Appeal No. UKEATS/0017/12/BI
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At
the Tribunal
On 28 June 2012
Judgment handed down on 19 July 2012
Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MR M KEENAN MCIPD
MR R THOMSON
MISS
JOANNA MAKSYMIUK APPELLANT
BAR
ROMA PARTNERSHIP RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
SEX DISCRIMINATION
Inferring discrimination
Burden of proof
Pregnancy and discrimination
REDUNDANCY
An employee who was the only one of a number of bar staff who was
selected for dismissal by reason of purported redundancy, only a matter of days
after she had announced that she was pregnant, had her claim of discrimination
on the ground of pregnancy or sickness related to pregnancy dismissed, since
the Tribunal held itself unable to infer a prima facie case of discrimination.
Arguments that it had adopted the wrong approach in law by focussing upon
whether the redundancy was genuine, the selection criteria objective, and the
scoring such that in any event the claimant would have been selected. Held:
the Tribunal was entitled to come to the conclusion it did, and it could not be
said that the burden of proof should have been held to have passed to the
Respondent employer. Allegations of bias, by interruption and questioning of
the approach of the Claimant’s solicitor, rejected.
THE
HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
1.
An Employment Tribunal in Edinburgh dismissed Miss Maksymiuk’s claim that
in selecting her for dismissal and in dismissing her for the asserted reason of
redundancy 16 March 2011, the Respondent employer had treated her unfavourably
because of her pregnancy or because of illness suffered by her as a result of
it. It allowed claims for a failure to issue the Claimant with a written
statement of her particulars of employment and for failure to issue her with a
statement of reasons for her dismissal.
2.
Section 18 (2) of the Equality Act 2010 provides:
“A person (A) discriminates against a woman if, in the protected
period in relation to a pregnancy of hers, A treats her unfavourably -
(a) because of the pregnancy, or
(b) because of illness suffered by
her as a result of it.”
3.
Dismissal was admitted. The Respondent’s case was that it was not
because of pregnancy nor because of illness suffered by the Claimant as a
result of it. It was by reason of redundancy in respect of which she had been
fairly selected by reference to objective criteria which had nothing to do with
sex.
4.
Section 136 of the Equality Act (burden of proof) applied to the
case the Tribunal had to hear. That provides -:
“(1) This section applies to any proceedings relating to a
contravention of this Act.
(2) If there are facts from which the court could decide in the
absence of any other explanation, that a person (A) contravened the provision
concerned, the court must hold that the contravention occurred.
(3) But sub-section (2) does not apply if A shows that A did not
contravene the provision.”
5.
As the Tribunal observed (at paragraph 104) if the Claimant could
establish a prima facia case of treatment contrary to section 18, then the onus
would shift to the employer to prove that there was no discrimination. If it
failed to do that the claim would succeed.
6.
In Igen v Wong [2005] ICR 931, and in particular in an
annex attached to it, the Court of Appeal set out guidance to Tribunals as to
how they should approach the reversal of the burden of proof for which the
predecessor to section 136 of the Equality Act provided. It was
accepted before us that that guidance was applicable to cases under the Equality
Act as it had been before. For the purposes of this judgment we need not
set it out in full. The judgments in Madarassy v Nomura International
plc [2007] EWCA Civ 33 noted that in respect of the two stage process required
(first, a decision whether the Claimant had proved facts from which the
Tribunal could conclude, in the absence of an adequate explanation that the
employer had committed an act of discrimination against the Claimant; second,
whether if so the employer had provided a cogent explanation adequate not only
to explain why the act occurred, but to show that it was in no way because of
the protected characteristic) the Tribunal was not prevented at the first stage
from hearing, accepting or drawing inferences from evidence adduced from the
Respondent disputing and rebutting the complaint. The Court expressly endorsed
the judgment of the EAT (Elias J presiding) in Laing v Manchester City
Council [2006] I.C.R. 159. He had observed (paragraph 73):
“No doubt in most cases it will be sensible for a Tribunal
formally to analyse a case by reference to the two stages. But it is not
obligatory on them formally to go through each step in each case. … tribunals
can waste much time and become embroiled in highly artificial distinctions if
they always feel obliged to go through these two stages …
75. The focus of the Tribunal’s analysis must at all times be
the question whether or not they can properly and fairly infer race
discrimination. If they are satisfied that the reason given by the employer is
a genuine one and does not disclose either conscious or unconscious racial
discrimination, then that is the end of the matter. It is not improper for a
Tribunal to say, in effect, “there is a nice question as to whether or not the
burden has shifted but we are satisfied here that, even if it has, the employer
has given a fully adequate explanation as to why he behaved as he did and it
has nothing to do with race.
