Appeal No. UKEAT/0119/12/JOJ

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

                                                                                                             At the Tribunal
                                                                                                             On 23 August 2012

Before
HIS HONOUR JUDGE McMULLEN QC
MS G MILLS CBE
MR T STANWORTH

DR L V MATHER	APPELLANT

DR N DEVINE & PARTNERS BRAMHALL PARK MEDICAL CENTRE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JOHN RATLEDGE
(of Counsel)
Instructed by:
Hempsons Solicitors
Portland Tower
Portland Street
Manchester
M1 3LF	
For the Respondent	MRS ZOE THOMPSON
(of Counsel)
Instructed by:
Salehs LLP
Didsbury House
748 Wilmslow Road
Didsbury
Manchester
M20 2DW

SUMMARY
SEX DISCRIMINATION – Pregnancy and discrimination
HARASSMENT – Conduct
The Employment Tribunal did not address all the Claimant’s claims for pregnancy and sex discrimination and these were remitted to a fresh Tribunal, in part because the Judgment was not unanimous.  Other grounds of appeal were dismissed and the Judgment upheld.

HIS HONOUR JUDGE McMULLEN QC
Introduction
1.	This is an appeal by the Claimant in those proceedings against what is said to be a unanimous judgment but which, on examination, appears to be in part in a majority judgment.  The Employment Tribunal sat at Manchester under the chairmanship of Employment Judge Hewitt over four days and then a further three days in private and sent reasons with the reserved Judgment on 17 November 2011.

2.	The Claimant was represented by Mr John Ratledge and the Respondent by Mrs Zoe Thompson, both of counsel.  They both made written submissions on the closing day of the oral evidence. We have seen some of that written material and are assured that all of the statutory provisions which the Employment Tribunal incorporates by reference to sections in its judgment were before it.

3.	The Claimant claimed that she had been discriminated against on the ground of sex and her period of pregnancy and maternity leave and that she had been harassed.  The Respondent denied the Claimant’s contending that it did neither, nor did it expel her from the partnership.

The issues
4.	As we have told the parties today, we have decided that certain parts of this case will go back to a Tribunal and so the account we give of the proceedings and the facts can be the shorter. The issues were set out at a CMD, where both parties were represented:

“1.	The claimant brings claims around her employment with the respondent whereby she was unable to take nine months’ maternity leave, and unable, she says, to return to work part-time.  Consequently she resigned her employment.  The respondent denies the allegations and also stated the claimant was not an employee.  She has withdrawn her claim of unfair constructive dismissal today but pursues claims of sex discrimination.  
2. The claimant puts her claims in four ways:
(i) that she has been discriminated against on the grounds of sex/maternity in relation to the refusal of nine months’ maternity leave after this was agreed;
(ii) she has been discriminated on the grounds of sex in the way she was treated throughout the negotiations regarding her maternity leave and part-time return on the grounds of sex, pregnancy or maternity;
(iii) that she was indirectly discriminated against because the respondent applied a provision, criteria or practice, namely that she should work full-time, which has put the claimant at a disadvantage and which is not a proportionate means to achieving a legitimate aim and;
(iv) the claimant has been subjected to harassment contrary to Section 4A of the Sex Discrimination Act 1976 in respect of her treatment by the respondent.
It was agreed that the claimant’s claim needs to be further particularised as her claim is not described in this way in detail in the IT1.”

5.	An amendment was made to the Claimant’s case and as far as is relevant to what has been described as the exclusion from partnership case, the grounds drafted now by counsel - previously the claim having been put by the Claimant herself - contained this:

“The Respondent has directly discriminated against the Claimant in the manner in which it has dealt with her maternity leave.  The conduct of the Respondent amounts to detriment.  In so far as the actions of the Respondent amount to a repudiatory breach of the express or implied terms of the partnership agreement, which the Claimant has accepted, the Respondent has expelled the Claimant from the partnership.”

6.	The Tribunal held:

“1.	The unanimous judgment of the Tribunal is that the claims under section 1(1), 4A and 11 of the Sex Discrimination Act 1975 (SDA) fail and are dismissed.
2. The majority judgment of the Tribunal is that the claim under section 1(2) of the SDA fails and is dismissed.  The minority view is that the claim under section 1(2) succeeds.”

