United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0093/16/LA

 

 

EMPLOYMENT APPEAL TRIBUNAL

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

 

 

                                                                                                             At the Tribunal

                                                                                                             On 16 January 2017

 

 

 

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

 

 

 

 

 

 

FIDESSA PLC                                                                                               APPELLANT

 

 

 

 

 

MS W LANCASTER                                                                                  RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR MARTIN PALMER (of Counsel) Instructed by: Wiggin LLP Jessop House Jessop Avenue Cheltenham Gloucestershire GL50 3WG
For the Respondent	MR ANDREW PERFECT (of Counsel) Instructed by: Royds LLP 65 Carter Lane London EC4V 5HF

 

 

SUMMARY

PART TIME WORKERS

SEX DISCRIMINATION - Detriment

HARASSMENT

SEX DISCRIMINATION - Indirect

UNFAIR DISMISSAL - Reasonableness of dismissal

 

Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 - comparison permitted by regulation 4

Direct sex discrimination - detriment - section 39(2) Equality Act 2010

Harassment - requisite effect for the purposes of section 26(1) Equality Act

Indirect sex discrimination - section 19 Equality Act - disadvantage

Unfair dismissal - fairness of dismissal - section 98(4) Employment Rights Act 1996 - taint of indirect and direct sex discrimination

The Claimant, who had been dismissed by reason of redundancy from her employment with the Respondent, brought complaints of direct and indirect sex discrimination, harassment and of less favourable treatment as a part-time worker and of unfair dismissal.  Although rejecting a number of her complaints of less favourable treatment, the ET found the Claimant had been subjected to less favourable treatment because of sex amounting to a detriment and to harassment when she learned that a manager had reacted to news of her pregnancy by saying “Oh fuck she’s pregnant”.  The ET further found that, by requiring the Claimant to undertake work on site after 5.00pm, the same manager had reneged on an earlier agreement that she could leave by that time in order to collect her daughter from nursery; that was less favourable treatment on grounds of the Claimant’s part-time status.  Although the ET did not accept that the subsequent redundancy process was a sham, it found it was rendered unfair by reason of the taint of direct and indirect sex discrimination.  The indirect sex discrimination arose from the fact that the new position for which the Claimant might have applied as an alternative to redundancy was subject to the PCP that she undertake work after 5.00pm at the workplace.  That placed women, and the Claimant in particular, at a disadvantage and could not be justified as there were alternatives that meant the work in question could have been done remotely without requiring the job-holder to remain at work after 5.00pm.

On the Respondent’s appeal against each of these findings.

Held: allowing the appeal in part

The appeal against the ET’s Judgment on the claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 really depended upon the approach to be taken to regulation 4, which permitted comparison with the part-time worker’s previous full-time position.  After an earlier period of maternity leave, the Claimant had returned to work a few days before the expiration of the 12 month period allowed by regulation 4; she had, however, then taken accrued annual leave.  The Respondent contended that meant she had not actually returned to work until some time after the permitted 12 month period but its arguments on appeal failed to engage with the principled approach adopted by the ET: the contract of employment was not in abeyance during a period of paid annual leave; returning from maternity leave was returning to work, even if the worker immediately took a period of accrued annual leave.  The ET’s approach not only avoided an overly technical construction of regulation 4, but also protected against the risk of discouraging the taking of paid annual leave in these circumstances.  The appeal in this regard was dismissed.

Equally the appeal against the finding of indirect sex discrimination failed: the ET’s findings, read as a whole, made clear the basis on which it concluded that the Claimant had suffered a disadvantage in considering she should not apply for the alternative, new position given the PCP of working on site after 5.00pm.  That she was also concerned the new role had little opportunity for progression did not detract from the disadvantage arising from the PCP.

On the claims of direct discrimination and harassment arising from the manager’s remark on the learning of the Claimant’s pregnancy, however, a difficulty arose in that the ET had not set out any findings as to the Claimant’s response on later being told of this remark.  Whilst this did not detract from the conclusion that this would amount to less favourable treatment of a woman and that it could reasonably have the required effect for the purpose of section 26(1) Equality Act, it meant there was no basis provided for the conclusion that it had in fact amounted to a detriment for the Claimant and had, subjectively, had the requisite effect under section 26(1) for her.  Whilst the effect might be assumed, that would be failing to respect the need for an actual finding as to the Claimant’s subjective response to what she had been told and the appeal would therefore be allowed on this basis.  It was, however, likely that the omission from the findings of fact could be made good if remitted to the same ET, which would be able to remind itself of the evidence on this issue from its notes of evidence.

Although the appeal was to be allowed in respect of the ET’s finding on the direct discrimination claim, this did not undermine the conclusion on unfair dismissal.  Whilst the ET had found that the dismissal was rendered unfair by the taint of both direct and indirect sex discrimination, its explanation of its reasoning only relied on the indirect discrimination finding and thus remained safe notwithstanding the difficulty identified with its conclusion on the direct sex discrimination.  The appeal against the Judgment on the unfair dismissal claim would therefore be dismissed.

