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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Saunderson v The Body Shop & Ors [2000] UKEAT 816_98_1703 (17 March 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/816_98_1703.html Cite as: [2000] UKEAT 816_98_1703

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APPEARANCES

 

For the Appellant	MISS J MULCAHY (of Counsel) Messrs Paris Smith Randall Solicitors Number One London Road Southampton SO15 2AE
For the Respondents	MS S McKIE (of Counsel) Messrs Fox Williams Solicitors Citygate House 39-45 Finsbury Square London EC2A 1UU


 


1. MR JUSTICE LINDSAY (PRESIDENT): In April 1998 there was a hearing at the Employment Tribunal at Southampton under the Chairmanship of Mr I.A. Edwards in the matter between Ms Lynn Saunderson and three Respondents, namely, as first Respondent, The Body Shop, second David Helyer and third Nick King. The decision was sent to the parties on the 5th May 1998. Ms Saunderson succeeded in part but failed in part; by her Notice of Appeal of the 12th June 1998 she appeals against the dismissal of her claim for sex discrimination based on incidents in September 1997 and the dismissal of her claims for victimisation and for unfair dismissal. Mrs Saunderson's case, presented before us by Miss Mulcahy, is conveniently divisible into 6 headings.

1. Victimisation; secondment and training

2. Ms Saunderson was employed by The Body Shop from the 15th January 1996 as a Shift Supervisor. On the 4th December 1997 she lodged a complaint with the Employment Tribunal. On the 20th February 1998 the Tribunal gave directions under which, on the 14th April 1998, Ms Saunderson served an Amended Schedule of Allegations. In that Schedule, under the heading "Victimisation" there are to be found, at paragraphs 6 and 7, allegations that The Body Shop, by way of victimisation, firstly refused to allow her to undertake a secondment for six months outside the Company and, secondly, took no or few steps to fulfil an alleged promise to her of the 14th September 1997 to offer her training opportunities.
3. It is plain that these allegations were drawn to the Tribunal's attention. Miss McKie for the Respondents agrees that that was so. She agrees also with Miss Mulcahy's assertion that the Extended Reasons given by the Tribunal do not deal expressly with these allegations. Ms McKie argues, though, that there was no evidence given to substantiate these claims and that, whilst the Tribunal never dealt with them directly, they were nonetheless impliedly considered and rejected. We cannot agree. We cannot be sure how the Tribunal would have re-acted to these allegations had they been considered. Nor can we be sure there was no relevant evidence. There was, in our view, a simple oversight in relation to these claims and they were not addressed at all by the Tribunal. We shall remit to the same Tribunal as before the consideration of the issues raised by the paragraphs 6 and 7 identified above. We shall return later to the subject of how this remission is best to be handled.

2. The Filling-Room Job

4. One of Ms Saunderson's complaints was that she had suffered victimisation in that she was effectively prevented from applying for a job as Shift Manager in The Body Shop's filling-room in that the job was not advertised internally as it should have been and that this was not by way of some chance or forgetfulness on the employers' part but was a deliberate response to earlier complaints (which succeeded) as to sexual discrimination.
5. The Tribunal, referring itself to Nagarajan -v- London Regional Transport [ 1998] IRLR 73 in the Court of Appeal said, correctly in our view:-

"The Court of Appeal suggested that in a case of discrimination by way of victimisation two tests should be satisfied. The first is that in relevant circumstances the discriminator treats the person victimised less favourably than he treats or would treat other people who have not done the protected act".

In order to conduct that test the Tribunal turned to consider who should be in the "Control Group" with whose treatment a comparison with Ms Saunderson's treatment should be made. They accepted the Respondents' contention that the "Control Group" consisted of everyone who would have applied for the job if it had been advertised.

