Appeal No. EAT/632/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10 March 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR A D SCOTT

	MR G H WRIGHT MBE

MRS S ALLEN	APPELLANT

CANNON HYGIENE LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R ALOMO
(OF COUNSEL)
Brixton Law Centre
506-508 Brixton Road
London SW9 8EN

For the Respondents	MR R F BENNETT
(CONSULTANT)
	R F Bennett
	15 Gullsway
	Heswall
	Wirral
	L60 9JG

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal against the decision of the Industrial Tribunal sitting at London South on 11 July and 12 August 1991.  The Industrial Tribunal heard a complaint made by Mrs Allen against her former employers Cannon Hygiene Ltd.  The complaint was of sex discrimination and victimisation contrary to the Sex Discrimination Act 1975.

	The Industrial Tribunal, for reasons notified to the parties on 23 September 1991, unanimously decided that Cannon Hygiene Ltd did not discriminate against Mrs Allen on the grounds of her sex.  Mrs Allen was dissatisfied with the decision and appealed by a Notice of Appeal dated 29 October 1991.  It is unfortunate that it has taken nearly 21/2 years for this appeal to be heard.  Neither of the parties are responsible for this delay.  It is an unfortunate consequence of the heavy workload of this Tribunal.

	In order to understand the points that arise on the appeal, it is necessary to look at the facts which appear from the relevant documents, the findings of fact by the Tribunal and from the Chairman's Notes of Evidence which have been made available.  Mrs Allen started employment with Cannon Hygiene, as a medical driver and service operative, on 19 April 1989.  That employment finished on 19 October 1990 when she was dismissed for gross misconduct in the form of refusing to obey a reasonable request.  The dismissal decision was taken at a disciplinary hearing held on Friday 19 October.  It was notified to Mrs Allen formally by a letter dated 24 October 1990.  The letter stated:

"Further to the disciplinary hearing which took place on 19th October, 1990, I confirm that you have been dismissed for the following offence which took place on 15th October 1990.

GROSS MISCONDUCT - REFUSING TO OBEY A REASONABLE REQUEST

In view of the seriousness of the offence, you are summarily dismissed without notice or payment in lieu of notice effective from 19th October, 1990.

You have the right of appeal against this decision to Mrs. Chris Else, Divisional Service Manager, as set out in the Company Disciplinary Procedure to which I draw your attention.  If you wish to exercise this right your appeal must be lodged with me in writing within two working days of receipt of this letter."

The letter was signed by Mrs Southwick, the Service Centre Manager.

	On 27 October Mrs Allen replied to that letter to Mrs Southwick as follows:

"I am in receipt of your letter delivered at 08.10 am 27.10.90 which being Saturday does not leave much time for an appeal to be lodged within two working days.

May I draw your attention (or Mrs C Else) to the following facts."

There are then set out a number of points relevant to the dispute between Mrs Allen and her employers and, in particular, Mrs Southwick the Service Centre Manager.  After stating a number of points Mrs Allen wrote:

"As you have forgotten to include an address for Mrs C Else Div. Ser. Mgr. I can only assume you will ensure this protest is set before her within the "two working days"...

I fully intend to take this dispute to the highest level of arbitration."

	In order to understand the way in which the dismissal occurred and that correspondence took place, it is necessary to go back to an earlier date when the disagreements first arose.  Mrs Allen's task in the Company was to drive a van and collect used sanitary bins from ladies' toilets and replace them with clean bins.  In June 1989 Mrs Allen was switched to the other side of the Company's business, namely collecting bins containing syringe needles and other medical waste from doctors' surgeries and clinics.

	Mrs Southwick had come to occupy her position at the depot where Mrs Allen worked on 23 April 1990.  Between 26 September and 9 October 1990 Mrs Allen was on holiday.  When she returned from holiday she found a letter waiting for her.  It was written by Mrs Southwick and should be read in full.  It said:

"Hope all is well with you.  Cannon have decided full medical runs are too much for women drivers and certainly one on her own so I am having to engage a male driver to do your runs.  I haven't got a spare van for you at the moment but will have you picked up next Mon. morning to accompany a run.  Hope you had a good holiday and all is well". [That was signed Susan Southwick]

Mrs Allen was asked to go out in the van with the new male driver to show him the rounds and assist him, although it appears that he had been doing the work for some days.