 

HER HONOUR JUDGE EADY QC

 

Introduction

1.               In this Judgment I refer to the parties as the Claimant and the Respondent, as below.  I am today concerned with the Respondent’s appeal from a Judgment of the Watford Employment Tribunal (Employment Judge Ryan sitting with members, Mrs Bhatt and Mr Bury, on 7-14 October and on 29 October 2015; “the ET”), sent to the parties on 7 December 2015.  Representation below was as it has been on the appeal, save at that stage Mr Perfect also represented another Claimant, Ms Nosal, whose claim was dismissed.  The remaining Claimant, Ms Lancaster, was successful on her claims of unfair dismissal, indirect and direct sex discrimination and of harassment and part-time worker detriment.

 

2.               The Respondent appeals, and, after an Appellant-only Preliminary Hearing before Simler P, was permitted to do so on the following grounds:

(1)     the ET erred in finding the Claimant’s dismissal unfair as tainted by direct and indirect discrimination by failing to make appropriate findings as to the actual cause of the dismissal or, alternatively, by reaching a perverse conclusion in this regard;

(2)     as to the finding of direct sex discrimination, the ET erred in failing to examine whether or not the Claimant suffered any detriment in consequence of the purported unlawful conduct or, alternatively, its conclusion was perverse;

(3)     by attributing the same factual finding as constituting an act of harassment, the ET further erred in law by failing properly to apply the statutory test to examine whether or not the conduct had the effect complained of or, alternatively, again, reached a perverse conclusion;

(4)     the ET erred in law in concluding the Claimant had been indirectly discriminated against by wrongly applying its findings of fact as to her incumbent role at the time of her redundancy to the alternate role that the Claimant had failed to apply for whilst at risk of redundancy (to which her complaint actually related) and, further, failed to make a clear finding as to how the offending provision, criterion or practice (“PCP”) caused her any disadvantage; and

(5)     the ET erred in law by incorrectly using a hypothetical comparator in relation to the Claimant’s Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the “PTWR”) claim, erroneously applying regulation 4 and misdirecting itself as to whether the terms of agreement said to exist between the parties precluded a requirement to work after 5.00pm.

 

The Relevant Factual Background

3.               The Respondent develops and supplies software for financial services companies; since 5 July 2010, it had employed the Claimant as an Engineer in the three-person Connectivity Operations Team (“ConOps”).  Her line manager in the team was Ms Nosal, her fellow Claimant in the ET proceedings.  Ms Nosal reported to Mr Tumber, the Connectivity Manager.

 

4.               From 17 August 2012 to 15 August 2013, the Claimant took maternity leave.  She returned, albeit then taking a short period of annual leave, on a part-time basis, working four days a week from 9.00am to 5.00pm, although it was agreed there might be some flexibility around those times.  These arrangements were agreed after the Claimant made a flexible working request application on 8 May 2013.  Leaving work at 5.00pm was an important issue for the Claimant: she needed to finish then so as to be able to collect her daughter from nursery.

 

5.               There were a number of specific matters in the history thereafter about which the Claimant complained in the ET proceedings but no longer concern me.  I can take up the history again in July 2014, when the Claimant was in the early stages of a further pregnancy.  At that point, she had only told Ms Nosal of her condition but needed time off to attend a pregnancy-related medical appointment, and Ms Nosal had to clear that with Mr Tumber.  Without knowing of the Claimant’s condition, Mr Tumber initially refused to agree the time off, and when Ms Nosal informed him of the real reason for the request his response was to say, “Oh fuck she’s pregnant”, a comment made in surprise at the news and possibly in annoyance at having said something in that context that he ought not to have said.  Ms Nosal did not report the exchange to the Claimant at the time but she did tell her about Mr Tumber’s response subsequently, during the redundancy process.

 

6.               Also relevant to the appeal is an issue that arose in respect of an aspect of the Claimant’s work, deleting connections.  This was work that had to be undertaken by the ConOps Team after 5.00pm; it involved deleting connections that service users - in particular, traders working for financial services companies - no longer needed, in order to free up computer space and improve function.  A process was in place whereby the deletions would only be done after the end of trading - 4.30 pm on the UK markets.  Allowing for a clear half-hour after that, the work would be undertaken from 5.00pm.  Although accepting it was her role to carry out deletions at that time and that this would sometimes require her to stay later than her agreed leaving time, the Claimant had discussed this with Ms Nosal, who had put other arrangements in place to assist, both by getting others (including Ms Nosal herself) to help with the work and also allowing that the Claimant could do the preparation work prior to 5.00pm and then complete the implementation of the deletion remotely from home.  As this had been agreed with Ms Nosal and had worked, it was only when Ms Nosal was on leave in August 2014 that the Claimant had to raise the issue with Mr Tumber, who refused to accord the same flexibility, with the result that she was required to work after 5.00pm to a greater extent.

