Appeal No. UKEAT/0423/09/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 15 January 2010

Before
HIS HONOUR JUDGE PETER CLARK
MR D BLEIMAN
MRS J M MATHIAS

JACKSON GRUNDY ESTATE AGENTS (APPELLANT)

MRS K HALL (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant MR S PEARMAN
(of Counsel)
Instructed by:
Messrs Franklins Solicitors LLP
Silbury Court
Silbury Boulevard
Central Milton Keynes  MK9 2LY

For the Respondent MS M SHALOM
(of Counsel)
Instructed by:
Law For All Solicitors
191 The Vale
Acton
London  W3 7QS

SUMMARY
PRACTICE AND PROCEDURE:  Appellate jurisdiction/reasons/Burns-Barke
SEX DISCRIMINATION:  Pregnancy and discrimination

Meek-compliance – Failure by Employment Tribunal to explain why they preferred the evidence of one witness to another on a crucial factual issue.  Observations of Morison P in Tchoula approved by the Court of Appeal in Anya (para 24) applied.

Case remitted to fresh employment tribunal for rehearing on issue of sex discrimination.

HIS HONOUR JUDGE PETER CLARK
1. The parties before the Bedford Employment Tribunal in this matter were Ms Hall, Claimant, and Jackson Grundy Estate Agents, Respondent.  This is the Respondent’s appeal against the first two findings of an Employment Tribunal chaired by Employment Judge Cassel in their reserved judgment promulgated with reasons on 19 February 2009.  Those findings were:

“1. The Claimant was unfairly dismissed
2. The complaint of sex discrimination in the omission of the Respondent to offer her employment succeeds.”

2. At the outset of this hearing Mr Pearman, on behalf of the Respondent, realistically we think, withdrew his appeal against the Tribunal’s first finding of unfair dismissal (see ground 6 of the Notice of Appeal).  That leaves a challenge only to the finding of sex discrimination.

3. By way of background, the Claimant commenced employment with the Respondent on 13 June 2005 as a lettings negotiator at their Northampton office.  In 2006 she transferred to the Respondent’s Daventry office where she became branch administrator in the sales department.  In early March 2008 she informed the Respondent that she was pregnant.  She wished to carry on working.  Redundancies became necessary due to the economic downturn during 2008.  They occurred in three tranches; in January, April and July.  The Claimant was dismissed in April 2008.

4. It was common ground that her role as branch administrator was redundant.  The focus, as the Tribunal’s judgment demonstrates, was on the question as to whether the Respondent failed to offer her alternative employment.  Ultimately, only one possible alternative role was available for the Claimant, that of sales negotiator in the Abington office.

5. The Tribunal’s finding of fact was that that position was not offered to the Claimant.  It went to Stuart Russell, a sales negotiator in the Daventry office, whose position there was redundant.  The Tribunal found that Mr David Jackson, who dealt with the redundancy exercise in April 2008, formed a stereotypical assumption about the Claimant’s ability to work as her pregnancy progressed, linked we think to a comment she made about the difficulties she might have climbing in and out of her car as time went on.  Had she been offered the alternative job there was a 50 per cent chance she would have secured it ahead of Mr Russell.

The Appeal
6. Mr Pearman’s principal submission raised a point on Meek compliance, related to the Tribunal’s finding that the Abington sales negotiator post was not offered to the Claimant by Mr Jackson.  In order to understand that submission it is necessary to begin with the Claimant’s form ET1 drafted by her solicitor.  In the particulars of claim at paragraph 6 it is said:

“The Claimant later learnt Stuart Russell was offered a transfer to the Abington branch.  The Claimant was also offered a sales negotiator role, but did not accept this as the Claimant was not trained as a sales negotiator.  Stuart was offered this post at his first consultation meeting.  The Claimant feels this post should have been opened to her for consideration also, as she was at risk of redundancy.”

