence she thought she was considered an employee from the start of her employment she had no documentary or other evidence for that other than her belief that because she was working for the respondent in a similar capacity to her husband the respondent believed she was an employee.
81. We find there was no change in the way the respondent treated [the Appellant] in relation to their failure to acknowledge her employee status before they knew she was pregnant or after they knew she was pregnant on 10 July 2013. We rely on Mr Baker’s email of 23 April which we have found consistent with his evidence that he did not regard [the Appellant] as an employee and his email at p148 sent on 4 August, after her pregnancy is known where he says he does not consider her an employee.
82. We find the respondent acknowledged her employee status after the matter was raised by [the Appellant] on 23 July 2013 when the respondent sought legal advice and admitted on 18 September she was an employee. The reason she was not acknowledged as an employee before that date was because Mr Baker and Dr Kaye genuinely believed she was working on a time only basis and was not an employee.
83. Therefore having found that the reason for the treatment was not sex, [the Appellant’s] claim cannot succeed.”
13. The Tribunal then turned to the second limb of the Appellant’s direct sex discrimination claim. Their reasoning and conclusions in relation to that second limb were set out in the Decision at paragraphs 84 to 88, which, again, it is necessary to set out in full:
“84. We turned to the second direct sex discrimination claim: that the respondent made unlawful deductions from [the Appellant’s] wages.
85. We turned to consider the first issue: did the respondent treat [the Appellant] less favourably than it treated or would treat others in making unlawful deductions from her wages?
86. There was no dispute that although [the Appellant] worked for the respondent between January 2013 and October 2013 producing timesheets on a number of occasions she was not paid until September 2013. We heard no evidence of a real [or] hypothetical comparator. However we have found that Mr Baker whom [the Claimants] trusted and described as an honest man and whom we have found to be an impressive witness gave an instruction to the Treasurer that [the Appellant] should be paid. P139. We find that Mr Bor the Treasurer did not pay [the Appellant] as instructed by Mr Baker. It is not disputed that Mr Bor was ill and required an operation. An e-mail in the Bundle confirms that (see page 142).
87. We have had regard to the fact that the respondent is a small organisation. It is a charity and an unincorporated association. We have borne in mind that Mr Bor like the other members of the Board were [sic] volunteers. Accordingly we find it likely that a hypothetical comparator i.e. a man working on a timesheet basis would have been treated in a similar way.
88. If we are wrong about this we must go on to consider the second question, which is, is the less favourable treatment because of the protected characteristic of sex. We find it is not. We are entirely satisfied by the respondent’s explanation that [the Appellant] was not paid because of an administrative oversight linked to the illness of the Treasurer, Jeffrey Bor. Accordingly this claim does not succeed.”
14. When the matter came before me in November 2015, I allowed two of the proposed grounds of appeal to proceed to the Full Hearing, which has taken place before me today. Those two grounds were, insofar as it is necessary for present purposes to quote them, as follows:
“7. The grounds upon which the appeal is brought are that the Employment Tribunal erred in law in that:-
7.1. It found that the … Appellant was not treated less favourably by the Respondents [sic] in failing to acknowledge her as an employee.
…
7.2. It failed to find that the … Appellant was treated less favourably in having unlawful deductions made from her wages.”
15. Beneath each of those two grounds there were what some would could call sub-grounds, narrative or explanation, but it seems to me that it is what I have just quoted that constitutes the essence of the basis of the appeal insofar as I have allowed it to proceed.
16. It is necessary to say a little bit about the principles applicable in a case of this kind. In some cases of alleged direct discrimination, the discrimination alleged is inherent in the act complained of and there will be no need to enquire further into the mental process, conscious or unconscious, of the alleged discriminator (see Amnesty International v Ahmed [2009] ICR 1450 per Underhill J, then President of the Appeal Tribunal, at paragraphs 33 and 34). The following cases are examples of cases falling within that category: James v Eastleigh Borough Council [1990] 2 AC 751, Hall v Bull [2013] 1 WLR 3741 and R (on the Application of E) v Governing Body of JFS [2010] 2 AC 728.
