Appeal No.EAT/0715/02 & EAT/0988/02 DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 October 2002

Before
THE HONOURABLE MR JUSTICE WALL
MR T HAYWOOD
MRS M T PROSSER

MRS J L CASTLETON	APPELLANT

DEPARTMENT FOR WORK AND PENSIONS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT	

THE HONOURABLE MR JUSTICE WALL

1	This is the Preliminary Hearing of two appeals by Mrs Janet Lorraine Castleton in matters which are interrelated.  The first appeal is from the unanimous Decision of the Employment Tribunal sitting at Leeds in April 2002, with extended reasons being given on 1 May 2002, which concluded that Mrs Castleton’s claim for indirect sex discrimination, victimisation and under the Human Rights Act 1998 against the Department for Work and Pensions (the Respondent) failed and fell to be dismissed. The second appeal is from the decision of Mr. A.J. Simpson, the Chairman of the Tribunal sitting alone at Leeds on 25 July 2002 striking out a further twelve originating applications which Mrs. Castleton had issued against the Respondent prior to the previous hearing in Leeds in April 1992, on the grounds that they were misconceived.

2	We should say that the Tribunal has received two letters in the same terms from Mrs Castleton dated 21 October 2002, to which she attaches copies of her Skeleton Arguments and further documents which she would like us to consider at today’s hearing. In each case she has helpfully numbered the documents to follow on from the pagination used for the bundle in the documents already compiled for the hearing.

3	In her letters, Mrs. Castleton also makes it clear that, contrary to her previous expectations, she is unable to attend the hearing because she cannot afford the travelling expenses to London and cannot make the necessary domestic arrangements to attend.  We are, therefore, hearing the case in her absence.  We have, however, not only the Notices of Appeal but her Skeleton Arguments and the documents to which she refers.

4	The case is poignant in a number of ways.  We take the facts from the first Tribunal’s decision.  At that point Mrs Castleton was 42 and had worked in the Civil Service from 1981.  From 1985 onwards she had been working as an Appeals Officer preparing Income Support, Social Fund and Incapacity Benefit appeal submissions for hearings at Social Security Appeals Tribunals.

5	In 1995, Mrs. Castleton had made an application against the Respondent to an Employment Tribunal, in which, we understand, Mrs Castleton alleged indirect sex discrimination. However, following a settlement, an agreement was made within which Mrs Castleton was entitled to work from home on a formal home worker contract nine days out of ten per fortnight.  That was a particular benefit to Mrs Castleton who at that stage had a young child of three.

6	The Tribunal was completely satisfied, after reading extracts from appraisals conducted by the Respondent in relation to Mrs Castleton’s work, that she had proved to be an excellent employee and that the arrangements had worked well; not only for her but also for the Respondent.

7	There was an organisational change in 1998 but the only significant change in Mrs Castleton’s contract was that she had to attend a new parent office in Leeds once a week and at other times required by management.  Her work involved taking home files, which were often bulky, and preparing appeals from Tribunal decisions.

8	In May 1999 Mrs. Castleton began working permanently for the decision making and appeals implementation programme, with the same contractual arrangements. Throughout this time the Tribunal was satisfied that she had been an excellent employee and that the terms and conditions under which she worked had proved suitable both for her and for her employer.

9	In June 1999 Mrs Castleton applied for the post of permanent promotion to Higher Executive Officer but was disappointed not to be shortlisted for interview. On 31 January 2000, the decision making and implementation programme closed down and she began working for a short period in the Secretariat to the Standards Committee.

10	In March 2000 she split up from her husband and divorce proceedings, which we are told were acrimonious, followed.  These involved, initially, sharing care and responsibilities for her daughter who by now was nine. 

11	That is the background to the issues with which the Tribunal was concerned. In February 2001, Mrs. Castleton applied for a new post in a different unit preparing appeals to the Social Security and Child Support Commissioners and Higher Courts.  The Commissioners decide appeals on points of law from Tribunal decisions and appeals against Tribunal decisions on behalf of the Secretary of State.  One of the functions of the unit is to provide guidance to Departmental Decision Makers on the application of Social Security law.

12	Mrs. Castleton’s job would have been to prepare appeals to the Commissioners.  She plainly thought that she was suited to such a post. She noted that the skills required included analytical and interpretive skills and ability to identify key issues with tight deadlines and so on.  She believed that she had all those relevant skills.

