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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Harvey-Bussell v Sun Alliance Group Plc & Ors [1999] UKEAT 721_98_0112 (1 December 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/721_98_0112.html Cite as: [1999] UKEAT 721_98_112, [1999] UKEAT 721_98_0112

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APPEARANCES

 

For the Appellant	MR B BURGER (OF COUNSEL)
For the Respondents	MR R LEMON (OF COUNSEL) INSTRUCTED BY: GROUP LEGAL DEPARTMENT ROYAL & SUN ALLIANCE INSURANCE GROUP PLC PO BOX 30 NEW HALL PLACE LIVERPOOL L69 3HS


 


MR JUSTICE LINSAY (PRESIDENT):

1. We have before us, by way of a hearing of a full appeal, the appeal of Mrs Tracey Harvey-Bussell in the matter Harvey-Bussell against (1) Sun Alliance Group plc (2) Royal and Sun Alliance Insurance Group plc.
2. The two Respondents appear by Mr Lemon who also appeared for the Respondents below. The precise identity of the employer changes from time to time during the chronology; one has to be conscious, in the course of the chronology, that a merger takes place but it is perfectly acceptable, for immediate purposes, just to talk of the employer or "the Respondent" as long as one recognises that there are two Respondents and that the actual employer changes as time passes.
3. Mr Burger appears today for Mrs Harvey-Bussell. He did not appear for Mrs Harvey-Bussell below. She joined the employer in 1990 and she quickly achieved promotion. By October of 1996 she had a responsible office job with the then salary of some £52,000, which itself suggests a responsible position, attractive promotion having been achieved.
4. However, by the 4^th October 1996, she lodged an IT1 claiming sex discrimination. She was represented by solicitors at the time. Her IT1 specified 5 different ways in which she claimed she had been treated less favourably on the ground of her sex although it was plain from that IT1 that some of the matters complained of had taken place outside the period specified by the Sex Discrimination act. The Respondent's IT3 took that point, amongst others. The matter came on for hearing at Ashford in Kent before a chairman, Mr D E de Saxe, who, as is apparent from the decision itself, had already had at that time some six years experience as a full time Chairman of industrial tribunals. He sat with Mrs L R Barker and Mr J Jenkins.
5. There was a hearing which took some fifteen hearing days and two days deliberation by the Tribunal in chambers. Of the 15 days some 10 or 12 were devoted to hearing the oral evidence of witnesses. Mrs Harvey-Bussell was represented by counsel, as I have indicated previously, as also were the Respondents. The case was, as the Chairman put it, "hyper-abundantly documented". Over a 1000 pages of material were put before the Tribunal. The hearings took place between the 8^th October 1997 and the final day in chambers 16^th February 1998 and the decision was sent to the parties on 31^st March 1998.
6. The unanimous decision of the Tribunal was that the application was dismissed. The extended reasons in support of that decision represent some 70 pages of close typing. On the 11th or 12^th May 1998, which was either the last day or the next to last day before the expiry of the 42 days allowed for a period of an appeal, Mrs Harvey-Bussell lodged a Notice of Appeal. She alleged, inter-alia, that there was a risk that the Tribunal had been biased by reason of one member of the Tribunal having held shares in Sun Alliance and that that matter had not been disclosed. She swore an Affidavit in that behalf and a great deal of activity was generated with Affidavits and bundles of correspondence on this topic. On 19^th April 1999 there was a preliminary hearing at the EAT presided over by the President, Mr Justice Morison, at which some only of the grounds asserted in the Notice of Appeal were permitted to go forward as arguable points of law.
7. We turn to the arguments raised in his skeleton by Mr Burger on behalf of Mrs Harvey-Bussell. We can deal with them more simply by adding our own headings, not necessarily following each particular division in the skeleton but, for all that, dealing with the points there raised.
8. The Employment Tribunal's Approach to Evidence

Within that broad title, our first subtitle would be to deal with the complaint that the tribunal failed adequately to consider the guidance given by the well known case King v Great Britain-China Centre [1991] 1RLR 513 in the Court of Appeal as to the difficulties that are to be expected in an Applicant producing direct evidence of discrimination, be it sexual discrimination or racial discrimination, and the consequential need, in such cases, for tribunals to draw inferences.