6. Material questions arose as to whether a Mr Blunn and Mr King, the third Respondent, should have been included in the Control Group. The importance of that issue was as follows. A Mr Moignier-Beasty was promoted and his promotion created a vacancy in his former job as Shift Manager in the Gift Production Division. The Gift Production job vacancy was advertised. Ms Saunderson did not apply for it but, inter alios, Mr King (then Shift Manager in the Filling Department) and Mr Blunn, who had been an engineer in another department, did apply. Mr Blunn got the job. However, it was then considered by Mr Moignier-Beasty, the relevant manager, that there should be a swap between Mr Blunn and Mr King, they both being at the same level as one another in management terms, it being a level higher than that of Ms Saunderson. The outcome was that Mr King ended up with the Gifts Production Shift Manager job and Mr Blunn took over Mr King's erstwhile job in the Filling Department.
7. The Tribunal took the view that neither Mr King nor Mr Blunn was in the Control Group whose treatment needed to be compared with that of Ms Saunderson. Mr King would not have applied for the Filling Room job, said the Tribunal, because he already held it. The Tribunal was thus, in Mr King's case, looking at the situation as it was immediately before the swap, whilst Mr King was in the Filling Room job. We see the logic of excluding him from the Control Group but, if that was the point of time as at which the matter needed to be considered, it is hard to see why Mr Blunn, who was plainly willing and able to transfer out of engineering and to accept the Filling Room job (as he eventually got it) should not have been in the Control Group. The Tribunal did not include Mr Blunn within its Control Group. The Tribunal, considering a group which included neither Mr Blunn nor Mr King, concluded:-

"Having considered that group, we are of the view that the Applicant was not treated any differently from those others, since all were equally disadvantaged".

It could be that had the Control Group been seen to have included Mr Blunn then the Tribunal might have decided otherwise. However, that alone does not take the Appellant far enough. The second test which the Tribunal correctly derived from the Court of Appeal's decision in Nagarajan supra was that:-

"An individual or group of individuals must be found to have had a conscious motive connected with the Race Relations legislation".

As to that, the Tribunal concluded that Mr Moignier-Beasty genuinely held the view that the swap was a restructuring, a swap between two managers at the same grade which he was entitled to make without advertising either of the jobs to be exchanged. As there was, in his honestly held view, no need to advertise there was no conscious motive in him of victimising the Appellant by not advertising the job. In his mind, held the Tribunal, all that he was doing was swapping two managers at the same level, a usual management function. Given the Tribunal's experience as "the Industrial Jury" it is not a valid criticism to urge that there was no express evidence that such was a usual management function. The Tribunal held that:-

".... We have heard no evidence that Damien Moignier-Beasty targeted the Applicant, or that he ever thought of her when deciding not to advertise the post".

A little later they concluded:-

"We have not heard any evidence of any conscious motivation against the Applicant".

8. Miss Mulcahy argues that these references show no consciousness of the Tribunal's ability to infer a conscious motivation, an ability to which the leading case of King -v- The Great Britain China Centre [1992] ICR 516 C.A. draws attention. If, more fully, the Tribunal had said:-

"We have not heard any evidence of or from which we may infer conscious motivation"

she would have had no complaint on this score as it could not be argued that it would have been perverse for the Tribunal to have added the words which we have italicised. The question thus becomes whether the Tribunal's omission of such words indicates that they did not have in mind their ability to draw proper inferences. We cannot think that that was so. Nagarajan supra, which was specifically referred to by the Tribunal, itself refers in its paragraphs 9, 14, 16, 24, 30, 40, 43, 51 and 55 to the drawing of or failure to draw inferences. It has to be remembered also that the citation to Tribunals of, and the acting by Tribunals upon, King -v- GB China Centre is an almost every day occurrence. Indeed, we are told it was cited to the Tribunal in this case. No doubt it would have been preferable had the italicised words had been added but the proper deduction from their absence is not, in our view, that an ability to draw inferences was never in the Tribunal's mind but rather that as a matter of shorthand the italicised words were left out as being so plainly within the Tribunal's intendment as not to have required express mention.

3. Conscious motivation

9. As the passages we have cited above indicate, the Tribunal looked to see whether there was evidence of, or from which inferences could be drawn as to, the presence of conscious motivation in Mr Moignier-Beasty against the Appellant. As the law stood as at the hearing in April 1998, Nagarajan in the Court of Appeal having been reported in IRLR in February 1998, it was entirely correct of the Tribunal to limit itself in that way. However, in September 1999 IRLR contained a report of Nagarajan in the House of Lords. The majority held (albeit in a case of racial discrimination) that unconscious motivation of a discriminatory nature might suffice to found a claim, although - see paragraph 17 on page 576 in the speech of Lord Nicholls:-

"It goes without saying that in order to justify such an inference the Tribunal must first make findings of primary fact from which the inference may properly be drawn".

Lord Steyn at paragraph 41 on page 580 held that there was no sensible reason for requiring a distinction between conscious and subconscious motivation. Through no fault of their own the Tribunal in the case before us looked only at conscious motivation. We shall remit to the same Tribunal as before the consideration by them of the presence or not of any relevant unconscious motivation of a sexually discriminatory kind against the Appellant in the decision not to advertise the Filling Room vacancy and not to promote her at about that time.

