Appeal No. EAT/0789/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 August 2002
Judgment delivered on 3 October 2002

Before
HIS HONOUR JUDGE J R REID QC
MR I EZEKIEL
MR P M SMITH

DEPARTMENT FOR ENVIRONMENT FOOD AND RURAL AFFAIRS	APPELLANT

SHIRLEY JOY SWAINE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR DAVID BARR
(Of Counsel)
Instructed by:
Ministry of Agriculture
Fisheries & Food
Legal Division B2
Room 27
55 Whitehall
London SW1A 2EY 	
For the Respondent	THE RESPONDENT
In Person	

JUDGE J R REID QC

1.	This is an appeal by the Department for Environment Food and Rural Affairs (formerly the Ministry of Agriculture Fisheries and Food) against a decision of an Employment Tribunal held at Southampton which was promulgated on 17 May 2001.  By that decision the Tribunal declared that the Department had discriminated against Miss Swaine on the ground of her sex.

2.	Miss Swaine began her employment as a histopathology technician for the department in September 1977.  For the last 14 years she has been employed in the same position in the department’s laboratories at Weymouth, taking fish samples.  She was the manager of one of the laboratories there, where she worked with Mr Green and Mr Bignall, who were both also histopathologists.  Her line manager was a Mr Longshaw who was not.

3.	Her employment had been proceeding smoothly for many years, and on 15 March 2000 Mr Longshaw conducted an appraisal interview in respect of her period of employment 1 December 1998 to 31 January 2000.  The report was a very positive one.  Dr Feist, Mr Longshaw’s manager, endorsed the report that the Applicant was “fitted for promotion”.  Between March and the beginning of June, however, matters turned sour.  Mr Longshaw says that he noticed a lack of motivation and interest in Miss Swaine, about which he spoke to Dr Feist.  On 2 June he arranged a meeting with Miss Swaine.  The meeting went badly.  For much of it Miss Swaine was in tears and sobbing, but she wished to persist with the meeting and so Mr Longshaw did not consider it appropriate to adjourn the meeting so she could compose herself.  After the meeting, with the advice of the personnel department, Mr Longshaw prepared a lengthy letter to Miss Swaine.  It went into detail about her performance and about matters which Mr Longshaw suggested required improvement.  The letter was sent to Miss Swaine but she did not open it.  On 5 July Mr Longshaw again saw Miss Swaine in his office.  Again she was upset and after the meeting her colleagues, Mr Green and Mr Bignall tried to cheer her up.  Eventually, probably on 11 July 2000, she did open and read the letter and thereupon made a telephone call to Dr Feist.  She was distraught and told him the letter was far worse that she was expecting and that she would not come to work the next day.  She thereupon suffered a nervous breakdown.  She has not returned to work since.

4.	The Tribunal, apart from these findings of fact, made findings of fact in relation to other employees which are relevant to this appeal.  Mr Jones was another employee at Weymouth.  He was regarded, at least by Mr Longshaw, Mr Green and Mr Bignall as the office joker and for whatever reason he did not get on with Miss Swaine.  There was jocular plottings involving him to annoy Miss Swaine.  Unfortunately matters got out of hand.  Mr Jones broke a swan-neck tap in the laboratory and subsequently got hold of a calculator, belonging to the department, which was used by Miss Swaine and destroyed it by putting it in a vice. When this came to the notice of Dr Feist he did no more than give Mr Jones a verbal reprimand and did not even mention the swan-neck tap.  No written note of the verbal reprimand was made.  Mr Jones was not subject to any formal disciplinary action, and when Dr Feist was asked for his comments on an appraisal form in connection with Mr Jones’ promotion he made no mention of the incident.  So far as Mr Green and Mr Bignall were concerned, an issue arose as to their time-keeping.  There was a flexi-time system in operation, by which they could begin their work between 7.30 am and 10.00 am but they used to attend after 10.00 am.  When Mr Longshaw raised this with them, he told Mr Green “I have come to tell you off!” and said “You should make out that you have been disciplined and that you did not like it”.  So far as Mr Bignall was concerned Mr Longshaw merely told him he should keep an eye on his time-keeping.  He never followed up either of these verbal warnings with anything in writing at all.  The Tribunal was satisfied there was no formal disciplinary action and that it was treated more as a joke than a formal warning.  There was also evidence about a matter concerning a female employee, Mrs Norrie.  In about 1999 she was on temporary promotion, but did not get on with her staff.  She was acting as manager and there was a dispute between her and members of her staff.  The matter was investigated and it was discovered that working relations between Mrs Norrie and her staff had broken down.  She was then transferred to other duties, lost her temporary promotion and resumed her substantive grade.  She was not promoted following the incident.