9. On this subject the Tribunal in terms mentions that the Respondents' Counsel, Mr Lemon, had reminded the Tribunal of the King case as well as the more recent approval of the King case in the House of Lords in the Zafar case. We can see that because in their paragraph 33 the Tribunal says:-

"Mr Lemon reminded us of the burden of proof, and the guidance given in King v The Great Britain-China Centre [1991] IRLR 513 by Neil L.J. at paragraph 38 of the report".

Paragraph 38 of the report is one of the very paragraphs which Mr Burger's skeleton says was overlooked by the Tribunal.

10. In their paragraph 80 the Tribunal mentions that the then counsel for Mrs Harvey-Bussell had drawn attention to the difficulty of leading direct evidence and the consequential reliance upon inference and, indeed, the position was, as appears in paragraph 110 of the extended reasons, that the law on this area was not in dispute between the parties. The Tribunal were plainly aware of the relevant law as to the need for, and ability to draw, inferences. It would have been a very familiar point of law for a chairman of any experience at all. The Tribunal was manifestly aware that it could draw inferences as it expressly referred, rightly in our view, to the notion that Zafar indicated that it was not compelled to so see paragraph 110 of the Extended Reasons. We see no error of law in this part of the argument.
11. The Peter Taylor Letter

As an illustration of the Tribunal's alleged incorrect approach to evidence, Mr Burger draws attention to the subject referred to at the Tribunal below as "the Peter Taylor letter". A great deal was said on the subject below. Although a merger between the Sun Alliance and the Royal was in course, nonetheless interviews were arranged for the job of Compliance Officer for the merged undertaking. Other jobs were being interviewed for at the same time. It was a very busy time. Over 100 interviews were arranged for the week 15^th July 1996. A letter, "the Peter Taylor Letter", was sent to candidates who were already at the level described as "Board-appointed Managers" and the Tribunal made some findings in this regard. In their paragraph 58 they say:-

"Mrs Harvey-Bussell was not a Board-appointed Manager and did not get the letter: it was not realised that she had not had that letter until later, although, as a candidate for senior position she should not have had it. But the circulation of the letter to Board-appointed Managers was certainly not directed at excluding Mrs Harvey-Bussell, or women generally".

And a little below:-

The information about selection criteria contained in the Peter Taylor letter (1/61) gave some very general criteria, which were the sort of information that anyone would assume to be likely to be applicable to any such jobs. It was unfortunate that Mr Jones and Mr Greenway had handled the distribution of the supplementary documentation to the Peter Taylor letter differently. But none of this was discriminatory: it was simply the way that events evolved.

And a little later:-

Neither Mr Parry nor Mr Clark had had any hand in the distribution of the documents. They had done nothings to discriminate against her, and Mr Parry had done everything he could to see that she was not disadvantaged. It was not clear whether Mrs Harvey-Bussell was complaining of indirect discrimination in the documentary distribution. If she was, the decision to distribute only to Board-appointed Managers, was on the face of things, justified. In any event, Mrs Harvey-Bussell had suffered no detriment by the absence of the documentation.

12. In this area Mrs Harvey-Bussell's argument below as advanced by counsel was capable of being identified in paragraph 94, which is conveniently on page 94 of our bundle where it says:-

"It had only been management who were circulated with the Peter Taylor letter, which detailed not only the selection criteria but also the full structure of jobs making it clear how the new organisation would be established. This enabled managers to apply for any other jobs at their management level within the company. It had only been circulated to Managers and was clearly therefore of discriminatory effect".

13. So far the Tribunal has been finding in Mrs Harvey-Bussell's favour. That had been the argument, at any rate, but it was realised by the Tribunal what this argument was. The Tribunal then turned to it themselves at their paragraph 131:-

"We now come to the two complaints which are undoubtedly in time, the first of which is that the Applicant was provided with late and incomplete material for the interview as Compliance Officer in the merged organisation. We note that this complaint was put both as direct and indirect discrimination. It is undoubtedly true that the Applicant did not receive the Peter Taylor letter, or the job profiles, or the competencies document. While we have every sympathy with the Personnel Department of the Sun Alliance which was working under great pressure with the approach of the merger, we have to say that we think that the department did not perform well in this instance. Mr Jones had obviously not adequately understood what Mr Greenway, his opposite number at Royal Insurance was doing. Mr Greenway, very properly as it seems to us, circulated the Peter Taylor letter and the enclosures to those people in the Royal who were candidates for senior management positions. Mr Jones appears to have given the instruction that the Peter Taylor letter should be circulated only to M-grade Managers, even though he knew or ought to have known that Mrs Harvey-Bussell, who was in fact the only G7 candidate for senior management position, should have received the letter"