4. Perversity

10. There were long running difficulties and grievances surrounding Ms Saunderson's employment by The Body Shop. Two persons, Mr Barrett from Human Resources and Mr Bob McCusker, head of Global supply, were given the task of investigating Ms Saunderson's grievance as to the failure to advertise the Filling Department Shift Manager's job. She herself, as the Tribunal held, described Mr McCusker's investigation as "very thorough". That investigation had confirmed that there had been no "intentional" discrimination or victimisation. In oral evidence Mr McCusker, as recorded by the Tribunal, said:-

"..... On reflection perhaps what he should have said was that there had been no victimisation, and his use of the word "intentional" somewhat clouded the issue".

Although the Tribunal carefully questioned whether Mr McCusker had intended to hold that there had been no victimisation at all, that was what it did conclude. The Tribunal said:-

"However, the result of what the Applicant admitted was a thorough investigation was that the Applicant had not been victimised as a result of her earlier complaint of harassment".

A little later, referring to Mr McCusker's report, the Tribunal said:-

"..... even though during the course of his thorough investigation he had found that it had not amounted to victimisation".

Miss Mulcahy argues that it was perverse of the Tribunal to take Ms Saunderson's view that Mr McCusker's investigation had been thorough as determinative of whether or not there had been victimisation. Had the Tribunal taken that view it might well have been perverse for it to have done so. However, so far from relying on Ms Saunderson's assessment of the matter, the Tribunal next continued:-

"We have ourselves examined the facts concerning the Shift Manager's position".

They then referred to the 9 paragraphs in which they had dealt with the subject, which paragraphs do not include those referring either to Mr McCusker's investigation or report or to Ms Saunderson's description of it as thorough. There is in our judgment no hint of perversity in the Tribunal's conclusion in this area.

5. Direct Sex Discrimination

11. Ms Saunderson raised a complaint of direct sex discrimination during the hearing itself. Whether she should have been permitted to do so is not a question before us. The complaint was that Mr Moignier-Beasty promoted Mr King despite Mr King's being subject to a final written warning and that Mr Moignier-Beasty had failed even to consider the Appellant for promotion. The Tribunal concluded, as they were entitled to do, that Mr Moignier-Beasty had not at the time known of Mr King's final warning. Further, the Tribunal concluded, firstly, that Mr Moignier-Beasty genuinely held the view at the time that Ms Saunderson was not ready for promotion, a view he had indicated to her at the time, and, secondly, that she was not considered for promotion to the particular post in question because it was filled by way of the exchange between Mr King and Mr Blunn, both already at a higher level than Ms Saunderson, in the manner in which we have explained above. The Tribunal concluded:-

"We therefore find no evidence of any direct sex discrimination by Mr Moignier-Beasty".

Again, Miss Mulcahy takes the point that there is apparent in the Tribunal's decision no consciousness of its ability to infer sex discrimination from evidence. As we have observed above, the drawing of inferences in this area is so familiar to an experienced Tribunal such as this that it can reasonably expect its conclusion as expressed above to be taken to include that there was no material even for an inference of sex discrimination. It is no necessary part of a Tribunal's job to dot every "I" and cross every "T".

6. Constructive Dismissal

12. On the second day of the hearing, the 21st April 1998, Ms Saunderson informed the Tribunal that she had orally given notice of her immediate resignation to The Body Shop. She then asserted that there had been a constructive dismissal. Again doubt has to be raised as to whether the Tribunal should have permitted such a case to be raised. Evidence from one or more witnesses whose evidence might have been material to the question of constructive dismissal had already been given and concluded. Moreover, there had been discussions between the parties on a without prejudice basis of which the Tribunal knew the existence but of which it certainly did not know in full. Some correspondence marked "without prejudice" was put in evidence. A suspicion might, not surprisingly, have hung over the Tribunal's deliberations that Ms Saunderson had not left the employment because of her acceptance of some fundamental breach of contract on the employer's part but because whatever offer that had been made to her by the employer had not proved as generous as her solicitor had hoped. The correspondence seen by the Tribunal included reference to the target of a substantial sum sought on Ms Saunderson's behalf and to her Solicitor's offer of a blanket confidentiality clause should a settlement be reached.
13. The Tribunal directed itself by reference to the leading case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All Eng L.R. 713. There can be no quarrel with the way in which it directed itself. After a long and careful résumé of the facts, the Tribunal held:-

"144. There had been certain matters, which we have mentioned above, which might have formed a sufficient breach of contract on which to base a claim of constructive dismissal, but the Applicant did not act at the time and therefore waived her right to take action.