17. In other cases, by contrast, discrimination is not inherent in the act complained of as it does not by its nature strike at the protected characteristic, but the act complained of may be rendered discriminatory by the motivation, conscious or unconscious, of the alleged discriminator. Nagarajan v London Regional Transport [1999] IRLR 572 is an example of such a case. The present case is also in the same category: that is, in the latter class of case and not the former. The belated recognition of the Appellant as an employee and the withholding of wages from her until a late stage did not by its nature strike at the protected characteristic of her sex; that is to say, it did not by its nature target the fact that she was a woman and not a man. It could in principle be discriminatory or not, depending on whether a man (actual or hypothetical) in the same position as she was would or would not have received treatment that was not less favourable.
18. In the latter class of cases the Employment Tribunal asks itself what the reason for the alleged discriminator’s act was, and if the reason is that she possessed the protected characteristic, then direct discrimination is made out. As Lord Nicholls has pointed out in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL at paragraph 10 of his speech, the answer to the question what the reason was for the treatment, also answers the question whether a Claimant was treated less favourably than was or would have been another person in the same position as the Claimant but who does not possess the protected characteristic.
19. In neither case is a benign motive relevant; nor is it relevant whether the alleged discriminator thought the reason for his or her treatment of the person with the protected characteristic, was that characteristic; see Nagarajan at paragraph 17 in the speech of Lord Nicholls, where he said this:
“17. I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn. Conduct of this nature by an employer, when the inference is legitimately drawn, falls squarely within the language of s.1(1)(a). The employer treated the complainant less favourably on racial grounds. Such conduct also falls within the purpose of the legislation. Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination. Balcombe LJ adverted to an instance of this in West Midlands Passenger Transport Executive v Singh [1988] IRLR 186, 188. He said that a high rate of failure to achieve promotion by members of a particular racial group may indicate that ‘the real reason for refusal is a conscious or unconscious racial attitude which involves stereotyped assumptions’ about members of the group.”
20. The statutory reversal of the ordinary burden of proof dictates the evidential steps in the required chain of reasoning in an Employment Tribunal; see section 136 of the Equality Act 2010, subsections (2) and (3) of which provide as follows:
“(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”
21. It is good practice for an Employment Tribunal to follow the two-stage process there set out. However, failure to arrive at its decision by following both the first and second steps in that two-stage process is not necessarily an error of law. There are cases in which it is unnecessary to follow the two-stage approach: see Mummery LJ in Brown v London Borough of Croydon [2007] IRLR 259:
41. In general it is good practice to apply the two-stage test and to require the claimant to establish a prima facie case of discrimination before looking to adequacy of the respondent’s explanation for the offending treatment. But there are cases, of which this is one, in which the claimant has not been prejudiced in matters of proof of discrimination by the tribunal omitting express consideration of the first stage of the test, moving straight to the second stage of the test and concluding that the respondent has discharged the burden on him under the second stage of the test by proving that the offending treatment was not on the proscribed ground.”
22. In the present case the remaining grounds of appeal require me to consider whether the Employment Tribunal correctly applied those principles or whether it erred in law by not doing so. Submissions on behalf of the Appellant were made by Mr Livingston, who did not appear below but accepted the case on behalf of the Bar Pro Bono Unit at a late stage. The Appeal Tribunal is very grateful to him for his assistance. He made the following main points in support of the appeal.
23. On the first ground - that the Tribunal erred in law by finding the Appellant was not directly discriminated against by the Respondent in that it failed until September 2013 to acknowledge her as its employee - he made the following main points.
24. He submitted that the Tribunal fell into error by using the genuine beliefs of the Respondent’s witnesses, Mr Baker and Dr Kaye, as part of its consideration (in paragraph 74 of its Decision) of whether there was any evidence permitting the Tribunal to draw an inference that the Appellant’s treatment had occurred because she was a woman; and that the Tribunal had failed to take account of the possibility of unconscious or subconscious discrimination in the failure to acknowledge her as an employee, as referred to by the passage in Lord Nicholls’ speech at paragraph 17 in Nagarajan, which I have already quoted.