7.	In paragraph 5 the Tribunal says it has arrived at a unanimous decision, but the Tribunal divided its opinion on what is known as the indirect discrimination claim.  It appears to have been united on the harassment and expulsion claims.  If we are wrong about that then the Tribunal can tell us, but as the layout of the Judgment is confusing, we have assumed that the indirect discrimination claim was decided by a majority because the minority opinion is put there but the harassment and expulsion and direct discrimination claims were decided unanimously.  

8.	The Claimant appeals against all the decisions except the decision on the direct discrimination claim.  It is important to recognise that the direct discrimination claim related to an oral agreement which the Claimant claimed was in place, see paragraph 10.2 of the Judgment.  This allowed her to take nine months leave on account of pregnancy and maternity.  The Tribunal rejected the basis of that claim for there was no such agreement and found that the relevant agreement was contained in the extant partnership agreement providing for 26 weeks (six months).  Therefore the direct discrimination claim is taken no further.

9.	Directions sending this appeal to a full hearing were given in chambers by HH Jeffrey Burke QC; he indicating that there was no appeal on the direct discrimination points but the other grounds were reasonably arguable.  

The legislation
10.	The relevant provisions of the legislation were cited by reference to the section numbers and they are as follow;

“The relevant sections of the SDA are sections 1 (direct and indirect discrimination against women), 4A (harassment, including sexual harassment), 11 (partnerships), 63A (burden of proof: Employment Tribunals) and 76 (period within which proceedings to be brought).  Each of the relevant sections have been quoted verbatim in the claimant’s closing submissions and are adopted by the Tribunal herein.”

11.	There is no issue as to the burden of proof under section 63A.  Section 11 of the SDA contains provisions relating to partnerships.  It provides for a remedy to be given in respect of the expulsion of a partner from a partnership and the exposure of such a partner to detriment.  Otherwise, the provisions more or less mirror those for employees under section 6 of the Act.

The facts
12.	The Respondent is a practice of five GPs at two sites in Stockport, having within its care some 12,500 patients.  The practice is very busy and successful. It was decided by the partners in existence at the time that it would function properly with five partners. The Claimant who had been working as a locum was offered a partnership on 10 December 2008.  Part of the partnership agreement which she did not question, and which was held by the Tribunal to apply, was that should she wish to take pregnancy leave she could, provided that for half of the period six months there was locum cover.  She announced to the partnership that she was pregnant in July 2009 and she went off on pregnancy leave at the end of January 2010.

13.	She maintained throughout the case that she had made an agreement orally for nine months, not six months but that claim was dismissed and is not pursued.  It is important, however, because throughout the relevant period she had this on her mind. She felt the partnership was not honouring what had been vouchsafed to her.

14.	The Claimant gave birth successfully to Maya on 5 March 2010, who was her second child, and she has always indicated that she would return to work after nine months, that is effectively the end of October 2010, and arranged locum cover for some of this period.  The Claimant sought to negotiate her position as to nine months as against the Respondents’ position of six months and there was some correspondence with Kath Wilkinson who was the practice manager.  The position is being softened by the Claimant in that she was prepared to come back one month early at the end of September but the partnership was at one stage prepared to take her back on or about 9 September, but none of that reached fruition.

15.	The exchanges with Miss Wilkinson illuminated two matters; first on 15 April 2010 there was to be an away-day of the partnership for half a day but the Claimant was not invited. She complained and received a flat refusal from the leading lights in the partnership, Dr Devine and Dr Patel, about her attendance.  But in due course, after what the chronology shows to be five hours, the partnership relented and said she could come towards the end of the meeting.  She felt that was being excluded.