	On 12 October Mrs Allen presented a complaint to the Industrial Tribunal of sex discrimination and victimisation.  She stated in that complaint that she had received the letter, which we have read in full.  She stated that after discussion with her immediate superior, it emerged that they would be breaking the law, although she had been doing the job for 16 months without complaints from herself or the Company.  It was also stated in the complaint (by a subsequent amendment):

"(a) that she had been discriminated against contrary to s. 1(1)(a) of Sex Discrimination Act 1975 as she was treated less favourably than a man would have been treated in the relevant circumstances

(b) the applicant contends that she has also been discriminated against contrary to s. 4(a) of the above Act as following her complaint to the Industrial Tribunal she was summarily dismissed for objecting to carrying out the work which was the subject of her complaint.  Furthermore, despite her request, an appeal against dismissal has not been granted."

	Although that complaint was presented on 12 October 1990, the Company did not know that it had been presented until it received the Originating Application from the Tribunal on 24 October.  Before we go to those events it is necessary to complete the chronology of events which led up to the disciplinary hearing.

	After Mrs Allen had presented her application to the Tribunal, there occurred an event several days later which brought matters to a head.  On 16 October Mrs Southwick asked Mrs Allen if she would accompany another driver on what was known as a service run collecting bins from ladies' toilets.  Mrs Allen refused.  Mrs Southwick left the matter for a time.  She then again asked Mrs Allen to do the service run.  Mrs Allen again refused.  Mrs Southwick then told Mrs Allen to go home.

	On 18 October the Company telephoned Mrs Allen asking her to come in on the following day for a disciplinary hearing.  There was a conflict of evidence about what happened at the disciplinary hearing.  We need not go into that.  The Tribunal found as a fact that at the end of the interview at the disciplinary hearing Mrs Southwick dismissed Mrs Allen for gross misconduct.

	In order to complete the events, we must refer to the fact that the Tribunal found in paragraph 11 of its decision, that the Originating Application taken out by Mrs Allen was not received by the Company until 24 October.   The Tribunal found as a fact that the Company did not know of the existence of the application before that date.  The Tribunal rejected Mrs Allen's evidence that she had informed the Company and Mrs Southwick at an earlier date that she had made such an application.

	We now come to the two complaints that were made and to the Company's response to them.  The first complaint made by Mrs Allen was that Mrs Southwick's letter of 5 October amounted to direct discrimination under section 1(1)(a) of the Sex Discrimination Act.  That section provides:

"A person discriminates against a women 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..."

	The Tribunal found that the terms of the letter were certainly prima facie evidence of direct discrimination by the Company.  That finding has not been disputed by the Company in any Cross-Appeal or Respondents' Notice on this appeal.  The Tribunal went further and said it was the only evidence of discrimination contrary to the Act.  Mrs Allen told the Tribunal that there were no circumstances in her employment which might make her think that the Company was biased sexually.  It was simply a matter of a dispute over that letter.

	In accordance with the correct understanding of the law, the Tribunal then looked to see what explanation the Company had for the terms of the letter.  The law is that direct discrimination is often difficult to prove.  It is a matter of inference.  If an act occurs which is prima facie evidence of discrimination then it will be for the employer or the person alleged to be a discriminator, to give an explanation of that prima facie discriminatory act.  If there is no explanation, or if the explanation is inadequate, then the Tribunal is entitled to infer that sex discrimination has occurred.

	The Tribunal looked at the explanation given by the Company for the letter.  The explanation given by Mrs Southwick was that she wrote the letter in order to be kind to Mrs Allen, rather than tell her that the reason for her dismissal was that her performance was unsatisfactory.  The reference to "unsatisfactory performance" is explained by looking at what is said in paragraph 12 of the Tribunal's decision.  The Tribunal referred to the Company's allegations that there were many complaints about Mrs Allen's work prior to the letter of 5 October.  It is relevant to mention that the Tribunal found that those allegations of complaints should not be accepted.  The reason they were not accepted is that the evidence put before the Tribunal, which we are entitled to assume was the best evidence the Company had, wholly failed to connect the complaints with the dates on which Mrs Allen had carried out her collection runs for medical waste.  The position on the facts was that Mrs Allen had a good many absences for reasons of sickness and the Tribunal took the view that the occasions which led to the complaints were occasions when other drivers were carrying out the run instead of Mrs Allen while she was away sick.