25. Mr Livingston submitted that this failure of the Tribunal led it to overlook the possibility that the belief of the Respondent’s witnesses concerning the employment status of the Appellant may have been based on or influenced by “stereotypical assumptions based on her gender - i.e. that women are not breadwinners”. He submitted that this was a case in which that issue needed to be examined with care, especially in view of the Tribunal’s finding at paragraph 75 of the Decision that the Appellant’s status as the wife of Mr Geller had led to her being treated more favourably than she would otherwise have been because she was employed on the strength of who her husband was, without open competition. This, said Mr Livingston, demonstrated that the factual context was not gender neutral.
26. He further submitted that the Tribunal had failed in considering the first limb of the direct sex discrimination claim to consider properly whether there were facts from which an inference of discrimination could be drawn, which would have had the consequence of placing the onus on the Respondent to rebut the inference of discrimination. He submitted, further, that the Tribunal should have proceeded to consider Mr Geller as an actual comparator in the proceedings below, and he referred me to the written case advanced by the Claimants’ then representative Mr Broomhead, the relevant part of which included the following:
“3.5. … As the wife of [Mr Geller] the Respondents [sic] failed to acknowledge her an employee [sic], the said failure amounting to discrimination by virtue of section 39(2)(d) Equality Act 2010.
3.6. Even though [the Appellant] was …employed by the Respondents [sic] because she was the wife of [Mr Geller] they made unlawful deductions from her wages contrary to section 13 of the Employment Rights Act 1996. The said deductions being a detriment for the purpose of section 39(2)(d) of the Equality Act 2010.” (see ET1)
27. Mr Livingston submitted that the circumstances of the Claimants were sufficiently similar to each other to permit of a valid comparison, and indeed he noted the Respondent had itself proposed that they should have a joint salary.
28. In relation to the second limb of the sex discrimination claim - that the Appellant was directly discriminated against by the Respondent in that the Respondent paid her remuneration very late, only agreed to pay her on the basis of timesheet hours on 2 September 2013 and only made the actual payment at some stage after she had brought a claim in the Tribunal (withdrawn at the Tribunal because payment in full was accepted to have been made) for unlawful deduction of wages - Mr Livingston submitted as follows.
29. Essentially, he repeated under the heading of the second limb of the direct sex discrimination the same points as made previously: first, that the Tribunal ought to have accepted Mr Geller as an actual comparator; secondly, that the Tribunal did not consider and properly exclude on the evidence the possibility of subconscious or unconscious discrimination; and thirdly, that in the case of the second limb of the claim, the Tribunal failed to address or refer to the burden of proof provisions at all.
30. In support of his argument that this was a case in which the possibility of inferences being drawn was very real, he pointed out that the primary facts found by the Tribunal included not just the history of the Appellant’s employment and the practices of the Respondent, but also (at paragraph 75 of the Decision) the gender specific reference to the Appellant being the wife of Mr Geller and this being a factor that influenced the behaviour of the Respondent, albeit according to the Employment Tribunal in a direction favourable to and not adverse to the Appellant.
31. The submissions of Ms Quigley, who did appear below, for the Respondent were very different. She started from the proposition that the arguments now being advanced by Mr Livingston were not argued below, that the points now raised were not put by Mr Broomhead in cross-examination of the Respondent’s witnesses, and that it was not suggested to them that there had been less favourable treatment of the Appellant by reference to any actual comparator; so that Mr Geller was not being put forward in the case as argued below as an actual comparator.
32. Although she accepted that Mr Broomhead asked certain questions about the Appellant’s employment status, Ms Quigley questioned whether the point about subconscious or unconscious discrimination had been adequately taken on this appeal, looking at those of the grounds of appeal that were permitted to go forward to a Full Hearing.
33. She reminded me of what was said by Elias J, as he then was, in Law Society v Bahl [2003] IRLR 640 EAT, whose reasoning was later upheld in the Court of Appeal in the same case, at paragraphs 97 and 100. It is not enough, as he pointed out, to be treated badly and to be part of a group with a protected characteristic. In the course of her witness statement, as Ms Quigley reminded me, the Appellant did not allege that the reason for her treatment was related to her sex. There was, submitted Ms Quigley, an insufficient evidential basis for the Employment Tribunal to be able to draw any adverse inference of discrimination but ample evidence to support the explanations given by the Respondent’s witnesses, who were found to be honest, truthful and reliable.
