Case No: A2/2010/3036

Neutral Citation Number: [2011] EWCA Civ 679

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Mr Justice Langstafff, Mr A. Harris and Mr S. Yeboah

UKEAT/0242/10/DM

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday, 18 May 2011

Before:

LORD JUSTICE RIMER

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Between:

MINISTRY OF DEFENCE (Appellant)

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MRS J. CARTNER (Respondent)

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(DAR Transcript of

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Mr Richard Coleman (instructed by Treasury Solicitor) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment (As approved by the Court)

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Lord Justice Rimer:

1. This is a renewed application for permission to appeal made by the Ministry of Defence, represented by Mr Richard Coleman. The respondent is Mrs J Cartner. The proceedings are employment related and arise out of the failure of a Royal Navy promotion board to promote Mrs Cartner from the rank of Chief Petty Officer to that of Warrant Officer, a failure for which, if Mrs Cartner's complaint is justified, it is accepted the applicant is answerable.

1. Mrs Cartner claimed that in placing her seventh in the ranking of 34 candidates for promotion, the board was guilty of direct and/or indirect sex discrimination. Of the 34 candidates, only the top one was directly promoted and the next three went on to a reserve list.

1. The Southampton Employment Tribunal, by its judgment sent to the parties with reasons on 12 January 2010, found that the applicant had discriminated against the respondent on both bases of her claim. The outcome of the applicant's appeal to the Employment Appeal Tribunal, before a panel presided over by Mr Justice Langstaff, was to dismiss the appeal against the finding of indirect discrimination but to allow it against the finding of direct discrimination and to remit that part of the respondent's claim to the same employment tribunal for a re-hearing.

1. Maurice Kay LJ, on the papers on 24 February 2011, gave the applicant permission to appeal against the appeal tribunal's dismissal of the indirect discrimination appeal but refused permission to appeal against its decision in relation to direct discrimination. Mr Coleman now renews the application for permission to appeal against that decision. His point in summary is that the evidence before the employment tribunal did not disclose even a prima facie case of direct discrimination and that the appeal tribunal should simply have allowed the appeal against the finding of direct discrimination and have dismissed that claim. Instead, the applicant is faced with a re-hearing on that issue.

1. Having considered both Mr Coleman's written skeleton argument in relation to the direct discrimination case and his further written statement for the purposes of his application, and having also taken account of his oral expansion of those arguments this morning, I have come to the conclusion that in this perhaps rather unusual case permission to appeal against the appeal tribunal's order in relation to the direct discrimination appeal ought to be given. I accept that the argument that the applicant wishes to advance has a real prospect of success on an appeal before the full court.

1. Maurice Kay LJ was in particular concerned that the court could not, or would not be likely to, adopt a view contrary to that favoured by the appeal tribunal in paragraph 72 of its reasons. The answer to that is said to be that this is a case in which the court will have all the evidence that the employment tribunal had and that it is not a case which turns on the employment tribunal's assessment of the witnesses. This court will therefore be in as good a position as the employment tribunal was to determine whether there was evidence that supported a valid finding of direct discrimination; and the reason that the employment tribunal arrived at the conclusion it did is, it would appear, because it misdirected itself in its approach to the whole question.

1. Mr Coleman recognises that the appeal may not be straightforward but submits that there is nevertheless a properly arguable point that the applicant ought to be allowed to renew before the full court; and I am prepared to accept that there is. Moreover, there is anyway going to be an appeal on the indirect discrimination issue, an appeal which I understand from Mr Coleman, and having regard to the service by the respondent of a respondent's notice, is estimated to occupy between one and two days. The investigation of that appeal will involve the consideration of the very evidence that is at the heart of the applicant's case on the direct discrimination issue. Mr Coleman assures me that the addition of this aspect of the case to the argument will not cause the time estimate to exceed two days. It does therefore seem to me that the fact that there is anyway to be an appeal on closely related issues supports the conclusion that it would be appropriate to give the applicant permission to appeal on the direct discrimination issue and so to give it the opportunity via such an appeal of showing, if it can, that a re-hearing before the employment tribunal is unnecessary. If the matter is simply to be referred to the employment tribunal for a re-hearing, there is always the prospect that if the decision is adverse to the applicant there will then be a further series of appeals, which appears to me to be something to be avoided if possible.

1. For those reasons I therefore give permission to the applicant to appeal on ground one of the grounds of appeal.

Order: Permission to appeal granted