7. The Respondent in its response agreed that Mr Jackson had offered the Abington post to the Claimant but she turned it down.  At paragraph 3.9 of the Particulars of Response they say:

“It is admitted that Stuart Russell (‘Stuart’) was offered a transfer to the Abington branch as Sales Negotiator.  It is further admitted that this role was offered to the Claimant, and that she confirmed that she was not willing to accept this as she did not wish to train as a Sales Negotiator.”

8. However, in her witness statement the Claimant appeared to retreat from that apparent agreed factual position.  At paragraph 7 she said this:

“I later learnt Stuart Russell was offered a transfer to the Abington branch.  Stuart was offered this post at his first consultation meeting.  This post should have been opened up for consideration by me also, as somebody at risk of redundancy.  The Respondent has averred that I turned down the offer of Sales Negotiator at the Abington branch (ET3 para 3.9).  This is in fact a confusion in the ET1.  I was not offered the role at the Abington Branch as stated in the Respondent’s letter of 14 May 2008.  ‘Stuart was transferred to Abington in the role of sales negotiator as a direct result of the need to further reduce costs at the Daventry branch.  As you had indicated to David Jackson that you would not wish to consider a sales negotiator position due to the need for travel and a potential increase in the hours this was not deemed to be a suitable vacancy to offer you’ ...  The role was not offered to me for [sic] to be able to consider whether it would be suitable or not.”

9. The Tribunal appear to have acknowledged the difficulty which this state of affairs caused.  At paragraph 6 of their reasons they said:

“We found the case a particularly difficult one.  It transpired that matters which apparently had been agreed at the beginning of the proceedings were not agreed.  Witness statements which were relied upon and served did not contain evidence of the principal contentions and for reasons which were apparent needed amplification while the various witnesses were giving evidence in chief.  More importantly perhaps, although both the main witnesses [the Claimant and Mr Jackson] impressed us being straight forward in giving evidence, neither had contemporaneous notes to rely on, relied on their memory of events that had taken place some time previously but both believed their accounts of fact to be correct although they were in substantial dispute about what happened at crucial meetings.  We preferred the evidence of the Claimant where there was dispute.”

10. In their findings of fact at paragraph 7 they reached the following conclusion on the factual issue as to whether; (a) the Claimant was offered the Abington post and/or (b) whether she indicated she did not want a sales role.  At sub-paragraph (xii):

“There was a conflict of evidence as to whether the Claimant was offered an alternative role of sales negotiator in Abington.  The Claimant states that she was not offered the role.  Mr Jackson states that she was.  There was some discussion as to the role and the possibility of her undertaking it.  We were satisfied that the Claimant expressed reservations about alternative roles but we are certain she was not offered the role of sales negotiator in Abington informally at the meeting or formally thereafter.”

11. And sub-paragraph (xv):

“On the 14th April the meeting took place.  Again there were just the two present, the Claimant and David Jackson.  As to the events of that meeting, there was again a conflict of evidence between the Claimant and Mr Jackson.  We prefer the Claimant’s account.  Mr Jackson accepted that over this period he attended many meetings with staff.  Apart from the 11th April, this was the only meeting the Claimant attended.  The decision to dismiss the Claimant was announced by Mr Jackson at the very outset of the meeting.  She was told that she was “redundant” and she became distressed.  There was some discussion of a part time role.  We make no findings of fact as to who raised the possibility of part time work.  She was not however offered the role of sales negotiator at the Abington office nor was she given the opportunity of applying for it.  She was told that the date of termination of her employment was 28th April 2008.”

12. We referred counsel to the passage in the judgment of Sedley LJ in Anya v University of Oxford [2001] IRLR 377, paragraph 24, where he approved this observation by Morison J (President) in Tchoula v Netto Foodstores Ltd (EAT 6 March 1998 - (unreported):

"A bald statement saying that X's evidence was preferred to Y's is, we think, both implausible and unreasoned and therefore unacceptable; and it might appear to have been included simply to try and prevent any appeal. It seems to us likely that there will be a great deal of background material which is non-controversial.  There is no need to recite at length in the decision the evidence which has been received. What a tribunal should do is state their findings of fact in a sensible order (often chronological), indicating in relation to any significant finding the nature of the conflicting evidence and the reason why one version has been preferred to another. It is always unacceptable for a tribunal to assert its conclusion in a decision without giving reasons."