And going on to paragraph 132:-

"Looking at it first as a matter of direct discrimination, we think we have to say, first of all, that we are entirely satisfied that the failure to send Mrs Harvey-Bussell the Peter Taylor letter was not deliberate discrimination, but was, rather, the product of weak management, although at a time of great pressure".

And then they conclude in relation to the steps taken to distribute and so on:-

"This strikes us a said picture of muddle and poor management on Mr Jones's part, but we are satisfied that it was not less favourable treatment on the grounds of Mrs Harvey-Bussell's sex. It arose from a failure of imagination on Mr Jones's part to see that, as a candidate for senior management, she would need these documents. Although we think that the whole episode was deeply unfortunate, it certainly does not strike us as having been direct discrimination on the grounds of sex, and therefore it does not strike us as having been discriminatory".

14. Building on those passages and that subject, the skeleton argument of Mr Burger's, in his paragraph 5, says that this is an incorrect approach which is underlined in the Employment Tribunal's decision where it states:-

"the failure to send to send [the Appellant] the Peter Taylor letter was not deliberate discrimination".

The skeleton continues

"It is clear from the House of Lords decision in R v Birmingham City Council, ex p Equal Opportunities Commission [1989] IRLR 173, that subjective intention, motive or reason cannot save a criterion from being less favourable with treatment of grounds of sex and therefore sex discrimination".

15. That argument, on the Appellant's behalf, it seems to us, is a quite unfair representation of the Tribunal's handling of the matter. They say, first of all, it was not deliberate discrimination. They do not suggest that that alone makes it non-discriminatory. They continue at some length after saying that Mrs Harvey-Bussell was less favourably treated and they conclude, as we have read, as to direct discrimination in this area. Objection is taken to the words "does not strike us". Well that, it seems to us, is going through the very long and painstaking, as it would seem, decision with a fine tooth comb and we do not think anything avails the Appellant on such an approach.
16. As to indirect discrimination arising out of the incident, that also was fully considered. It was specifically held that Mrs Harvey-Bussell had suffered no detriment and that was dealt with in paragraph 135 as follows:-

"Did Mrs Harvey-Bussell in fact suffer detriment because she did not receive the documents, or some of them, at the same time as Mr Osborne. Mr Osborne was a competitor for the job.

This, it was a matter to which we have given, we hope, very careful consideration. We have concluded that she did not suffer detriment. It is clear that despite the absence of the Peter Taylor letter and the belated disclosure to her of the job description (and, until the interview itself, the non-disclosure of the competencies document), [the Appellant] had been able to construct, what was, if we may say so, a very sensible and well put together curriculum vitae, addressed to what she correctly inferred would be the requirements of the job. Although the competencies document was disclosed to her only at the interview, she was given an opportunity to consider it and, if we may say so, there is nothing in that document which contains anything which should have surprised a member of senior management seeking a senior position. It must be borne in mind that we have accepted the evidence of Mr Parry and Mr Clark as to the progress of the interview and we accept Mr Parry's evidence that Mrs Harvey-Bussell had interviewed well".

17. So the Peter Taylor letter point was comprehensively dealt with by the Tribunal and we are quite unable to detect any error of law in the Tribunal's very full dealings with the subject. A third topic, still within the broad description of the Employment Tribunal's handling of the evidence is that the Tribunal placed undue emphasis on the credibility of witnesses. The Appellant's skeleton argument – (and it must be said that we are indebted to Mr Burger for a carefully produced and thoughtful skeleton argument) - relies upon the passages in a case Badewa v Circle Thirty Three Housing Trust Limited EAT/332/95 21^st May 1997. The relevant quotation from that case is the quotation that Mr Burger puts in his skeleton argument namely as follows (with our emphasis):-

"Industrial tribunals when considering the explanation put forward by the employer in such a case as this, will not find it sufficient to use the usual judicial tool in deciding where the truth lies, that is by reference to the manner and demeanour of the witnesses. It is not possible to detect discriminatory treatment by the use of such a tool since discrimination may be subconscious or unconscious and may be found to exist even where a respectable witness convincingly denies racial motivation".