76. Whilst, as we have emphasised, it would usually be desirable
for a tribunal to go through the two stages suggested in Igen, it is not
necessarily an error of law to fail to do so. There is no purpose in compelling
tribunals in every case to go through each stage. They are not answering an examination
question and nor should the purpose of the law be to set hurdles designed to
trip them up. The reason for the two-stage approach is that there may be
circumstances where it would be to the detriment of the employee if there were
a prima facia case and no burden was placed on the employer because they may be
imposing a burden on the employee which he cannot fairly be expected to have
discharged and which should evidentially have shifted to the employer. But
where the Tribunal has effectively acted at least on the assumption that the
burden may have shifted, and has considered the explanation put forward by the
employer, then there is no prejudice to the employee whatsoever.”
7.
Ms Drew who appears for the Claimant, referred to Network Rail
Infrastructure Ltd v Ms Griffiths – Henry, a decision of the EAT (Elias
P presiding) of 23 May 2006, UKEAT/0642/05. The Tribunal observed (at
paragraph 18) that there was no justification for requiring positive evidence
of discrimination at the first stage – that would be putting the burden too
high. This was not in dispute before us, but we emphatically agree.
Discrimination requires a difference in treatment to the disadvantage of the
complainant, and a difference in the protected characteristics of complainant
and comparator: but that, as Madarassy points out, is
insufficient (though we would add it is necessary). It was the very great
difficulty in showing that differential treatment to the disadvantage of the
Claimant occurred because the Claimant had a specific protected characteristic
that led to it being recognised that there was a need to reverse the burden of
proof: discrimination would rarely if ever be freely admitted by a respondent. This
is why, though more than a difference in (say) sex, and a difference in
treatment causing detriment is required, the presence of such discrimination is
likely to have to be inferred from decided facts, rather than found directly in
the primary evidence. Since what is in issue is inference, it is possible that
the primary facts – or other inferences in favour of a respondent’s case
properly to be drawn from them – may leave no room for it, or positively
exclude it. As the EAT in Gay v Sophos plc, UKEAT/0452/10, a
decision of 16 September 2011 of a Tribunal over which Underhill P presided,
observed, if a Tribunal at the stage of drawing inferences “..makes a positive
finding the acts complained of were motivated by other considerations to the
exclusion to the proscribed factor, (this must have necessarily meant) that the
burden of proof, even if it had transferred, has been discharged.” (paragraph
27)
8.
Reference was also made by Ms Drew to Country-Style Old Foods Ltd
v Bouzir [2011] EWCA 1519 for the proposition that appellate
intervention was appropriate when (as she put it) the correct framework had not
been adopted for the approach of a analysing the facts in the light of the law.
The Facts in Outline
9.
The Tribunal had to determine whether there had been discrimination by
reason of pregnancy against the background of the following findings of fact.
The Claimant was employed for 6 months as a member of bar staff in an Italian
restaurant in Edinburgh. The restaurant was run by a family partnership.
Trade was bad at the end of 2010, and the beginning of 2011, both because of
the recession and the exceptionally poor weather. In February 2011, the
General Manger Mrs Di Giorgio reviewed staff numbers and determined that the
bar was the only area that was super numerate. That was discussed in the
family, and the decision taken to make a member of bar staff redundant. On 28
February 2011 Mrs Di Giorgio put up the notice in the bar to tell the bar staff
that she wished to meet with them to discuss the possibility of redundancy. (Although
the Claimant did not recollect this, she did not dispute it and the Tribunal
found it as fact). On 3 March the Claimant told another member of the bar
staff that she was pregnant. Mrs Di Giorgio heard of it and spoke with the
Claimant on 4 March to say how pleased she was to hear about the pregnancy.
10.
Only some 6 days later, however, on 10 March there was the meeting of
staff to which the notice had referred. Mrs Di Giorgio explained at it that
there would be a process of selection for the necessary redundancy. This was
not to be determined solely by length of service (if it were done, the Claimant
would have been selected) but would involve consideration of skills and other
factors.
11.
She adopted a matrix which consisted of 7 criteria (although the
Tribunal, at paragraph 41, said ‘6’ this is an error). They were: Skills and
Competencies; flexibility, willingness and an ability to transfer roles;
qualifications relevant to position; attendance record; disciplinary record;
job performance; and length of service. As to this last, although the
Respondent’s solicitors, to whom Mrs Di Giorgio had turned for advice, provided
her with an outline matrix which referred to length of service only being used
as a tie breaker, Mrs Di Giorgio used it as one of the criteria that formed
part of the overall scoring.
12.