 

7.               Turning to the events that ultimately led to the Claimant’s dismissal, in October 2014 Mr Tumber made proposals to reorganise the Connectivity Department, of which the ConOps Team was part.  His plan was to reduce that team to two: a ConOps Manager - a combination of the roles undertaken by Ms Nosal and the third member of the team, Ms Street - and a ConOps Engineer, which would be similar to the Claimant’s role but with a greater emphasis on the deletions work.  Mr Tumber was given the go-ahead to proceed with his proposals, and he held an initial consultation meeting with the ConOps Team on 3 November 2014 and then with each member of the team individually on 6 November, in which it was made clear that it was open to all three to apply for both new roles.  The three members of the team were interviewed for the new ConOps Manager post on 11 November, with Ms Street scoring highest and the Claimant receiving the lowest score.  Both the Claimant and Ms Nosal were encouraged to then apply for the new ConOps Engineer role, but each declined to do so.  The Claimant was concerned that the work was to be focused on deletions, would have no variety or opportunity for progression and would be required to be undertaken after 5.00pm.  There being no other suitable vacancies available at the time, the consultation process concluded with a final meeting on 25 November 2014, which is when the Claimant’s employment ended.

 

8.               Meanwhile, the Claimant had raised a grievance with the Respondent, alleging unfair treatment and discrimination, but, after consideration by Mr Tumber’s manager, Ms Feargrieve, that was not upheld.  Similarly, Ms Feargrieve heard the Claimant’s appeal against dismissal, during which she suggested that the Claimant might want to consider arriving later for work and then leaving later, which did not address her concern about returning in time to collect her daughter from the nursery.  The appeal was also unsuccessful.

 

The ET’s Decision and Reasoning

9.               The ET considered first the legal question whether, utilising regulation 4 PTWR, the Claimant could rely on a hypothetical comparator in her claim under those Regulations.  It held she could.  I return to the ET’s reasoning in that regard in reaching my conclusions, below.

 

10.            On the findings of fact summarised above, the ET concluded Mr Tumber’s reaction on learning of the Claimant’s pregnancy in July 2014 amounted to a detriment when the Claimant was told of this during the redundancy process; that was both an act of direct sex discrimination and of harassment related to sex.  It further found that reneging on the agreement that she could leave work at 5.00pm amounted to less favourable treatment of which the Claimant’s part-time status was the predominant and effective cause.  Considering the claim of unfair dismissal, however, the ET did not accept that the restructuring exercise was a sham put up by Mr Tumber to remove the Claimant and Ms Nosal, and it found the process adopted by the Respondent was reasonably open to a reasonable employer in the circumstances.  That said, the ET accepted the Claimant’s case on indirect sex discrimination: the Respondent had applied PCPs to the new Connectivity Engineer role that the postholder must perform key tasks of rollouts of deletions after 5.00pm which could not ordinarily be performed at home.  That would put women, and the Claimant, at a disadvantage, and there had been no proper consideration of alternative ways of working, notwithstanding that Mr Tumber had previously said the Claimant should work from home when she had asked for leave to care for her sick child; the Respondent had not shown the PCP was a proportionate means of achieving a legitimate aim.  In those circumstances, the ET considered the Claimant’s dismissal was tainted by direct and indirect sex discrimination and thus rendered unfair for the purposes of section 98(4) of the Employment Rights Act 1996 (“ERA”), reasoning as follows:

“120. … We say that because these findings in favour of [the Claimant] are directly material to her dismissal.  Her evidence was that she did not apply for the engineer’s position because of Mr Tumber’s attitude to her over finishing work promptly at 5 pm.  That was in our view causally related to the direct sex discrimination and the indirect sex discrimination was bound up with it as well. …”

 

11.            The ET then returned to the discrimination complaints and the question of time limits.  Mr Tumber’s July 2014 comment had only become known to the Claimant during the redundancy process; to the extent her claim in that regard was out of time it would be just and equitable to extend time.  As for Mr Tumber’s reaction to leaving at 5.00pm in August 2014, the ET considered that was directly relevant to the indirect sex discrimination complaint, albeit under a different statutory head, and there was a factual connection between the allegations it had upheld such that it was just and equitable to extend time in that respect as well.

 

The Relevant Statutory Provisions and Legal Principles

12.            The relevant statutory provisions within the Equality Act 2010 (“EqA”) are as follows:

“13. Direct discrimination

(1) A person (A) discriminates against another (B), if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

…

19. Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if -

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

 

(3) The relevant protected characteristics are -

… sex …

…

26. Harassment

(1) A person (A) harasses another (B) if -

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

(b) the conduct has the purpose or effect of -

(i) violating B’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

…

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account -

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.

(5) The relevant protected characteristics are -

… sex …”

 

13.            Harassment for the purposes of section 26(1) EqA thus requires that the conduct in question had either the purpose or the effect of violating the Claimant’s dignity or creating an intimating, hostile, degrading, humiliating or offensive environment for them.  When the issue is the effect of the conduct, the perpetrator’s motive or intention - which could be entirely innocent - is irrelevant.  The test in this regard has, however, both subjective and objective elements to it, requiring the ET to consider the effect of the conduct from the complainant’s point of view (the subjective element) but also to ask whether it was reasonable of the complainant to consider that conduct had that requisite effect (the objective element) (see Driskel v Peninsula Business Services Ltd [2000] IRLR 151 EAT).

