Appeal No.	 EAT/1332/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 July 1997

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MR D G DAVIES CBE
MR D J HODGKINS CB

MS M MURPHY	APPELLANT

GENERAL ACCIDENT LIFE ASSURANCE LTD & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	JANE COLLIER
(of Counsel)
Mrs G Howard
34 Lyndale Avenue
Childs Hill
London
NW2 2QA	
For the Respondents	DAVID PANNICK QC
(of Counsel)
Messrs Pinsent Curtis
Solicitors
4 Park Square
Leeds
LS1 2NS	

	MR JUSTICE KIRKWOOD:     This is an appeal by Miss Melanie Murphy from the decision by an Industrial Tribunal at Leicester of her complaint that she had been sexually discriminated against at work.

	Section 1 of the Sex Discrimination Act 1975 provides that:

(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.”

	The Industrial Tribunal rejected allegations of less favourable treatment.

	The Respondents to this appeal are the employer, the General Accident Life Assurance Ltd and two employees of the Company, whose role will appear in this judgment.  They are Mr Calderwood and Miss Melody.

	The Industrial Tribunal heard the case over six days in September and October 1996 and gave its Extended Reasons on 7 October 1996.  There are (if we may say so) very full and very clear reasons.

	The Appellant began to work for the Respondent Company on 13 June 1994.  Her employment was as a Broker/Sales Consultant.  In the hierarchy of the Company that was a basic level consultant post.  The Appellant was the only woman to apply for that post.  She was short-listed for it by Mr Calderwood who had management responsibility for the Nottingham and Leicester offices.  The Appellant’s post was at the Leicester office.  Her selection for it was by Mr Calderwood and his immediate manager, Mr Etheridge.  Working alongside the Appellant at the Leicester office was Mr Hibberd who was a senior consultant.  The third person working at the Leicester office to start with was a Ms Singlehurst-Ward, but in March 1995 she moved to an associated company in Southampton, so from then on just the Appellant and Mr Hibberd were at the Leicester office, Mr Calderwood being based at the Nottingham office.

	On 12 December 1995 the Appellant gave one month’s notice of termination of her contract of employment which formerly ended therefore on 20 January 1996.  On about 8 January 1996 she made complaint to the Industrial Tribunal of unfair dismissal, alleging, that is, constructive dismissal, unlawful deduction of wages and sex discrimination.  The first of those two were subsequently withdrawn.

	The Industrial Tribunal found that the Appellant’s claim of sex discrimination covered three broad topics.  First, an allegation that her manager, Mr Calderwood had, throughout her employment, treated her badly, harassed and bullied her because she was a woman.  Secondly, at the end of March 1995, during a change of areas, the Appellant had not been given the account of A.J. Brown and Partners because that company did not want a woman dealing with their account.  Thirdly, the Appellant’s grievance, alleging discrimination by Mr Calderwood, had not been dealt with adequately by Miss Melody, and it therefore amounted to an act of sex discrimination in its own right.

	The Notice of Appeal goes to the rejection of the Applicant’s claims under each of those three heads.  Under the first, the complaints specifically directed to Mr Calderwood, the Industrial Tribunal explained its approach in this way, at paragraph 3:

“The applicant’s claim throughout, in alleging sex discrimination has laid much greater emphasis on the first part of the phrase at the expense of the second.  We were told of a number of examples of alleged discrimination by Mr Calderwood against others and of his generally alleged sexist attitude, which we do not find it necessary to refer to.  We have approached our decision by trying to distil from the information we have been given the individual acts of discrimination on which a decision is needed.”

Much later on in their Extended Reasons the Industrial Tribunal said this, at paragraph 13:

“Having gone through all of the allegations made by the applicant against Mr Calderwood and vicariously against the first respondent, we do not find that any of them amount to treatment which was different from what would have happened to a man in the same position as the applicant, making the same responses as the applicant.  It follows therefore that we reject the allegations that the applicant makes against Mr Calderwood that he discriminated against her in his treatment of her.  It is therefore not necessary for us to consider the question of any sexual inference which were put very forcefully on behalf of the applicant.”

	In its full and careful Extended Reasons the Industrial Tribunal considered, one by one, upwards of 16 particular matters relied upon.  In respect of each the Industrial Tribunal found that there had been no less favourable treatment.  In the course of their various findings the Industrial Tribunal found that none of the particular matters were corroborated by any direct evidence and the Appellant was not a very convincing witness.

