Appeal No.	 EAT/372/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 November 2001
Judgment delivered on 25 January 2002

Before
THE HONOURABLE MR JUSTICE WALL
MRS D M PALMER
MR G H WRIGHT MBE

MRS DEBORAH SOMMERVILLE-COTTON	APPELLANT

BARCLAYS CAPITAL SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS M CARRS-FRISK
(One of Her Majesty’s Counsel)
Instructed By:
Messrs Mishcon de Reya
Solicitors
21 Southampton Row
London
WC1B 5HS	
For the Respondent	MR PAUL GOLDING
(One of Her Majesty’s Counsel)
Instructed By:
Miss Maya Cronly-Dillon
Messrs Lovells 
Solicitors
65 Holborn Viaduct
London
EC1A 2DY	

MR JUSTICE WALL:

1.	We would like to apologise to the parties for the delay in the production of this judgment, which is due entirely to the Chairman’s commitments.

2	This is an appeal by Mrs Deborah-Sommerville-Cotton (the Appellant) against the decision of the Employment Tribunal held at Stratford over seven days between 25 November and 3 December 1999, with the Tribunal meeting in the absence of the parties on 20 December 1999 and the decision being promulgated on 19 January 2000.  The unanimous decision of the Tribunal was that the Appellant’s employer, Barclays Capital Services Ltd (the Respondent) did not unlawfully discriminate against the Appellant on the grounds of her sex.

3.	The appeal was very well argued on both sides, and we are grateful to the assistance which Counsel have given us. Before we embark on our analysis of the rival contentions, we feel that we should remind ourselves of some basic propositions.  We are a Tribunal of law, not of fact.  The case took some seven days before the Tribunal, and the Extended Reasons run to some 19 pages.  Leading counsel for the Appellant was careful to point out at the beginning of her submissions that she recognised the limited function of the EAT, and that she had to demonstrate that the Tribunal had erred in law in reaching its conclusion.

4	It seems to us inevitable, that in a case of this complexity, the Tribunal is likely to make minor errors.  In these circumstances, we feel that the well known words of Bingham LJ (as he then was) in Meek v City of Birmingham District Council [1987] IRLR 250, are worth repeating:

“It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts.  The parties are entitled to be told why they have won or lost.  There should be sufficient account of the facts and of the reasoning to enable the Employment Appeal Tribunal or, on further appeal, this court to see whether any question of law arises; ….”

These are the standards which we propose to apply in deciding this appeal..

The essential facts

5	For present purposes, we are content to take these in summary form from the skeleton argument prepared by Mr Paul Goulding QC for the Respondent.

(1)	The Appellant commenced employment with the Respondent on 12 August 1996 as a Director in Treasury Products in the Respondent’s Markets Division.  She was then 31.

(2)	The Appellant became pregnant in November 1997.  By this time she was Head of the Forward Rate Agreements (FRA) Desk, which was engaged in proprietary trading.  The Co-Head of Global Fixed Income (a position senior to the Appellant) was Ms Noreen Harrington. The appellant told Ms. Harrington that she was pregnant.  Ms Harrington informed the Appellant that, due to restructuring, it was probable that the Appellant would not be able to return to her job as the Head of the FRA Desk after she returned from maternity leave.

(3)	The Appellant commenced her maternity leave on 17 July 1998, and gave birth two days later on 19 July 1998.

(4)	On 17 August 1998, the Russian government reneged on certain of its debt obligations, thereby throwing the world money markets into turmoil, and causing the Respondent to suffer a loss of approximately £340m. This effectively wiped out its profitability.

(5)	As a consequence of the Russian default, the Respondent decided to restructure its business and dramatically reduce its interest in proprietary trading.  This in turn led to the redundancy of three out of four heads of proprietary trading sections.  The three who were made redundant were all male.  The fourth, and the only one not to be made redundant, was the Appellant.  The FRA desk was not considered by the Respondent to be sufficiently profitable to remain on a stand-alone basis, and its work was subsumed in the work of the Head of the Money Markets area.

