Appeal No. UKEAT/0309/09/CEA
UKEAT/0436/09/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 26 January 2010

Before
HIS HONOUR JUDGE PETER CLARK
MR B BEYNON
MR G LEWIS

MISS J MILLER (APPELLANT)

BELLWAY HOMES LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant MR J SMALL
(of Counsel)
Instructed by:
Messrs Lawson West LLP Solicitors
241 Uppingham Road
Leicester  LE5 4DG

For the Respondent MS A McCOLGAN
(of Counsel)
Instructed by:
EEF London
Broadway House
Tothill Street
London  SW1H 9NQ

**SUMMARY
**PRACTICE AND PROCEDURE:  Perversity
SEX DISCRIMINATION:  Injury to feelings
The Respondent’s perversity challenge to Employment Tribunal liability finding of sex discrimination and unfair dismissal failed.

The Claimant’s appeal against the remedy judgment allowed in relation to ‘cut-off date’ for lost earnings.  The Employment Tribunal failed to consider, on the face of their reasons, a material factor, namely whether the new employment secured by the Claimant was coming to an end in any event due to economic circumstances.  That point remitted to same Employment Tribunal for further consideration.

**HIS HONOUR JUDGE PETER CLARK
Introduction
**1. The parties to these proceedings before the Leicester Employment Tribunal were Miss Jayne Miller, Claimant, and Bellway Homes Ltd, Respondent.  We shall so describe them.  We have before us for full hearing an appeal by the Respondent and cross-appeal by the Claimant against the liability judgment of a Tribunal chaired by Employment Judge Threlfell, promulgated with reasons on 1 April 2009 and an appeal by the Claimant against that same Tribunal’s remedy judgment, promulgated with reasons on 17 August.

**Liability
**2. The Tribunal held that the Respondent, a national house builder, had indirectly discriminated against the Claimant on grounds of her sex and unfairly dismissed her by reason of redundancy when they failed to offer her a vacant position, for which she was suited, on a part-time basis.

3. The Tribunal, correctly in our view, identified the critical issue on this part of the case as determining the balance between the business reasons of the employer for maintaining the post of Field Sales Manager as a full-time post (35, as opposed to the Claimant’s 21 hours per week) set against the detriment to the Claimant of losing her employment.  It was accepted that the Respondent applied a PCP of requiring full-time work which caused a disparate impact on women, including the Claimant; thus the question was whether the Respondent could objectively justify that requirement.  If not, then it is common ground that it also followed that the dismissal was unfair.

**The Factual Background
**4. The Claimant commenced her employment with the Respondent in 2001 as Area Sales Manager for the East Midlands region.  Some 13 to 15 building sites were then covered by that region.  As the number of sales and sites grew it was found necessary to recruit a second Area Sales Manager for the region, Ms Anstee.

5. In May 2004 the Claimant commenced maternity leave, returning to work in January 2005.  It was then agreed that she would return on a 50 per cent, 2½ days per week, basis.  That pattern later increased to three days per week.

6. In early 2006 business was booming and a further manager, Mr Blockley, was recruited.  Mr Blockley and Ms Anstee were then designated Field Sales Managers (FSMs) and the Claimant was given the title of Show Homes Manager (SHM).  The FSMs travelled across the region, covering some 35,000 miles a year, visiting sites, working with site sales advisers to maximise sales, sometimes at weekends, whilst the Claimant organised the opening of new sales offices, show homes and brochures.

7. The downturn in house sales came with the start of the economic recession in autumn 2007.  Cost savings were necessary and the Respondent began to look at cutting the workforce.  On 18 February 2008 the Respondent announced 18 proposed redundancies.  The Claimant’s post was identified for redundancy.

8. Discussions took place between the Claimant and Mr Ben Smith, the Sales Director, at a number of meetings.  The upshot was that Ms Anstee took voluntary redundancy, leaving the way clear for the Claimant to take her position as FSM.  The sticking point was her hours of work.  She wished to retain her 21-hour contract.  Mr Smith insisted that the FSM post must be full time.  No agreement could be reached and the Claimant was dismissed by a letter sent on 6 May 2008.

9. Having correctly directed themselves as to the test for justification by reference to the Judgment of Elias J, President in British Airways Plc v Starmer [2005] IRLR 862 the Tribunal expressed their reasons for finding that the Respondent had not justified their requirement for full-time working in the now vacant FSM post at paragraphs 24 to 26 of their reasons.

10. In challenging that finding, Ms McColgan submits that the Tribunal’s conclusion on justification was legally perverse.  That is a high hurdle to cross, as the Court of Appeal made clear in Yeboah v Crofton [2002] IRLR 634.  The question for us is whether she has cleared the bar.