Scores were awarded against an assessment of those criteria from 1
(lowest) to 5. The Claimant scored lowest among the bar staff though this was
undoubtedly influenced by a score of 1 for length of service (understandable, given
only 6 months service) and 2 for attendance record. Her total was 15. The
employee (one Jajko) with the next nearest total was scored at 20. It emerged
in evidence however, that Mrs Di Giorgio had simply failed, when conducting the
scoring for him, to give him any mark for ‘qualifications relevant to
position’. If that mark had been average, his mark would have been 8 points
higher than that afforded the Claimant; if the minimum it would have been 6
higher.
13.
The Claimant’s attendance score, (2), was reached because it was said
her sickness record disclosed 12 days of sickness in the 6 months of service.
Unknown to Mrs Di Giorgio at the time she scored the matrix, so the Tribunal
found, there were 2 days of pregnancy related sickness included in the 12. A
further 2 days sickness absence had been attributed in error, so the Tribunal found.
4 further days were disputed in evidence. The Claimant alleged that they had
not been days taken sick, but days taken off. However, the Tribunal found that
she had been paid (i.e. company or statutory sick pay) for those days, which would
have happened if she had been off sick, but not if they had simply been taken
off. It therefore accepted the employer’s case that the sick record (after
allowing for its finding as to the disputed four days) was of a total of 8
days’ absence. (2 of these days were half days, which accounts for the
calculation in the Appellant’s skeleton argument coming to 7 days sickness
absence on the Respondent’s case, and 3 days on the Appellant’s.)
14.
The next lowest scoring employee had 3 days sick leave, resulting in a score
on the matrix of 3 out of 5. The Claimant was given a mark of 2 out of 5. The
Tribunal held this appropriate, and was plainly entitled to do so.
15.
Generally, in finding facts the Employment Tribunal preferred the
evidence of Mrs Di Giorgio to that of the Claimant, for reasons it spelt out in
full.
16.
In the course of evidence, the Claimant put in issue whether there had
been a genuine need to make any dismissal by reason of redundancy, and whether,
if so, the Claimant had been fairly selected for it by reference to objective
criteria. The Claimant’s case as advanced to the Tribunal was that there was
such a short passage of time between the Claimant’s announcement that she was
pregnant and her dismissal as to give rise to a suspicion that the two were
linked. Evidence for the redundancy was poorly authenticated (documents which
might have been produced were not) and management had overstated the losses of
the business. Examination of the hours worked by all the staff collectively after
the dismissal of the Claimant showed no overall reduction for a while. The
employer had not discussed the application of the selection criteria with
individuals before completing the scoring; inaccuracies had been found in the
sickness records which Mrs Di Giorgio told the Claimant was the essential
difference between her and the next lowest scoring member of staff; the
Claimant was scored down on transferable skills and qualifications, despite Mrs
Di Giorgio accepting that she had not spoken to the Claimant nor reviewed her
CV to assess her experience prior to working for the Respondent; the
solicitors to the Respondent had advised Mrs Di Giorgio to use length of
service only as a tie break but she had instead used it as one of the criteria,
thereby disadvantaging the Claimant because of her very short service; that, if
one accepted her contention as to days off and treated 2 separate half days as
one day’s sickness absence, her record was the same as the next lowest-scoring
employee (one Jajko). She was the only employee dismissed. Her employment
record was criticised without giving her an opportunity to refute the
criticisms. The employer had further delayed in responding to a questionnaire served
under the Act, in particular in failing to give open details of levels of
sickness which were central to the scoring of the matrix, and did so without
any cogent explanation; the employer had failed to provide a statement of terms
and conditions of employment, and failed to respond to a letter requesting
reasons for dismissal; the record-keeping of the employer had serious
shortcomings; the employer had not consulted relevant codes and guidance, and
confessed to a lack of training and experience. Inferences could (and should)
be drawn from these facts which meant that there was more than a mere
difference of treatment, and a protected status not shared by others, such that
the burden of proof should pass, and the Tribunal find there had been discrimination.
17.
We comment at this stage that although this was the case as advanced, it
assumed some facts to the contrary of those which the Tribunal went on to
accept; and we note that inferences are to drawn from facts proved by a
claimant, and not from those which are merely asserted.
The Tribunal Judgment
18.
The Tribunal said, at paragraph 70
“The reason for dismissal was a redundancy situation affecting
that the Respondent’s need to employ bar staff such as the Claimant. Neither
the Claimant’s pregnancy nor any matters associated with the pregnancy played
any part in the Respondent’s decision to dismiss the Claimant”
This looks like a conclusion reached after argument: some
submissions turned on it, to which we will return.
19.