34. She reminded me that in paragraphs 74 and 75 of its Decision, the Tribunal had expressly stated that they had considered whether there was any evidence that would permit them to draw an inference of discrimination. That, submitted Ms Quigley, meant that the Tribunal was alive to the need to consider whether there was a basis for rejecting the explanation of Dr Kaye and Mr Baker, the Respondent’s witnesses. That explanation was that the Appellant’s work position was very different to that of a normal employee and justified the time it took to acknowledge her as one; and thus she worked on the basis of timesheets and with no fixed hours.
35. As to the first limb of the direct sex discrimination claim, Ms Quigley submitted that the conclusion at paragraph 80 in the Tribunal’s Decision is a correct application of the exercise referred to in Bahl at paragraph 97 of Elias J’s Judgment, where he said that an inference of discrimination may be rebutted:
“97. … by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. …”
36. As to the issue of subconscious or unconscious discrimination alluded to in paragraph 17 of Lord Nicholls’ speech in Nagarajan, Ms Quigley submitted that the Tribunal had made no findings of fact that would trigger the need for an inquiry into that particular type of discrimination. She further submitted that there had been no indication whatever at the hearing below that Mr Geller was being put forward as an actual comparator for the purposes of his wife’s claim; that it was not for the Employment Tribunal to make the case for a Claimant by treating him as one when he had not been put forward as one; and that, in sum, there was no error of law in the Tribunal’s reasoning and conclusions, culminating at paragraphs 78 to 80.
37. As regards the second limb of the direct sex discrimination claim, founded on the lateness of payment of remuneration, Ms Quigley said that once again Mr Geller had not been advanced as an actual comparator before the Tribunal; and even if he had been, his circumstances were so different from hers as not to admit of a valid comparison of like with like between them.
38. She pointed in her skeleton argument to the differences between her case and his. His role was advertised as an employed position, while hers was not. He was paid a salary, while she was not. He worked fixed hours, while she did not. She submitted timesheets, but he did not. He was issued with a written contract of employment at the outset of his employment, while she was not. In sum, there was no ambiguity surrounding his employment status, while there was a very good objective reason for the ambiguity that surrounded hers.
39. Following on from that and specifically with regard to the second limb of the claim, Ms Quigley pointed out that the factors just mentioned meant that Mr Geller was salaried and paid through the Respondent’s payroll automatically each month, which could not happen in the case of the Appellant, because her hours were erratic and had to be verified by production of timesheets to be approved by Mr Bor, which was not the case in Mr Geller’s case.
40. Ms Quigley submitted that there was ample evidence to support the explanation of the Respondent that the reason for the treatment of the Appellant was not sex related at all, but was the illness of Mr Bor, the man required to approve the timesheets. I was taken to the documents and witness statement extracts that were before the Tribunal, showing that Mr Bor was being chased for figures for the purposes of obtaining payment in May 2013, but had to have surgery in and around June 2013 and was recuperating for some time thereafter.
41. Ms Quigley submitted that the absence of any explicit treatment of the burden of proof in a sequential two-stage process was not a basis on which this Appeal Tribunal should interfere with the Decision below, because in the light of Brown and what Mummery LJ said, as I have already mentioned, and also London Borough of Islington v Ladele [2009] IRLR 154 EAT per Elias J (by then President of this Appeal Tribunal) at paragraphs 40 and 41, it was plain that this was a case in which it was unnecessary for the Tribunal to go through the two-stage procedure.
42. Those, then, are the facts, the Decision of the Tribunal and an outline of the parties’ respective submissions, for which I was very grateful. I turn, then, to my reasoning and conclusions in what is left of this appeal.
43. First, I reject the argument of the Respondent to the effect that the case as now argued by Mr Livingston, was not adequately put or argued below or that the arguments in this appeal put before me today are new points not taken below. It seems to me clear from the documents that the case as now advanced by Mr Livingston is no different in essence from what was pleaded in the ET1 grounds and accepted by the Tribunal as constituting the Appellant’s case, in consequence summarising it in the same way as it is now put in paragraphs 71.1 and 71.2 of the Decision, which I have quoted above, and as adjudicated upon by the Employment Tribunal.