16.	What was to be discussed at that meeting was a proposal that the Claimant had made that related to her maternity leave. The proposal included a brief discussion about a possible job share which the Claimant had on the phone on the evening of 14 April with Ms Wilkinson.  The Claimant put in writing what her proposals were as to her primary contention, that is that she stay on maternity leave and then return to full-time work at a date later than six months but within nine months.  She then went on, having regarded herself as making a compromise of her rights in so offering, to suggest a job share arrangement and she said this;

“As discussed on the phone, one option would be a job share.  This is my personal preference.  It would be an ideal solution for me and I feel the practice.  I am unsure if the partnership has thought this option through at all.  Obviously I do not know if there is anyone they feel would be suitable to job share with.  Within the practice obviously there is Emma and Alison.  Emma I know is actively looking for a partnership and obviously most female GPS with families the ideal is a jobshare/part time partnership.  I understand they both have completed their families.  I am unsure how this would work practically but have thought through several options including a five day week where each did 2 days (pro rata appts of full time 4 days, FT over 5 days) and then alternate the Friday oncall between the job share.  Another option would be to split it into 2 days each and work out way to cover on-call between the job share (maybe off set the extended hours) There are many able female GPS who I think would love to consider a job share partnership option, who do not want full time positions, but do want partnerships, including Emma and some others (who currently work in EIS) and other female GPs who live locally.  If advertised I am sure you would be swamped with local good applicants.  We could put this into place from end of the 26 weeks maternity leave (end july) if agreed and organised quickly.
If Job Share was an option then I would need to know as soon as possible as I am in the process of arranging a nanny (was originally arranging from end of october) and she is currently considering leaving a position as a nursery nurse to take up the post for me so would need to know the plans so can rearrange child care days.  Obviously I would not want to mess her around and put her current job in jeopardy.”

17.	That was taken forward to the away-day.  A minute was taken of the discussion about the Claimant’s case and this is what the partners agreed:

“Lucy’s Maternity Leave discussed, Nick to draft a reply from all Partners to Lucy to state the Practice Agreement and to ask her to formally put in writing what she is requesting.  Draft reply to be agreed by all Partners prior to sending.  All felt that a meeting with Lucy is required.”

18.	That is markedly different from what was communicated to the Claimant, for what the partnership wrote to her on 19 April 2012 was this:

“When we first offered you the partnership it was having considered the options that we felt the practice needed 5 committed full time partners for its smooth running.  However good, locums do not provide the commitment, flexibility and continuity of care that a full time partner does, and we have all felt the stress of the extra workload in your absence.  It has also confirmed our belief that the practice functions best with five full time partners.”  

19.	The previous part of the letter reinforced the stance taken by the Respondent as to its entitlement to require the Claimant to return to work after six months.  There was, however, a meeting on 30 April 2010 and there was a dispute about what happened.  We have been taken in detail to the witness statements of the three people at the meeting, Drs Mather, Devine and Patel.  The Claimant gave evidence that she discussed and raised her suggestion of a job share, other doctors denied this.  The Claimant’s account was upheld.  

20.	The Tribunal recorded of this meeting the following:

“8.45 A meeting did take place, at the claimant’s request.  It was held on 30 April 2010 and attended by Dr Devine, Dr Patel and the claimant.  It was an uncomfortable meeting at which all present were tense.  Job share was mentioned, but not discussed in any detail and the main point of discussion was the length of the claimant’s maternity leave.  The claimant herself in her evidence in chief states:
‘I had to open up the meeting.  I said to Dr Devine that I had come to discuss maternity leave and I was hoping for 9 months’.
8.46 The claimant was not prepared to move from that stance and the doctors for their part were determined that the provisions of the Partnership Agreement should apply.  No compromise as to the length of maternity leave was suggested at the meeting which ended in disagreement.  After the meeting on 30 April there was a discussion between the partners, following which Dr Rooney spoke with the claimant.  Dr Rooney advised the claimant that the partners wished to stand by the terms of the Partnership Agreement regarding maternity leave and that any additional period of absence by the claimant would need to be taken as annual leave.”

21.	In the wake of that the Claimant resigned and her resignation contains the following;

“I feel, however, that I am left with no option but to resign after recent events.  I always intended to return to work full-time but only after taking nine months off (including annual leave) and understood that this was the agreement.  I am unable to return to work full-time, as required by the Partners, after 26 weeks, when Maya is only 4.5 months old for reasons we have previously discussed.  I am saddened to have to come to this decision but feel the loss of good will forces me into this position.  I am giving three months notice as required.”