 

14.            To determine whether such an act of discrimination - whether direct, indirect or harassment as defined above - is rendered unlawful under the EqA in the employment context, it is relevant to have regard to section 39, which provides that:

“(2) An employer (A) must not discriminate against an employee of A’s (B) -

(a) as to B’s terms of employment;

(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(c) by dismissing B;

(d) by subjecting B to any other detriment.”

 

15.            “Detriment” for these purposes requires nothing more than treatment of such a kind that a reasonable worker would or might see as being to their detriment: something more than an unjustified sense of grievance but not requiring a disadvantage that has physical or economic consequences (see Shamoon v Chief Constable of RUC [2003] IRLR 285 HL), still less does it require any intention to subject that particular employee to a detriment.

 

16.            As to how an ET is to approach its task applying the burden of proof in claims made under the EqA, section 136, relevantly, provides:

“(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.”

 

17.            In approaching the unfair dismissal claim, the ET was bound to apply section 98 ERA, which provides as follows:

“(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it -

…

(c) is that the employee was redundant, …

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

 

18.            As for the claim under the PTWR, whilst a claim under the Regulations generally requires a comparison with an actual, full-time comparator, regulation 4 provides:

“4. Workers returning part-time after absence

(1) This regulation applies to a worker who -

(a) was identifiable as a full-time worker in accordance with regulation 2(1) immediately before a period of absence (whether the absence followed a termination of the worker’s contract or not);

(b) returns to work for the same employer within a period of less than twelve months beginning with the day on which the period of absence started;

(c) returns to the same job or to a job at the same level under a contract, whether it is a different contract or a varied contract and regardless of whether it is of the same type, under which he is required to work for a number of weekly hours that is lower than the number he was required to work immediately before the period of absence.

(2) Notwithstanding regulation 2(4), regulation 5 shall apply to a worker to whom this regulation applies (“the returning worker”) as if he were a part-time worker and as if there were a comparable full-time worker employed under -

(a) the contract under which the returning worker was employed immediately before the period of absence; or

(b) where it is shown that, had the returning worker continued to work under the contract mentioned in sub-paragraph (a) a variation would have been made to its term during the period of absence, the contract mentioned in that sub-paragraph including that variation.

(3) The fact that this regulation applies to a worker does not affect any right he may have under these Regulations by virtue of regulation 2(4).”

 

Submissions

The Respondent’s Case

19.            The first ground of challenge relates to the ET’s finding that the Claimant’s dismissal was unfair on the grounds that it was tainted by direct and indirect discrimination.  The Respondent observes that the ET made discrete findings of fact as to the process by which the Claimant’s role was made redundant and as to her failure to be appointed to the management role following a competitive interview, which did not identify any discriminatory conduct on the Respondent’s part during the redundancy restructuring process affecting the Claimant’s selection.  Although the ET went on to attribute findings as to direct and indirect discrimination as tainting the dismissal, it did not find either purported act of discrimination was causative of the dismissal.  More specifically, the ET had only found that the remark by Mr Tumber in July 2014 amounted to an act of direct sex discrimination; there was no finding that it affected the Claimant’s selection for redundancy or her decision not to apply for the new role.

 

20.            Accepting that the ET did make findings as to the new role and that an aspect of that role would involve working on a particular task after 5.00pm, it still did not make a finding that any element amounting to an indirectly discriminatory factor rendered the dismissal unfair.  For there to be a causative link between the finding that the requirement to do deletions after 5.00pm was indirectly discriminatory and the unfairness of the dismissal, the ET would have needed to have found that, as a matter of fact, deletions did not have to be undertaken after 5.00pm.  It did not.  Moreover, it would have needed to have clearly found this was a factor that had caused the Claimant not to apply for the new role, but its findings were ambivalent on this, also referring to her concern that the work would have no variety or opportunity for progression.  In the circumstances, the ET had erred in law or reached a perverse conclusion that the dismissal was unfair simply because of the purported co-existence of discriminatory grounds without any finding that those grounds were the cause of the dismissal.

 

21.            Grounds 2 and 3 relate to the ET’s underlying findings of direct sex discrimination and harassment in respect of Mr Tumber’s response when Ms Nosal told him of the Claimant’s pregnancy in July 2014.  The Respondent contends the conclusion that this amounted to an act of direct discrimination and harassment was an error of law and perverse: the ET did not refer back to its findings of fact in relation to this comment and failed to make any finding as to any detriment suffered by the Claimant as a result.  It further erred in law by failing properly to apply the statutory test under section 26 EqA to examine whether or not the conduct had the effect complained of.  Specifically, there was no finding as to how the comment was apprehended by the Claimant when relayed to her and thus no basis for the conclusion that she had thereby suffered harassment.  Although the Claimant might have had a similar reaction or suffered the same effect as others in a similar position, for example Ms Nosal, it was not open to simply assume such a reaction from the ET’s findings.

