Appeal No. EAT/928/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 December 2001

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MS N AMIN
PROFESSOR P D WICKENS OBE

IPC MEDIA LTD	APPELLANTS

MS A MOLYNEAUX	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellants	MR W DIAMOND
(Consultant)	

MR JUSTICE MAURICE KAY:

1.	This is the preliminary hearing of an appeal against a decision of an Employment Tribunal sitting at London South.  That Employment Tribunal decided that the appellant, IPC Media Ltd, had unlawfully discriminated against Ms Molyneaux on the ground of her sex by its treatment of her during the course of her employment and when she was dismissed. It also decided that the appellant had discriminated against her on the ground of her sex by way of victimisation.  The appellant now appeals against those findings.

2.	The background to the case is that Ms Molyneaux applied for the post of Assistant Editor working for a publication known as Yachting Monthly.  She took that job and was issued with terms and conditions of appointment dated 6 November 1996.  Without going into all the details as to what happened thereafter, in essence, the facts found by the Tribunal showed that from the moment of her appointment, Ms Molyneaux came under the management of Mr Jermain who was at the time, Deputy Editor.  The Editor, Mr Pack, had appointed Ms Molyneaux but unfortunately he was off ill for a substantial period of time.  The facts found by the Tribunal were to the effect that, firstly, as Deputy Editor and later when he replaced Mr Pack as Editor, Mr Jermain treated Ms Molyneaux in a discriminatory way and eventually dismissed her.  Thereafter, on the findings of the Tribunal, she was the subject of victimisation as a result of raising her complaint.  We shall say a little more about that later.

3.	The appeal to the Employment Appeal Tribunal is put on three different grounds by Mr Diamond.  The first ground of appeal seeks to criticise the drawing of an inference by the Employment Tribunal.  The point made by Mr Diamond is that throughout the period about which she was complaining to the Employment Tribunal, Ms Molyneaux had not suggested that she was the victim of sex discrimination.  She had complained about her treatment but not by reference to that cause.  Eventually, on 29 September 1997 there was a meeting with Ms Molyneaux and her trade union representative there being by then an intention of formally complaining about sex discrimination.  The appellant does not recognise the trade union for the purpose of applying its disciplinary or grievance procedure and therefore the member of management concerned refused to speak to Ms Molyneaux in the presence of a trade union representative.  Ms Molyneaux had been put in a position by Mr Jermain where she was really being given the choice of resigning or being dismissed.  On 30 September she told Mr Jermain that she was not going to resign, whereupon he dismissed her giving three months’ notice.  She insisted on working out that notice.

4.	The first formal notification of a claim of sex discrimination was in a letter from the trade union representative on 11 November 1997 when he informed the appellant that the union:

“would be investigating the possibility of taking a case under the Sex Discrimination Act (88).”

The Employment Tribunal included the following passage in its Extended Reasons, paragraph 36:

“The Applicant’s last working day was 19 December 1997.  The Applicant had tried to do everything possible to keep her job.  She had hoped that if she worked hard even after the notice period that she would eventually be accepted into this small team and would be permitted to continue working for the Respondent.  It is for these reasons that she did not raise her complaints of sex discrimination until the last day of her employment when she completed an exit interview form.  She complained that she had been discriminated against on the ground of her sex, unfairly dismissed without warning, had been denied access to the company’s standard procedures and denied an appeal.  Her employment ended on 31 December 1997.”

5.	The case for the appellant was, and is, that that retarded reference to sex discrimination pointed to the allegation being without force or merit.  In our judgment, the way in which it was treated by the Employment Tribunal was entirely reasonable.  The passage which we have set out explains what the Employment Tribunal thought about the delay in raising the complaint about sex discrimination.  It put everything in context and it was, in our judgment, a conclusion to which the Employment Tribunal was entitled to come.  We do not consider that there is anything arguable in this ground of appeal.

6.	The second ground of appeal relates to the finding that the dismissal was unlawful sex discrimination.  The heading to the decision records that the present appellant unlawfully discriminated against Ms Molyneaux on the ground of sex when she was dismissed.  The point which Mr Diamond seeks to make is that, when the Employment Tribunal addressed the drawing of an inference that the dismissal was by reason of sex discrimination, it expressed itself in an inadequate way.  He points to paragraph 55 of the Extended Reasons which is in the following form:

“Having taken all of these matters into account we concluded on the balance of probabilities that the Applicant’s sex was a factor in the Respondent’s decision to terminate her employment. We find that we are prepared to draw an inference from these primary facts that the dismissal of the Applicant amounted to unlawful discrimination.”

Mr Diamond focuses on the words “a factor” complaining that those words are susceptible to the interpretation that it may only have been a minor or insignificant factor.  We do not agree with that submission.  Paragraph 55 has to be read in context along with paragraphs 54 and 56, the latter of which announced the conclusion that the appellant had unlawfully discriminated against Ms Molyneaux on the ground of her sex when it dismissed her.  Paragraph 54 sets out some of the factual findings which led to the drawing of the inference. 
6.	When one reads the whole of the careful Extended Reasons, it is abundantly obvious that the Tribunal did not consider sex to be a minor or insignificant factor.  It is, in our judgment, perfectly plain that it was found to be at least a substantial factor and we take the view that there is nothing arguable in this ground of appeal.

7.	The third and last ground of appeal relates to the finding of victimisation.  The Employment Tribunal found that the appellant had prevented Ms Molyneaux from taking up a post as Assistant Editor of International Boat Industry Magazine because she had presented her complaint of sex discrimination on 30 December 1997.  What had happened is that International Boat Industry Magazine came to be part of the same IPC Group and it was a policy of the appellant not to appoint those who were pursuing claims of whatever kind against a company within the Group.  The relevant finding is in paragraph 59 of the Extended Reasons where the Employment Tribunal announced its finding of victimisation, it added:

“We have had regard to the case of Chief Constable of West Yorkshire Police v Khan [2000] IRLR 325.  Notwithstanding that the Respondent would not have treated an employee who brought other proceedings against it any differently, refusing to allow her to take up a post of Assistant Editor of International Boat Industry Magazine constituted unlawful victimisation contrary to section 4(1)(d) of the Sex Discrimination Act 1975.”

8.	Mr Diamond’s complaint about that finding is, to say the least, ingenious.  He suggests that because Ms Molyneaux was pursuing, not only a complaint of sex discrimination, but also one based on breach of contract and because the policy extended to other kinds of proceedings as well, she would have or might have been discriminated against for a reason other than sex.  That is slightly a less fluent way of presenting the argument than Mr Diamond’s colourful attempt.  We consider that though ingenious, this argument is wholly unmeritorious.  It would put a person who had two or more grounds of complaint in a worse position than somebody who had one only.  We are concerned, as was the Employment Tribunal, with the complaint of sex discrimination.  

9.	In our judgment there is no legal error in the decision of the Employment Tribunal on this or any other point.  There is no arguable ground of appeal and accordingly this appeal will be dismissed at this stage.