Appeal No. EAT/459/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 11 October 1993

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MISS A MACKIE OBE

	MISS A MADDOCKS OBE

BRITISH MIDLAND AIRWAYS LTD	APPELLANT

MRS D KINTON	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	

For the Respondents	

	RESERVED JUDGMENT

	BRITISH MIDLAND AIRWAYS LIMITED v. Mrs D. KINTON

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	MR JUSTICE KNOX:   British Midland Airways Ltd ("the Airline") appeals from the decision of the Industrial Tribunal sitting at Nottingham, on the 19th April 1993 that the applicant before it, Mrs D. Kinton, was not unfairly dismissed by the Airline but was discriminated against by it on the grounds of her sex and should be awarded £7,670.08. The decision was sent to the parties on the 4th May 1993. Mrs Kinton cross-appealed against the decision that she was not unfairly dismissed.

	The relevant facts are within a very small compass. Mrs Kinton was employed by the Airline as a technical support analyst programmer from March 1989 until she was dismissed on the 14th August 1992 by a letter dated 17 July 1992 which stated that her job would become redundant and that regrettably formal notice of termination of employment on 14 August 1992 had to be given to her. Mrs Kinton had gone on maternity leave on the 7th June and had had her baby on 10th July while she was still on maternity leave. The Airline's computer service manager Mr Wisdish visited Mrs Kinton twice to convey the news of her redundancy and consequent dismissal. The first occasion was unfortunately the very day she was discharged from hospital. The second occasion was on the 17 July 1992 when the above mentioned letter was left with Mrs Kinton. Mrs Kinton was due back from maternity leave on 2 November 1992 but she presented her originating application complaining of unfair dismissal and sex discrimination on 1 October 1992.

	The main thrust of her Originating Application was that she had been unfairly selected for redundancy and that she had been discriminated against on the grounds of her sex and that her right to return to work had been denied her by what she termed her purported "redundancy".

	The claim in Mrs Kinton's Originating Application that she had been denied her right to return to work by her dismissal was refuted by the Airline's Notice of Appearance dated the 3rd November 1992 which included a statement that the Airline believed that she had not been deprived of the statutory right to return to work through having been made redundant, subject to her complying with the relevant statutory provisions but that no notice exercising the right to return to work had been received. The point was made that Mrs Kinton sought compensation rather than reinstatement in her originating application.

	Mrs Kinton served a notice of intention to return to work no later than 21 January 1993 by a letter dated 24 December  and received on 29 December 1992. Alternative positions were considered for Mrs Kinton but none was suitable and she was never re-engaged. She duly received her redundancy entitlement.

	The Industrial Tribunal made findings about Mrs Kinton's selection for redundancy which was made on the basis that the function which the machine that she operated was the one which would be least used in the future. Upon this the Industrial Tribunal concluded that it could not argue with Mr Wisdish's decision to make the operator of that machine redundant. However, the Industrial Tribunal also found that there was no consultation with Mrs Kinton and that there ought to have been a measure of consultation although clearly little or nothing could have been effected by consultation. The decision continues:
	"We are satisfied that the failure to consult must make the dismissal unfair, but we are satisfied that there was really no chance whatsoever of the applicant retaining employment had there been consultation."
	A little later on the Industrial Tribunal said it was satisfied that Mrs Kinton was dismissed for redundancy but that they were not satisfied that the Airline had acted reasonably, having regard to equity and the substantial merits of the case in treating that redundancy as the reason for dismissal. They added that because there was no chance whatsoever of Mrs Kinton retaining employment even had there been consultation she would be entitled to no compensation because she received the basic award by way of her redundancy payment.

	The remainder of the Industrial Tribunal decision deals with the sex discrimination claim and it will be convenient to deal first with the cross-appeal regarding unfair dismissal.

	We can see no answer to the argument that the conclusion of the Industrial Tribunal that Mrs Kinton was not unfairly dismissed is in flat contradiction with the later express finding that the Airline had not acted reasonably having regard to equity and the substantial merits of the case in treating Mrs Kinton's redundancy as the reason for dismissal. The selection for redundancy was found to be fair but the total failure to consult was found to make the dismissal unfair. On those findings of fact which are binding upon us and were not suggested to be perverse, the conclusion that the dismissal was procedurally, but only procedurally, unfair is inescapable. Conversely however, we see no basis upon which the conclusion that, given the inevitability of redundancy, no compensatory award could be made, can be challenged. The cross-appeal therefore succeeds to the extent that the dismissal should be declared to have been unfair but it is a Pyrrhic victory because no compensatory award should be made and the basic award was, as the Industrial Tribunal pointed out, satisfied by the redundancy payment.