 

22.            Under ground 4, the Respondent contended the ET erred in law in concluding that the Claimant had suffered indirect discrimination or, alternatively, again, this finding was perverse.  The indirect discrimination claim did not traverse the Claimant’s incumbent role of ConOps Engineer from which she was made redundant, but the ET’s only findings related to that.  Moreover, the ET had failed to determine the extent to which, if at all, the offending PCP caused the Claimant not to apply for the new role.  That was fatal, as it meant the extent of the discriminatory impact of the PCP was not established.  It was insufficient for the ET to recall that the Claimant was concerned that the deletions would have to be done after 5.00pm; it did not differentiate that from her concern:

“73. … that the work would be focused on deletions and … would have no variety or opportunity for progression. …”

 

The ET had failed to make a clear finding that the Claimant had suffered such substantial disadvantage that she was actually discouraged or prevented from applying for the new role by reason of the PCP.

 

23.            Turning to the fifth ground of appeal, the ET erred in law by incorrectly applying a hypothetical comparator, adopting an erroneous approach to regulation 4 PTWR.  Its reasoning depended on its allowing that the Claimant had returned to work when she had been on annual leave after returning from her period of maternity leave.  Further and in any event, the ET failed to provide adequate findings of fact as to the prevailing terms of the agreement regarding whether the Claimant was required to work after 5.00pm.

 

The Claimant’s Case

24.            On the first ground, for the Claimant it is contended that the ET found as a fact that the predominant basis for her concern about the new Engineer role was that deletions had to be done at work after 5.00pm.  That was emphasised by the ET’s findings that this was unsurprising given the Claimant’s earlier discussions with Mr Tumber (see paragraph 74, read together with paragraphs 45 to 51 and 120).  Further, the ET found that her concerns arose alongside her learning of the comment made by Mr Tumber about her pregnancy in July 2014.  That was the relevance of the ET’s finding as to a causal relationship between the direct discrimination and the Claimant’s reasons for not applying for the Engineering role at paragraph 120.  These were conclusions open to the ET on its primary findings of fact and justified its conclusion that the dismissal had been unfair.  For completeness, even if the ET’s finding of unfair dismissal in respect of the direct sex discrimination it had found could not be maintained, that would not undermine its conclusion that the dismissal was rendered unfair by reason of the indirect sex discrimination.  Mr Tumber’s July 2014 remark had been relevant because indicative of an attitude that had obviously concerned the Claimant, but it was not the determinative point for the purposes of the unfair dismissal claim.

 

25.            On grounds 2 and 3, relating to the ET’s finding that Mr Tumber’s remark in July 2014 amounted to an act of direct sex discrimination and harassment, the Claimant urged that again the ET had been entitled to make the findings it did at paragraph 98, findings that were supported by evidence from the Claimant, who had spoken of her shock and upset learning of Mr Tumber’s remarks.  Furthermore, the ET’s findings as to the nature of the comment from Mr Tumber’s viewpoint were irrelevant.  Whatever he thought about the remark, the ET had permissibly concluded that it was an act of harassment and of less favourable treatment.  That was an express finding of detriment.  Accepting that a particular response or effect could not be assumed, it should be noted that the ET had referred back to its reasoning in Ms Nosal’s case (see paragraph 98.3) and that was sufficient foundation for its conclusion in the Claimant’s.

 

26.            As for ground 4 and the conclusion on the indirect sex discrimination complaint, the reasoning as to why the Claimant did not apply for the Engineer role was clear: it involved a substantial amount of deletion work (paragraph 57), similar to what the Claimant already did but with a stronger focus on that work (paragraph 59).  In her existing role the Claimant had had an arrangement with HR and Mr Tumber that she would not do a substantial amount of work after 5.00pm.  Mr Tumber had then reneged on that agreement, absent good reason, and had gone on to create a new role where the requirement to undertake deletions after 5.00pm was increased.  It was the Claimant’s evidence that she could not apply for the role because of that.

 

27.            As for ground 5 and the ET’s approach to regulation 4 PTWR, there was no error in its reasoning or approach.  As the ET had observed, to adopt the approach urged by the Respondent would involve a derogation from the right to take annual leave and introduce the novel concept that the employment relationship of a person on annual leave was in abeyance.  Further, the ET’s reference to an express agreement between the Claimant, HR and Mr Tumber was no more or less than an agreement between the Claimant and the Respondent as her employer.  The totality of the agreement was not of relevance for the ET; it had permissibly focused on the most important feature, i.e. that the Claimant was contractually obliged to finish her work at 5.00pm, something agreed after the Claimant had impressed upon her employer the importance of her leaving on time due to childcare commitments.

