Appeal No.UKEAT/0815/03/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 March 2004

Before
HIS HONOUR JUDGE PROPHET
LORD DAVIES OF COITY CBE
SIR A GRAHAM KBE

MS L HILLMAN	APPELLANT

BBC RESOURCES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS C RAYNER
(of Counsel)
Instructed by:
Messrs Thompsons
Solicitors
Congress House
Great Russell Street
London WC1B 3LW	
For the Respondent	MR N SHELDON
(of Counsel)
Instructed by:
BBC Employment Law Department
Room MC3 C5
Media Centre
Media Village
201 Wood Lane
London W12 7TQ	

SUMMARY

Sex Discrimination

Alleged failure by the ET to make appropriate findings of fact, to deal properly with issue of comparators, and to follow the process indicated in the Barton case in respect of the transfer of the burden of proof (section 63A Sex Discrimination Act 1975) - all dismissed - no order for costs.- leave to appeal to the Court of Appeal.
HIS HONOUR JUDGE PROPHET

1	Ms Hillman, represented by Messrs Thompsons, Solicitors, lodged on 8 August 2001 to the Employment Tribunal at London Central complaints of sex discrimination and victimisation against her employer, BBC Resources Ltd.  The employer duly resisted the complaint and the case was heard before an Employment Tribunal sitting at London Central, over a number of days, from 28 May to 11 June 2003 with Mr Buckley as the Chairman and Mr Speakman and Ms McCallum as the Lay Members.  Both sides were represented by Counsel i.e Ms Rayner, on behalf of Ms Hillman and Mr Sheldon for the employer.  That Tribunal unanimously dismissed both complaints in a Reserved Decision, promulgated on 15 August 2003.  The Extended Reasons were lengthy and covered thirty one pages.  

2	A Notice of Appeal drafted by Ms Rayner, on behalf of Ms Hillman, was submitted to the Employment Appeal Tribunal towards the end of September 2003.  Following a preliminary hearing at the Employment Appeal Tribunal, the appeal was allowed to proceed to a full hearing, and we are constituted today to conduct that full hearing.  Ms Rayner continues to represent Ms Hillman and she has prepared for our benefit a Skeleton Argument and expanded upon that in oral submissions.  Mr Sheldon has also continued to represent the employer, and he too has presented us with a written Skeleton Argument and added his oral submissions. A fundamental part of Ms Rayner’s submissions is that the Employment Tribunal lost sight of the essential issues in this case and that they failed on the well known Meek case to explain adequately why the complainant lost.  Mr Sheldon strongly submits to the contrary in that respect.  

3	This is one of those cases where the grounds of a complaint in the Originating Application were actually quite brief.  In a nutshell Ms Hillman was complaining in her application that as a camera operator working for the BBC, she was a victim of discrimination against women camera operators, which affected her career development.  She maintained that a grievance she had lodged in this respect in December 2000 was not properly dealt with and that she was victimised thereafter, consequent upon having lodged that grievance.  She accepted, however, that follows an initial refusal her employer duly accepted a request for her to work part-time instead of on a full-time basis. 

4	It is not surprising, given the brevity of the grounds of complaint, that the employers sought and obtained further information from Ms Hillman’s representatives.  From that it emerged that she regarded the principal perpetrators of the alleged discrimination against her as being three male camera supervisors, i.e. Nigel Saunders, Dave Box and Gerry Tivers, in that in their crews they did not allow her to operate cameras to the same extent as male camera operators.  She indicated that by contrast another male camera supervisor did not act in that way.  

5	Since her complaints in that respect extended over a period of some years, it was necessary for the Employment Tribunal to decide whether what had happened should be regarded as “continuous” discrimination (if indeed there was discrimination at all) as compared with individual incidents, many of which would, of course, be out of time unless there was established a continuing act.  The Employment Tribunal indicated at the end of their Reasons that they had considered the complaint of sex discrimination relating to the allegations involving the three specific male camera supervisors as a continuing act and the appeal to us does not seek to disturb their conclusion in that respect.  

6	The Employment Tribunal set out, at page 2 of its Reasons, the issues which they had to determine.  They set out their findings of fact at pages 9 to 24, and then after noting, although without summarising them, that they had had the benefit of written submissions from both sides, they then made what they described as the “Tribunal’s assessment” from pages 24 to page 31.  It is in that latter section that we find their reasoning as to why, in their view, Ms Hillman’s complaints of sex discrimination and victimisation did not succeed.  

7	The Notice of Appeal begins by asserting an error of law in that the Tribunal failed to make any proper findings of fact in respect of comparators.  Now it is true that in most sex discrimination cases, it is usual to establish at the outset with whom the complainant is comparing herself.  It is noticeable in this case that Ms Hillman did not name a comparator in her Originating Application, nor did she do so in her Further Particulars.  It does not seem to us to be satisfactory particularly where the complainant has the benefit of legal representation for named comparators to have to emerge during the course of evidence.  It is apparent from the Employment Tribunal’s findings at page 29 of its Reasons that they were unable to establish merely from evidence a named comparator, that is to say a male camera operator truly comparable to Ms Hillman.  In our view, in the absence of any attempt by those advising Ms Hillman to name such a person before the hearing began, the Employment Tribunal cannot be faulted in reaching that conclusion.  

8	What the Employment Tribunal did, again in the absence of any pre-hearing attempts specifically to indicate that Ms Hillman was relying on a hypothetical comparator, was to indicate that such a comparator appeared to be the correct comparator.  We cannot see that as being other than a sensible approach.  The way Ms Hillman put her case throughout is that her alleged treatment was due to her being a woman, and that if she had been a man, she would not have been treated as she was by the three named male camera supervisors.  