13. Mr Pearman submits that nowhere in the Tribunal’s reasons did they explain why they prefer the evidence of the Claimant to Mr Jackson on this crucial question, particularly in circumstances where the Claimant has apparently shifted her position.  That is not Meek compliance.

14. Ms Shalom does not accept that the Claimant has inexplicably changed her position.  She submits that there was a confusion in the original ET1 drafting by the Claimant’s solicitor.  At one point there it is said that she was offered the position at Abington and two sentences later it is said, inconsistently, that she ought to have been offered the sales post.  We interpose that the Claimant has no previous selling experience.  That is an inconsistency.  However, what in our view is plainly not confused or inconsistent, is the sentence:

“The Claimant was offered a sales negotiator role, but did not accept this as the Claimant was not trained as a sales negotiator.”

15. As to the Tribunal’s reasons for preferring the Claimant’s evidence Ms Shalom relies on the observation by the Tribunal at paragraph 7(xv) that in preferring the Claimant’s account there in relation to what happened at a meeting between them on 14 April 2008:

“Mr Jackson accepted that over this period he attended many meetings with staff.”

16. The Claimant attended on two occasions.  From that we are invited to infer that the Tribunal found the Claimant’s account more likely to be correct because she had attended only two meetings with Mr Jackson on a matter which greatly affected her.  He, on the other hand, had met with some 36 members of staff to discuss their continued employment or otherwise in 2008.

17. Be that as it may, that still leaves the critical question not dealt with by the Tribunal as to the Claimant’s change of position.  Having considered the Tribunal’s reasoning and the opposing contentions of counsel we have concluded that Mr Pearman is right.  These reasons do not explain why the Claimant’s evidence was preferred to that of Mr Jackson, particularly in the light of her apparent change of position, which was not explained in evidence because she declined in cross-examination to waive privilege in respect of the drafting of paragraph 6 of the form ET1 particulars.  The extract from Tchoula, it seems to us, applies to this crucial finding of fact in the present case.

18. Mr Pearman advanced further Meek grounds in relation to the Tribunal’s finding of stereotypical assumption by Mr Jackson (Reasons paragraph 12) and the economical way in which they deal with the sex discrimination question at paragraph 18 and query paragraph 19 of their Reasons.  We do not find it necessary to consider those points at length.  Having accepted his primary submission we are satisfied that the finding at paragraph 2 of the judgment cannot stand and must be set aside.

Disposal
19. Plainly the factual question discussed earlier requires resolution by a fact-finding employment tribunal.  We cannot decide that question.  Ought the matter to be remitted to the same, or a different, Employment Tribunal?  Ms Shalom argues for the first course and Mr Pearman for the second.  We agree with Mr Pearman, having reminded ourselves of helpful guidance of Burton J (President) in Sinclair, Roche & Temperley v Heard [2004] IRLR 763, paragraph 46, a judgment to which our colleague, Mr Bleiman was a party.  The perception of fairness requires a fresh Employment Tribunal in our view.

20. On remission the finding of unfair dismissal stands; it not being now challenged in this appeal.  The issue of sex discrimination is at large.  It also follows, in our view, that the agreed Remedy Judgment dated 17 March 2009 must be set aside.  The Claimant will be entitled to a basic award of £660.  Whether she is entitled to further compensation by way of a compensatory award for unfair dismissal will depend on the outcome of the sex discrimination claim following remission; that part of the compensation having been loaded onto the sex discrimination finding in the original remedy consent judgment.

21. Finally, we think that the next Employment Tribunal may see this judgment but should not see that promulgated by the Cassel Tribunal.