11. In short, our answer is in the negative.  Ms McColgan’s submissions focus on the reasons given by the Tribunal at paragraph 24 for finding that they were not satisfied that the FSM role could only be performed full time.  The challenges, in our judgment, amount to an attempt to retry factual questions; for example, as to whether, on her return from maternity leave, the Claimant supervised five sites before taking up what became the SHM role, or not.  In our view the findings made in paragraph 24 were supported by evidence, or no evidence from the Respondent, in relation to the matter dealt with at the last sentence of paragraph 24.  There are no grounds for interfering with the balancing exercise performed by the Tribunal.

12. It follows, having rejected the Respondent’s appeal on liability, both in relation to indirect sex discrimination and unfair dismissal, that it is unnecessary for us to consider the Claimant’s conditional cross-appeal on liability.

**Remedy
**13. The critical findings by the Tribunal, challenged on appeal by the Claimant, are (1) that her claim for loss of earnings based on the notional pro rata rate of pay for a part-time FSM ended on 16 September 2008 when she resigned from fresh employment with Handover Cleaners which she had secured immediately on termination of her employment with the Respondent on 6 May 2008 (causation), (2) a reduction in compensation to the extent of 25 per cent by reason of her not having appealed internally the Respondent’s decision to dismiss her, applying section 31 of the Employment Act 2002.

Causation
14. The Tribunal found that had the Claimant retained her employment with the Respondent as a part-time FSM her salary, part-time, would have been around £18,000 per annum.  Her salary as a part-time manager with Handover was £25,000 per annum prorated for a three-day week, i.e. about £15,000.

15. She resigned from that employment on 16 September 2008, having set up a new cleaning company with a friend called Crème de la Clean Limited.  She told the Tribunal that she resigned from Handover because, after she submitted her claim to the Tribunal, Mr Smith said that he would not send any work from the Respondent to Handover.  Mr Smith denied any such thing and the Tribunal found (reasons paragraph 8) that he did not cause her to leave Handover.  What prompted her to do so was a combination of three factors: setting up Crème de la Clean; taking on sales work from Herbalife and Avon; and a desire to join the Derbyshire Police.  The Tribunal concluded (paragraph 10) that the Respondent was not responsible for any losses incurred by the Claimant after 16 September 2008.

16. In challenging that finding, Mr Small has referred us to my statement of the principles to be applied when considering the extent of financial loss in the context of unfair dismissal, in Whelan v Richardson [1998] ICR 318, as varied by the Court of Appeal in Dench v Flynn [1998] IRLR 653, and he draws our attention to evidence apparently unchallenged below, given by the Claimant and Ms Green of Handover, in her case by way of a written statement only, that her appointment with Handover was on a six-month probationary period and that due to difficult market conditions her appointment would not have been confirmed after that six-month period, i.e. from November 2008.

17. Unfortunately there is no indication in the Tribunal’s reasons that this potentially relevant factor was taken into account in reaching their conclusion that the Claimant’s loss ended on 16 September 2008 when she resigned from Handover.  The critical question, did she jump in order to pursue other opportunities or was she pushed due to Handover’s financial position, is simply not addressed.

18. We accept Mr Small’s submission that this was a relevant factor which ought to have been but was not, on the face of it, considered by the Tribunal.  We cannot accept, as Ms McColgan contends, that the Tribunal plainly had this point in mind when arriving at what we agree was an otherwise wholly unexceptionable finding as to the cut-off point for the Claimant’s lost earnings.

19. In these circumstances we are driven to conclude that the remedy appeal succeeds on this aspect.  The appeal will be allowed to this extent and the causation question will be remitted to the same Employment Tribunal; we accept Ms McColgan’s submission that there is no good reason why the same Tribunal, seized of the matter thus far, could not fairly decide the issue, for further consideration.

Section 31 EA 2002
20. The Tribunal noted (paragraph 17 of the remedy reasons) that the Claimant said that she was not emotionally up to pursuing an appeal but at the same time had taken immediate new management employment with Handover.  They found no good reason for her not to pursue an appeal.  Further, an appeal would have allowed the parties to better understand each other’s position: both were guilty of intransigence and, we infer, the matter would have been taken out of Mr Smith’s hands on appeal.

21. The Tribunal concluded (paragraph 18) that the Claimant’s failure to appeal had a significant effect on the case and, on the statutory scale of 10 per cent to 50 per cent, they reduced her compensation by 25 per cent.

22. On this aspect of the remedy appeal we are quite unable to find any error of law on the part of the Tribunal.  They rejected the Claimant’s evidence as to why she did not appeal.  They were entitled to find that an appeal to an independent manager may have made a significant difference to the outcome, not least, we think, so far as the possibility of a trial period for the Claimant in a part-time FSM role was concerned.  The finding of a 25 per cent deduction was plainly within the proper exercise of the Tribunal’s discretion.

Disposal
23. The Respondent’s liability appeal is dismissed.  We make no order on the Claimant’s cross-appeal.  The Claimant’s remedy appeal succeeds on the causation point only.  That matter will be remitted to the same Employment Tribunal.