	The Tribunal came to the conclusion, after reviewing the evidence, that it was not the Company's policy to change male drivers for medical runs and they had never had such a policy.  The Tribunal went on, however, to accept Mrs Southwick's explanation as to her reasons for writing the letter and her real reasons for moving Mrs Allen from a medical run back to service runs.  The Tribunal went on in paragraph 10 of the decision to find that, in the event of the move from medical runs to service runs, Mrs Allen's conditions were not less favourable treatment.  The pay was the same.  If anything the work was lighter because the bins on the service runs were not so large.  The Tribunal said this:

"Mrs Allen's contention that it represented some kind of a demotion is quite inexplicable and irrational."

Those are the findings of fact in relation to the complaint of direct discrimination.

	The ground of appeal against that decision is, in our view, convincing.  It was argued by Mr Alomo, in his very clear and concise submissions on behalf of Mrs Allen, that the Tribunal had found that the letter of 5 October was prima facie discrimination.  The Tribunal went on to accept Mrs Southwick's explanation, that is that she wrote the letter to be kind to Mrs Allen rather than reveal the unsatisfactory nature of her work.  Mr Alomo submits correctly, that, even if an act is done for a benevolent or kind motive or with an intention not to discriminate, it can in law amount to direct discrimination if, in accordance with the provisions of section 1(1)(a), the effect is that, on the ground of her sex, the woman is treated less favourably than a man would be treated.

	Mr Alomo developed the argument by submitting that the Tribunal failed to consider the effect of this letter, that is, its objective affect.  If Mrs Southwick would not have written such a letter to a man, then that letter did amount to less favourable treatment to a woman, for this reason, that such a letter would not reveal to Mrs Allen, as a woman, the true reason, so far as the Company was concerned, for the decision contained in Mrs Southwick's letter.  If the true reason had been revealed (the alleged complaints against her work), then Mrs Allen would have had an opportunity to respond to the allegations and complaints.  On the facts found by the Tribunal in paragraph 12 of its decision, she would have been able to refute those complaints.  But, because she was never notified in the letter about the complaints she did not have that opportunity.  In the course of events which we have described, she was put in a position where she declined to comply with an instruction which she was given.  That ultimately led to the disciplinary hearing and to the dismissal.  If she had been a man, matters would not have occurred in that way, because no such letter would have been written to her.

	We find that on the issue of direct discrimination the Tribunal has erred in law.  The error of law is that the Tribunal, instead of looking at the effect of the letter objectively, looked at the intention or motive with which the letter was written.  That is regarded by the decisions of this Tribunal and higher Courts as an incorrect test of direct discrimination.

	It was argued for the Company, by Mr Bennett, that the Tribunal's decision should be upheld.   He submitted that Mrs Southwick had absolutely no authority to write to Mrs Allen as she did.  She had no authority at all to write on the Company's behalf using its notepaper.  Her letter was a genuine attempt to be kind, though extremely misguided.  The device that Mrs Southwick employed in the process was a manifestly untrue reference to a non-existent Company decision.  That submission by Mr Bennett does not correctly state the legal position. Quite apart from the irrelevance of the motive or intention of Mrs Southwick, it is provided by section 41(1) of the 1975 Act that:

"Anything done by a person in the course of his employment shall be treated for the purposes of the Act as done by his employer as well as by him whether or not it was done with the employer's knowledge or approval."

	Mrs Southwick was an employee of the Company.  The fact that she wrote the letter without the company's knowledge or approval is irrelevant to the question of legal liability on the part of the Company for what she has done.  We appreciate that Mr Bennett submits that the Company had no intention to discriminate and that they were appalled at the action taken by Mrs Southwick.  Those facts do not, however, exculpate the Company from the legal consequences of Mrs Southwick's actions.