22.	She then made the claim.  The Tribunal dismissed the direct discrimination claim based upon the existence of an agreement as to nine months.  As to the remainder of the claims, the Tribunal said this;

“The indirect discrimination claim
10.3 The following comments reflect the view of the majority of the Tribunal.
10.3.1 The respondent did not apply a provision, criterion or practice (PCP) requiring the claimant to return to work full-time.  The manner in which the claimant’s case has been put in this regard is confusing.  The original ET1 makes reference to the claimant’s plan to return to work full-time and the second paragraph of her letter of resignation dated 10 May 2011 (page 160) comments:
‘I always intended to return work fulltime…’
The amended ET1 in fact makes reference to an alleged breach of two PCPs, namely the requirement to return to work full-time and the requirement to return to work after 26 weeks maternity leave.  The latter claim has not been pursued as part of the indirect discrimination claim during the course of the Tribunal proceedings.  As found I paragraph 8.12 of its finding  of fact, the respondent employed Dr Sterling as a part-time GP and, as found at paragraph 8.49, after the claimant’s resignation accepted a job-share arrangement from Dr Sterling and Dr Webster.  There was no formal request by the claimant to return on a part-time basis, whether by a job-share arrangement or otherwise, and even if the email to Ms Wilkinson dated 15 April 2010 (page 134) could be construed as a job-share arrangement request, no detail was supplied by the claimant as to what that arrangement might be and there was no evidence before the Tribunal that the claimant had ever discussed a job-share arrangement with any of her colleagues.
10.3.2 The minority of the Tribunal is satisfied that there was  PCP applied by the respondent requiring the claimant to return to work on a full-time basis.  The minority member is satisfied that the email from the claimant to Ms Wilkinson dated 15 April 2010 (page 134) did constitute a request for a job-share arrangement which was rejected by the partnership.
Harassment
10.4	 The matters complained of are set out in paragraph 24 of the claimant’s counsel’s closing submissions.  The Tribunal has considered each of the individual allegations, having regard to the wording of section 4A of the SDA and does not consider that any of the matters raised fall within the definition contained within that section.
Expulsion
10.5 The claimant was not expelled; she resigned.  The case for the claimant is put on the basis that this is analogous to a constructive unfair dismissal claim, but no supporting authority has been provided to sustain this proposition.  There was no expulsion and the Tribunal rejects this claim.”

The contentions and our conclusions
23.	Since the contentions of the parties follow a logical sequence, we will give our conclusions upon it; succinctly we hope so as to enable a Tribunal to consider them.  The first criticism by the Claimant is as to the finding on indirect discrimination.  In our judgment the Claimant is correct as to the substance of Mr Ratledge’s points.

24.	The first is that in this jurisdiction there is no requirement for formality of an application as contrasted with, for example, a request for flexible working or other forms of adaptation or some extensions of maternity leave.  The insistence by the Tribunal that the Claimant’s case lacked formality is therefore misplaced.  The Tribunal decided that there was no formal request for her case to be considered as a job-share.  We have some sympathy with the Tribunal as to its reflection that at times the Claimant’s case was confusing, but on this account we are looking solely at the document cited by the Employment Tribunal and this influenced the relevant exchanges we have cited above.

25.	In our judgment, there did not need to be a formal request to return on a part-time basis.  There was a request that she do so by way of a job-share arrangement.  True it is, her primary position was maintained as one of work or no work, but by the email which the Tribunal relies on it is plain that there was a request for consideration of a job-share. 

26.	The second issue relates to whether any detail was supplied as to what the arrangement might be.  As a matter of construction, the Tribunal erred for there are two options by the Claimant in her email as to how it might work.  As to the Tribunal’s finding that the job-share arrangement had never been discussed with any of her colleagues, at first sight this seem to be in conflict with its finding that the job-share was discussed at the meeting on 30 April or alternatively to overlook the fact that there was a discussion as found by the Tribunal between the Claimant and Kath Wilkinson. 

27.	We accept from Mrs Thompson that the meaning of the word, “colleagues” here is other GPs within the practice and it is correct to say that at the time the Claimant had not discussed with any of those colleagues.  The purpose of such a discussion, we infer, would be that a package could be offered by the Claimant and another as to how the pair of them would work out a job-share.  The Claimant actually earmarked a GP working in the practice, Dr Webster, who would be an ideal candidate. As it transpired, she was absolutely right because after the Claimant left, the partnership accepted a worked up job-share arrangement between Dr Webster and Dr Sterling.

