Appeal No. EAT/961/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27th October 1995

	Before

	THE HONOURABLE MR JUSTICE MAURICE KAY

	MS S R CORBY

	MRS R A VICKERS

MRS C B O'SHEA	APPELLANT

ROYLE PUBLICATIONS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS D ROSE
(of Counsel)
Messrs Robin Thompson & Partners
Compass House
Pynnacles Close
Stanmore
Middlesex
HA7 4XL

For the Respondents	MR S DEVONSHIRE
(of Counsel)
Messrs Orchard
Solicitors
One Angel Court
London EC2R 7HJ

	MR JUSTICE MAURICE KAY:   Mrs O'Shea was employed by the respondent company from 1972 until 1992 when she was made redundant. The respondent company is in the business of printing greeting cards. Mrs O'Shea worked in their warehouse. In 1992 a redundancy situation arose at her place of work. The Tribunal sitting in London (North) made a finding to that effect in paragraph 5 of its Decision and we note that that was not disputed by Mrs O'Shea. The problem was one of declining business. Faced with that problem the management of the respondent company had to consider possible redundancies and the selection of employees to be made redundant. 

	One of the pieces of evidence before the Industrial Tribunal was a memorandum dated 10th August 1992 from Mr R A F Munson of the respondent company. It is clear from that memorandum that he had in mind a reduced department of 5 people described by him as "two men, three women". 

	Thereafter the selection process was pursued and the decision on selection appears to have been a joint decision by Mr Munson (the author of that memorandum) and Mr Edwards, the commercial manager. The Industrial Tribunal found that Mr Edwards came to an independent decision about selection and had not seen the memorandum of 10th August 1992 prior to that decision. 

	The Industrial Tribunal had before it records of the interviews of employees that took place as part of the selection process and the Tribunal recorded in paragraph 7 of its decision that it is:

		"... quite clear ... that overwhelmingly Mrs O'Shea comes at the bottom of each of their lists under each of the headings."

That is a reference to the list of Mr Munson and the separate list of Mr Edwards.

	In paragraph 8 it is recorded that, although Mrs O'Shea was a long serving and honest employee, in selection for the future she scored lower than all the others in each of the listed categories. In those circumstances the Tribunal found it un-surprising that others were selected for carrying on working for the company and Mrs O'Shea was not.

	By her amended application to the Industrial Tribunal Mrs O'Shea claimed that she had been unfairly selected; that she had been unfairly dismissed; and that she was the victim of unlawful sex discrimination. 

	The Industrial Tribunal first considered the selection process. In paragraph 9 of the Decision, the Tribunal stated:

		"9	We find the selection process chosen by the employers was within the band of reasonable processes open to a reasonable employer and we find that there was no unfair selection of the Applicant for redundancy. We are mindful of the facts that it is not for this Tribunal to substitute its views for that of the employer, but to consider whether or not in all the circumstances they acted fairly. We find that they did."

	The Tribunal then went on to consider a particular factual matter surrounding consideration for alternative employment. Mrs O'Shea was not the only person from her department to have been made redundant. Another person made redundant - a Mr Townsend who was a labourer in the warehouse. 

	When the selection process had taken place, and Mr Townsend and Mrs O'Shea had been identified as those to loose their jobs, Mr Munson informed Mr Royle, the managing director of the company and associated companies, that Mr Townsend and Mrs O'Shea were available for work elsewhere in the group. In the event Mrs O'Shea was not offered any alternative position but Mr Townsend was offered the job of gatekeeper and indeed proceeded to occupy that position.

	The question the Industrial Tribunal had to consider in relation to that part of the history was whether the respondents unlawfully discriminated against Mrs O'Shea by not considering her for that position. 

	The Industrial Tribunal had the benefit of Mrs O'Shea's evidence and also the evidence of Mr Munson and Mr Edwards. It was, it seems, the decision of Mr Royle not to consider Mrs O'Shea for that job. However, the Industrial Tribunal did not hear from him in evidence.

	Mr Munson and Mr Edwards were questioned about that aspect of the case and we have the benefit of the Chairman's Notes of Evidence. In cross-examination Mr Munson described printing as a traditional industry in which some jobs were only done by men and others only by women. The job that Mrs O'Shea had been doing was one he described as "only done by women". Other functions had "only ever been done by a man". Gatekeepers, in his experience, had all been men in the past and he went on to say:

		"In theory it could be done by any person. I would not want to put a woman in that job because of potential intimidation."

	Mr Edwards in cross-examination also said that some jobs were done by women and others by men; that order processing was always done by women, whereas strappers were always men and gatekeepers in his time had always been men. He went on to say of the post of distribution assistant that:

		"anyone could apply. I thought because of some of the duties it would probably have to be a male." 