Other that that arguable exception, the Tribunal’s judgment is
carefully structured. It set out the facts, the submissions, and under the
heading ‘Discussion and Decision’ it first resolved conflicts in the evidence,
materially concluding that the Claimant’s sickness record was substantially
worse than the next lowest scoring employee; and that the error in including 2
days of sickness which should not have been included was an honest mistake by
Mrs Di Giorgio. It then turned to the law. The self-direction in law between
paragraphs 102 and 108 is not challenged before us.
20.
In then applying the law to the facts the Tribunal dealt first with the
question of whether there had been a genuine situation calling for a dismissal
by reason of redundancy. At paragraph 110 it said:
“Whilst it was not a matter of dispute at the time of her
dismissal the Respondent knew the Claimant was pregnant, it was also clear from
the evidence that the Respondent was a long way down the road of carrying out
the redundancy process when it found out about that pregnancy.”
This finding was criticised by Ms Drew as perverse. She
submitted that the expression ‘a long way down the road’ was simply not correct
on the findings of fact. As to that, discrete, point it is clear to us the
submission has no merit. A Tribunal judgment must be read as a whole.
Passages must not be seen in isolation. In particular, passages immediately
before, or following, the passage upon which focus is placed may provide
essential context. Here, paragraph 111, the immediate next paragraph, reads:
“The review of the number of employees had been undertaken the
month before the pregnancy was announced and, indeed, the notice calling the
bar staff to the meeting had been put up before Mrs Di Giorgio was aware of the
pregnancy.”
The elasticity inherent in ‘a long way down the road’ was
immediately explained in that following paragraph – from which it is plain that
the Tribunal was not taking a skewed view of the facts hostile to the Claimant,
but rather was explaining its meaning and repeating the evidence it had found,
just as if the sentence which is separately enumerated as paragraph 111
followed as part of paragraph 110. There is no error of law here.
21.
The Tribunal rejected the suggestion that it should hold that there was
no genuine redundancy because there had been no proper vouching of it by
documentary evidence (paragraph 115).
22.
Having determined that there was a genuine redundancy situation it
turned to ask whether the evidence showed that the Claimant had been selected
by the application of objective criteria which did not have inherent in them
any distinction on the grounds of sex or pregnancy. It concentrated upon the
criticisms which had been made in respect of the attendance record (since that
had been the principal thrust of the Claimant’s submissions), and concluded
that even making allowance for that the Claimant would still have been selected
on the basis of criteria (which it appears, were not criticised as such before
it). Finally it concluded:
“127. Ms Fox had urged the Tribunal to draw a number of adverse
inferences for a number of features of the evidence. While it was not
persuaded that those inferences should be drawn in any event, it was
unnecessary for it to do so.
128. That the Claimant would have been selected for redundancy
is the outcome of an objective analysis of the facts. No amount of adverse
inferences would be able to allow the Claimant to overcome that calculation, as
it is fatal to her claim.
129. The Tribunal was not persuaded that a prima facie case had
been established and therefore the burden of proof did not pass to the
Respondent On the evidence the Claimant had not established facts from which
the Tribunal could conclude, in the absence of an adequate explanation that
discrimination had occurred. The discrimination claim must fail and is
dismissed.”
23.
Accordingly, the Tribunal’s decision was that, taking into account the
facts it had determined, the burden of proof did not shift to the employer for
an explanation.
Grounds of Appeal
24.
Five grounds of appeal against this decision were set out in the Notice
of Appeal. To some extent they overlap. The first was that the Tribunal was
in error in its approach to the burden of proof; a second ground, that there
was error in law in failing to look to the Respondent for cogent evidence to
discharge the burden upon it, was not advanced before us; the third ground was that
there was an error in failing to understand the Claimant’s case as regarded the
selection criteria; the fourth that there was a perverse finding as to the
redundancy process (this related to the conclusion at paragraph 110, with which
we have already dealt and reject for the reason there given), and the fifth
ground was that there had been bias by the Employment Tribunal.
25.
