Appeal No.	 EAT/952/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 October 1999

Before
HIS HONOUR JUDGE J ALTMAN
LORD GLADWIN OF CLEE CBE JP
MISS C HOLROYD

C U LIGHTING LIMITED	APPELLANTS

MISS M GRACE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MISS M TETHER
(of Counsel)
Instructed by:
Judith Hogarth
EEF
Broadway House
Tothill Street
London
SW1H 9NQ	

	JUDGE ALTMAN:		This is an appeal from the decision of the Employment Tribunal held at Liverpool over three days, 21st and 22nd April and 1st June 1999. It comes before us by way preliminary hearing to determine if there is a point of law to merit consideration in full before the Employment Appeal Tribunal.

1.	The focus of the appeal is related to the findings of the Employment Tribunal that the respondent’s dismissal was an act of less favourable treatment on the ground of her sex and that she was less favourably treated on the grounds of sex in respect of training opportunities.

2.	The claim was brought consequent upon the dismissal of the respondent by the appellants for redundancy. There were findings by the Employment Tribunal of unfair dismissal and dismissal of a claim for victimisation, a subsidiary claim for breach of contract being withdrawn.

3.	Before the events which immediately gave rise to the dismissal of the respondent, the Employment Tribunal considered certain events which took place in relation to the employment of an administrative manager, a senior position to that which the respondent then occupied. But at the outset of their extended reasons, in paragraph 2, the tribunal set out the tests and questions which they set themselves. At one point they said this:

“There is no question of the respondent having the burden of proving that it did not discriminate on grounds of sex. But it is only the respondent who can provide the reason for its actions. If it puts no explanation forward, or if we regard its explanation as unsatisfactory or inadequate then we should be prepared to infer that the less favourable was on grounds of sex.”

4.	We mention that at this stage because although it has not formed the essence of the arguments addressed before us and it is unclear what part that particular passage played in the following decision, we wonder if there may be some misapprehension as to the import of the famous dicta in the King case, which provides an opportunity for a tribunal, where appropriate, to infer discrimination in the absence of an explanation, but provides, as we understand that case, no obligation upon them to do so.

5.	We turn to the actual facts of the appeal as found by the Employment Tribunal. In December 1997 the manager concerned, Mr Marques appointed an administration manager by going to the Army Recruitment Agency and selecting a former Warrant Officer, Mr Gilbert. The Employment Tribunal found that Mr Marques never considered the respondent for the post. The tribunal made a finding in the following terms:

“3.8 … We are satisfied having heard all the evidence that his failure to do so was an act of less favourable treatment on the grounds of her sex.”

6.	Thereafter, there are a number of events that took place upon which the Employment Tribunal made findings. The use of language is something which the tribunal referred to. Mr Marques spoke of recruiting a man for the post. It was contrary to an intimation, they found, that he had given to the respondent that she would be made Administration Manager. The tribunal found that he did not do consider her  because he did not feel that she was appropriate to deal with stock taking with the male shop floor workforce. There is also reference to what some may simply describe as sexist remarks. They found that it was a subjective decision that the respondent was not suitable for the post. The tribunal found that Mr Marques saw the respondent as the “office girl”.

7.	The tribunal then found that there was a breach of contract by Mr Marques in stopping the respondent’s overtime and that in spite of repeated requests for training on the new computer system, the respondent was told “not yet, in good time”. From the events which took place, the Employment Tribunal  found that the respondent was the most junior person in the office in the administrative role which she filled. In August 1998 there was a complaint on behalf of the respondent to management that her overtime had been withdrawn. 

8.	In October 1998 Mr Marques was instructed to reduce costs further and this is what led to dismissal for redundancy. There was a consultation meeting with the respondent and her trade union official, and a further consultation meeting in December at which the respondent was dismissed for redundancy. Curiously, the Employment Tribunal found that the dismissal was with notice and with immediate effect.

9.	The tribunal then categorised the case of the respondent as being discrimination in the recruitment process for the post of administration manager designate. There was then a continuity of discrimination by the reduction in her duties, and the failure to afford her training. Her complaint about the loss of overtime precipitated dismissal.