13	Mrs. Castleton applied for the post on 26 February 2001.  By that time her contract had been revised to require her attendance in the office at least one day in every ten.  Having attended an interview she was told that the unit was pleased to offer the post on the basis that she could work at home for three days out of five each week on an informal home working contract.  Her personal position at that time was that she had childcare responsibilities shared between herself and on limited occasions with her husband and her current partner, her mother and father and also after school clubs which involved payment of either £8.00 or £12.00 a day, depending on the time for which her child attended.

14	The Tribunal commented that it was clear that at worst this would have involved a payment of £24.00 per week for childcare, if no one else was able to stand in without any payment.  There were, however, practical difficulties because Mrs. Castleton had moved to Scarborough and attendance at the office in Leeds involved a lengthy car journey.  So Mrs Castleton entered an internal personal grievance/formal complaint about the matter on 26 April 2001.  She had not accepted the offer of the job as she did not feel able to do so, principally because of the cost.

15	There was, unfortunately, a delay in the investigation of her grievance and this clearly caused a substantial amount of friction.  It also appears that in July 2001, one of the investigators died and at the same time the Tribunal records that Mrs Castleton was suffering from depression, taking anti-depressant medication, and due to see a psychiatrist or counsellor.

16	Eventually Mrs. Castleton returned to work, but in a letter dated 4 December 2001 said she did not wish to be interviewed for the grievance procedure.  The view taken by the Defendant was that she had to be interviewed before the investigation should properly begin.

17	In the meantime, on 9 October 2001 there were vacancies advertised, the closing date for which was 30 October 2001.  By then six applications had been received for the SEO post and 29 for the HEO post.  Candidates who had submitted an application form by the closing date without the supporting paperwork, or had lodged an expression of interest, were told that their applications would be considered if further documents were received by 2 November 2001. Other employees who made enquiries about the possibility of late applications were told they could not apply. 

18	At the date of Mrs. Castleton’s original application, there had been 48 Appeals Writers, 24 of them women and 24 of them men.  Of these, 14 had caring responsibilities and all staff were able to adopt flexible working hours.

19	The Tribunal recorded that it was in particular satisfied from the evidence of one of the Respondent’s witnesses, a Mr Richardson, that it was vitally important for Appeals Writers in his department to meet recently imposed tight deadlines for completion of submissions. It was also vitally important for staff to be able to meet, often as a large group, to discuss potentially contentious issues in individual appeals, and to be available regularly in the office if there was a need for taking external legal advice relating to appeals. The Tribunal was satisfied that these requirements were significantly different from the requirements imposed by Mrs. Castleton’s previous job involving preparing submissions for appeals to Social Security Tribunals.

20	The Tribunal was also satisfied, however, that new technology did make it possible, through information being provided on disc, for the information to be obtained from home on a computer and if necessary there was the possibility of meetings to be arranged using computers.  However, the Tribunal was also satisfied that there was a significant cost implication of Mrs. Castleton working from home in terms of physical equipment needed to be bought and then maintained at her home.

21	The Tribunal made it clear that, in reaching its decision that Mrs. Castleton had not been discriminated against indirectly or victimised, and that the Respondent had not acted in breach of Mrs. Castleton’s human rights, it had referred to a substantial body of case law. The Chairman made it clear that he had attempted to help Mrs Castleton through the course of the hearing, she being in person.  For example, he had suggested that some of her questions might not be relevant. On one occasion she suggested that the Chairman should make a note that the suggestion had been confusing to her and made her lose her train of thought in relation to later questions and so on. 

22	The Tribunal then went on to consider the law in relation to the Sex Discrimination Act 1975 and included unanimously that on the balance of probabilities it found the evidence of the Respondent’s witnesses to be consistent, fair and even-handed and although the Tribunal did not pick out individuals it found it had received particular assistance from Mr Richardson and Ms Desmond.

23	In relation to Mrs. Castleton, it found her evidence to be not as reliable, although she was not in any sense attempting to mislead the Tribunal.  Where her evidence was unreliable the Tribunal felt this was probably because she was unrepresented and there may have been misunderstandings as to the law and an inaccurate recollection of the facts.

24	We should, of course, pause at this point to make it clear that conclusions as to the credibility of witnesses are very much matters for the Tribunal which hears the witness and cannot be challenged on an appeal, unless there was no basis on which the Tribunal could have reached those particular conclusions.  