On the first ground, Ms Drew submitted that the Tribunal failed to
approach matters in the manner required by the guidance given in Igen v
Wong. That was an error compounded by a procedural decision to invite
the Respondent to give its evidence first as to the redundancy. This had not
been expected by either Claimant or Respondent. The Claimant initially
protested, but soon acceded to the suggestion: Ms Fox has since explained she
did so essentially for forensic reasons. The first stage of the logic required
by the burden of proof provisions is that the Claimant should establish
sufficient facts for the Respondent to be required to prove an explanation sufficient
to show that what happened was in no way the product of unlawful
discrimination. Analytically, that invites the Claimant to prove facts:
although in Laing, and Madarassy it was accepted
that a Tribunal would have regard to all the evidence before deciding whether
or not there was sufficient for it to call upon the Respondent to provide a
cogent explanation. The burden of proof is on the Claimant at this stage. Beginning
as the Tribunal did indicated that it was not concerned to follow carefully the
analytical route map marked out for it by Igen v Wong. The vice
of this approach was that it considered first much of the evidence from the
employer which would have been relevant at the second analytical stage (where
the burden of proof rested upon the employer), as to which the cases are
unanimous for calling then for a cogent explanation – that is, at that stage the
evidence produced by the employer must be examined with scrupulous care. Ms
Drew’s submissions were to the effect that the approach of a Tribunal to such
evidence would have to be more critical than at the first stage: so that, in
practical terms in respect of the current case, it could not accept simply that
there was a redundancy situation by relying uncritically upon the evidence of
Mrs Di Giorgio but should have required the employer to produce documentary
evidence in support. The facts which clearly amounted to prima facie case
calling for a cogent explanation were set out in 12 lettered bullet points in
the Notice of Appeal. They required the burden of proof to shift. The
Tribunal’s examination of them was inadequate. For instance it made no
reference to there having been a tardy response to the questionnaire; it had
insufficiently examined the selection of the Claimant for redundancy when
commonly a Tribunal examining an employer’s explanation would re-score a
selection exercise rather than merely accept an employer’s scoring. The
approach of setting out a conclusion at paragraph 70 was indicative. It
short-circuited the logical processes required by the burden of proof
provisions. Notes of the evidence have been taken by a trainee solicitor in Ms
Fox’s office: although the purpose of providing copies of these notes had been
to give the Appeal Tribunal detail to support the claim of bias, they showed
that the approach of the Tribunal Judge was wrong when she interrupted
cross-examination by Ms Fox where she was examining closely the application of
the selection criteria. Ms Fox explained that she was trying to show that
objectively the Claimant would not have scored less overall than the next
lowest scoring man. The Judge responded “I am not getting where this is
tainted”. The Judge returned to the question: “Where is the taint?” shortly
after. To look for taint was akin to looking for positive evidence of
discrimination, whereas at this stage of the evidence what the Tribunal should
have been examining was whether there sufficient facts had been proved from which
inferences could be drawn that there was discrimination on the grounds of
pregnancy. “Taint”, in the sense of evidence of actual discrimination on a
particular ground, would not be required.
26.
As to the third ground, the Tribunal failed to understand the Claimant’s
case as regards the selection criteria – that was no objective basis for the
marking down of the Claimant, hence the inference should be drawn that it was done
for some other reason, which in the circumstances could only have been
pregnancy. Thus the Respondent had departed from the advice given by the
solicitor to the Respondent to use length of service only as a tie-breaker; had
made insufficient allowance in respect of the attendance record; and had simply
not asked whether there were any qualifications relevant to the position. The
Claimant challenged all the scores: but her case was simply that there was
evidence within the scores that they had not been properly assessed, and that
this together with the other factors therefore should have led to a requirement
that the employer should have justified all the scores, with the result
(effectively) that the Tribunal should have re-marked the redundancy. The
process had been unreasonably rushed, which led to it being less than careful.
That was something which caused the Claimant disadvantage in the result.
27.
Finally, as to bias the complaint was only in respect of the Employment
Judge. It was said she failed to keep an open mind, an attitude demonstrated
by reminding the Claimant’s solicitor that the claim was not one of unfair
dismissal; expressing unjustified impatience; interrupting Ms Fox in her
advocacy; and saying such as ‘again I am not sure where you are going with
this’; ‘we need to know the question Ms Fox’, and objecting to what she saw as repetition
of the same question; in accepting the assertions of the Respondent about its
financial situation; and in relying upon a rota book as evidence justifying a refusal
to accept the Claimant’s case, even though the Respondent itself also accepted
the book was inaccurate, with the result that the Claimant herself felt, she
said, like a suspect who was accused, rather than a victim of unfair treatment
which was pregnancy discrimination.
Discussion
28.
The guidance in Igen v Wong has been carefully refined.
It is an important template for decision making. As Laing and Madarassy
have pointed out however, a Tribunal is not required to force the facts into a
constrained cordon where in the circumstances of the particular case they do
not fit it. That would not be to apply the words of the statute
appropriately. Intelligent application of the guidance, rather than slavish
obedience where it would require contorted logic, is what is required.
29.
Here, the Claimant could not hope to show that she had been dismissed or
selected for redundancy for her pregnancy unless she could show (a) there was
no genuine redundancy and (b) the criteria for redundancy lacked proper objectivity;
or (c) the scoring of the matrix was itself not objective, but was influenced
by pregnancy. It was not sufficient for her simply to establish that she was
dismissed and was pregnant to the knowledge of the employer.