28.	Thus, although the Claimant had not discussed that with Dr Webster, she correctly marked her out as a suitable candidate and she was right.  So, in our judgment the Tribunal erred in failing to recognise this email for what it said, which was that the Claimant was willing to return to work in a job-share position.  The response of the partnership in its letter of 19 April does not deal with that matter at all.  It makes a number of assertions about the commitment of part-time workers to discharge their duties, but the principal point is that there is no response to the Claimant’s suggestion of herself working part-time with another on a job-share.  This is entirely on the basis of her being replaced by locums who, as the partnership believe, do not provide the commitment that the partnership wanted. In our judgment, this does not reflect a response by the partnership to accept the Claimant’s offer.  

29.	At the meeting on 30 April, the matter was raised again and we hold that the account by the Tribunal that the partners retained their stance is not correct. On the Tribunal’s own finding that job-share was mentioned, albeit not in any detail, it cannot be said that no compromise was suggested.  The Tribunal had already noted that the Claimant was putting forward a compromise on the length of her maternity leave down from nine months to eight months. On this finding she had also compromised on the basis that she would indeed return after six months on a job-share if this could be worked out.

30.	The Tribunal regarded the stance as being fixed and in part it was true because as the Claimant said in her evidence, she was hoping for nine months, that was her primary case.  The question for the Tribunal, therefore, ought to have been whether the failure by the partnership on 19 April 2010 to respond to her request for part-time working, as we hold it to be, and what appears to be the refusal to countenance that on 30 April, constitutes a breach of section 1(2)(b) of the Act.  We accept the submission that a provision can be a one-off. Mr Ratledge is correct in his reliance upon the judgments in British Airways v Starmer [2005] UKEAT/0306/05, Clarke v Eley (IMI) Kynock [1983] ICR 165 and Allonby v Accrington College [2001] ICR 1189 (at 1196, para 12) for that proposition.

31.	The question is whether or not the decision to refuse to consider the Claimant for a part-time job-share put women at a particular disadvantage and put her at that disadvantage which the Respondent could not show was a proportionate response to the legitimate aim of having five committed full-time partners.

32.	That is a matter which the parties do not invite us to decide ourselves but at the outset of today’s case indicated would be a matter for remission to a Tribunal.  And, so with the direction we have given, the Tribunal will consider the relevant section and will consider whether the judgment of the minority was one which was to be upheld.

33.	We turn then to harassment.  The judgment is jejune; the Tribunal relied upon the written submissions of Mr Ratledge. We hope we do him no disservice if we extract from his submissions three principal claims for harassment. We accept that the Tribunal had before it the relevant statute. The Claimant complained of her exclusion for about five hours on 14 April 2010 from the away-day the next day,  Dr Devine’s conduct and words at the meeting on 30 April and depriving her of a job-share which were singularly or in total sexual harassment.

34.	In our judgment, the Tribunal has failed to give proper reasons on the Claimant’s case. For example, she contended that she had been bullied by the treatment of Dr Devine at the meeting on 30 April. She succeeded in showing one of the elements under section 4A in that she was in an atmosphere which was hostile and she felt uncomfortable and tense, so did the others.  But the point is, it was the Claimant making that case and saying that this constituted a form of harassment, the subject matter was her request for longer maternity leave and, on her request for working part-time on a job-share.  

35.	The away-day matter is also relevant to her case on maternity for the partners were going to discuss her requests in her absence. She told the Tribunal that she felt upset about that exclusion.  Those are matters which require the Tribunal to make findings.  The Tribunal having found in favour of the Claimant on one major area of dispute as to the meeting on 30 April, it behoved it to make decisions about the claim she was putting forward and it must now do so.  We accept Mr Ratledge’s submission that it cannot be said that the actions the Claimant relied on did not fall within the wording of section 4A.

36.	Just to take the contention of bullying, that in itself is an allegation of unfavourable treatment and is capable of creating an effect in her mind of something humiliating or an offensive environment for her.  So the Tribunal must consider the wording of section 4A, must consider whether facts asserted by the Claimant are true and, if so, whether they fall within the meaning of section 4A.  In our opinion, this Tribunal fell short of the standards required of it to explain why what had been said by the Claimant fell outside the wording of the Act.