	We turn to the discrimination claim. The question of liability, as opposed to quantum was dealt with by the Industrial Tribunal in its decision in one fairly brief paragraph which we quote in full:
	"The applicant was notified of her redundancy in August 1992 and her employment was then terminated. It seems to us an odd way to have dealt with the matter because the applicant was on maternity leave and had a right to return to work.
	The sensible way of dealing with the matter would have been to wait for the applicant to notify  her intention to return to work and the date of it, and then at that time decide whether she was still redundant and whether there was any other employment for her if she was. We believe that the intention of the respondents, by dismissing her in August 1992, was to lead her to believe that from that moment she had no further rights. If the applicant had not commenced these proceedings then the respondents' aim, would, we believe, have been achieved. We believe, putting it in simple terms, that the respondents were by her dismissal implying that she had lost her rights (statutory rights) to return to work. This of course could not have happened to a man because a man does not have a statutory  right to return to work after maternity leave. We believe, therefore, that this was unfair treatment because of the applicant's sex. We therefore find that the applicant was discriminated against on the grounds of her sex."	

	The relevant provisions of the Sex Discrimination Act 1975 ("the 1975 Act") are as follows:

	"S.1. 'A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -
		(a) on the ground of her sex he treats her less favourably than he treats or would treat a man.'"

	"S.6(1). 'It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman--
		.....
		(b) by dismissing her or subjecting her to any other detriment.'"

	It is apparent from those provisions that for there to be discrimination within the Act there must be less favourable treatment. A discriminatory thought process by an employer is incapable by itself of constituting discrimination as defined by the Act. This seems to us clear enough from the words of the statute itself but it is supported by what May L.J. said in De Souza v. Automobile Association [1986] I.R.L.R. 103. Mrs de Souza, a coloured woman, was employed by the respondents. She overheard one of the respondent's managers tell another with respect to her to get his typing done by "the wog". May L.J. having reviewed the arguments and the authorities said this at p.107 para 24:
	"What then is the result when these principles are applied to the instant case? First, even though the use of the insulting word in respect of the appellant may have meant that she was being considered less favourably, whether generally or in an employment context, than others, I for my part, do not think that she can properly be said to have been "treated" less favourably by whomsoever used the word, unless he intended her to overhear the conversation in which it was used, or knew or ought reasonably to have anticipated that the person he was talking to would pass the insult on or that the appellant would become aware of it in some other way."
	That passage in our view necessarily involves that action on the part of the employer or person for whose actions the employer is responsible as well as intention or anticipation of a relevant effect of the action upon the employee is needed before the employer can be said to treat the employee in a relevant way.

	In the case under appeal no action at all is identified by the Industrial Tribunal but only an intention by dismissing Mrs Kinton in August 1992 to achieve a particular belief on her part. In the light of the specific finding that the selection for redundancy was effected on a basis that the Industrial Tribunal could not criticise it is not even arguable that the dismissal itself constituted the relevant less favourable treatment because it clearly was not on the ground of her sex that Mrs Kinton was dismissed. Nor did Miss Simler on her behalf argue that it was. Her argument was much more subtle than that and was that it was the timing of the dismissal that constituted the less favourable treatment. She accepted that the evidence was that there was no  suitable position available in January 1993 when Mrs Kinton sought  to return to work but she submitted that there was no such evidence in relation to the earlier period in July or August when Mrs Kinton might have had a chance of successfully competing for an available suitable situation. This submission is an ingenious one but bears no relation to any evidence recorded in the Chairman's notes of evidence or in the Industrial Tribunal's decision which is entirely silent on the subject of available vacancies. In our view the Industrial Tribunal was in error in failing to identify the less favourable treatment of Mrs Kinton. But assuming that it regarded the less favourable treatment as consisting of the subjective intention which it ascribed to the action of conveying to Mrs Kinton that she had no rights it was in error in that no action by any party is involved in that process. There was no evidence before the Industrial Tribunal of any statement to Mrs Kinton regarding the loss of her rights and Miss Simler very properly accepted that the highest the case could be put for Mrs Kinton was that nothing was said to her. In any event this was not the issue which the parties disputed before the Industrial Tribunal which was whether the selection for redundancy was vitiated either by being unfair or by being gender based. That issue was resolved by the Industrial Tribunal in favour of the Airline. There never was an issue regarding the timing of Mrs Kinton's dismissal.