30.
The Tribunal’s finding that the redundancy situation was genuine was one
which was open to it. The Claimant’s case as advanced was that it was a sham.
The only reason it would have been so was if it were designed to secure the
Claimant’s dismissal because she was pregnant. Since the Tribunal found as a
fact that discussion of a redundancy from amongst the bar staff began in
February, and it was accepted that a notice had been posted, not only
indicating redundancy but that selection for redundancy would occur from
amongst the bar staff, before the Claimant told anyone at work that she was
pregnant, the Tribunal could not have concluded otherwise. Any inference that
might have been drawn from factors which might have suggested the redundancy
was a sham would simply be excluded by this finding: thus the facts set out at
paragraph 25 (d), (e) and (j) of the Notice of appeal could not justify any
inference at all.
31.
The criteria for selection for redundancy were not criticised as lacking
objectivity.
32.
That left only the question whether the selection for redundancy owed
anything to the Claimant’s pregnancy. Of the nine remaining matters said in
the Notice of Appeal to give rise to a shift in the burden of proof on this some
have no force or were contrary to facts which the Tribunal was undoubtedly entitled
to find – perversity expressly being disavowed before us except in respect of
paragraph 110 (as to which see above). That the Claimant was pregnant and told
the Respondent so is necessary to set the scene for possible discrimination,
but does not in itself create any inference. That the Respondent should
approach its solicitors 5 days after Mrs Di Giorgio was aware the Claimant was
pregnant may indicate some haste in proceeding with a redundancy dismissal –
but the notice calling a meeting about this had already gone up on 28 February,
so it is a slender point if any, since a meeting was plainly imminent before
the Respondent’s knew of the claimant’s pregnancy. That there was no
documentary evidence of the discussions as to redundancy at all is beside the
point in considering selection; as is the fact that sometime previously an
employee’s leaving employment should have been mis-described as redundancy (in
that case, it seems as a favour to the employee). That the Claimant was marked
down for two absences which were pregnancy related had to be seen in the light
of the evidence from Mrs Di Giorgio that she had not known the absences were
pregnancy related. She might have asked – and the fact she failed to do so
might carry some weight - but again, this would have to be viewed in the
context of a woman whose approach to the selection process could on the
findings of fact by the Tribunal be described as somewhat amateurish.
33.
The appeal seems to rely on the claim that the Claimant was marked down
for 3 absences when she was in fact not rostered for duty. The Claimant did
not however establish those facts – they were rejected by the Tribunal. It did
so, on a proper basis. Its findings must be accepted. Inferences may not be
drawn from claims, or asserted facts, but from findings. If so, the further
complaint that the Claimant would have scored more highly than Mr Jajko, if the
solicitor’s advice to exclude length of service as a criterion had been
adopted, is inaccurate. Ignoring length of service, his score would be ‘15’
and the Claimant’s ‘14’. That would still be higher than the Claimant – let
alone being equal, in which case (on this basis) length of service would have
been used as a tie-break, and this would still have resulted in the Claimant’s
dismissal. Moreover, this is without allowing for the fact that by mistake Mrs
Di Giorgio did not attribute any score at all to Mr Jajko for his
qualifications. Even the lowest score would have resulted in a larger
difference against the Claimant.
34.
Miss Maksymiuk’s claim that she was under-marked in respect of other
criteria was not explored in depth. This may have owed something to Ms Fox’s
natural reluctance forensically to take time before a Tribunal which was
concerned to know how inviting a conclusion that the scoring was unfair would
lead to an inference that any such unfairness was because of her pregnancy. If
that view insufficiently took account of the fact that demonstrated unfairness
in the case of the Claimant might give rise to an inference that she was
deliberately marked down because she was pregnant, nonetheless the Claimant had
first to establish the fact that she had been under-marked (it would be that
fact which could give rise to the inference, not the fact that she claimed it
to be so). The Tribunal did not make any such finding of fact – indeed, to do
so would be contrary to its view of the witness Mrs Di Giorgio whom it thought
to be honest and genuine in the evidence she gave. Thus on any view the Claimant
did not establish any fact (here, under-marking) from which an inference might
be drawn on this point at the first stage of the Igen v Wong
process.
35.
No question was asked of the Claimant as to her CV and experience in
other posts, but Mrs Di Giorgio explained that the experience she was looking
for was that within the business. The lay members of the Appeal Tribunal were
of the view that that was entirely to be expected of a small to medium sized
restaurant and bar enterprise looking to service its own particular needs
better during a downturn, and do not criticise the Tribunal’s acceptance of
this evidence as indicating any irrational preference for her evidence over the
Claimant’s case.