	These answers together with the history of employment patterns in the company and the memorandum to which we have referred resulted in Miss Rose, who appears on behalf of the appellant, as she did in the Industrial Tribunal, to submit that this was a company in which some jobs were seen clearly as men's jobs and some as equally clearly as women's jobs.

	The Decision of the Tribunal on this issue is contained in paragraph 16, it is in the following terms:

		"16		The burden of proof is upon the Applicant to show that she was unfairly discriminated against on the grounds of sex in that selection. We find that she has not discharged that burden and in those circumstances her claim under the Sex Discrimination Act is reject."

	Mrs O'Shea had of course received a redundancy payment as result of her dismissal. However, all the claims she presented to the Industrial Tribunal for further remedies in respect of her dismissal and/or discrimination were unsuccessful.

	Before this Tribunal Miss Rose has made a number of submissions going to different parts of the Industrial Tribunal's findings. Her first submission is that paragraph 16 of the Decision of the Industrial Tribunal, which we have just quoted, contained a misdirection of law. In particular she submits, paragraph 16 does not approach the task of considering whether or not there has been sex discrimination in the manner set out by the Court of Appeal in the case of King - v - Great Britain China Centre [1992] ICR 516. That case concerned race discrimination but it is common ground that the principles and guidance set out in the judgment of Neill LJ at pages 528 and 529 apply equally to cases of sex discrimination. It is abundantly clear to us that the Industrial Tribunal in this case did not have those principles in mind when it expressed itself as it did in paragraph 16. It is our experience that since the case of King was reported, Industrial Tribunals are invariably careful to follow the principles therein set out, either by express reference to the case or by extracting the principles without referring to their origin.

	The principles to which Neill LJ referred were as follows:

		"(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely bases on an assumption that "he or she would not have fitted in." (3) The outcome of the case will therefore unusually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation  to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v. Noone [1988] I.C.R. 813, 822, "almost common sense." (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

	In our judgment the form in which paragraph 16 of the decision of the Industrial Tribunal is expressed is wholly inconsistent with a consideration let alone a careful consideration of those principles. Accordingly, in our judgment there was a misdirection and the first submission made by Miss Rose therefore succeeds.

	The second submission advanced on behalf of the appellant is that the finding of no discrimination in this case was perverse. We use that word in the sense in which it is always used in this jurisdiction and which has most recently been explained by the President in the case of Stewart v Guest Engineering Limited [1994] IRLR 440 at page 445. We are mindful of the fact that it is not for us simply to allow an appeal because we would have come to a different decision on the facts from that reached by the Industrial Tribunal. We are also mindful of the difficulties which face an appellant when advancing an argument on perversity. However, we have come to the conclusion in all the circumstances of this case and on this particular issue that the decision of the Industrial Tribunal is one that was "plainly wrong" and otherwise as described by the President in the passage to which we have just referred. We say this because of the history of the matter and the way in which the evidence emerged in the Tribunal. We have already referred to those passages in the evidence of Mr Munson and Mr Edwards which in our judgment betray an attitude of in-built sex discrimination in the allocation of work in the warehouse. It seems to us that the passages on pages 20 to 22 and page 28 of the Chairman's Notes of Evidence to which we have already referred are such that in the absence of other evidence any reasonable Tribunal would be driven to the conclusion that it was an act of unlawful sex discrimination not to consider Mrs O'Shea for the post of gatekeeper. 

	By Section 6(2) of the Sex Discrimination Act 1975 it is unlawful to discriminate against a woman employee in the way she is afforded access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them. Clearly Mrs O'Shea was not afforded access to the opportunity at the gatepost and no reason was advanced in evidence for that omission, save a reason related to her sex. In those circumstances we are satisfied that if the Tribunal had directed itself properly, in accordance with the King principles, there is no doubt that they would have found an act of unlawful sex discrimination in not considering her for that post. Accordingly on that issue we shall substitute a finding of unlawful sex discrimination by not so considering her.

	The third submission made by Miss Rose is that it was unlawful sex discrimination not to have offered her that job. This is a far more difficult proposition having regard to the evidence in the case. It seems to us that the most that can be said under this heading is that by unlawfully refusing to consider her for the job she was denied a chance of obtaining it. The quantification of that chance is not one that we feel we should arrogate to ourselves. And accordingly along with some other matters to which we shall soon refer we shall remit the quantification of the loss of that chance to the Industrial Tribunal.

	The fourth matter upon which submissions have been made is a matter which emanates from the respondents skeleton argument and it is one upon which we do not need to dwell for long. 

	Mr Devonshire submitted that the gatekeepers job was not within the company Royle Publications Limited but within an associated company of which the same Mr Royal was also managing director. 