44. Next, I do not accept the argument of the Respondent that the submissions made today in relation to subconscious or unconscious discrimination, are not adequately taken as grounds of appeal. It seems to me clear that those arguments are comprised within the first ground, which is that “the … Appellant was not treated less favourably by the Respondents [sic] in failing to acknowledge her as an employee”, and that that was an error of law, and, specifically, it is said beneath that ground that:
“7.1.1. The Employment Tribunal find at paragraph 76 that they failed to acknowledge her … as an employee as they had a genuine be [sic] that she was working as a self employed basis [sic]. Having a genuine belied [sic] even if proved is not a defence to a claim of sex discrimination.”
45. It seems to me that that adequately, if inelegantly, advances the point now made in this appeal.
46. Next, I reject the argument on behalf of the Appellant that her husband was sufficiently identified in her claim as an actual comparator for the purposes of her sex discrimination claim. In my judgment, he was not. The case as then advanced by Mr Broomhead did not identify him clearly or sufficiently as an actual comparator at all. I accept Ms Quigley’s submission that it was not for the Employment Tribunal to make the Appellant’s case for her. She was professionally represented, and there is nothing that I can find to support the suggestion that Mr Broomhead put forward Mr Geller as a comparator for the purposes of the Appellant’s discrimination claim.
47. In any case, his circumstances were not materially the same as hers as required by section 23(1) Equality Act, which requires that in a case such as this “there must be no material difference between the circumstances relating to each case”. That is not the position here. She was not working fixed hours, while he was. His employment circumstances were different. He had been working for the Respondent since 2011, before their marriage, and I accept the other points made by Miss Quigley in her skeleton argument, that I have already mentioned.
48. So, moving on from those preliminary matters, I come to consider the substance of the appeal. Dealing first with the first limb of the claim - that is to say, the claim for direct sex discrimination founded on non-recognition of the Appellant as an employee until a late stage - on this aspect of the case I do think that the Employment Tribunal misdirected itself in relation to the risk of subconscious or unconscious discrimination.
49. They satisfied themselves that on the evidence, conscious discrimination was excluded, but it seems to me that this was a case in which it was very much necessary to go on to consider and exclude subconscious or unconscious discrimination before any conclusion in favour of the Respondent could be definitively reached. I am concerned in particular with what was said by the Tribunal in paragraph 76:
“76. We find the reason why the respondent failed to acknowledge [the Appellant] as an employee was because Mr Baker and Dr Kaye genuinely believed that she was working on an ad hoc self-employed basis submitting timesheets to the respondent.” (My emphasis)
50. I am also concerned that in paragraph 80 the Tribunal said, in material part for present purposes, this:
“80. We find the reason for failing to acknowledge [the Appellant] as an employee was unrelated to her sex. We are satisfied by the evidence of Mr Baker and Dr Kaye that Mr Baker, with whom the respondents [sic] had a cordial relationship and considered to be an honest man, perceived the status of [the Appellant] as ad hoc, self-employed on the basis that she did not have fixed hours, she determined her hours herself and she submitted timesheets. …” (My emphasis)
51. It seems to me that on a fair reading of the Decision taken as a whole, and especially of those two passages in the context of the Decision read as a whole, the Employment Tribunal reasoned that: (1) the Respondent’s witnesses, Mr Baker and Dr Kaye, were honest, truthful and reliable witnesses; (2) they believed the treatment of the Appellant was based on non-sex related factors; and (3) the Employment Tribunal therefore accepted that that treatment was non-sex related.
52. By accepting their belief that the treatment was not sex-related, they thereby overlooked the very important point made by Lord Nicholls in Nagarajan in paragraph 17, that discrimination can be unconscious or subconscious. I do not say that it is necessary explicitly to refer to and make a finding on the issue of unconscious or subconscious discrimination in every case - it will depend on the circumstances - but I am satisfied that here, it was a misdirection not to do so.
53. I accept Mr Livingston’s point that there are here potentially findings of primary fact from which an inference of discrimination could be drawn. The primary facts as found, included not just the history of the Claimants’ employment and the practices of the Respondent, but also (at paragraph 75) the gender specific reference to the Appellant being the wife of Mr Geller and the finding of the Tribunal that this was something that influenced or may have influenced the Respondent’s paying her.