36.
It was suggested that she had been under-marked in respect of her
disciplinary record. She scored 4 out of 5: reasons were given on the scoring
sheet for this marking, which were not demonstrably inappropriate – and again,
viewed overall even if she had improved her score by 1 in this respect, she
would still have fallen short of Mr Jajko’s total.
37.
It is said that an inference can be drawn from a failure to take proper
steps to consult staff or have meetings. Here, however, any failure affected
all staff, and not just the Claimant. It is not at all obvious why an
inference should be drawn from such a failure, in the context of the evidence
of the present case, to the effect that the Claimant had been unlawfully
discriminated against on the grounds of her pregnancy. There is no obvious
link between pregnancy and the act complained of, and in the absence of any
indication from the marking that the Claimant might have been singled out for
unfair treatment on an individualised basis, no reason to suppose that she had
been discriminated against at all.
38.
It was suggested that the failure to give written reasons to the
Claimant should give rise to an inference of discrimination against her “even
though Mrs Di Giorgio was recorded as having signed a receipt for the letter
requesting reasons”. Mrs Di Giorgio said she knew nothing of the request: but
she also gave evidence that the signature was not hers. The Tribunal generally
accepted her evidence. There is nothing in this which justifies an inference
of discrimination against the Claimant on the basis of pregnancy in relation to
an action which had taken place before the written reasons were ever
requested.
39.
The final matter from which it was said an inference should arise was
the failure of the Respondent to answer the questionnaire within the period
prescribed by legislation. However, the Tribunal dealt with the evidence about
the questionnaire at paragraph 72 and 73 of its decision. Given its finding of
fact that the response was sent within a reasonable time and (taking account of
the fact that the records were largely not computerised) was completed in good
faith, there is no basis for any compelling inference to be drawn.
40.
In deference to the excellent argument put before us by Ms Drew, we have
analysed whether the matters of alleged at paragraph 25 of the Notice of Appeal
should have given rise to an inference of pregnancy-related discrimination.
Viewed individually, or collectively, for the reasons we have given the facts
as found by the Tribunal do not in our view oblige the drawing of the inference
suggested. The Tribunal was entitled to come to the conclusion it did as to
what inferences to draw (and, accordingly what inferences not to
draw).
41.
Despite Ms Drew’s contentions, we do not see that there was anything in
the approach taken by the Tribunal which was contrary to the statute or the
guidance. It gave a proper self-direction. It considered the facts. Having
been driven to the conclusion that the redundancy was genuine, the criteria
objective, the scoring against those criteria performed by someone whose
honesty it accepted, and rejected on the facts challenges to the scoring, such
that on objective criteria, honestly scored, the Claimant would in any event
have been the lowest scoring employee within an appropriate pool, and thus
selected for dismissal, it might be said that there was no room for any
inference to the contrary. To argue that the decision was flawed because the
Tribunal – having started off on the wrong foot, as the submission went – did
not subject some of the evidence to the scrutiny it would have had if
considered as part of the explanation for the actions of the employer both
first requires sufficient of an inference to shift the burden of proof (which
the Tribunal was entitled to find should not be drawn), but also suggests than
the Tribunal was less that rigorous in its determination of the facts it did
find. That is effectively an argument that it should have found the opposite.
The short answer to that is that the Tribunal found the facts; there is no
basis for presuming it did not do so with the care to be expected of a
Tribunal; and the conclusion is not perverse.
42.
As part and parcel of her criticism of the approach of the Tribunal Ms
Drew argued two further points (see Notice of Appeal Ground 27 (ii) (iii)).
The first was that it was inappropriate to determine, effectively as a
pre-emptive strike at paragraph 70, what was the reason for dismissal and that
pregnancy played no part in it. The structured approach required under statute
as guided by Igen v Wong, and Madarassy meant it
would be an error to jump to the conclusion without taking the logical route
required. We do not consider that this paragraph can be interpreted in that
way. In context, it is not a statement of a conclusion which is thereafter
explained more fully (though if it were, it would not demonstrate any error of
law providing that the Tribunal does, as here it did, set out and purport to
apply the relevant guidance: it would merely be an executive summary of what
was to follow. It is trite that an Employment Tribunal’s judgment must be
viewed as a whole, and intense focus upon the wording of two sentences should
not obscure the message delivered by the entirety of the document). However,
we think that (although it could have been clearer) paragraph 70 is setting out
what the Tribunal understood the employer purported to be the reason for
dismissal – that is where, in context, it fits. Viewed in that way, complete
sense is made of the structure overall of the judgment. If so, paragraph 70 is
not a pre-judgment (which if it were might belong under the heading ‘discussion
and decision’ rather than preceding even the submissions which were to be
discussed and decided upon), but is a record of that which historically had
been asserted to be the case.