18. But that is not to say that a judgment as to whom is telling the truth is of no help in discrimination cases. No one would go so far as to say that, but credibility, as that case indicates, is not a sufficient tool; that is not to say that it is no tool at all. Moreover, whilst, of course, unconscious racial or sexual motivation can exist even where it is denied, where a witness is held to be "respectable" in credibility terms and "convincingly" denies it, one would expect a Tribunal to pause to reflect carefully upon all surrounding circumstances before holding against that convincing evidence from a credible witness.
19. Further, it would, as it seems to us, be grossly unfair to characterise the EAT's very full decision in this regard as having hinged to some simplistic degree upon credibility. True it is that the Tribunal were not greatly impressed by Mrs Harvey-Bussell as a witness. In their paragraph 23 they say:-

"The crucial witness for the Applicant was Mrs Harvey-Bussell herself. We have to say that we thought her evidence was not always accurate, and that, although we are sure that was not intending to mislead us, she has a firmly fixed view of what happened, and that she has convinced herself that what she says is true. But, having observed her at the witness table for something over 3½ days, so that we have had a considerable opportunity of judging her as a witness, we have concluded that where her evidence conflicts with that of any other witness, we do not accept her evidence except where it is corroborated".

20. This was not a case where the Tribunal uses that rather crude indicator that one side's evidence will be taken as credible and other side's not. There was criticism by the Employment Tribunal of Mr Osborne and Mr Jones on the Respondent's side, the latter being described as "a very weak and unimpressive witness", although parts of his evidence were accepted as to his own failures. Even in sex discrimination cases, any evaluation of the evidence is likely to be necessary in terms of credibility of witnesses as to the primary facts and surrounding circumstances. Of course, it would be possible to imagine a case in which sex discrimination has been determined in the crudest credibility terms, such as "He is credible; he says that when he acted as he did, he did not act by reason of the Applicant's sex and therefore there is no discrimination". That, no doubt - some approach of that kind - would in all but the very most obvious cases be manifestly vulnerable, but credibility was not dealt with in any such simplistic way in this very long and careful decision. We see no error of law in this area of the Appellant's argument.

22. An Inference Which the Tribunal should have drawn

Here, Mr Burger's skeleton draws attention to a series of features, each of which is expressly referred to by the Tribunal. He refers to matters dealt with in paragraph 25, 115, 27.1 (1), 27.1 (3), 135 and 116. The argument is that if these features had been regarded cumulatively, then it would have been unlikely, that the Peter Taylor Letter incident could have been regarded as a satisfactorily explained away by the Respondent. That is, in effect, an argument that the Tribunal could, without impropriety, have found that the incident represented less favourable treatment of Mrs Harvey-Bussell. But that, as an argument, represents no error of law. For there to be error of law, Mr Burger would need to demonstrate that no employment tribunal properly instructing itself could have failed to draw the inference of less favourable treatment by reason of sex. His argument, as it seems to us, falls well short of that, and, further, there is no indication that the Tribunal which expressly mentions each of the features that we have just referred to, did not have them all in mind. There was no suggestion that they were not accumulatively in mind.

21. It is not a case, as Mr Lemon points out, where there is a separate finding as to each separate incident and as to whether that particular incident represents less favourable treatment by reason of sex but rather that all these separate facts are set out and then, at the end of the long decision, there is a collection, a standing back, and a decision that there was, in fact, no prejudice. That seems to us an entirely appropriate way of going about things and, in any event, one should add that the Tribunal's conclusion that Mrs Harvey-Bussell suffered no detriment, is not, at this stage of the argument, attacked and is so far invulnerable, although we will have come on to deal with detriment as a separate heading in a moment.
22. Comparison With Mr McClaren

The person who got the job of compliance officer in the merged group was a Mr McClaren. One of the interviewing panel, Mr Parry, had experience of working with Mr McClaren and had a high regard for his achievements and the other panellist agreed with Mr Parry's assessment. It was argued for Mrs Harvey-Bussell that she was the better candidate. An objective table purporting to make some comparison between the two was put to the Tribunal by Mrs Harvey-Bussell's then counsel. But it failed to impress the Tribunal. What they say is:-

"Mr Reed's next complaint was that the Applicant had not been selected as the Compliance Officer. He submitted that on a level playing field the Applicant was the stronger candidate. He analysed the comparative qualifications of the Applicant and Mr McClaren at the table set out in sub paragraph 14(2). We say no more than that it does not seem to us that that table demonstrates that the Applicant was necessarily the best candidate".