	The Industrial Tribunal found Mr Calderwood was a more convincing witness and of him they said, at paragraph 7:

“Mr Calderwood was a more convincing witness.  Despite the most aggressive cross-examination of him by Mrs Howard his evidence appeared to be truthful falling down principally on matters of memory from a long time ago or when Mrs Howard’s superior command of semantics and the nuances of the English language got the better of him.”

	The Industrial Tribunal also found that Mr Calderwood had been generally supportive of the Appellant.

	The Tribunal also found in respect of one episode, at paragraph 9(c):

“There is no substance whatsoever in this allegation against Mr Calderwood and the fact that the applicant continues to see it as a deliberate personal action against her taints her judgement in other respects.”

	In respect of another episode, “this is a situation when the Applicant has completely got the wrong end of the stick”, and has created something in her mind out of nothing.  In respect of a third, “Any reasonable person could see her action as selfish”.  Later in the Extended Reasons the Industrial Tribunal found that the Applicant seemed to have taken a reasonable comment in the wrong way.  In respect of the final specific incident, “this is another instance where her evidence is significantly exaggerated”.

	In her Notice of Appeal, as originally drawn, the Appellant sought in paragraphs 10 to 39 to challenge the Industrial Tribunal’s findings about the witnesses and the findings of fact about those specific instances as perverse.  However, at a preliminary hearing of the appeal on 13 March 1997, it was ordered that the Appellant would not be permitted to take that part of her appeal to a full hearing.  The findings of the Industrial Tribunal therefore stand.  

	On the general point, what remains for our consideration is the argument that the Industrial Tribunal erred in law in holding that it did not need to refer to allegations of sex discrimination against others by Mr Calderwood, and that it did not need to refer to allegations of Mr Calderwood’s generally sexist attitude towards the Appellant.

	The Notice of Appeal then refers to six passages from the written evidence of Ms Singlehurst-Ward.  The Industrial Tribunal heard evidence from Ms Singlehurst-Ward.  Of it they said this, at paragraph 6:

“We have had considerable difficulty in assessing the evidence of Ms Singlehurst-Ward.  Perhaps because she was not cross-examined as closely as the applicant and did not have to show  corroboration for the allegations that she made in relation to herself, her evidence came across more strongly than that of the applicant.  In particular she did not wish to be involved either in the original grievance or in the Tribunal hearing and gave her evidence reluctantly.  However, we do find ourselves unsure about her evidence.  She suggested that she was in considerable difficulties because of the way she was treated, but other people we heard from do not seem to have noticed this.  She left voluntarily when her boyfriend moved to a different area.  She was one of the first respondent’s top sales people, which is perhaps surprising if she was under such stress.  Her suggestions of other women having moved because of Mr Calderwood’s actions do not seem to be borne out by other evidence.  Ultimately we are unable to decide on the evidence we have heard whether, and to what extent, her evidence is correct.”

	So the ultimate point emerging from the Extended Reasons, as to this part of the material on the first ground of appeal, is that the Tribunal felt unable to make any findings based on Ms Singlehurst-Ward’s evidence.

	In this part of the Notice of Appeal the Appellant then refers to three passages from her own written evidence.  As to that, we reflect upon the Industrial Tribunal’s findings as to the Appellant’s credibility generally, to which we have referred.  More particularly, we have in mind this finding of the Industrial Tribunal, at paragraph 7:

“The applicant we did not find a very convincing witness.  There were areas in which her evidence did not come across in the same way that her earlier statement and the originating application had indicated.  To some extent that may be because the statement is expressed in the more flowery language of Mrs Howard rather than in Miss Murphy’s words.”

	So it seems to us that we could not possibly go with any safety by the Appellant’s written statement.  We did not have notes of evidence; an application for them was refused.

	That insurmountable evidential difficulty for the Appellant apart, there is, as the Appellant by Counsel has acknowledged, a more fundamental point.  In applying Section 1 of the Sex Discrimination Act 1975, the task of the Industrial Tribunal is two-fold.  The first is to decide whether the woman has been treated less favourably; the second is to decide, if so, whether that was on the ground of her sex.

	Here the Industrial Tribunal found that the Appellant had not been treated less favourably so the second question did not arise.  In paragraph 8 of the Notice of Appeal it was recognised that success on this aspect of the appeal depended on setting aside, on the ground of perversity, the findings that there had been no less favourable treatment.  That argument is, of course, no longer open to the Appellant.