	We have been directed to the appropriate sections in the 1975 Act by Miss Rose. By Section 6(2) as we have already noted the unlawful act is discrimination in the way access is afforded to opportunities including opportunities for transfer. By Section 50(1) it is provided:

		"(1) References in this Act to the affording by any person of access to benefits, facilities or services are not limited to benefits, facilities or services provided by that person himself, but include any means by which it is in that person's power to facilitate access to benefits, facilities or services provided by any other person ..."

	In the face of reference to those provisions Mr Devonshire wisely and graciously forbore to make further submissions on the matter. Quite clearly Miss Rose's submissions on that point are well founded.

	The fifth submission made on behalf of the appellant goes to the issue of whether she was unfairly selected for redundancy. We have already referred to some of the material in paragraphs 5 and 6 of the decision and also in paragraph 8. As we have noted in paragraph 9 the Industrial Tribunal found the selection process chosen by the employers to be "within the band of reasonable processes open to a reasonable employer" and they found that there was no unfair selection of the applicant for redundancy. Miss Rose's criticism of this part of the decision is that the criterion referred to in paragraph 9, namely "within the band of reasonable processes", is clearly drawn from the statutory provisions regarding unfair dismissal. There is no express mention in paragraph 9 of a consideration of the provisions of the Sex Discrimination Act 1975 in the process of selection for redundancy. It is true that paragraph 9 does not say in terms that the Industrial Tribunal considered the Sex Discrimination Act in addition to the Employment Protection (Consolidation) Act 1978. It is also true that Industrial Tribunals are bound to consider both Acts in a case such as this. The requirements and criteria set out in the two Acts differ one from the other. However, on the facts found by the Industrial Tribunal in this case, we are unanimously of the view that in this case it would have made no difference and Mrs O'Shea would have faced initial selection for redundancy in any event. It seems to us that on the findings, broadly construed, if there was to be any redundancy from the "pickers" section, then by definition it would have to be a woman who was made redundant because all the pickers were women. And it is significant that Mrs O'Shea came at the bottom of the list of both of the decision makers and scored lower than all the other candidates in each of the categories listed. It follows that whether or not the Tribunal did apply its mind to the Sex Discrimination Act in paragraph 9, in our judgment, if it had done, it would have reached the same decision regarding the initial selection for redundancy.

	The sixth matter raised is one that has caused us some difficulty and after retiring to consider our decision we invited and received further submissions from Counsel. It will be recalled that Mrs O'Shea's applications alleged not only unlawful sex discrimination but also unfair dismissal. Given the earlier decisions to which we have come and to which we have referred, we were concerned about their implications for the application in respect of unfair dismissal and the failure of that application before the Industrial Tribunal. Although as the Industrial Tribunal found and we have confirmed the initial selection for redundancy was not based on sex discrimination, the point came when by not considering Mrs O'Shea for the gatekeeper post she was dismissed. We were concerned to consider whether, in all the circumstances of this particular case, that was not inevitably an unfair dismissal on the basis that she had been denied by an unlawful act one stage in a procedure which, if followed, might have resulted in the conferment of benefit upon her. 

	The submissions made by Counsel were somewhat polarised. Miss Rose submitted that in the light of the finding which we have substituted in relation to the failure to consider for the gatekeeper's post, it was not possible for the respondents to justify the dismissal. Mr Devonshire's submission, on the other hand, was that this is a matter which calls for further consideration by the Industrial Tribunal in the light of the other decisions to which we have come. We have given this further careful consideration and have come to the conclusion that the submission of Miss Rose is correct on the facts of this case. It seems to us that in the circumstances now obtaining, it must follow that the dismissal without consideration of Mrs O'Shea for the gatekeepers position was an unfair dismissal. It may be that that has little or no implications for the eventual quantification of her compensation, but it is nevertheless in our judgment a finding which must follow and which we propose to include in our order.

	We therefore summarise our decision as follows.

	Mrs O'Shea's appeal is allowed. We shall substitute a finding that there was unlawful sex discrimination in the failure to consider her for the gatekeeper's post and that she was unfairly dismissed.  We shall remit to the Industrial Tribunal the following questions:-

(1).	What is the appropriate quantification of the chance of her having been offered the gatekeeper's position if she had been considered?

(2).	What is the appropriate quantification of compensation in respect of the failure to consider her and, depending on the answer to (1), the loss of the chance of being offered that position?

(3).	What is the appropriate quantification, if any, of any compensation arising in respect of her unfair dismissal having regard to the quantification of her compensation for unlawful sex discrimination.

	We make it clear that the remission to the Industrial Tribunal should in this case be to a differently constituted Industrial Tribunal. We include in our reasons for this the deplorable passage of time since the last decision was made. 

	May we also thank both Counsel for their extremely helpful skeleton arguments and submissions in this case.