	That is enough to dispose of the appeal regarding the finding of unlawful discrimination in favour of the Airline and that renders issues of quantum of award irrelevant. It should however be recorded that there were two further grounds of appeal against the decision that there had been unlawful discrimination. The first was that the Industrial Tribunal in failing to consider how a comparable male applicant would have been treated by the Airline had committed an error of law in failing to distinguish between dismissal for pregnancy or the possibility of pregnancy, which it was accepted was a gender based criterion and therefore impermissible, on the one hand and, on the other hand, dismissal because of the consequences of pregnancy where the correct test was that of the comparable male situation. Miss Simler submitted that the speech of Lord Keith in Webb v. EMO Air Cargo (UK) Ltd [1993] I.R.L.R. 27  at 29 made it clear that if the criterion for dismissal was gender based no process of comparison was necessary; the criterion spoke for itself. If on the other hand the criterion for dismissal was not gender based then a comparison with a comparable male situation was necessary.

	It seems to us unnecessary to add what would only be obiter dicta to the already highly complex legal position pending the decision of the European Court of Justice upon the question remitted to it by the House of Lords in Webb's case. We are unpersuaded that it is impossible for there to be a valid decision of unlawful discrimination in dismissals connected with pregnancy unless a comparison has been made by the Industrial Tribunal of a comparable male situation. Exactly where the line is to be drawn between dismissals for reasons which are so inherently gender based that the comparative process is unnecessary and those for reasons which are not, is not a question which arises on this appeal and we say no more about it.

	The second additional ground of appeal was that the Industrial Tribunal's finding that the intention of the Airline in dismissing Mrs Kinton in August 1992 was to lead her to believe that she had no future rights was perverse and not one which an Industrial Tribunal properly instructed as to law could properly make. It was, the submission went, not a permissible option in the words of Lord Donaldson M.R. in Piggott Brothers v. Jackson [1992] I.C.R. 85 at 92. As has been emphasised most lately by Wood J. in East Berkshire Health Authority v. Matadeen [1992] I.C.R.723 at 737 it is likely to be a very rare occasion upon which an appeal tribunal can interfere on the ground of perversity that is on grounds other than an apparent error in law or a finding of fact unsupported by any evidence at all, namely that the conclusion was one to which no reasonable industrial tribunal could have come. The appellate tribunal should certainly not merely substitute its own view on a question upon which different tribunals might reach different conclusions. Having given careful consideration to these warnings regarding the limited scope for finding an Industrial Tribunal's decision to be perverse, the industrial members of this Tribunal have nevertheless reached the firm conclusion that the decision that the intention of the Airline in dismissing Mrs Kinton in August 1992 was to lead her to believe that from that moment she had no further rights was indeed perverse and was not one which an Industrial Tribunal properly instructed as to the law could reach. The industrial members of this Tribunal do not accept that the only sensible way of dealing with the very tricky problem of industrial relations posed by the concurrence in point of time of a genuine redundancy and the not unfair selection of Mrs Kinton's machine for redundancy and the birth of her child on the very day of the redundancy decision, would have been to wait until Mrs Kinton gave notice of intention to return to work. The selection of Mrs Kinton's machine had been made and to refrain from telling her about it would plainly have carried a very serious risk of Mrs Kinton finding out about the decision otherwise than from her employers, a process that would have been bound to arouse resentment by her and very likely to have led to charges of secretiveness, if not cowardice, on the Airline's part. It is therefore, the industrial members of this Tribunal believe, wholly unrealistic to ascribe Machiavellian motives to the Airline through Mr Wisdish in circumstances where Mrs Kinton herself did not give evidence that anything was said to her about the loss of her rights. The chairman of this Tribunal agrees with the industrial members in this conclusion.

	The appeal will therefore be allowed and the decision that Mrs Kinton was discriminated against on the grounds of her sex will be set aside. The cross-appeal will be allowed but only to the extent of a finding that Mrs Kinton was unfairly dismissed. The cross-appeal in relation to compensation for unfair dismissal will be dismissed.