54. The work environment here was not, on the evidence, entirely gender neutral. The joint salary proposal showed that the Claimants were regarded as a husband and wife team to some extent. Although Mr Geller was, for the reasons already given, not a valid actual comparator and not one that was relied upon, his position as part of the non-gender neutral work environment called for careful examination of the primary findings of fact and not for what amounted virtually to accepting the ipse dixit of the employer’s witnesses. It is particularly troubling that, as the Tribunal found, that the question of the Appellant’s gender was not irrelevant even to the Employment Tribunal’s analysis, as shown at paragraph 75 of its Decision.
55. Moving to the burden of proof issue, when the Tribunal dealt with the first limb of the sex discrimination claim, its treatment of the burden of proof was rudimentary. The burden was mentioned, but the two-stage process was not gone through. I would not, however, have allowed the appeal on that basis alone. It is plain that the Employment Tribunal was aware of the law relating to the burden of proof (see paragraph 71.2 of its Decision), and I accept Miss Quigley’s point that a Tribunal is not required to adopt a formulaic or mechanistic approach to applying the provisions.
56. As regards the second limb of the claim, the burden of proof provisions and their application were not mentioned at all. At paragraph 87, the hypothetical comparator was identified, unobjectionably, as “a man working on a timesheet basis”. There can be no complaint based on the absence of any mention of the burden of proof issue in relation to the second limb of the claim, for the reason that I have just given, and I would not have allowed the appeal on that basis.
57. But, again, when the Tribunal dealt with the second limb of the claim, they did not include in their reasoning any consideration of possible unconscious or subconscious discrimination, yet this was a case, as I have said, where the explanation of the employer called for that to be examined separately from the explanation that satisfied the Tribunal that there was no conscious discrimination.
58. So, for those reasons, I have concluded that the Decision of the Tribunal in relation to the two limbs of the direct discrimination claim cannot stand and is to be remitted.
59. I have considered next whether the issues should be remitted to the same Tribunal or a differently constituted one. As is required in the normal way, I have considered that issue by reference to the guidance given by Burton J, then President of the Appeal Tribunal, in Sinclair Roche & Temperley v Heard and Anor [2004] IRLR 763 at paragraph 46, and, after reflection, I have come to the conclusion that the remission should be to the Tribunal constituted in the same way as before, for the following reasons.
60. First, the Decision was given by the Tribunal some 13½ months ago, and I do not think after swift memory refreshment they will have any difficulty in recalling the evidence. That will save time and cost. The remission will be briefer than it would be before a fresh Tribunal and less expensive.
61. Secondly, I am conscious that a bias allegation was made against the Judge who presided at this Tribunal, and I have considered the implications of that, but that was one of the grounds of appeal that was not permitted to go forward to a Full Hearing, because I considered it to be unfounded and unarguable; and it seems to me that while it would be open to me to opt for a fresh Tribunal on the basis that the bias allegation had been made, even though it was unfounded, I do not propose to do so. It is not sufficient that the allegation has been made, and I do not think that this is a case where it could be said that the Tribunal has so clearly made up its mind that it would be very difficult for it to reach any other conclusion after considering the case on a remission.
62. It seems to me that this is a case where one can have confidence in the professionalism of the Employment Judge and lay members, particularly as they will be guided by the Order that I shall make in this case and presumably by the transcript of this Judgment. If, however, for whatever reason it is not practicable for the same three members to sit together, then those of them that are able to do so should, supplemented if necessary by someone else.
63. So, there will be a limited remission to the same Employment Tribunal to reconsider the questions arising on the two limbs of the direct discrimination claim that are covered by the present paragraphs 72 to 88 of the Decision below. The Order of this Appeal Tribunal will set out the questions to be addressed by the Employment Tribunal on the remission. It will be for the parties and the Employment Tribunal to consider as a matter of case management the extent of any further evidence required or permitted, if any.
64. Counsel is asked to provide a draft of that list of issues in numbered points either agreed, or if they cannot be agreed, to provide competing drafts for my consideration. It does not seem to me that much if any further evidence is necessarily required or appropriate, but that should be a matter for the Employment Tribunal to consider and determine on the remission as a matter of case management.