145. We have, however, looked at all these matters we have outlined and taken them together to see whether they could together be taken as a breach of the implied term of trust and confidence. Having considered all these matters together, we are of the view that even taken together they do not amount to a breach of the implied term of trust and confidence, since there is nothing which could properly be regarded as the final straw, and the Applicant has waited too long before claiming breach of contract.

146. Therefore this claim for constructive unfair dismissal fails and is dismissed".

Ms Saunderson's chief complaint is that the Tribunal failed sufficiently to take account of the notion that an employee might choose to give the employer an opportunity to remedy his breach and in such a situation will not be prejudiced by delaying until the employer's response has become known. There are two substantial weaknesses in that argument in this particular case; firstly, there is here no hint of Ms Saunderson having given evidence that that was her reason for not acting sooner and, secondly, that argument presupposes that there has been a fundamental breach of contract. Here the Tribunal did not find one but merely that there had been matters which might have amounted to one. Further, one of the principal matters on which Ms Saunderson relied as amounting to a fundamental breach of contract was that in the course of cross-examination in the case it had been put to her that she had lied. She had in October 1994 taken a complaint to the Employment Tribunal at Brighton against a previous employer. The materiality of this was that she was applying to the Tribunal with which we are concerned for an extension so that it would consider discriminatory matters which had arisen earlier than the usual 3-month time limit. Her familiarity with claims and, in particular, with claims for sex discrimination, was therefore in issue. The Tribunal said:-

"The Applicant, in her evidence to us, told us that this [the Brighton application] was a claim of unfair dismissal arising out of redundancy and denied that it was one of sex discrimination".

However the written decision in the Brighton matter was then produced to Ms Saunderson and the Tribunal continued:-

"When confronted with the written decision itself, which clearly referred to a complaint of unlawful sex discrimination, the Applicant stated that she had been advised to bring the claim by a lay-adviser and she had not known exactly what allegations were made in it, but that she had never considered that the allegation was one of sex discrimination".

The Tribunal accepted that, but it was nonetheless the case that her first answer had been an untruth. It was hardly surprising that she was vigorously cross-examined on the point. On this subject the Tribunal concluded, after setting out a number of matters said to have given a foundation to a claim for constructive dismissal that:-

"The Applicant had known of all these matters, apart from being called a liar and apart from being offered a job at the nearby premises, for some months. She has been advised throughout and she chose not to resign at an earlier stage. We have not been party to the without prejudice discussions between the parties, since the Applicant would not waive privilege and therefore we do not know why the Applicant did not pursue more vigorously the suggestions that she might attend discussions with the first Respondent. Being subjected to searching cross-examination does not in our view amount to a last straw and she must have known that this was a possibility when she brought the claim".

We are quite unable to detect any error of law in the Tribunal's treatment of the subject of constructive dismissal assuming, generously in Ms Saunderson's favour, that the subject should have been allowed to have been raised at all.

7. Conclusion

14. We have already indicated that we remit to the same Tribunal as before for consideration by them the issues of secondment and training and of unconscious motivation in relation to Mr Moignier-Beasty's failure to advertise the Filling Room job and failure to promote Ms Saunderson. One only of the reasons for remitting to the same Tribunal as before is that Miss Mulcahy accepts there is no reason for her client to have lost confidence in the Tribunal below.
15. Ms Saunderson's case has already occupied some 6 days of the Tribunal's time and we do not intend this remission to be a gateway to some grand re-opening of issues. Quite what evidence is appropriate to deal with the limited matters remitted will depend in part on the Tribunal's recollection of the evidence it has already heard. The Tribunal itself is best judge of that. We think it will be convenient that before the substantive remission there should first be a Directions Hearing at which both sides indicate in outline the nature of the further evidence which they would propose to call, if any, in relation to the limited remitted topics. The Tribunal will then be able to rule, provisionally at least, upon what is to be admitted and what excluded at the remitted hearing, as it sees fit. We cannot, however, over-emphasise that it is not our intention that there should be any fresh general argument or general re-opening of evidence in the case and that only the limited matters remitted should be the subjects of argument and evidence.
16. Leaving aside the matters to be dealt with in that limited remission, we have detected no error of law in the Tribunal's decision and, those remissions apart, we dismiss the appeal.