Appeal No.	 EAT/45/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 October 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR S M SPRINGER MBE
MISS S M WILSON

MS S PORT	APPELLANT

THE ROYAL MAIL & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S BROCHWICZ-LEWINSKI
(of Counsel)
Messrs Richard Lemberger & Co
Solicitors
53a The Parade
Leamington Spa
CV32 4BA	
For the Respondents	MR R WHITE
(of Counsel)
Messrs Eversheds
Solicitors
11 St James Court
Friar Gate
Derby DE1 1BT	

	MR JUSTICE HOLLAND:	The Appellant, Ms Port, joined the Respondents, The Royal Mail, in July 1989.  She was a keen and motivated employee.

1	On 1 August 1995 she was promoted to the grade of temporary Manager.  Her next goal was to have that grading made substantive.  It is readily apparent to this Tribunal that she was determined and she believed that it behoved her to seek diversification in terms of work experience as an aid to promotion.  She further believed that it behoved her employers to accord her opportunities for such diversification.

2	Unhappily, the history following August 1995 of the relationship between her and her employers was far from smooth.  A little diversification came her way and grievances were from time to time raised by her and resisted.  All that generated much documentation.  That documentation now before us features jargon and is notable for being, from time to time, intemperate and repetitious.

3	Finally, on 2 February 1998, she was reverted to a substantive grade, that of Post Woman, incidentally suffering an immediate loss of £5,000 per annum by way of income.  Her response to that move was by way of the IT1 of 24 February 1998.  By that document she made complaints of sex discrimination and victimisation against her employers and against her Line Manager, Mr Good, and her Area Manager, Mr Williamson.  These complaints, having been in the event rejected by the Employment Tribunal, she now appeals to this Tribunal.

4	It is necessary immediately to focus upon the Reserved Decision of the Employment Tribunal and the accompanying Extended Reasons.  The first page of such identifies a hearing by the Employment Tribunal at Birmingham on 21 September 1998.  The decision is then recorded in the terms:

“the respondents did not discriminate against the applicant on the grounds of sex;

5	There was a further finding there recorded that there had been no unauthorised deduction from the wages of the Applicant.  We need say no more about that, since no appeal lies against such.

6	Turning then to the Extended Reasons.  We cite paragraph 1 in full:

“1  This is now a complaint first of discrimination on the grounds of sex and secondly, of an unauthorised deduction from wages.  At the hearing the applicant appeared in person and gave evidence and the respondent was represented by Miss N. Benison, a solicitor.”

7	By way of paragraphs 2 to 28 inclusive, the Extended Reasons give a detailed chronology.  That chronology is set out in essentially neutral terms.  One conflict of fact is noted, and one only, namely as to alleged discriminatory exclusion from the Manager’s Christmas lunch in December 1996.  That conflict of fact is resolved by a finding in paragraph 5, which is in the Respondent’s favour.  Having, by paragraph 28 traced the history of this matter up to the inception of these proceedings, paragraph 29 is occupied by citation from the Sex Discrimination Act 1975, sections 1(1) and 4(1).  Paragraph 30 merits citation in full.  It reads as follows:

“Having heard the evidence of the applicant we have to say it is indeed a regrettable state of affairs that this very able and conscientious employee should have suffered the setback of reverting to her previous grade as she did.  We appreciate that this happened to a number of other people as indeed appears in the facts that we have set out, but the situation is nonetheless sad for that.  However, we are not dealing here with a general question of grievance or injustice, but with the very narrow criteria set out by the Act.  We are not satisfied that the applicant was in fact treated any worse than was any other employee as regards the matter of development and training.  It is true that she regarded experience as a Delivery Office Manager to be essential as a step in progress to higher things, but we are well satisfied on the evidence we have heard that that view was entirely misconceived and that there were numerous ways in which advancement could be made.  It is true that in the events which happened she was put onto afternoon work whereas others were put on morning work, but here again we are satisfied that this was in no way connected with her sex.  In fact, again it is true that Mr Califano was preferred for the opportunity for substituting for Mr Good but there has been no evidence to suggest that this was by reason of his being a man and the applicant being a woman or because the qualifications which he had as opposed to those the applicant had were such that a greater proportion of men than of women would have those qualifications.  Again there is no suggestion that the applicant being graded as JV5 at the end of her training course was by reason of her sex or by reason of the requirements for higher grading being such that a greater number of men than women could meet them.  As to the question of victimisation it is noteworthy that at no stage did the applicant complain of sex discrimination as such.  Her complaints were related to treatment of her as an individual and were discussed as such.  The only occasion when she was treated worse than other persons by reason of her making any complaint was the writing by the second respondent of his letter of 21 August 1997.  However this was not in reference to an allegation of an act which would amount to contravention of the Sex Discrimination Act 1975.”

8	The Extended Reasons end with paragraph 31.  That paragraph deals with the allegation of the unauthorised deduction of wages; that issue is dealt with within the compass of that paragraph and we say no more about it.  That then is a review of the full extent of the Extended Reasons.