 

The Respondent in Reply

28.            The Claimant was inviting the EAT to undertake a rewriting of the ET’s decision such as was impermissible.  More specifically, on unfair dismissal the ET’s finding of taint was not specific to only one aspect of its findings on discrimination: if it was flawed on the direct sex discrimination aspect, then the decision on unfair dismissal as a whole must fail.

 

Discussion and Conclusions

29.            For convenience, I start by first considering the appeal against the ET’s approach to the PTWR claim.  In general terms, the PTWR require a comparison with an actual comparator.  Regulation 4, however, permits a broader approach whereby the comparison can be made with the worker’s former, full-time position so the complainant becomes her own comparator.  That, however, is only permissible where the worker has returned to work after a period of absence “within a period of twelve months”.  The Claimant met that condition in respect of her maternity leave - that expired a couple of days before the end of the 12-month period - but, as will not be uncommon for women returning for maternity leave, she then immediately took a period of accrued annual leave.  The Respondent relies on that as meaning that regulation 4 could not apply.  The ET rejected that argument, holding as follows:

“81. We rejected that argument.  It would be in our judgment amount [sic] to a derogation from the right to take annual leave which has accrued during the maternity leave.  If a worker returning after maternity leave and wishing to return to part-time work was disadvantaged in doing so by virtue of the fact that she had taken her accrued annual leave at that point it would be a powerful disincentive.  In order to avoid the disadvantage she would have to return to work for a day and then secure the employer’s consent to immediately taking [sic] the accrued holiday.  This appears artificial and unrealistic.  Paid annual leave is a right which accrues as part of the working relationship between the employee and employer.  To suggest that someone is not at work in the sense they are not physically present but on holiday is true.  But to suggest that in some way the relationship of worker is held in abeyance by reason of taking annual leave is contrary to the tribunal’s understanding.  Insofar as is necessary, we would give the expression “returns to work” in the regulation a purposive construction of meaning - “resuming work subject to taking periods of accrued annual leave”.  In our judgment this is likely to reflect Parliament’s intention both in respect of the PTW regulations when considered in combination with the Working Time Regulations 1998.

82. Moreover the fact that the part-time working does not start until after the annual leave had ended and therefore as Mr Palmer argued as we understood it, that the claimants still had full-time worker status at that point was equally fallacious in our judgment.  The question of whether they were full-time or part-time workers during the annual leave period is nothing to the point.  The annual leave which they took they had accrued as full-time employees.  That does not mean that they are not returning as part-time workers at the point when maternity leave ended and annual leave began.

83. All this is emphasised by the fact that both claimants had applied for and been granted part-time worker status prior to the end of the maternity leave in each case.”

 

30.            Apart from observing that the PTWR generally requires an actual not hypothetical comparator, the Respondent’s position on the ET’s explanation of its approach in this regard is just to assert, without more, that it is wrong.  That fails to engage with the ET’s reasoning, in particular as to the principled approach that it adopted.  Moreover, in my judgment, the ET was correct to reject the approach urged by the Respondent below, which would give rise to the artificial requirement that an employee in the Claimant’s position physically return to work for a day before then taking accrued annual leave.  That would give rise to the real-world risk - as this three-member ET recognised - of discouraging the taking of paid annual leave in these circumstances.  Further, as Mr Perfect has identified, interpreting regulation 4 PTWR in this way would suggest that the employment relationship was in some way in abeyance when the worker was on paid annual leave.  That is plainly not right, and would not properly reflect the underlying purpose of regulation 4 PTWR.  Moreover, adopting the ET’s approach does not, as the Respondent suggests, offend against the general requirement for an actual comparator.  The comparison is still being made with the actual circumstances that applied to the worker before moving to part-time status; allowing that returning to work can include returning to immediately take a period of paid annual leave does not alter that.

 

31.            Having upheld the ET’s approach to regulation 4, I do not consider that any point then properly arises as to its finding on this aspect of the case.  It had found that there was an agreement between the Claimant, HR and Mr Tumber - so, an agreement between the Claimant and the Respondent as her employer - as to her working arrangements.  As Mr Perfect observes, the totality of that agreement was not of relevance for the ET, and the ET permissibly focused on the most important feature: that the Claimant was entitled to finish work at 5.00pm subject to some degree of flexibility.  Requiring her to then work in a way that was inconsistent with that agreement was something the ET was entitled to find amounted to less favourable treatment of her as a part-time worker, arising because of her part-time worker status.

 

32.            I turn next to the ET’s findings in respect of Mr Tumber’s remark on learning of the Claimant’s further pregnancy in July 2014.  It is not suggested that only learning of this later, and indirectly through Ms Nosal, meant that it could not amount to a detriment or an act of harassment.  The Respondent’s objection is that the ET simply made no findings as to the impact it then had on the Claimant, something that was both relevant and necessary for the finding of detriment and for the finding as to effect for the purpose of the harassment claim. 