	In the written and oral argument the Appellant by Counsel sought to rely upon an unreported decision on 21 June 1996 of Mummery J, the President of the Employment Appeal Tribunal in Qureshi v Victoria University of Manchester.  The reference is No. EAT/484/95.  That decision, on its own special and complicated facts, which included one finding of racial discrimination and a rejection by the Industrial Tribunal of complaints in respect of other episodes, was cited to us as authority for the proposition that the Industrial Tribunal must make findings of primary fact upon the totality of the evidence, and must not approach the case in a piecemeal and fragmented fashion without taking account of the overall context.  In giving guidance to Tribunals, the President said this, at page 15:

“The Industrial Tribunal only has jurisdiction to consider and rule upon the act or acts of which complaint is made to it.  If the applicant fails to prove that the act of which complaint is made occurred, that is the end of the case.”

	And on the next page:

“As the Industrial Tribunal have to resolve disputes of fact about what happened and why it happened, it is always important to identify clearly and arrange in proper order the main issues for decision eg,
(a)  Did the act complained of actually occur?  In some cases there will be a conflict of direct oral evidence.  The Tribunal will have to decide who to believe.  If it does not believe the applicant and his witnesses, the applicant has failed to discharge the burden of proving the act complained of and the case will fail at that point.  If the applicant is believed, has he brought his application in time and, if not, is it just and equitable to extend the time?
(b)  If the act complained of occurred in time, was there a difference in race involving the applicant?
(c)  If a difference in race was involved, was the applicant treated less favourably than the alleged discriminator treated or would treat other persons of a different racial group in the same, or not materially different, relevant circumstances?
(d)  If there was a difference in treatment involving persons of a different race, was that treatment ‘on racial grounds’?  Were racial grounds an effective cause of the difference in treatment?  What explanation of the less favourable treatment is given by the respondent?
In answer to each of these questions the Tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence.”

	We do not accept that in this instance the Industrial Tribunal adopted a wrong approach.  It seems to us that they followed precisely the approach that the President indicated as appropriate in the Qureshi case.  The fact is that in each instance the Applicant failed to establish that the act occurred i.e. the act of discrimination so the case failed at that point.  

	We find that there is no merit in the first ground of this appeal and we reject it.

	The second ground of the appeal goes to the findings of the Industrial Tribunal concerning the account of a client, who was an Independent Financial Adviser, called A.J Brown & Partners.  

	In March 1995 there was reorganisation which resulted in the geographical area covered by the Appellant being altered.  At the same time, as we have mentioned, Ms Singlehurst-Ward left the Leicester office, reducing from three to two the Consultants there, namely, the Appellant and Mr Hibberd.  Mr Brown had previously been a client of Ms Singlehurst-Ward, but at the beginning of 1995 had chosen to go to Mr Hibberd instead.  Nothing whatever turns on that in this appeal.  With the change in the geographical areas allocated to the Appellant and to Mr Hibberd respectively, Mr Brown now fell in the Appellant’s area.

	The Industrial Tribunal found the facts of what happened in these terms, at paragraph 14:

“As Mr Brown’s account would normally fall under Miss Murphy rather than Mr Hibberd, Mr Calderwood telephoned Mr Brown to tell him.  Mr Brown said that he did not want to change.  He said he was happy with Mr Hibberd.  Mr Calderwood tried to persuade him to change consultant and during the conversation either said that it would be Miss Murphy taking over or said that it would be a woman consultant.  The evidence on this is not clear and Mr Calderwood himself could not recall the exact words of the conversation.  At that point Mr Brown said that if the consultant was changed, the respondent would not get any more business from him.  He told us that it was a threat that he probably would not have carried out, but we accept that Mr Calderwood thought that it might well be.  We accept Mr Brown’s evidence, and it has not been challenged, that the reason why he was not prepared to change from Mr Hibberd to the applicant was that he was happy with Mr Hibberd and was nothing to do either with Miss Murphy personally or the fact that she was a woman.  We also accept as a fact that the reason Mr Calderwood decided not to allocate that client to the applicant was that he did not want to lose Mr Brown’s business.  However, we also accept that Mr Calderwood thought that Mr Brown was refusing to change because he did not want to deal with a woman.”