25	Having made its assessment of the witnesses, the Tribunal then turned to Mrs. Castleton’s various claims.  It first of all dealt with the claim under the Human Rights Act 1998, which it accepted had been appropriately made, although not of material assistance in the overall context of the case.

26	In relation to indirect discrimination and the application of section 1 (1) (b) of the 1975 Act the Tribunal had to decide whether there had been a requirement or condition applied to Mrs. Castleton.  The Tribunal found that there had been such a requirement or condition within the terms of the Act; a requirement to attend the office on two days a week (the other three days to be working at home) and the condition that her contract, where it related to her entitlement to work at home, would be an informal rather than a formal one.  The Tribunal commented that it was their conclusion that the two matters were very much interrelated.

27	Secondly, the Tribunal had to be satisfied that the conditional requirement was applied equally to a man.  They found that it was, and that there was no dispute about that. It therefore moved onto the question of disproportionate impact.  It decided, firstly, that in helping it to decide the question whether there was disproportionate impact, the Tribunal had to consider what pool they should use; and whether there was any disproportionate impact on Mrs. Castleton as a woman.  It heard submissions by Miss Downing for the Respondent that the pool should be appeals writers employed by the Respondent; whereas Mrs Castleton’s preference was for executive officers employed by the Respondent.  The Tribunal, on balance, felt that the correct pool for the purposes of its decision was indeed the executive officers in general rather than appeals writers.

28	The Tribunal was attracted by and found on balance that it agreed with Mrs Castleton’s argument that among the public in general a significantly greater proportion of women have childcare responsibilities and are single parents compared to men.  The Tribunal also accepted her argument that, although it had not had actual statistical details, there should be no reason why executive officers should not be found to be a microcosm of the general public.

29	The Tribunal did have figures in relation to executive officers:  65% were women, 35% were men, and appeals officers approximately 50% men, 50% women.  Its conclusion, accordingly, was to accept the proposition put to them by Mrs Castleton that there was a disproportionate effect on her as a woman caused by the Respondent’s conditions.

30	That, however, was not the end of the matter because the Tribunal then had to come to the question whether this was to her detriment, because she could not comply with it. The Tribunal were clear that this was very much a factual decision based on the evidence they heard from Mrs. Castleton.  Their conclusion was that on balance Mrs. Castleton could have complied with the condition, having heard her evidence about the effect the condition would have on her in terms of cost and practicability, and taking into account the evidence from the Respondent’s witnesses.

31	The Tribunal recognised that it should be careful when a Respondent submits, as in effect the Respondent submitted here, that Mrs. Castleton could comply by paying for childcare.  However it was clear to the Tribunal that in this case Mrs. Castleton was comparing her current contract (working from home nine days out of ten) with the requirement to work from home only six days out of ten.  Its conclusion, accordingly, was that the indirect discrimination claim had to fail because Mrs. Castleton failed to satisfy the Tribunal that the condition was to her detriment because she could not comply with it.

32	The Tribunal went on to say that it felt it was important for the Tribunal to make a decision whether, if it had needed to, it would have decided that the application of the condition was justifiable irrespective of the sex of the person to whom it was applied.  In this case the burden of proof was on the Respondent.  Briefly, in relation to this aspect, the Tribunal relied on Mr Richardson’s evidence.  It held, on balance, that the Respondent had shown clear justification.  This amounted to the importance of meeting deadlines, the importance of employees being at the office on preferably more than one occasion during the week for the purposes of meetings and discussions; and also the practicability of how the work was actually done in the office by current employees who worked partly in the office and partly at home.

33	The Tribunal then moved on to the question of victimisation.  There was no dispute that Mrs. Castleton had carried out a Protected Act; that is, making an application alleging sex discrimination, both to the Employment Tribunal and internally.  The Tribunal directed itself correctly in relation to the decision of Khan v The Chief Constable of West Yorkshire Police.  It had to decide whether there had been less favourable treatment of Mrs. Castleton because of carrying out this Protected Act.  It had to deal with two allegations, separating them for decision making purposes.

34	Firstly, Mrs Castleton claimed that she had not been allowed to make a late application for a job.  The Tribunal accepted on this point the evidence of the Respondent’s witnesses that there was no less favourable treatment. As we have already mentioned, the Tribunal was impressed by the evidence it had heard from the Respondent.  Mrs. Castleton had not been allowed to apply late because her application was so late that it came after interviews had been conducted.  The Tribunal was satisfied that the other employees who had applied late but had not carried out a Protected Act had also been refused the right to apply late.  Therefore, in the view of the Tribunal, the Respondent was quite entitled not to allow Mrs. Castleton to make a late application.  There was no evidence this had been done because of her Protected Act.