 

33.            The ET had permissibly found that the remark in question - which was said in an angry way and can objectively be seen as pejorative (whatever Mr Tumber intended) - amounted to less favourable treatment; of its nature, the ET was entitled to find that it would adversely impact on a woman in a way that it could not for a man.  That said, the ET did not then go on to expressly make any findings as to what the Claimant’s actual response was when she was told of the remark.  True it is that the Claimant gave evidence of her shock on being told of this by Ms Nosal during the redundancy process, but the ET’s findings do not address that; at most, the ET asserts that this amounted to a detriment (see paragraph 98.1) and could objectively have the necessary effect to amount to an act of harassment for the purpose of section 26(1) EqA.  It made no finding as to the actual, subjective impact on the Claimant herself.

 

34.            It may be that the ET thought the point so obvious as to speak for itself, but I am not persuaded that it is sufficient for the required detriment or effect to be assumed absent any finding specific to the individual complainant.  The point can be made good when one contrasts the ET’s findings on this same incident in the two cases before it.  Ms Nosal also relied on this matter, as an act of direct discrimination and harassment suffered by her, and the ET expressly found that it could amount to the latter, as:

“93.2. … Ms Nosal perceived it to be an offensive comment and … in all circumstances it was reasonable for her to do so. …”

 

35.            Thus the ET found the requisite effect not only in terms of what was reasonable but also by addressing the impact on the individual complainant.  It would certainly not be perverse of an ET to conclude that learning of such a comment having been made in those circumstances amounted to a detriment for an employee and gave rise to the requisite effect for the purposes of section 26, but, absent any specific finding as to the impact on the Claimant herself, can I say that the ET was bound to reach that conclusion?  I am persuaded by Mr Palmer that if I adopted that approach then I too would fall into the trap of making an assumption as to how a particular incident would impact upon an employee.  Whilst I might think it unlikely that learning of such a remark would not amount to a detriment for an employee in the Claimant’s position and/or would not give rise to the effect required under section 26(1), I do not think I can simply presume that to be the case.  That is, however, what the ET’s absence of finding would require me to do.  I have therefore concluded (albeit with some reluctance) that I have to allow the appeal on these grounds in respect of the direct sex discrimination and harassment claims.

 

36.            I then turn to the challenge to the indirect sex discrimination finding.  Here, it seems to me that the ET’s findings are clear.  First, at paragraph 18, it had made a finding as to the Claimant’s personal circumstances:

“18. … Because of her travelling arrangements and the need to collect her child from nursery before 6 o’clock in the evening [the Claimant] relied upon the contractually stated hours of 9 to 5. …”

 

37.            It essentially repeats that finding at paragraph 47, explaining those circumstances were:

“… why she had been so concerned to specify an agreement when she returned to work that she should only work until 5 o’clock so she could collect her daughter.”

 

38.            The ET further found the Claimant had agreed a way of working with Ms Nosal such that her circumstances could be accommodated whilst still undertaking the deletions work required as part of her role (paragraph 48).  It went on to find that the new ConOps Engineer role would have a stronger focus on the deletion process (paragraph 59).  Although finding that part of her reluctance to apply for the new ConOps Engineer role was informed by her concern that it would have no variety or opportunity for progression, the ET also found the Claimant was concerned that the deletions work would have to be done on site after 5.00pm, a concern that was not addressed by the Respondent, either because the Claimant reasonably did not trust Mr Tumber (paragraph 74) or because the response on her appeal was to propose something that could not help a working mother with children in nursery care (paragraph 73).  The ET expressly found the Claimant was put at a disadvantage by the twofold PCP of having to undertake work after 5.00pm and doing so at the workplace rather than at home (paragraph 119.4).  It concluded this was a disadvantage women were more likely to suffer given they as a group predominantly have a requirement to exercise childcare functions and collect children from the nursery at the end of the working day.  In particular, there is a specific finding at paragraph 74 that this - as well as her concern regarding career progression more generally - was the issue that caused the Claimant not to apply for the role.  I am satisfied that the ET kept clearly in mind the new ConOps Engineering role that was in issue and made clear findings as to the disadvantage that the Claimant suffered as a result of the PCPs applied in respect of this.  That being so, I reject the appeal against the indirect discrimination finding.

 

39.            I turn lastly to the challenge to the ET’s Judgment on the unfair dismissal claim.  In this regard, the ET was bound to follow the test laid down by section 98 ERA.  It had first to determine whether the Respondent had made good its reason for dismissal and whether that was a reason that was capable of being fair for the purposes of section 98(1) and (2).  The parties agree before me that it is implicit in the ET’s reasoning that it had allowed that the Respondent had established that this was a redundancy dismissal (see in particular its findings at paragraphs 105, 110, 111 and 118).

 

40.            As the dismissal was thus prima facie fair because it was by reason of redundancy, it was then for the ET to consider nevertheless whether the dismissal of the Claimant for that reason was unfair, as it might be if alternatives to dismissal were not considered when they were available.  More specifically, if an otherwise suitable alternative role was only rendered unsuitable because of an indirectly discriminatory provision, criterion or practice, I am unable to see why it would not be open to an ET to find - as here - that rendered the dismissal unfair.  That is what happened in this case.  There is the specific finding at paragraph 74 that this - as well as her more general concern about the variety and opportunities of the new job - was the issue that caused the Claimant not to apply for the new role.  There can be no objection to the ET taking that into account as a circumstance relevant to the question of fairness for the purpose of section 98(4) ERA.