23. The way in which the complaint is made in the skeleton argument is as follows:-

"The Employment Tribunal state that they were not assisted or influenced by the Appellant's attempts to compare herself with Mr McClaren".

And then a little later:-

"Section 5(3) of the Sex Discrimination Act requires a comparison to be drawn. It is submitted therefore that the Tribunal erred in failing to consider such a comparison as a primary fact from which draw inferences could legitimately be drawn".

24. As is seems to us, the Appellant's argument misses the point there. It is not that the Tribunal made no comparison. They had the objective table before them and they commented upon it. What did not impress them was Mrs Harvey-Bussell's own version of how that comparison should be regarded. What is said in paragraph 137 is:-

"Reverting to the question on whether Mrs Harvey-Bussell suffered discrimination by the failure to appoint her as a compliance offer of the merged organisation, we have to say that we were neither assisted nor influenced by Mrs Harvey-Bussell's comparison of herself with Mr McClaren and that we have not allowed ourselves to be prejudiced by what seemed to us to be the spiteful and irrelevant attacks which she sought to make on Mr McClaren".

And then a little later:-

"We remind ourselves that Mr Parry thought that Mrs Harvey-Bussell interviewed well, though both he and Mr Clark had doubts about a number of her personality traits - particularly her status-consciousness and what they saw as her sycophantic and ingratiating approach towards Mr Parry, at the interview. We repeat that we do not regard it as discriminatory that she was not appointed as Compliance Officer of the new organisation".

Mr Parry was disposed in Mr McClaren's favour from past experience of him. The Tribunal went into that and they concluded, again in paragraph 127:-

"We are not prepared to draw the inference that his unconscious prejudice in favour of Mr McClaren was because Mrs Harvey-Bussell was a women."

25. The Employment Tribunal's decision indicates a recognition of that fact that it was open to it to draw an inference but it cannot be said to be wrong in law for them to have elected not to draw an inference as to discrimination in this area. It was very much a question to be left to the sense of the Tribunal which had heard the evidence and, in this particular case, had heard it over a long period and from many witnesses.
26. Indirect Discrimination and the Peter Taylor Letter

Was there, the question is raised, within the meaning of section 1(b) of the 1975 Act, the application to Mrs Harvey-Bussell of a requirement or condition. The Tribunal held, it will be remembered, that there was simply an administrative muddle on the part of the unimpressive Mr Jones. We should perhaps remind ourselves again of the passage in paragraph 132:-

"This strikes us as a sad picture of muddle and poor management on Mr Jones's part, but we are satisfied that it was not less favourable treatment on the grounds of Mrs Harvey-Bussell's sex. It arose from a failure of imagination on Mr Jones's part…."

and the passage continues as we have already read it.

27. Counsel below argued that the failure to send documents out to persons and, in particular, to Mrs Harvey-Bussell at her level (that is to say beneath the M-grade) was the imposition or the application of a requirement or condition. Counsel below for Mrs Harvey-Bussell put the indirect discrimination argument and the Tribunal recognised its attraction but their conclusion in para 133 was, it seems to us, that it was not the application to Mrs Harvey-Bussell of a requirement or condition to be an M-grade manager that prevented her obtaining the letter but that it was Mr Jones's failure of imagination in not seeing that, as a candidate for senior management, she should be treated in the same way as everyone else. Mr Burger has usefully drawn our attention to the Falkirk Council v Whyte case [1997] IRLR 560, where it is made plain that to quite a considerable extent the question of whether something is a condition or a requirement and is applied is a question of fact best left to be determined by the Tribunal that hears the circumstances of the particular case.
28. This was not a case of the Tribunal treating the imposition of a condition or requirement as excused by reason of its not having had a discriminatory motive or intent but was more one of the Tribunal holding there to have been no application of a requirement or condition at all. That being so, the question of justifying the condition did not arise to be dealt with, but even if it did, we see no error of law in the Tribunal's conclusion in its paragraph 134. Moreover, the Tribunal had expressly mentioned the Hampson v Department of Education case which is a leading case in this area. Furthermore, the Tribunal's holding of the absence of detriment is, for the moment, left invulnerable; we see error of law in the treatment of indirect discrimination in relation to the Peter Taylor letter.
29. Detriment