	The Industrial Tribunal’s approach to that factual situation is set out in the subsequent paragraph of the Extended Reasons which I will read:

“Does a refusal to put Mr Brown’s account into the applicant’s area amount to an act of sexual discrimination against her?  There is clearly a difference in treatment in that normally Mr Brown’s account would have gone to the applicant.  The reason that it did not was the fact that Mr Calderwood did not want to lose Mr Brown’s account.  As Mr Brown’s refusal to have his account transferred to the applicant was for a non sex based reason, it seems to us that Mr Calderwood’s action is itself not for a sex based reason.  If Mr Brown had refused to work with the applicant because she was a woman and Mr Calderwood had acceded to the request based on that reason, there would have been clear discrimination.  This is an area that we have found difficult and we did in fact ask the parties to address us specifically on the point which they both helpfully did.  It seems to us that we have to follow the decision in James v Eastleigh Borough Council [1990] IRLR 288 which held that motive was irrelevant (although in that case it was a pure motive that was referred to).  The ‘but for test’ suggested in that case is of help to us.  It seems to us that the decision would have been the same whether the consultant being proposed was a man or a woman.  Mr Brown wanted to keep Mr Hibberd and did not want anyone else.  If he had refused to accept any other consultant, as he did for the applicant, the same result would have applied.  It seems to us that Mr Calderwood’s erroneous view of Mr Brown’s motives played no part in determining that the account should not go to the applicant.  Accordingly we find that this was not an act of sex discrimination.”

	The Industrial Tribunal referred to the decision of the House of Lords in James v Eastleigh Borough Council.  The test to which the Industrial Tribunal referred and which the Industrial Tribunal applied is in a speech of Lord Goff of Chieveley at page 576 A.  The relevant passage is this:

“... in a legal context, if words such as intention or motive are to be used as a basis for decision, they require the most careful handling, and it also follows that their use in one context may not be a safe guide to their use in another context.
For these reasons, I am reluctant to have to conclude that those who are concerned with the day to day administration of legislation such as the Sex Discrimination Act 1975, who are mainly those who sit on industrial tribunals, should have to grapple with such elusive concepts as these.”

	Lord Goff then deals with the question of intention and then turns to the test at letter D:

“However, in the majority of cases, I doubt if it is necessary to focus upon the intention or motive of the defendant in this way.  This is because, as I see it, cases of direct discrimination under section 1(1)(a) can be considered by asking the simple question:  would the complainant have received the same treatment from the defendant but for his or her sex?  This simple test possesses the double virtue that, on the one hand, it embraces both the case where the treatment derives from the application of a gender-based criterion, and the case where it derives from the selection of the complainant because of his or her sex; and on the other hand it avoids, in most cases at least, complicated questions relating to concepts such as intention, motive, reason or purpose, and the danger of confusion arising from the misuse of those elusive terms.”

	The Industrial Tribunal applied the simple, “but for test” and gave to it a simple factual answer:

“It seems to us that the decision would have been the same whether the consultant being proposed was a man or a woman.  Mr Brown wanted to keep Mr Hibberd and did not want anyone else.”

	Miss Collier, for the Appellant, seeks to argue that this one of those rare cases in which the simple test propounded by Lord Goff should not be applied.  Her objective is to attach prominence to the subsidiary finding of the Industrial Tribunal at the end of paragraph 14 of the Extended Reasons in these words:

“However, we also accept that Mr Calderwood thought that Mr Brown was refusing to change because he did not want to deal with a woman.”

	From there Miss Collier refers us to the decision of the Court of Appeal of Northern Ireland in Smyth v Croft Inns Ltd [1996] IRLR 84.  From that case she argues that we are assisted by paragraph No. 19 of that decision.  That paragraph reads:

“I consider that in the light of this judgment an employer is guilty of discrimination on the grounds of religious belief if he expressly dismisses a barman in either of the following circumstances:
(1)  Protestant customers say to the employer, ‘We do not like being served by a Roman Catholic barman - get rid of him or you will lose our custom’, and the employer dismisses the barman and says to him, ‘I have to dismiss you because the customers do not like you because of your religion, and if I do not dismiss you I will lose their custom’.
(2)  No express statement is made to the employer by Protestant customers, but the employer senses that they do not like being served by a Roman Catholic barman, and he dismisses the barman and says to him, ‘I have the feeling that the Protestant customers do not like being served by a Roman Catholic barman, and therefore I am dismissing you because if do not I am worried that I will lose their custom’.”

	It is to be noted that the Court of Appeal of Northern Ireland did, in fact, apply in that case the simple “but for test” that had been propounded by Lord Goff; but even if we are persuaded to depart from the simple test, the Smyth case does not, in fact, help us.  In the situation postulated in that case the dismissal was because the employer sensed that customers did not like being served by a Roman Catholic barman.  But that is not, in any real sense, comparable with the case before us.  The findings of the Industrial Tribunal are clear, that Mr Calderwood’s own thoughts, as to what was in Mr Brown’s mind, played no part in the decision that the account should not go to the Appellant.

	In our judgment the Industrial Tribunal applied the right test.  The Industrial Tribunal was right not to go into the elusive concepts against which Lord Goff warned.  We are wholly unpersuaded of any error of law in this aspect of the Industrial Tribunal’s decision that this was not an act of sex discrimination.