5.	The Tribunal formed the view that there was an apparent difference in treatment between the way in which Miss Swaine was spoken to on 2 June 2000 followed up, as it was, by a detailed letter a copy of which was sent to her superiors and put on her personnel file, with the lack of any written record kept on the personnel files of the 3 male employees: Mr Jones, Mr Bignall and Mr Green.  The Tribunal took the view that part of the matter dealt with in the letter of 2 June was Miss Swaine’s time-keeping and the manner in which this was dealt with could be compared directly with the manner in which matters of conduct relating to Mr Jones, Mr Green and Mr Bignall were dealt with.  The Tribunal did this against the background of a submission by Counsel on behalf of the department that it was not appropriate to compare the situation of Miss Swaine, who was being criticised for her performance, with the treatment of those male colleagues.  The Tribunal, at paragraph 84 of its decision, stated that it had also been guided by the decision in Chief Constable of West Yorkshire v Vento [2001] IRLR 124.  The Tribunal continued at paragraph 87:

“87.  Nevertheless, we feel that having considered the guidance in Vento, we are entitled to construct a neighbourhood using the incidents of Mr Jones, Mr Green and Mr Bignall.  Clearly, the shortcomings of male employees were treated in a light-hearted manner, not taken seriously, and, in Mr Jones’ case, had no repercussions on his promotion.  However, this is to be contrasted with the treatment of a female employee, Mrs Norrie, where she lost her temporary promotion, albeit at a time when there was a reorganisation, and she certainly was not promoted, as was Mr Jones.
88.	We have looked at all these matters in the round and we have considered them together, as has been suggested in Qureshi’s case.  We note that looking at the treatment of the male and female employees, there appears to be a different approach to the men on the one hand and the women on the other hand.  Generally speaking, the women appeared to be treated more harshly than the men.
89.	We have considered the explanation put forward by the Respondent, i.e. that this was a different type of situation, namely capability, but we have already given reasons earlier in this decision why we feel that there were matters of conduct involved in the criticism of the Applicant and the situation was not wholly dissimilar to that of the men.  However, even if the allegations were dissimilar, in following the guidance in Vento’s case, we feel that we would be entitled to, in their words, ‘construct a neighbourhood’ using the incidents of the treatment of the male employees.”

6.	The Department attacked this conclusion on the following basis.  Mr Bignall and Mr Green were not proper comparators.  The Department’s concern with them was concerned only with their time-keeping.  This concern could not be compared with the whole raft of concerns which the Department had about Miss Swaine.  In her case time-keeping was only one of many concerns.  It was therefore not surprising that the management response was different.  It was inappropriate to draw an adverse comparison from the different treatment.  So far as Mr Jones was concerned, his case was wholly dissimilar because it related to 2 specific incidents.  It also involved a different manager, Dr Feist as opposed to Mr Longshaw.  Mr Jones was dealt with by Dr Feist under the department’s disciplinary procedures, whereas Mr Longshaw saw and wrote to Miss Swaine under the department’s performance appraisal system.  In those circumstances, it was submitted, it was not possible to make a fair and useful comparison between Miss Swaine and Mr Jones.  So far as Mrs Norrie was concerned, there were no proper details of what occurred between her and her staff.  There were no details about the investigation or its findings, beyond the fact that it found that working relations had broken down.  There was no evidence of the considerations which led to Mrs Norrie’s transfer nor was there any evidence as to why she was not later promoted.  It was not even known whether she had applied for promotion.  Her case appears to have involved an equal opportunities complaint.  In the circumstances the Tribunal should not have placed any reliance on her case, which was wholly dissimilar.

