Appeal No.	 EAT/0298/03/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 August 2003

Before
HIS HONOUR JUDGE D SEROTA QC
MR D J JENKINS MBE
MR T HAYWOOD

MS C CUNNINGHAM	APPELLANT

(1) QUEDOS LTD 
(2) JOHN WYETH & BROTHER LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr McNally
(Husband)

HIS HONOUR JUDGE D SEROTA QC

1	This is a preliminary hearing on the prospective appeal of Ms Cunningham, who is in fact Mrs McNally, and is being represented here today by her husband, Mr McNally, against a Decision of the Employment Tribunal at Leeds, chaired by Mr Forrest, which dismissed her claim for discrimination on the grounds of sex against the Second Respondent, a company known as Wyeth.  During the course of the proceedings; a claim of unfair dismissal against Wyeth was withdrawn.  She also had claims against her actual employer at the time, a company known as Quedos, these were compromised, the hearing took place over some three days, we believe that there was an adjournment caused by one of the parties or their representatives being unwell.  

2	The background facts to this dispute were that Wyeth, as we shall call it, is a manufacturer of drugs.  It had an agreement with Quedos that Quedos would employ a sales team to promote Wyeth’s products.  Wyeth wanted a sales team put together, and arranged with Quedos that Quedos should put forward candidates for consideration by Wyeth at interview.  

3	Ms Cunningham was a sales representative with Quedos at a time when she was pregnant; she applied for a post on the Wyeth sales team to Quedos; she was in fact put forward, but only after some protest, and her belief was that the reason she was not being put forward in the first place was because in her opinion she was treated in a discriminatory way because she had fallen pregnant.  Nonetheless, after her protests, she was put forward for interview by Wyeth and Wyeth rejected her.  The case put forward by Ms Cunningham was that she was rejected by Wyeth because she was pregnant.  The case, as eventually put forward against Wyeth, was on the basis that Wyeth had provided knowing assistance to acts of discrimination by Quedos under section 42 of the Act.  

4	She was interviewed, as we have said, on 23 January 2002; Wyeth’s case was that she scored very badly compared to other candidates.  One of the interviewers knew that she was pregnant, the other one that the Employment Tribunal found that it did not; Ms Cunningham said the whole interview was a sham.  However the Employment Tribunal accepted the evidence of the interviewers that there was no bias and that she was fairly scored, even if the Employment Tribunal did not agree with every marking of her by the interviewers.  The conclusion of the Employment Tribunal, having gone through all the evidence and considered in particular the evidence at the interview in great detail, was that they were:
“satisfied by the explanation given by the Second Respondent (that is Wyeth) for their failure to put the Applicant forward for employment by Quedos.  She was not selected solely because, on the day, her performance at interview did not sufficiently impress her interviewers.  It had nothing to do with her pregnancy.  The question of drawing an inference, of sex discrimination or otherwise, does not therefore arise.  The Second Respondents did not treat the Applicant less favourably by reason of her sex and her claim for sex discrimination against them therefore fails.”
 
5	A number of points were put forward in a Notice of Appeal drafted by Mr McNally on behalf of his wife.  The case had come previously before the Employment Appeal Tribunal and was adjourned partly because of pressure of other work on the Employment Appeal Tribunal, and partly because a Skeleton Argument prepared by the Respondents had not been considered by the Applicant at the time of the hearing and there was insufficient time left for the hearing to take place, once they had had the opportunity of considering the matter.  I believe, although I may be wrong about this, that they may have consulted an ELAAS representative during the course of that day, but it matters not.  What Mr and Mrs McNally did not know was that ELAAS had retained the papers in the case and in fact we have had the benefit today of a Skeleton Argument, prepared by Clare McCann of Cloisters Chambers, an ELAAS representative, which has been of great assistance to us and Mr and Mrs McNally have gratefully adopted that Skeleton Argument.  

6	In that Skeleton Argument five specific points were picked out.  Firstly that the Tribunal failed to apply the correct section of the Sex Discrimination Act.  We can deal with this point quite briefly.  Mr McNally sought to persuade us that as there was evidence to suggest that if Ms Cunningham had been accepted at interview, she would in due course have become an employee of Wyeth and that Wyeth should be liable under section 6 of the Act rather than simply section 42.  It seems to us that this point is plainly unarguable; it is plainly unarguable not because it might not have been envisaged that at some point in time in the future Ms Cunningham might become an employee of Wyeth, or other persons in her position who were being interviewed, but because it was made absolutely clear to everybody that the job that was being offered was a job with Quedos not with Wyeth, and that for the foreseeable future, Quedos would be, as they were in respect of the persons who were taken on to the sales team, Quedos employees.  It matters not for these purposes that Wyeth was very close to Quedos and may indeed have been able to exercise some control over it.  There is no question, as it seems to us, that it could be argued that Wyeth was in fact offering a job as an employer. That disposes of that ground of appeal.  

7	The second ground of appeal is that the Employment Tribunal failed to properly apply the new provision of section 63A of the Sex Discrimination Act which reversed the burden of proof in certain circumstances.  We have considered the written submissions prepared by Ms McCann as we think that, albeit with some misgivings, that there is a point of law here which is capable of being argued.  We will allow that ground of appeal to go forward, and in the circumstances, we say nothing more about it.  