35	The second victimisation claim was summed up by the phrase “the delay or alleged delay in the internal investigation of her complaint”.  In this instance, the Tribunal accepted the evidence of Miss Desmond.  There had been an initial delay due to a misunderstanding of whether it was an equal opportunities investigation or a grievance.  The further delay was caused by the death of one of the investigators. Then Mrs. Castleton had herself refused to be interviewed personally.

36	The Tribunal was totally satisfied that these were the reasons for the delay.  The Respondent could have decided at Mrs Castleton’s suggestion that she should not be personally interviewed.  However, the Tribunal’s view was that the Respondent quite entitled not to take that view.  It was unfortunate Mrs Castleton took a negative view of this, at it would have been to her advantage to have spoken directly to the people dealing with the matter.  And so the claim of victimisation fell to be dismissed.

37	Finally, the Tribunal reminded the parties that it took into account in making all these decisions Mrs Castleton’s submissions relating to the Human Rights Act 1998 and considered that there had been clearly, in the opinion of the Tribunal, no breach of the right to respect of private and family life, home and correspondence, nor of Article 14, that is the right not to suffer discrimination in enjoyment of such a right.  The Respondent’s offer would have allowed Mrs. Castleton to work from home six days out of ten.  This clearly showed a significant respect for her family life.  

38	We have dealt with the Tribunal’s Reasons in some detail because it is clearly apparent to us that the Tribunal went into the matter with considerable care and undoubtedly dealt fully with each of the allegations which were made by Mrs Castleton.  Much of what the Tribunal found was pure fact, and that of course is a matter for the Tribunal,   with which this Appeal Tribunal cannot interfere.

39	On the facts, it seems to us, that the Tribunal was perfectly entitled to reach the conclusion which it did reach and, accordingly, it committed no error of law  in dismissing Mrs Castleton’s claim for indirect sex discrimination, victimisation and under the Human Rights Act 1998.

40	In these circumstances we do not think it would be helpful to Mrs Castleton to trawl paragraph by paragraph through her Notice of Appeal and her Skeleton Argument.  Where a Tribunal accurately sets out the law, finds the facts in a permissible way and then correctly applies the law to those findings of fact,   this Tribunal cannot interfere. It follows that the first appeal must be dismissed. 

41	The second appeal, in a sense, arises from the first. 	The Chairman, in his Extended Reasons records the fact that Mrs Castleton had made a previous complaint to the Tribunal and states that she continued to be employed by the Respondent.  He reports that prior to the  hearing of the previous complaint, Mrs. Castleton had submitted a further 12 complaints variously naming as Respondents the Department of Work & Pensions, various employees within that organisation and Mrs G Hardy, a solicitor who had acted on behalf of the Department of Work & Pensions.  By the time the Tribunal sat on 25 July 2002 to hear those complaints, a number had been withdrawn but a further four complaints had been presented on 25 June 2002.  Again these complaints named the Department of Work & Pensions, employees of the Department and Mrs Hardy as Respondent.  Accordingly the Chairman, on 25 July, considered all the outstanding complaints together.

42	The Chairman, Mr A J Simpson, who was sitting alone, was satisfied that the presentation of the complaint in 2001 against the Respondent was a Protected Act, as indeed was apparent from the first decision.  It followed that if Mrs Castleton had shown that she had been treated less favourably than other persons, then that less favourable treatment was by reason of the Protected Act and this would amount to discrimination pursuant to the 1975 Act.

43	The Chairman recorded that the substantial part of the hearing on 25 July was taken up in consideration as to whether all or any of the complaints which Mrs Castleton was now seeking to pursue had been the subject of the hearing which had taken place between 15 and 17 April 2002. Inevitably, issues of res judicata and issue estoppel arose.  In the event the Chairman dealt with that aspect by finding, effectively, in Mrs Castleton’s favour.  He was not satisfied that the matters which were subject of the second hearing were in fact dealt with in the April hearing.  He dealt with them, therefore, on their merits rather than in terms of res judicata.

44	The Chairman then went carefully through the applications identifying them, particularly in relation to Mrs Hardy.  She was the solicitor who had acted as solicitor to the Department of Work & Pensions and in that capacity had obviously given advice to the Respondent.  She was not an employee of the Department and the Chairman, in our view absolutely correctly, took the view that she was not an employee and that when she acted in a solicitor-client relationship with the Department she was not acting as an agent.