	But the argument in relation to Brown & Partners does not end there.  Miss Collier, for the Appellant, submits that Mr Calderwood discriminated against the Appellant on the ground of her sex, because what he was found to have thought amounts to his thinking that he was aiding Mr Brown in an act that was unlawful under the statute.  Section 42 of the Sex Discrimination Act 1975 subsection (1) reads:

“A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.”

	Miss Collier in fact accepts that Mr Brown, in wanting to stay with Mr Hibberd, was not doing anything unlawful under the Act at all.  On a normal reading of the section Mr Calderwood was not therefore aiding Mr Brown to do anything unlawful, but Miss Collier argues that that does not matter.  It is Mr Calderwood’s state of mind alone that matters, she says.  She says that Mr Calderwood is caught by Section 42 if we interpret the Act purposively, and so as to provide maximum protection for employees under the Act.  There is no authority for the proposition that we should approach the matter in the way Miss Collier suggests, nor is it what the Act actually says.  Nonetheless, Miss Collier submits that an aiding of an unlawful act within the section can arise, even if there is, in fact, no unlawful act at all.  That is the argument upon which the Appellant seeks to rely.  

	We are wholly unprepared to extend the ordinary meaning of the words of the statute in that way and we unhesitatingly reject that argument.  

	Because of our decision on the main point on the A.J. Brown aspect of this appeal, it is unnecessary for us to say more than a word or two about Miss Collier’s subsidiary points because they really fall by the wayside.  She submitted that the Industrial Tribunal erred in law as treating the A.J. Brown complaint as out of time.  The decision was in March 1995; the Originating Application in January 1996.

	Whilst accepting that there is a legitimate distinction between a single act with continuing consequences, on the one hand, and a continuous act, on the other hand, Miss Collier submits that the Industrial Tribunal was wrong to find this to be the former rather than the latter.

	Miss Collier relied upon a decision of the House of Lords in Barclays Bank Plc v Kapur [1991] ICR 208, which concerned the Bank’s failure to credit the Applicants for pension purposes with their years of service accrued in banks in East Africa, before they joined Barclays Bank in the United Kingdom, in contrast with the treatment of the employees joining Barclays, who had had previous service with banks of European origin.  It was, of course, a case under the Race Relations Act 1976 and the Bank’s conduct was held to be a continuing act.  We however found nothing in that decision, even by analogy, to persuade us that on the facts of the case we are considering the Industrial Tribunal fell into error in holding that this was a single act with continuing consequences.  That, in reality, is exactly what it was.

	Miss Collier argues that, even if the Industrial Tribunal was right about that, it erred in saying that, in the exercise of its discretion, it would not have allowed an extension of time.  What the Industrial Tribunal said was this, at paragraph 16:

“If it was necessary to do so we would also reject the applicant’s request that we should extend the time.  It seems to us that this particular part of the case stands very much on its own.  It is not an allegation particularly against Mr Calderwood.  The allegation is that he acted as he did because he thought someone else was discriminating.  The applicant knew of it at the time and knew the reasons.  She was at that time having advice from Mrs Howard.  It also seems to us that it is not the sort of claim which a person would hold back from for fear of upsetting their boss because the allegation is not principally against Mr Calderwood himself.  We can see no good reason why the applicant should not have submitted a claim over this incident within a short time of it occurring, if she felt it was a proper claim to bring and it is not one which it would be reasonable to extend time for.”

	Miss Collier says that the words, “It is not an allegation particularly against Mr Calderwood”, and “the allegation is not principally against Mr Calderwood himself”, represent perverse findings so that the decision was reached on a wrong basis.  We do not accept that.  The words used must be taken in the context of the case as a whole, including the context that it was Mr Brown, not Mr Calderwood, who decided to keep his business with Mr Hibberd; and in contrast with a large number of allegations in the case which are firmly focused upon Mr Calderwood, to which I referred earlier in this judgment.  Had we had to make a decision on this aspect, we would have felt quite unpersuaded that we could, or should, interfere with the decision of the Industrial Tribunal on this point.

	As to the final point in the appeal, that of an alleged act of sex discrimination in itself by not properly addressing the Appellant’s grievance, Miss Collier rightly concedes that if she fails to upset the Industrial Tribunal’s finding that there was no sex discrimination in relation to the A.J. Brown episode, she cannot argue that the failure properly to investigate the grievance of sex discrimination, can itself amount to sex discrimination.

	That disposes of the appeal which will be dismissed in its entirety.