10.	The tribunal then set out their conclusions, which were that Mr Marques’ conduct throughout the exercise was open to criticism. But they went on:

“6 … we are satisfied that the respondent’s business was in difficulties, that there was a need for him to cut costs in Kirkby, and that the advent of the new computer system was expected to diminish the requirement for the work for which the applicant was employed to do.”

11.	The tribunal then went on to find:

“6.3	We further reject the applicant’s contention that she was selected for redundancy in November 1998 because she was a woman. She was selected because she was in the most junior post at that time.
6.4	We then asked ourselves: did the respondent’s failure to consider the applicant as Administration Manager designate, on the grounds of her sex, contribute to her status as number three in the department in November 1998, and, if so, did that discrimination taint her dismissal?
6.5	In the light of our findings of fact, and having considered all the circumstances of the case, we have come to the conclusion that her sex was part of the reason that she was in the most vulnerable position in November 1998 and that therefore her dismissal is tainted with the discrimination arising from the recruitment process.”

12.	The points that have been put forward, essentially, by Miss Tether on behalf of the appellants are directed to the argument that first, the question that a tribunal should ask itself is not whether a particular act is “tainted” by discrimination, but whether such discrimination was the principle or an important cause of the less favourable treatment that they had found.

13.	We accept that the use of the word “tainted” is arguably imprecise and tends to possibly cover a lesser causative link than one that comes from a principal or important cause. 

14.	In addition, it is said that the conclusion that there was a link between the sexual discrimination in failing to consider the respondent for the Administrative Manager post on the one hand, and a relationship with the selection for redundancy of the most junior employee on the other, can only be established by a tribunal’s assessing whether or not consideration for the Administrative Manager’s post would have led to her appointment, because it would only be the appointment as Administration Manager, on our understanding of the decision of the Employment Tribunal, which would have led to the respondent’s no longer being the most junior employee and therefore vulnerable to selection for redundancy. In the tribunal’s decision, in terms, they said at paragraph 3.9:

“Had the applicant been male we are satisfied that he would have considered her for that post whether she would have been appointed is of course a different question.”

	So, arguably, the tribunal deliberately refrained from determining the very causal link, which it is argued would have been essential to find any element of sexual discrimination in the dismissal for redundancy. It seems to us that there are arguments worthy of presentation in full before the Employment Tribunal as to whether a “taint” of sexual discrimination is sufficient and whether in coming to that conclusion in any event the tribunal considered any causal link between the act of sexual discrimination which they had found and the dismissal for redundancy which they concluded was so tainted.

15.	In addition, there is a question as to whether or not the appellants considered the position of Administrative Manager afresh in November 1998, as in paragraph 6.6. Having considered that paragraph we are not altogether clear whether it is addressed to the question of unfair dismissal and the reasonable responses of a reasonable employer, or to sexual discrimination about which the tribunal had to form its own judgment. It seems to us that the argument which the appellants seek to raise, that in determining sexual discrimination the Employment Tribunal substituted the position of reasonable employer, is worthy of argument in full.

16.	Finally, the Employment Tribunal made a finding about training and they made really a similar finding in relation to training as they did in relation to dismissal for redundancy, namely that the refusal of training was tainted with “the discrimination we have found in the recruitment process for the post Administration Manager designate”. It seems to us that the same arguments that have been addressed to us in relation to the dismissal for redundancy fall to be considered in full also in relation to the findings of the failure to offer training.

17.	Accordingly, it seems to us, that the grounds of appeal properly raised matters of law to be considered in full over a period of a day in Category C, skeleton arguments to be furnished at least 14 days before the hearing.

18.	In addition, there was a subsequent hearing, which is also subject to appeal in relation to remedy. In short, it is argued that the basis of the calculation of compensation both for injury to feelings and loss of pay, is based upon the proposition that the loss of employment was solely occasioned by sexual discrimination and again, there is the lack of causative link argued for, as is argued for in the main part of the decision. Accordingly, we find that the matters of law raised in relation to that hearing also merit hearing in full at the same time as the appeal on liability.