7.	It was submitted that the Tribunal made 3 fundamental errors: first, it misapplied the decision in Vento; second, it made a direct comparison between Miss Swaine and Messrs Jones, Green and Bignall when it should not have done; and third, it made a direct comparison between Mrs Norrie and Messrs Jones, Green and Bignall, when it was inappropriate because of the dearth of detail.  It was submitted that it was impermissible to rely on wholly dissimilar comparators either as exact comparators or to try to create a hypothetical comparator.  The Tribunal tried to “build up a neighbourhood” by using comparators whose circumstances were wholly dissimilar.  Whilst in a sex discrimination case a comparator could be identified either as being identical or as non-identical but of use in constructing a neighbourhood, it was not possible to draw comparisons where no comparisons could properly be drawn.

8.	In Vento, at paragraph 7 Lindsay J said:

“We would readily accept that the treatment of an actual male comparator whose position was wholly akin to Mrs Vento’s in relation to the Mr Value incident was not in evidence.  It followed that the tribunal had to construct a picture of how a hypothetical male comparator would have been treated in comparable surrounding circumstances.  One permissible way of judging a question such as that is to see how unidentical but not wholly dissimilar cases had been treated in relation to other individual cases.  That is one approach.  Another permissible approach is to ask witnesses how the hypothetical case that requires to be considered would have been dealt with, although great care has to be exercised in assessing the answers to questions such as that, because the witness will be aware that it will be next to impossible to disprove any answer to a hypothetical question and also witnesses will know, by the time of the tribunal hearing, what sort of answer is convenient or helpful to the side that they might wish to support.”

Later on at paragraph 15 the learned judge said:

“The notice of appeal refers to the four actual comparators as to whose cases evidence was given.  It proceeded to say that ‘None was a true comparator and the tribunal accordingly erred in law in relying on them’.  But the tribunal did not treat any of the four cases, as we see it, as being a relevant actual comparator.  That is why the tribunal turned, as it had to, to a hypothetical male officer in the same circumstances.  The tribunal used the four actual cases as if building blocks in the construction of the neighbourhood in which the hypothetical male officer was to be found.  For the tribunal to have relied on the four actual comparator cases in that way was not only not an error of law, it was, as it seems to us, the only proper way for it to proceed on the evidence put before it.”

9.	In the present case the Tribunal had before it evidence from Miss Swaine, Mr Green, Mr Bignall, Mr Longshaw and Dr Feist of those who were involved at the Laboratory itself.  The establishment at Weymouth employed between 80 and 90 people, but the 2 laboratories contained only half a dozen people.  Mrs Norrie, of whom much was made, was in administration.  The Tribunal were able to compare directly in part, because a part of the complaint against Miss Swaine related to time-keeping and complaints against Mr Green and Mr Bignall related to time-keeping, but in part they did not have any direct comparator and even so far as they had direct comparators they had the difficulty that there were superadded factors in the case of Miss Swaine.  What they were able to do was to look at the way in which Mr Longshaw, as the line manager of Miss Swaine, Mr Green and Mr Bignall had dealt with the problems, and also the way in which Dr Feist, the line manager both of Mr Jones and of Mr Longshaw had reacted.  In doing so they had the inestimable advantage of seeing both Mr Longshaw and Dr Feist give evidence.

10.	Whilst it cannot be suggested that the material which was available to the Tribunal was as ample as might have been found in a case where the alleged discrimination took place in a larger organisation, the Tribunal did have material from which they could construct their hypothetical comparator.  It could not properly be said that the circumstances surrounding the treatment of Messrs Jones, Green and Bignall were so different as to afford the Tribunal no assistance at all.  Similarly while the circumstances of the Mrs Norrie incident were not entirely clear, there was material which the Tribunal could use to assist in drawing their conclusions.  The Tribunal were entitled, in looking at the whole picture, and in evaluating all the evidence before it, to come to the conclusion that Miss Swaine was treated in a way which was different and less favourable than the way in which a male employee in the same circumstances would have been treated.  The decision does not disclose any error of law, and the appeal will therefore be dismissed.