9	It is helpful at this stage for us to indicate one further matter which has emerged during submissions and that is that the approach and reasoning of the Employment Tribunal was to delve into why Ms Hillman was not given certain work opportunities from three named supervisors.  Ms Hillman was saying it was because she was a woman working in a largely male dominated culture.  The employers were saying it was for a variety of non discriminatory factors, all of which we find were mentioned at various stages in the Extended Reasons.  Those included views which were given as to Ms Hillman’s individual attitude to her work.  That overall approach by the Employment Tribunal appears to us to be consistent with the spirit of the House of Lords judgment in Shamoon -v- Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 which emphasises that the essential question for the Employment Tribunal to answer is “was the reason for the treatment on the grounds of sex?”.  Consequently, insofar as this appeal is based on a failure by the Employment Tribunal to deal properly with comparators, we are all agreed that it does not succeed.  

10	The second ground of appeal relates to the proper application of the transfer of the burden of proof arising from the introduction of section 63A into the Sex Discrimination Act 1975.  It is clear from Barton -v- Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 which the Employment Tribunal referred to at length, that the Employment Tribunal had to establish facts from which it could, and we emphasise the word “could”, conclude that the employer had committed an act of discrimination.  The burden of proof then shifts in accordance with section 63A.  

11	It follows that the findings of fact by the Employment Tribunal had to contain an answer to the question of whether Ms Hillman was not given certain work opportunities by the three named male camera supervisors, and if so whether that could have been on the grounds of sex.  A full reading of the Employment Tribunal’s lengthy Extended Reasons indicates to us that the Employment Tribunal was satisfied in that respect.  It is a fair point that the Employment Tribunal could specifically have stated that they were so satisfied, rather than it emerging by implication, but as Mr Sheldon has pointed out to us, it is indicated in the Meek decision that the Meek test may be satisfied if the implication is clear.

12	If follows from that that section 63A must have been engaged and that the Employment Tribunal was working in that direction.  Consequently, when at page 29 of the Extended Reasons, the Employment Tribunal say:
“We are satisfied that a non-discriminatory explanation was given by the Respondents’ witnesses as to the fact that the Applicant was not used as a camera operator on the Box, Tivers and Saunders crews.”

we accept Mr Sheldon’s submissions that that must be read in the context that the Employment Tribunal had accepted that the burden of proof had changed and that it rested upon the employer to satisfy the Employment Tribunal that sex or gender did not come in any way into the explanation.  

13	We have mentioned already, in our reference to Shamoon, that there were a number of factors which were being put forward by the Respondents as to why Ms Hillman was treated as she was, and the Employment Tribunal reached its conclusions in respect of all those matters.  It is necessary to read the whole judgment of the Employment Tribunal in order to discern the specific factors but as Mr Sheldon says, there were some seven or eight factors put forward as to why the treatment was as it was.

14	We have had particular regard to the decision of the President of this Tribunal in the recent case of the University of Huddersfield -v- Dr Wolff  (EAT 596/02) which emphasises the important of Employment Tribunals following the principles set out in the Barton case, but nowhere in that judgment are we able to ascertain that there is a specific requirement for an Employment Tribunal to follow through that process step by step and to set out its judgment in that form.  It may well be desirable that they should, because that would make it quite clear that the Employment Tribunal had followed the appropriate path, particularly in respect of indicating the point at which the burden of proof transfers.  However, as we have already indicated, we are satisfied that this Employment Tribunal, although perhaps not setting out in their judgment that they were following the precise steps indicated in the Barton case, nevertheless approached the matter in the correct way and reached conclusions which they were entitled to reach.  Therefore, on the burden of proof argument, the appeal does not succeed.
15	That leaves a third ground of appeal, relating to victimisation, in which Ms Rayner argues that there were insufficient findings of fact, and that although organisational reasons were given by Mr Phillips for not initially allowing Ms Hillman to move into part-time work, those organisational reasons were not correctly identified by the Employment Tribunal.  It is self evident that a request to work part-time from a full-time employee, on a basis of three months on and three months off, is an unusual one, which may well cause considerable difficulties for an employer. Nevertheless, the Tribunal looked at the explanation put forward by Mr Phillips for not being prepared, at least initially, to grant her request, and was clearly satisfied that gender did not come into his decision.  That was essentially a matter for the judgment of the Employment Tribunal, having heard from the relevant witnesses, and we can see no ground for allowing the appeal in that respect.  Overall, therefore, we are satisfied, unanimously, that this appeal fails and is dismissed.  

16	Mr Sheldon has indicated that he has been instructed to ask for the Respondents’ limited costs on the grounds that within the meaning of Rule 34(1) of the Employment Appeal Tribunal Rules this was an unnecessary appeal to bring.  He submits that it was quite plain to Ms Hillman and those representing her, on a proper reading of the whole decision why it was that her case had failed.  It was given lengthy and detailed consideration by the Employment Tribunal following a lengthy hearing at which she was fully and competently represented throughout.  In those circumstances he submits that this was merely an attempt on her part to seek to disturb a perfectly reasonable and reasoned decision and was an unnecessary waste of expense and time for all concerned.  Having considered that application we have decided that it would not be appropriate to regard this appeal as falling within Rule 34(1) and accordingly we make no Order as to costs.  

17	Having particular regard to the proper interpretation of the Shamoon judgment in respect of comparators and to the proper application of s.63A of the Sex Discrimination Act 1975 we have granted Ms Rayner’s request for leave to appeal to the Court of Appeal.