Is is true that through an administrative muddle by an unimpressive manager, Mrs Harvey-Bussell got materials supplied to her either not at all or later than other candidates who were competitors for the same job and who were heading towards the same interviews but, as we have indicated, she was held already to have composed a well-put-together c.v. She had already correctly inferred the requirements of the new job. She was given the opportunity to consider the late competencies document. That document, that was received late, in any event said nothing surprising to a person of her level of intelligence and seniority and she interviewed well in any case. If there was, contrary to the Tribunal's view, some applied condition or requirement, well then, on the facts there was no detriment occasioned to Mrs Harvey-Bussell and thus there was no indirect discrimination within section 1 and, that being so, section 6(2)(a) never came into play.

30. Non-Appointment to the Compliance Officer Post

On this, the skeleton argument on her behalf, says this:-

"It is submitted that the reasons, for the unconscious prejudice in favour of Mr McClaren are in themselves capable of founding an indirect sex discrimination complaint. The tribunal state "We think that the truth of the matter is that [the Appellant] would have had to interview supremely well to have overborne Mr Parry's unconscious prejudice in favour of Mr McClaren, based upon his experience of working with Mr McClaren…" [paragraph 135]. It is submitted that the statistics show that as a woman, the Appellant would have had a far less opportunity to have worked with Mr Parry in order to satisfy the criteria of her unconscious prejudice".

31. Well, there is no trace of this argument having been taken below. The best indications seem to be that it was not taken below and we do not see any statistics as to the gender of persons who have in the past worked with Mr Parry. So there is nothing in the point.
32. Harassment

This refers to a complaint which is hard not to regard as exaggerated out of all proportion. It refers to a reference in a memorandum to Mrs Harvey-Bussell as being "overwrought". This memorandum was withdrawn and changed. Mrs Harvey-Bussell had made a strong attack on a Mr Osborne at a meeting chaired by a Mr Tomlinson. Mr Osborne wrote a draft memorandum to give to Mr Tomlinson. Dealing with the matter, at page 107 paragraph 138, the Tribunal dealt with a subject called "Attempted Concealment of the Original Memorandum" and they continue:-

"We suppose that that is one way of putting it. The other way of putting it, and the way which we accept, is that Mr Osborne saw that exception could be taken to the word "overwrought" and, on more mature reflection, withdrew his memorandum and substituted the memorandum which appears at page 122, which does not contain the word "overwrought". That seems to us to be a perfectly proper course of action. It also seems reasonable to us that Mr Osborne should have rewritten his memorandum and withdrawn the original one when he knew that Mrs Harvey-Bussell wished to see the memorandum, precisely because he did not wish to offend or harass her. We do not well see how Mrs Harvey-Bussell can complain that she was harassed by a memorandum which had been withdrawn, and which she insisted upon seeing. We come back to the point that the memorandum received very restricted circulation and was in fact only published to Mr Tomlinson and, at her own insistence, to Mrs Harvey-Bussell".

A little later in 139 they say:-

"We find that if Mrs Harvey-Bussell suffered any detriment by having insisted on seeing the original of the withdrawn memorandum, the detriment was so trivial that the law should not take any account of it".

And finally on the subject:-

"If there any detriment in this case, it is de minimis, and we do not think that the situation as a whole can fairly be said to amount to less favourable treatment of Mrs Harvey-Bussell by Mr Osborne, when he was simply responding in writing to a premeditated attack of which he had not been given notice".

We do not see that any error of law can be identified under the heading "Harassment" as is addressed in Mr Burger useful skeleton.

