Appeal No.	EAT/1084/99

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 11 September 2001

Before
MR RECORDER LANGSTAFF QC
LORD  DAVIES OF COITY  CBE
MRS R A VICKERS

WHITBREAD WALKER LTD	APPELLANT

MRS D C JONES	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M JOHNSTONE
(Representative)
The Employment Law Centre Ltd
Wembley Law Chambers
38 Napier Road
Wembley
Middx HA0 4UA	
For the Respondent	MR T KIBLING
(of Counsel)
Instructed By:
Messrs Eversheds 
Solicitors
Fitzalan House
Fitzalan Road
Cardiff CF24 0EE

MR RECORDER LANGSTAFF QC:

1	This is an appeal from the Employment Tribunal sitting at Cardiff, whose Extended Reasons were promulgated on 1 July 1999.

2	The Employment Tribunal upheld the employee’s complaint of discrimination against her on the grounds of her sex and awarded £9,630.79 in compensation.  

3	The essential facts are these.  The Respondent was dismissed.  The Employment Tribunal found that, although the employer had described at the time the dismissal as being by reason of redundancy, that was a sham.  They said, in paragraph 7, that they rejected the evidence of redundancy as being the reason for the dismissal as a sham and noted that it was, indeed, conceded to be a sham by a Mr Paul Davies who gave evidence on behalf of the Appellant.

4	The Employment Tribunal continued to find that the reason for the dismissal was the Applicant’s inability to work full-time.  They considered that that was a condition or requirement which, in the light of the evidence before the Tribunal, was discriminatory against women and hence was discriminatory against the employee.

5	The Employment Tribunal then turned to the question of remedy.  In some seven paragraphs it dealt with the calculation of compensation, which it felt just and equitable to award, declined to make a recommendation taking the view in short that it was not just and equitable so to do and awarded interest.

6	What the Employment Tribunal did not do was to consider whether or not the employer had made out a defence available to it under section 65(1)(b) of the Sex Discrimination Act 1975.  It is necessary for the purpose of this judgment to set out the relevant parts of section 65.  Section 65(1) provides:

“(1)  Where an employment tribunal finds that the complaint presented to it under section 63 [that is a complaint of an act of discrimination] is well-founded the tribunal shall make such of the following as it considers just and equitable -
(a)	an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;
(b)	an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court … to pay to the complainant if the complaint had fallen to be dealt with under section 66
(c)	a recommendation that the respondent to take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates.”

Section 1(A) is not, for present purposes, material.
Section 1(B) provides:

“(1B)  As respects an unlawful act of discrimination falling within section 1(1)(b) [that is being a complaint of indirect discrimination] … if the respondent proves that the requirement or condition in question was not applied with the intention of treating the complainant unfavourably on the ground of his sex or marital status as the case may be, an order may be made under subsection 1(b) only if the employment tribunal –
(a)	makes such order under subsection 1(a) and such recommendation under subsection 1(c) (if any) as it would have made if it had no power to make an order under subsection 1(b);  and
(b)	where it makes an order under subsection 1(a) or a recommendation under subsection 1(c) or both considers that it is just and equitable to make an order under subsection 1(b) as well.”

7	We take the view that what section 65 provides for is that a Tribunal must, if it considers it just and equitable, make one of the orders referred to in section 65(1).  No doubt, if it does not consider it just and equitable to do so, it will not make any of those orders.  As Mr Johnstone, who advanced the employer’s appeal with care and moderation, freely accepted in the course of argument, the decision as to what compensation is just and equitable does not necessarily involve a Tribunal in considering whether or not that discrimination was or was not intentional.  

8	We take the view that section 65(1)(B) places the burden of proof, in showing that the requirement or condition was not applied with the intention there set out, fairly and squarely upon the Respondent.  In other words, if the Respondent wishes to take advantage of the subsection the Respondent has to raise an argument to that effect.

9	In the present case, because of the complexity of the issues and the way in which matters proceeded before the Employment Tribunal, Mr Johnstone did not at the time argue that the Appellant should have the benefit of section 65(1)(B).  He accepted, in the course of his argument before us, that it was the responsibility of the advocate to make the argument and that in general terms where a burden of proof appears in employment legislation it is to be expected that the party or the party’s advocate will raise the issue upon which he has the burden of proof.  He submits, however, that evidence which could have been used as the basis for such an argument was put forward before the Employment Tribunal and submits that it was incumbent upon the Employment Tribunal, itself, to consider whether or not the act of discrimination was or was not intentional.  He argued that if the Employment Tribunal did not do so then there was a leap between the finding of discrimination and the award of compensation.  It might be particularly difficult, in cases in which both liability, as it were, and compensation / remedies were dealt with at one and the same hearing, for an employer to argue that the discrimination, if it existed at all, was unintentional.  He was concerned that, in this particular case, the Employment Tribunal had, despite devoting some seven paragraphs of its Decision to the question of compensation, not clearly explained to the Appellant employer why it was that compensation should be awarded at all.  In order to explain that fully in the circumstances of this case, the Employment Tribunal needed to say what it thought and why about the degree of intention that underlay the discrimination.

10	We have concluded, despite those submissions, that if an argument is to be raised under section 65(1)(B) it must be raised primarily by the advocate for the Respondent.  It is, indeed, open to a Tribunal of its own motion to consider the issue but the submission by Mr Johnstone goes further.  He says, in effect, that in this case it was incumbent upon the Employment Tribunal to do so.  He asserts, therefore, that the error of law in this case was either that the Employment Tribunal failed to do that which they should have done, namely consider the degree of intention or otherwise underlying the discrimination or, as he put it toward the end of his submissions to us, that they should have given reasons why compensation was being awarded and, without considering the question of intention, those reasons would be insufficient.  A failure to give sufficient reasons would, of course, be an error of law.

11	We conclude that an Employment Tribunal does not have to deal with arguments which are not addressed to it.  We conclude that unless the argument that there is a section 65(1)(B) defence is raised with some material to support it, an Employment Tribunal is entitled to move straight from a finding of discrimination to an award of compensation providing that it considers, in the circumstances, that compensation is just and equitable.  And we agree with Mr Johnstone’s submission that it is not necessary in determining whether compensation is just and equitable that the Tribunal should address the question of intentionality.

12	Since it follows we can detect no error or approach or error of law in the decision which this Employment Tribunal reached, since in our view it was not under section 65 incumbent upon them to address an argument which had not been addressed to them, this appeal must be dismissed.

13	Two further points were taken in his skeleton argument by Mr Kibling.  We have not thought it necessary to address those arguments, having determined this case upon the issue of the burden of proof and upon the view we take of section 65 and its proper interpretation and application.

_________________________________
Costs Application
1	We have been asked by Mr Kibling, on behalf of the successful Respondent, to award costs.  We declined to do so.  However, in deference to Mr Kibling’s arguments and because, as Mr Johnstone should know, it was a very close-run thing, we should say just a couple of words about our reasons.

2	First, Mr Kibling points out that it is a very long time since the original hearing and his client has not yet had her money.  We consider that the impact of delay in payment is properly dealt with by the award of interest which we suspect by now will be substantial.  That, we think, deprives that point of further importance.

3	So far as the arguable nature of the point of law, this case was permitted to proceed on a point identified during the course of a preliminary hearing and we think it would be wrong to visit that on Mr Johnstone.  We think there is more force in the thought that Mr Johnstone might have reconsidered it having received Mr Kibling’s skeleton argument but we do not consider that the force of that was so overwhelming as to allow us to conclude that it comes within Rule 34(1).  

4	For those reasons, though we are sympathetic, we decline the application.