43.
The second matter was that the Judge had indicated an approach which was
wrong in law by her repeated reference to looking for the ‘taint’. In our
view, this adds nothing to the appeal. First, the expression is not repeated
in the judgment. It is frequently the case that judges may, in the course of
argument use colloquial or compressed expressions, and less elegant phrases,
than they do when setting out a carefully reasoned judgment. The purpose is
different. An intervention such as that complained of is to ensure that the judge
understands the point being made, or moves the advocate on from an irrelevant
point to that which is relevant. Second, if by ‘taint’ the judge meant (as she
probably did) ‘evidence from which it could properly be inferred that what
happened was by reason not only of discrimination but discrimination on the
ground of pregnancy’ then the point simply falls away. The Claimant simply had
to prove facts from which the Tribunal could infer that was the case. Asking,
albeit in shorthand, what the link was between the question asked, and evidence
which would establish this inference, betrays no error.
44.
The third ground of appeal - that the Tribunal did not understand that
the Claimant’s case as regards the selection criteria – is to the effect that
it would not matter, for the purposes of discrimination that the Claimant’s
score was still the lowest of those amongst whom the selection for dismissal by
reason of redundancy was to be made. The discrimination alleged was not simply
in respect of dismissal, but in respect of the process of selection for it.
Any under-marking, if established, might carry the inference that it was
because of the Claimant’s pregnancy, and a conscious (or unconscious) desire to
see her marked down in consequence.
45.
The short answer to this ground is that the Tribunal did not accept that
any under-marking had been established. Although Mrs Di Giorgio might have, but
did not, ask whether any sickness absence had been pregnancy related, or
(separately) enquire about the Claimant’s CV and qualifications for other jobs,
the Tribunal regarded her as acting in good faith. Even if the facts alleged
here went beyond showing a difference in status (pregnant/not pregnant) and a
difference in treatment (under-marked/properly-marked) (which it is not clear
they do) this would not in any event give rise without more, to an inference.
For the reasons we have already given the Tribunal was entitled to regard that
‘something more’ as not having been established.
Bias
46.
The Employment Judge and Tribunal members responded to the allegations
which we have summarised at paragraph 27 above. Those comments answer each of
the points made in the affidavit of Ms Fox. The notes of evidence produced by
Ms Fox’s trainee are helpful. They show on the face of it that the Employment
Judge interrupted cross-examination, and asked the witness to leave the room,
in order to find out from Ms Fox where her cross-examination was going. The
Employment Judge expressed concern that the questions remained focussed upon
the general contention that the Claimant was selected for dismissal by reason
of redundancy because she was pregnant, and did not see that showing that the
redundancy was not genuine would assist. It was, in our view, and is,
permissible for a Judge who does not fully understand the thrust of questioning
to interrupt. Two purposes are served: keeping the cross-examination focussed
to relevant questions (irrelevant questions and answers are inadmissible in any
event) on the one hand, but also informing a tribunal so that it might better
understand the evidence on the other. Both are entirely appropriate judicial
functions. Ms Fox, having explained, was not prevented from following the line
she had proposed. The Employment Judge, and Members note that she intervened on
occasion because the same question had been repeated a number of times, without
any discernable difference in answer. That is borne out by the trainee’s notes
(see page 24 of those notes). In short, what appears to have happened is that
the Employment Judge sought to move matters along. That is an entirely proper
exercise of case management powers, as is restraining repetitive questioning,
and ensuring that questioning remains relevant and that the Tribunal
understands the relevance of it. We do not see in that, or in the suggestion
that the Tribunal was biased because it accepted the Respondent’s contentions
rather than the Claimant’s, based on evidence, that there is any indication of
a pre-disposition unfairly to give advantage to one party. Though the
allegations of bias did not in the event feature strongly in the submissions
made by Ms Drew (though not withdrawn) we have no hesitation in rejecting
them. Judged against the question whether the fair-minded and informed
observer, having considered the facts, would conclude that there was a real
possibility that the Tribunal was biased, and taking into account the idea
succinctly expressed by Kirby J in the High Court of Australia in Johnson
v Johnson [2000] HCA 48 201 CLR 488 at paragraph 53 that “a reasonable
member of the public is neither complacent nor unduly sensitive nor
suspicious”, we have no hesitation in thinking that he would not.
Conclusion
47.
Despite the considerable skill with which Ms Drew’s submissions were
advanced, this appeal is dismissed.