 

41.            That said, I can see that there is a more obvious objection to the ET’s reasoning on the suggested taint from the sex discrimination.  It had only found direct sex discrimination in respect of the July 2014 comment by Mr Tumber.  It did not find that that played into Mr Tumber’s decision to restructure the department and the ConOps Team or that it impacted upon the competitive interview for the new Manager role.  As the unfairness came in - on the ET’s findings - by reason of the PCPs attached to the new ConOps Engineering role, it is unclear as to how Mr Tumber’s comment was relevant to this.  It might be that learning of this during the redundancy process reinforced the Claimant’s view as to what was likely to happen if she took the new role.  There is, however, no finding by the ET to that effect, and it is unclear as to why it concluded that the direct discrimination it had found rendered the decision to dismiss unfair.

 

42.            The question then arises as to whether the ET’s decision on unfair dismissal can be upheld on the basis of what I have found was a legitimate and permissible finding on the indirect discrimination claim alone.  In my judgment, it can.  The reasoning displays no dependence on any finding on the direct sex discrimination claim; it solely relates to the ET’s conclusions on indirect sex discrimination, which clearly informed the ET’s finding of unfair dismissal.  There is nothing to suggest that the additional finding of direct sex discrimination takes the matter any further.  On that basis, I consider that the ET’s conclusion on unfair dismissal should stand, and I therefore dismiss the appeal against that finding.

 

Disposal

43.            I have heard from the parties further on the question of disposal.  For the Respondent, Mr Palmer urges that I should substitute my own findings for those of the ET on the question of direct sex discrimination and harassment, but, if I am unable to take that course, then he submits that I can treat these as discrete issues to be remitted to a different ET, not least as there are practical difficulties, as the learned Employment Judge has since moved to a different region.  As the Claimant does not agree that I should myself step into the shoes of the ET, she says the matter has to be remitted but that it should be to the same ET; although there are logistical difficulties in the Employment Judge having removed to a different region, those were not insurmountable and the further consideration required could be undertaken on the papers without the need for the parties to attend.

 

44.            Applying the criteria set out in Sinclair Roche & Temperley v Heard & Anor [2004] IRLR 763 EAT, I would in normal circumstances have no hesitation in remitting this matter to the same ET for reconsideration of its conclusions on direct sex discrimination and harassment.  That would be the most obviously proportionate course and there is no reason to doubt the professionalism of this Tribunal; really the deficiency, such as I have found, relates to an absence of reasoning on a specific point: that is, the Claimant’s reaction to learning of Mr Tumber’s reaction to news of her pregnancy in July 2014.  The only difficulty that arises is a logistical one, given that the Employment Judge has now moved region and this was a three-member case where the members will be assigned to a different region to where the Employment Judge now sits.  That said, I have been persuaded by Mr Perfect that there is still more to gain by keeping to the same ET if at all possible.  This ET heard all of the evidence and made relevant findings of fact on all other points.  I cannot see that it needs to hear any more evidence: it can refresh its memory from its notes and consider any further written representations that the parties deem to be necessary.  Given that my criticism is really that there is an absence of explanation as to the ET’s findings on this particular point, it may even be possible for this to be addressed without actually requiring a further meeting.  Even if arrangements do have to be put in place for a further meeting of the ET, that remains a more satisfactory course than to require that this point be heard afresh by a different ET.  I therefore direct that, if at all practicable, this matter will be remitted to the same ET.

 

Costs

45.            The Respondent has applied for its costs in terms of its fees in pursuing this appeal in the sum of £1,600 (or a proportion of that sum), an application being made under Rule 34A(2A) of the Employment Appeal Tribunal Rules 1993 (as amended).  The Claimant resists the application, observing that the Respondent has largely failed in its appeal and drawing my attention to the fact that the Claimant has not been in work since losing her employment, submitting that the comparative means of the parties should be seen as a relevant factor.

 

46.            The Respondent having been successful, at least in part, on its appeal, my costs jurisdiction under Rule 34A(2)(a) is duly engaged.  I then have a broad discretion as to whether it is appropriate to make an order for costs and, if so, as to the amount.  Here, the Respondent’s success has indeed been limited, and I can see that there would be an argument that the hearing fee might have been avoided altogether had the Respondent limited its appeal to the basis on which it succeeded (indeed, the EAT might then have adopted the procedure set out under Burns v Royal Mail Group plc [2004] ICR 1103 EAT and Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578); I bear that in mind when considering whether I should allow any part of the hearing fee to be refunded.  More generally, I bear in mind that I have found for the Respondent only on two of the five grounds and on none of the five grounds did I uphold the perversity challenges that the Respondent sought to pursue.  In all of those circumstances, I am minded to grant the application for costs but limit it to £200.