37.	As to expulsion, the language here is very short, but we consider the justification for it is found in the CMD.  Having been aprised at the very start about problems we saw in the formulation the claim, Mr Ratledge, at the end of the day, accepted that it could be said that the CMD had ruled out the exclusion claim.  This, we consider, to be correct.  Originally, the Claimant in her ‘do-it-yourself’ claim had claimed unfair dismissal, not an uncommon misapprehension, but she was a partner so she could not claim unfair dismissal as an employee.  This claim was abandoned.  It is a claim that she could not return to work part-time and as a consequence resigned her employment. It is a constructive unfair dismissal point, but she withdrew that complaint at the CMD.

38.	Instead, she relied upon other matters as being sex discrimination.  In her amended formulation drafted by Mr Ratledge, the point is not made that what was originally a constructive dismissal had inured into being a constructive expulsion.  But, we can see that those words too appear and might well be thought to be in conflict.

39.	Giving the Claimant the benefit of the doubt, the real problem is that it depends upon the Claimant’s case on the nine month oral contractual term being accepted, when it was not.  There is no mention of any other implied terms. We hold this Employment Tribunal was not to determine matters about her constructive expulsion, as it might be put.  This is because the point was not properly before it and in our judgment the Tribunal was right to reject it. Its reasoning may have been short but she cannot hew out of the CMD and her amended reply a straightforward claim or perhaps an indirect claim of constructive expulsion.

40.	It is worthy of note in this connection that in her resignation letter she relies solely on the nine months agreement.  That was the reason why she resigned the partnership, and as the Tribunal has held she was wrong in relying on an agreement which she misunderstood. And so there is no ground for impugning the decision of the Tribunal on expulsion.

Disposal
41.	An application has been made by Mr Ratledge for this case to be heard by a different Tribunal. That is opposed by Mrs Thompson.  Understandably the parties take that position, as frequently occurs.  We have borne in mind the factors which Mr Ratledge has put in front of us based upon Burns/Barke and Sinclair Roche & Temperley.  Looked at holistically, this Employment Tribunal was clearly correct on expulsion and direct discrimination.  The other two points are to be re-heard and so each party has won and lost before it.

42.	A key factor is that it could not agree and we have had to struggle to see where the division was and have allocated the division to the indirect discrimination claim.  Although the Tribunal elsewhere says it was unanimous, we think it is imposing too heavy a burden upon it to subject it to a further three days of discussion in private, presumably based upon the fact they could not agree.  There may have been other issues but it is sending this problem to a divided Tribunal and we think that that would be unfair on it. 

43.	The perception that it could do right is also affected by our holding that the Tribunal was wrong to say that having regard to the wording, the matters did not fall within the statutory definition. We have directed that the Tribunal should consider the definition and make findings about each of these matters. It would be difficult for the same Tribunal to do that having taken a blanket approach and said that none of the matters falls within the wording.  We also consider that the division on the point of the PCP and indirect discrimination militates against it being sent to the same Tribunal.  

44.	We have no doubt about the professionalism of the Tribunal in attempting to deal with this matter again, but we bear in mind that there was a rupture of its proceedings which began on 14 June to 16 June, resumed on 1 August and then resumed again on three separate occasions, leading to the fourth occasion when the judgment was written.  And in those circumstances there is little utility in sending it back to the same Tribunal. This is now a much narrower case, there can be a focused remission bearing in mind the terms of this judgment which will be shown to it, and considering all the factors, there should be a perception of fairness and so it will go a fresh one.

45.	We bear in mind problems of delay; it probably cannot be heard now until what will effectively be 2 ½ years after the dates of the relevant events. 

46.	This much narrower case might be possible to conciliate.  The parties are well represented and we see no reason why they should not invoke ACAS to try and see if they can resolve the issues between them without going back to another hearing.  We are sure that all these doctors are much better engaged in tending to the sick in Stockport than in litigating in the Manchester Tribunal.  And so we will direct that within 28-days the parties report to the Employment Tribunal on the steps but not the substance of discussions taken in order to try and resolve this matter with the assistance of ACAS.