	We now turn to the question of victimisation.  The Tribunal dealt with this very briefly in paragraph 11 of its decision.  The Tribunal said:

"We have no hesitation in saying that there was no victimisation in Mrs Allen's dismissal.  The evidence for the Respondents was that they did not receive a copy of Mrs Allen's Originating Application until 24 October, and we see from the Tribunal file that the Originating Application was not despatched to the Respondents until 23 October.  We accept that the Respondents did not know of the application to the Industrial Tribunal before they received the Originating Application, and reject Mrs Allen's evidence that she informed them, and in particular, Mrs Southwick, at an earlier date that she had made such an application."

The complaint of victimisation was dismissed for those reasons.

	The difficulty in upholding the Tribunal's finding on victimisation, as the Company wishes us to do, is that it appears that the Tribunal did not fully appreciate the nature of the complaint that Mrs Allen was making of victimisation and did not properly address itself to the evidence given in relation to that complaint by Mrs Southwick on behalf of the Company.  The complaint clearly raises the point, under the heading of Victimisation under section 4, that Mrs Allen requested an appeal against dismissal and that an appeal had not been granted. The Tribunal do not deal with the question of the appeal against the decision to dismiss.  They do not refer at any point to the letter written by Mrs Allen to Mrs Southwick on 27 October 1990 following formal notification of her dismissal.

	The case put by Mr Alomo on behalf of Mrs Allen is that discrimination by way of victimisation may occur if section 4(1)(a) of the 1975 Act applies.  That provides:

"A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

(a)brought proceedings against the discriminator or any other person under this Act..."
	
Mr Alomo submits that the Tribunal erred in law by failing to deal properly, or at all, with this complaint.  The undisputable facts are, as appears from the documents and the Tribunal's findings, that the Company knew on 24 October that Mrs Allen had presented a complaint under the Sex Discrimination Act on 12 October.  Mrs Allen wrote on 27 October in response to the notification she had been dismissed and clearly expressed a wish in that letter to appeal against the decision to dismiss her.

	In those circumstances she had written a letter evincing an intention to appeal against the dismissal.  There was no response to that letter.  She never in fact had an appeal considered.  Mr Alomo's submission is that, in those circumstances, the Tribunal should have come to the conclusion that Mrs Allen was treated less favourably than the Company had or would treat other persons and had done so by reason that she had brought the proceedings against the Company under the 1975 Act.  The Tribunal did not deal with this point.  That is an error on the part of the Tribunal.  A complaint was clearly made, but they never dealt with it.  

	The question arises as to whether this Tribunal should proceed to make a decision on the claim of victimisation on the basis of the documents and evidence before it, or whether, as Mr Bennett submits, the question of victimisation should be remitted to an Industrial Tribunal for it to make a decision in the light of our ruling as to what are the relevant matters to consider.  On this aspect of the case we have decided to accept Mr Alomo's submissions that this is one of those cases in which it is permissible for this Tribunal not only to allow the appeal as being from a decision in error of law but also to make a decision on the evidence.  Mr Alomo reminded us that according to Schedule 11, paragraph 21 of the 1978 Act:

"For the purpose of disposing of an appeal the Appeal Tribunal may exercise any powers of the Tribunal from which the appeal was brought or may remit the case to that Tribunal or to a different Tribunal."

	We were also referred to the well-known judgment of Lord Donaldson in O'Kelly v Trusthouse Forte PLC [1983] IRLR 369.  He said:

"The EAT can correct errors of law and substitute its own decision insofar as the Industrial Tribunal must, but for the error of law, have reached such a decision.  But if it is an open question how the Industrial Tribunal would have decided the matter if it had directed itself correctly, the EAT can only remit the case for further consideration."

	The Tribunal erred in law in its failure to deal with Mrs Allen's complaint of victimisation in relation to the denial of her appeal.  She had, however, not only raised it but dealt with the matter in evidence.  More importantly, Mrs Southwick had dealt with the matter in evidence.  There is in the papers relevant material for this decision.   The presentation of the complaint was followed by notification of the complaint to the Company,  by the letter of 27 October, and by "nil" activity on the part of the Company in relation to any appeal.