33. Hyacinth Bucket

There is quite a long passage in paragraph 9 that deals with this element of the case. It reads as follows:-

"The other matter concerns the way in which we refer to the Applicant. In her Originating Application, she describes herself as Mrs Harvey-Bussell. But on 1 May 1996, she had written to Life Personnel Administration (document 5/63) indicating that her correct form of address in future was to be "Baroness Harvey-Bussell of Moycarne, or, for convenience, Lady Harvey-Bussell (though she says that this address is only to be used in formal documents – i.e. those in which she had been previously described as "Mrs" rather than simply as "Tracey"). In evidence, the Applicant told us that her husband had, during 1995, acquired the title Baron Harvey-Bussell of Moycarne. It was put to her in cross-examination, and she did not deny, that he had acquired the title by purchase, and that it was the equivalent, in Ireland, of an English Lordship of the Manor rather than or a peerage. The Applicant maintained that it was the equivalent of a peerage, and indicated that her husband could give evidence on this point, and as to how she he had acquired the title- but Mr (or Baron) Harvey-Bussell was never called to give evidence. With absolutely no disrespect to the Applicant, it does not appear self-evident to us, that in England, she is entitled to describe herself as "Baroness" which, since the passing of the Life Peerages Act, has come to imply that the holder of the title is a Life Peeress by creation, e.g. (to mention one of the best-known holders of such a title) Baroness Thatcher. So in this decision we shall refer to the Applicant, as she refers to herself in her Originating Application, and as we referred to her during the hearing without objection on her part, as Mrs Harvey-Bussell".

34. Now that was not just pedantic attention to proper forms of address but it went to the point that the Respondents included in their case an allegation that Mrs Harvey-Bussell was acutely status conscious and that that was a failing which may be thought not likely to go down well in Liverpool, which was the place to which her next job would have taken her had she been successful. The argument that the Respondents had raised in that area is seen in paragraph 17, where one finds:-

"The Respondents contended that Mrs Harvey-Bussell was unduly status conscious, not only as to grade, but in personnel matters (such as insisting on the title of Baroness, and sending Christmas cards from "Baron and Baroness Harvey-Bussell); that she lacked "political" sensitivity, which led to her to write tactless and intemperate letter to senior managers, and that she could be sensitive and, indeed, bullying towards people who reported to her".

Later on in the decision, one finds at paragraph 61:-

"In particular, Mrs Harvey-Bussell came across at the interview at status-conscious, which was not a trait likely to be well received in Liverpool where the appointment was to be based, and at the same time sycophantic towards Mr Parry".

And, finally on the subject, it is necessary to refer to a letter from Mr D de Saxe, the Chairman at the Employment Tribunal, to explain how a reference to "Hyacinth Bucket" came to be made. There is no reason to doubt the accuracy of this letter and it says:-

"Mrs Harvey-Bussell is right in saying, at paragraph 7 of her affidavit, that she was subjected to prolonged examination about her personal life and behaviour. I felt that that cross-examination on these points was becoming too prolonged, and said to Counsel for the Respondents words to the effect that "Even if this lady had been behaving like Hyacinth Bucket (I agree that Counsel had not referred to this character) it wouldn't follow that she hadn't been discriminated against?" – to which Counsel agreed. This was – it was certainly meant to be – an intervention in Mrs Harvey-Bussell's favour".

35. It seems to be the case that the Tribunal, under the Chairman, regarded counsel for the Respondents at the hearing below, Mr Lemon, as having continued rather longer than was necessary on the line of cross-examination which was then in course. It was not irrelevant as it was, as we indicated, part of the Respondent's case, that Mrs Harvey-Bussell acute status consciousness was a factor that was relevant to her promotion or lack of it and the remark as encapsulated in that passage from the Chairman's letter seems, as the Chairman himself indicates, an intervention in Mrs Harvey-Bussell's favour rather than against her. Unfortunately, and this was nothing that either party was responsible for, the press were represented at the hearing and picked up the reference to the television character "Hyacinth Bucket" and sought to make something of it. One can see that it might well have embarrassed Mrs Harvey-Bussell, but it was not any fault of any party, or indeed, of the Tribunal, that the press made of it what they sought to. We do not think that this is a complaint that leads anywhere. Mr Burger has drawn attention to a number of cases in which really quite insulting remarks have been made and to circumstances which have been truly embarrassing, but here we do not think that anything can be made, when the facts were understood, of what one might call the Hyacinth Bucket incident.
36. We have, we think, now dealt with all the major points raised in Mr Burger's useful skeleton. We do not feel able to say that we have encountered any error of law and, accordingly, we must dismiss the appeal.