9	Before coming to the essence of this appeal it is unhappily, necessary for this Tribunal to say something about those Reasons.  Upon first reading such we assumed from the text and the structure that the hearing had been on one day only.  We further assumed from the text and the structure that only the Appellant had given oral evidence, with the balance of the material coming from extensive documentation.  That assumption was reflected in the terms already cited at paragraphs 1 and 30.  It was reflected in the date set out at the beginning of the decision and it further reflected the apparent bedrock of uncontested fact that emerged from a reading of paragraphs 2 to 28 inclusive.  We learn this morning that we were wrong.  In truth, the hearing occupied some four days, starting on 21 September 1998.  Further, not only did the Applicant give evidence, but she called a witness.  We add further, on behalf of the Respondents, no less than seven witnesses gave evidence and the statement of an eighth was additionally put in evidence.  We cannot but be critical of documentation that is so signally deficient in basic data, deficient to the point of being misleading.

10	Unhappily, these deficiencies had a further impact in the formulation of the decision.  Averting first to the contention of sexual discrimination, it is common ground between the parties that the forensic approach should reflect the seminal guidance given by the Court of Appeal in King v Great Britain-China Centre [1992] ICR 516, at 528.  Giving the leading judgment Neill LJ delivered these oft-quoted words:

“  ... From these several authorities it is possible, I think, to extract the following principles and guidance.  (1) It is for the applicant who complains of racial discrimination to make out his or her case.  Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.  (2)  It is important to bear in mind that it is unusual to find direct evidence of racial discrimination.  Few employers will be prepared to admit such discrimination even to themselves.  In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in.’  (3)  The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.  These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.  (4)  Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination.  In such circumstances the tribunal will look to the employer for an explanation.  If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. …”

Both Counsel readily agree that for present purposes for “racial” substitute “sexual”.

11	Turning then to the application of that approach what is initially required is a finding as to primary facts.  What is further required is the identification from such facts of arguable instances of sexual discrimination and an analytical recitation of such explanations as are advanced by the Respondents for those instances.  All that will culminate in a decision which will, of necessity, fulfil the procedural criteria laid down in Meek v City of Birmingham District Council [1987] IRLR 250, and whilst this exercise is demanding and, particularly so in the instant case where there was a lot of written material, nonetheless it should pose no great problem.

12	In the instant situation it is true that Ms Port was unrepresented, but her contentions were not obscure and the conduct of the Respondents’ case should have served readily to match and compare potential acts of discrimination, as identified by her, with explanations as tendered in response.

13	In the event there was, we have to say, no serious effort, fully and clearly to enumerate that which called for explanation.  Thus, by way of example, the reversion to substantive grade in February 1998 is categorised as “sad”, but it is not categorised as something potentially discriminatory so as to call for an explanation.  

14	Turning from the primary facts to the respective explanations, the reasons give no hint at all of any evidence having been received as such, still less do they attempt an evaluation of weight and significance.  Neither side, in our judgment, had the benefit of a King v Great Britain-China Centre exercise.  More pertinently, with respect to so much of her case as alleged sexual discrimination, Ms Port readily demonstrates an error of law, that is, a failure to make full findings of primary fact and to evaluate any potential discrimination suggested by such in the light of further findings as to explanations.  

15	Turning to her further case, that is, as to victimisation, the Employment Tribunal correctly cited from section 4 of the Sex Discrimination Act 1975:

“(1)  A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –
…
(d)  alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act …”

16	Turning however to the application of those provisions to the instant situation, it is difficult for this Tribunal to be satisfied that the Employment Tribunal identified every instance of potential victimisation.  That said, we readily accept that attention should inevitably focus in part, at least, on the letter of 21 August 1997.  That is subject of reference in paragraph 30.

17	No conscious appraisal of that letter by reference to section 4(1)(d) was in the event made.  The lack of specific complaint by the Applicant as to sex discrimination was undoubtedly an evidential factor but it could not have been conclusive, hence the words bracketed in paragraph (d) of the subsection.  What was required was a proper judicial evaluation of the alleged act based on all the evidence so as to decide whether such was in contravention of the Act.  In the event, as we now learn, the witnesses before the Employment Tribunal included the author of the letter, the second Respondent, Mr Williamson.  It is symptomatic of that which is wrong with these Reasons that this does not emerge from their terms, but only became known to us this morning in the course of oral argument.  It is plain from that simple observation that the whole approach to the application of this part of the Act was irremediably flawed.  There was this failure to go about the matter in a systematic standard fashion, fact-finding and applying to those facts the terms of the section so as to culminate in a judicial evaluation of primary fact and tendered explanation.

18	Back to the position of Ms Port now as an Appellant, she readily demonstrates again an error of law and that is the error that has just been spelled out in this judgment.

19	Thus it is, on those two matters, this appeal succeeds.  To proceed further, it is inevitable, as we see it, that the matter must go back for a further hearing before a fresh Tribunal.  We make that ruling with great reluctance, given the delay that has already taken place in this forensic exercise and because of the amount of public money that has already been expended, both in the original hearing and now in the two hearings before this Tribunal.

20	It is, we have to say, a matter of great regret that the first hearing in September 1998 did not in the event give to the case the attention that it deserved, the attention that should have flowed to what were plainly careful presentations of the respective cases, well supported by documentation, well supported by oral evidence.  In the event we are sympathetic to both sides in this matter but, having made the rulings that we have and, having regard to the present state of the fact-finding exercise, that remission for re-hearing is, we are afraid, inevitable.  All that said, we would invite the Birmingham Tribunal to make every effort to provide an expedited hearing date convenient to both sides.  

21	The sooner this matter is brought to a final conclusion the better and, as will be apparent, we feel that both sides need consideration in this matter, since both have had their efforts so far come to nought.