	It is clear that any Industrial Tribunal would be entitled to infer from that order of events that there was victimisation, unless there was an adequate explanation for the failure of the Company to accord to Mrs Allen an appeal against the dismissal decision.  The evidence of the Company on this point was given by Mrs Southwick.   In a pithy sentence in paragraph 3 of its Notice of Appearance, the Company said:

"Mrs. Allen was advised of her right of appeal but did not wish to exercise this right".

That was the tenor of Mrs Southwick's evidence to the Tribunal.

	Mrs Southwick gave evidence in a number of passages of a very full note kept by the Chairman.  She gave evidence on page 34 of the bundle that she had informed Mrs Allen that she had a right of appeal.  That clearly appears to be the case from the last paragraph of the letter of dismissal dated 24 October.  Mrs Southwick then gave evidence in relation to Mrs Allen's letter which was that she did not understand the letter to be Mrs Allen's lodging of an appeal.  She said she thought her appeal would come to Chris Else who is the divisional service manager mentioned in the last paragraph of the letter of 24 October.  Later in her evidence Mrs Southwick said that she never knew that Mrs Allen had made an appeal. Even later she said:

"In retrospect it [the letter] may indicate trying to exercise some right of appeal - but at the time I thought she was just writing to me.  Just the sort of thing I would think she would do."

She agreed that it said Mrs Else in brackets (a reference to the first paragraph of the letter).  She went on to say that she did not think for a second that this was an appeal.  She just thought it was a letter to her.  She had not replied to any of the letters.  She said there was nothing to reply to.  She said no-one in the Respondents (the Company) dealt with it, as no-one realised it was an appeal and:

"The end of October I think I knew of the Applicant's application to Industrial Tribunal."

	It is clear from those passages in the Notes of Evidence that the Company's explanation for not having a hearing of an Appeal by Mrs Allen was that stated in their Notice of Appearance.  As far as they were concerned, she did not wish to exercise the right.  That is how the Company may have read this letter.  The correct legal way of resolving this matter is not, however, to look at the subjective reaction of the reading of this letter by Mrs Southwick or the Company.  The correct approach is to look at this letter objectively and ask "How would a reasonable employer, in receipt of this letter dated 3 days after a letter of dismissal containing a notification of the right of appeal, have read this letter?".  Our view is that the letter could only be read one way.  Mrs Allen was notified of her right of appeal. She was notified that the appeal against the decision would be to Mrs Chris Else.  She was told in the last sentence of the letter of 24 October that:

"If you wish to exercise this right your appeal must be lodged with me [Mrs Southwick] in writing within two working days of receipt of this letter."

Reading this letter as a whole, it is clear that any reasonable employer would have realised that Mrs Allen was intending to appeal.  As the Company failed to read it in the way in which a reasonable employer would and in consequence, denied Mrs Allen the right to an appeal, we are of the view that an Industrial Tribunal hearing this matter could only come to the conclusion that there was no satisfactory explanation for denying an appeal hearing or failing to provide one.  In those circumstances the Tribunal would be bound to infer that the case was one of victimisation within the meaning of section 4(1)(a), because Mrs Allen was treated less favourably than others would have been by reason of her having brought proceedings against the Company.

	In those circumstances, we allow the appeal both on the case of direct discrimination based on the letter of 5 October and on the ground of victimisation arising out of the failure of the Company to grant an appeal hearing to Mrs Allen as requested in the letter of 27 October.  We decline the invitation to remit the question of victimisation to the Industrial Tribunal.  The evidence relevant to this decision has already been given.  It would be a waste of time to remit it.  If it were remitted Mrs Southwick would either repeat the evidence she had already given or she would give further evidence on matters never been previously mentioned which would stand a negligible chance of being accepted as an explanation.  The Company has had a full opportunity to explain its conduct.  It must be judged by the explanations which it has given.  There is no reason for giving a further opportunity to give different explanations, let alone a repetition of explanations already been given.

	The appeal will be allowed.  We will now hear submissions as to how the question of the remedies should be dealt with.