Appeal No.	 EAT/1076/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 March 2002

Before
HIS HONOUR JUDGE J MCMULLEN QC
MS N AMIN
MS H PITCHER

MRS J E DERBYSHIRE AND OTHERS	APPELLANTS

ST HELENS METROPOLITAN BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

	APPEARANCES

For the Appellants	MR DAMIAN BROWN
(of Counsel)	

HIS HONOUR JUDGE J MCMULLEN QC

1	This case is about victimisation under the Sex Discrimination Act 1975.  It is an appeal by the thirty seven Applicants in those proceedings against a reserved majority decision of an Employment Tribunal, Chairman Mr D Reed, held in Liverpool on 24 May 2001, promulgated with Extended Reasons on 30 July 2001.  Mr Brown appeared there and before us today on behalf of the Applicants.  The Respondent was represented by counsel. 

2	The Applicants claimed victimisation.  The issues before the Tribunal were held to be the effect of two letters sent respectively to the Applicant group and to all employees.  There was no live evidence pursuant to what Mr Brown describes as a robust decision of the Tribunal, at the outset.  The Tribunal decided that the Applicants had carried out a protected act in launching Equal Pay Act 1970 proceedings; and that the purpose of the letters was “to persuade (or pressurise)” the Applicants into compromising the claims.  

3	The majority view was that the treatment exposed by those letters did not amount to less favourable treatment; that they did not demonstrate any malevolent intent.  By its reference to Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 it is to be inferred, so Mr Brown argues, we think, cogently, that the Tribunal had formed a judgment that the Respondent in sending those letters was acting honestly and reasonably – see for example the speech of Lord Nicholls of Birkenhead at 1073 B-D at paragraph 31.  The Tribunal majority also decided that the letters were akin to a simple threat of costs in legal proceedings.  

4	The minority decided that the letters were written with a view to persuading the Applicants to compromise their claims against the threat that if they did not there would be dire consequences for the catering service as a whole.  This amounted to less favourable treatment.  The appropriate comparator for this exercise was someone who had not commenced proceedings at all.

5	The Applicants appeal the findings of the majority and seek to support the finding of the minority on the following grounds as set out in a Notice of Appeal amplified in a written skeleton argument put before us today and in oral argument by Mr Brown.  The appeal is divided into two.  Taking the first part, five points are indicated. 
a.	First, the failure to identify a comparator.  We consider that this is a necessary step in a victimisation claim – see Lindsay v Alliance & Leicester plc [2000] ICR 1234.  The majority appears not to do so.
b.	Secondly, the Tribunal considered the motive of the Respondent.  We consider it is reasonably arguable that that is a wrong consideration – see James v Eastleigh Borough Council [1990] IRLR 288 HL per Lord Goff at para 39.  Thus, the Tribunal’s focussing on malevolent intent is arguably incorrect.  
c.	Thirdly, the failure to perform the correct comparison may be thought to follow from both of those errors as alleged above.
d.	Fourthly, it is contended that the victimising act of the Respondent here was not simply beyond the control of the council.  It is contended that the majority exculpates the Respondent by the depiction of these matters as beyond the Respondent’s control. That is an impermissible view of the victimising act which went beyond merely pointing out to the Applicants the potential consequences of their action.  We agree that is arguable.
e.	Fifthly, it is contended that the Tribunal wrongly considered what it described as strong policy grounds for holding there was no act of victimisation.
6	In our judgment, all of those points are reasonably arguable as demonstrating errors of law which ought to have the attention of a Full Hearing before the Employment Appeal Tribunal and we so decide.

7	The second limb of the appeal relates to perversity.  It is contended that the finding by the Tribunal that the two letters contained only statements of fact is perverse.  It seems to us that there are sufficient expressions of opinion and assertions to indicate that the finding is arguably incorrect as a matter of construction.  Similarly, as a matter of construction, it is strongly arguable in our view that this goes beyond simply pointing out what are the automatic consequences of the Applicants’ failure to compromise their claims.  This second ground, headed by Mr Brown as ‘Perversity’ but perhaps more accurately, matters of construction, is also reasonably arguable.  

8	We heard today a more developed approach to the issue of evidence in this case.  The Tribunal decided, we are told, at the very outset of the case and against the submissions of both Applicants and Respondent, to hear no evidence.  As the Tribunal put it:

“…. there was no factual dispute.  The position can be stated simply and shortly.”

Mr Brown seeks to attack that decision since any reference, for example, to Chief Constable of West Yorkshire (above) involves an assessment of the state of mind of a person being honest and reasonable.  In those circumstances, Mr Brown reasonably argues, the Tribunal ought to have allowed live evidence to go beyond what was written in the letter.  That attack in the skeleton argument under the heading of ‘Factual Dispute’ or under ‘Perversity’ is apt for a full consideration.  

Category B.  The skeleton argument for today will be attached to the Notice of Appeal.  The Parties will exchange skeleton arguments fourteen days before the hearing.