8	The third ground of appeal is that the Employment Tribunal misdirected itself when it stated that the Applicant’s throughout has been that she was rejected because of her pregnancy, rather than relying on evidence to show she was superior to other successful candidates.  The Applicant’s case was that she was treated less favourably because of her pregnancy and this could be inferred because she was properly qualified for the role.  It seems to us that this matter was adequately considered by the Employment Tribunal.  Ms Cunningham was in fact saying “You must have discriminated against me on the grounds of my sex or on the grounds of pregnancy because I was extremely good at my job, I was very highly thought of and I had an excellent record”, but at the end of the day this was only evidence that would go to support her claim that she was being discriminated against on the basis of sex and pregnancy.  So far as we can see, there is nothing in this particular point.  The Employment Tribunal clearly considered the evidence as a whole and came to its conclusion; we do not think this particular ground of appeal therefore should be allowed to go forward.

9	The fourth ground of appeal is that the Employment Tribunal failed to make sufficient findings of fact on the first of the two principal allegations made by Ms Cunningham.  Ms Cunningham also asserted that Wyeth had knowingly assisted Quedos to unlawfully discriminate against her in not appointing her to one of the new roles.  Now, so far as the second of those points is concerned, it was clearly dealt with in considerable detail by the Tribunal, but we have not seen that the Tribunal addressed itself to the first of those issues.  In those circumstances, again, we do not propose to say anything more about it, other than this seems to raise a point of law which is fairly arguable.  

10	The fifth ground of appeal is essentially that the Employment Tribunal’s conclusion was unsustainable on the evidence or perverse, and it reached a conclusion no properly directed Tribunal could have reached.  We have obviously read carefully the Decision of the Employment Tribunal; we have heard what Mr McNally has said; we have seen what is in the two Skeleton Arguments before us, but it seems to us that there is really no argument that the Employment Tribunal which heard the evidence in this case, weighed it up and came to its conclusion, can successfully be challenged on appeal on the grounds of perversity.  

11	The Employment Tribunal heard the evidence, as we said, it weighed it up; it considered it and came to its conclusion.  The fact that Mr and Mrs McNally feel that this conclusion is wrong and that the Employment Tribunal should have come to different findings of fact is manifest.  However, an appeal can only succeed on the perversity ground if it can be shown that no reasonable Tribunal could have come to the conclusions on the facts that it did, having properly directed itself.  In our opinion, this is not the present case and the Employment Tribunal was justified in coming to the conclusions that it did on the basis of the evidence it heard and assessed.  

12	A final point was made by Mr McNally which was not one of the five grounds of appeal set out in the ELAAS skeleton, and that is that the Chairman made it clear at the end of the evidence that he was not going to consider the questionnaires completed by Wyeth and Quedos, pursuant to requests from Ms Cunningham.  The reason he said he would not go into that was because they had not been referred to in the course of evidence or submissions, whether the Tribunal had read them beforehand, we know not but assume that they will have done so before the hearing.  Mr McNally points to a passage from Lord Justice Sedley in the well known case of Anya which, if taken literally and out of context, suggests that a Tribunal is bound to read in every case the questionnaires.  However what Lord Justice Sedley was effectively saying was a Tribunal was obliged to come to a decision based on the material before it, including the questionnaires, in cases where the parties were seeking to rely upon the contents of the questionnaires.  It seems to us that where the parties have chosen not to rely, in their submissions or in their evidence, or in their questioning of witnesses upon questionnaires, there is no need for an Employment Tribunal to go to the time of reading documents that the parties have manifested an intention not to rely upon.  

13	The Chairman made his views as to his intentions clear and if Counsel who represented Ms Cunningham on that occasion had thought that it was appropriate for the Employment Tribunal to look at the questionnaires, he would surely have said so.  It seems to us again that this does not raise a point of law which is fairly arguable or one that has any chance of success.

14	In the circumstances, therefore, what we will do is as follows.  We will allow the matter to go to a full hearing on the basis of points 2 and 4, as set out in the written submissions prepared by Clare McCann and those two points are to be set out for the assistance of Ms Cunningham and Mr McNally in the Order of the Employment Appeal Tribunal.  

15	We make the following additional Orders.  Firstly this matter should be set down for a full hearing - the time estimate for such hearing should be, in our opinion, one day.  The parties are to notify the Tribunal in writing if and so soon as they disagree with such estimate, and we think the appropriate category is C.  Just to explain to Mr McNally, A is the most difficult and complicated case, B is those of some complexity, C is for cases which are not of the most complex kind.  Within fourteen days of the sealed date of this Order, the Respondent must lodge with the Employment Appeal Tribunal and serve on the Appellant an answer, and if that answer includes a cross-appeal, they shall forthwith apply to the Employment Appeal Tribunal on paper, on notice to the Appellant, for directions as to the hearing or disposal of such cross-appeal.  

16	I make the usual Order, bundles are to be provided forty nine days before the date fixed for the hearing.  Skeleton Arguments twenty one days, together with a chronology, and a bundle of authorities is to be agreed between the parties and lodged not less than seven days before the date fixed for hearing.  

Just one final observation, Ms Cunningham and Mr McNally.  It is entirely, of course, a matter for you, but you might to consider very seriously whether you might not benefit from legal representation at the hearing.  It is an appeal on a point of law and although Mr McNally has addressed us valiantly, Mr McNally is not wholly familiar with the law and procedure, and it may well be that Ms Cunningham’s case might be better put were they to have the benefit of legal assistance.