45	In these circumstances the Chairman, again in our view entirely correctly, was satisfied that all the complaints against Mrs Hardy were fundamentally misconceived. Even though Mrs Castleton might genuinely have believed that Mrs Hardy had given certain advice to the other Respondents, the Chairman was not satisfied that Mrs Castleton had any prospect at all of establishing that such advice had indeed been given.  There was plainly, in his view, no prospect of success in any of the complaints against Mrs Hardy and they being misconceived he struck them out, pursuant to Rule 15 (2) (c).

46	Pausing there, it seems to us that that conclusion is absolutely unassailable.  Mrs Hardy had a privileged confidential relationship with the Respondent.  There was no evidence that she was doing anything other than fulfilling her proper professional functions and, in our judgment, the Chairman was absolutely right to take the course he did in relation to those complaints.

47	In relation to the other complaints, the Chairman pointed out that at casual glance it may seem that the very multiplicity of complaints, even though some were now withdrawn, was in itself evidence of a course of conduct which counsel for the Respondent, in her submission, characterised as vexatious, namely Mrs Castleton lodging numerous applications and engaging in lengthy correspondence to no purpose.

48	Once again, however, the Chairman directed himself entirely properly saying that if there were genuine grievances which should properly be addressed by the Tribunal the mere fact that a substantial number of those grievances had been translated into applications was not of itself evidence that Mrs Castleton was acting vexatiously or unreasonably or that the applications themselves were misconceived.  Once again, if we may say so, we regard that as entirely fair and an appropriate approach.

49	However, as he himself pointed out, when he looked at the substance of the applications, the Chairman was entitled to take a different view.  Mrs. Castleton was arguing that she had received less favourable treatment and that less favourable treatment was occasioned by reason of her carrying out a Protected Act.  He found himself in some difficulty in accepting that.  Nowhere in the allegations, he commented, or indeed in the submissions before him, did he find any suggestion by Mrs Castleton that the failure by the Respondents to deal timeously with her complaint, or indeed the other matters of which she complains, were in any way unique to her.

50	Mrs. Castleton asserted that there has been a course of conduct on the part of the Respondent.  She asserted that that course of conduct was in her mind related to having done a Protected Act but she did not assert that others who had not done a protected act have been in someway more favourably dealt with.

51	The Chairman directed himself to taking into account not only the contents but the questionnaires which Mrs Castleton had served under the 1975 Act, copies of which she presented with her arguments, and which are in our papers. His view was that if Mrs Castleton had been putting forward comparators who had not suffered in the way she claims to have suffered then there may well have been a chance of her getting claims off the ground.

52	In cases where the allegations are of victimisation, a Tribunal has to be satisfied that the less favourable treatment alleged is by reason of the protected act.  This still requires comparators and comparators are completely lacking in the cases which were put forward by Mrs. Castleton.  The Chairman was accordingly satisfied that there was no reasonable prospect of success in any of those cases and they were also struck out.

53	He concluded with this paragraph:

13	“Even had I not been minded to strike out the cases, other than those against Mrs Hardy, I would certainly have found pursuant to the provisions of Rule 7 that the cases had no reasonable prospect of success and in such circumstances would have made the usual Order given a Costs warning, and ordered Mrs. Castleton to pay a deposit in the sum of £150 in relation to each case which still remains but as I have struck out the cases pursuant to Rule 15 the question of an Order under Rule 7 becomes redundant.”

54	Once again, we have gone through the Chairman’s reasoning at some length and with some care because they are, it seems to us, we have to say, impregnable.  It is fair to say that Mrs Castleton does not challenge the dismissal and strikings out in relation to Mrs Hardy and that, in our view, is a welcome recognition of reality.  But once again, she seeks, at some length, both in her Notice of Appeal and in her Skeleton Argument, to reopen the facts which have been found by the Chairman. Accordingly, our remarks in relation to the first appeal apply equally, if not more strongly, in relation to this.

55	The Chairman looked carefully at each of the allegations.  He looked at the evidence available.  He looked at the history.  He made findings of fact which were open to him, and applied the law correctly.  In these circumstances it seems to us inevitable that the cases had to be struck out as he directed.
 
56	In these circumstances we see no purpose at all in either of these appeals going forward to the full court, which would inevitably dismiss them. They will, accordingly, be dismissed at this stage.