(6)	The Appellant returned to work from maternity leave on 19 October 1998.  She was asked, and agreed, to amalgamate the positions and books of traders who had left the FRA desk.

(7)	On 4 November 1998, the Respondent announced the closure of the FRA desk.  The two other remaining traders on the FRA desk were made redundant. The Appellant was not.  She was allowed to continue to trade FRAs in order to close down the open positions of previous traders.  The Appellant was also given responsibility for a new product called short-end government bonds, and was provided with a junior trader to mentor, supervise and train in this product.

(8)	On 23 February 1999, the Appellant received a £25,000 annual bonus which, added to her salary, produced a total remuneration package of £135,000 for 1998.  This reflected 5.625% of her generated profit, which was within the normal range.

6	On 21 May 1999 the Appellant issued her form IT1.  She pointed out that whilst her basic salary was £110,000 she received the majority of her remuneration through the payment of a bonus – as was common in employment of this kind.  She also pointed out that prior to taking maternity leave, she had received bonuses of £150,000 in 1997 and £220,000 in 1998.  She further pointed out that prior to taking maternity leave, she managed between six and eight traders within the Short term Interest Rate Trading Group.  She was told, when she announced her pregnancy, that she had a good future with the Respondent and that on her return from maternity leave, if she did not want to return to her then current job, she would have a number of alternative job opportunities available to her.  She complained that during the period of her absence the Respondent made no effort to inform her of any of the changes made in her department, or consult with her about job opportunities on her return.  

7	The specific complaints which the Appellant makes, and which she says amounted to a continuing course of conduct, or practice, of sex discrimination were:

(a)	failing to allow her to return to the same job she performed prior to commencing maternity leave, and/or

(b)	failing to allow her to return to work on terms and conditions as favourable as those which applied prior to her taking maternity leave, and/or

(c)	on the grounds of her sex, otherwise treating her less favourably than her employer would have treated a man.

8	Before the Tribunal, Counsel drafted a “list of issues” in the following terms:

“(1)  Whether, because of sex discrimination, the Applicant was not allowed to return to the same job she performed prior to commencing maternity leave, or a suitable alternative job, at the expiry of her maternity leave, or at any other time thereafter up to 21 May 1999.
(2)  Whether issue (1)
(a)	is a continuing act of discrimination or
(b)	is out of time, and
(c)	if out of time, should be heard on the basis that it is just and equitable to do so.
(3)  Whether the Applicant’s bonus for her work in 1998 was discriminatory on the ground of sex.”

9	The Tribunal approached its task in the following way.  First of all it gave a brief outline of the respective contentions being put forward.  It then identified the issues.  It then listed the witnesses and documentary evidence it had received.  It then set out the law.  It then set out its detailed findings of fact which occupy some 58 paragraphs over seven pages of typescript.  It then sets out its conclusions on the issues which it had identified.  In our judgment,  the Tribunal is to be commended for the careful and thorough way it marshalled and analysed a very substantial amount of information.

The first issue:

10	For ease of reference we will repeat that this issue is: whether, because of sex discrimination, the Appellant was not allowed to return to the same job she performed prior to commencing maternity leave, or a suitable alternative job, at the expiry of her maternity leave, or at any other time thereafter up to 21 May 1999.

11	The relevant sections of the Sex Discrimination Act 1975 read as follows:

“1  Sex Discrimination against women
(1)	A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if – 
(a)	on the ground of her sex he treats her less favourably than he treats or would treat a man. 
 …
6  Discrimination against applicants and employees
…
(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her - 
(a)	in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or
(b)	by dismissing her, or subjecting her to any other detriment.”

12	Ms Monica Carss-Frisk QC criticised the Tribunal for dividing this first issue into two parts.  This, she says, was contrary to the agreed statement of issues.  She says this led the Tribunal into error because they wrongly treated the refusal to permit the Appellant to return to her previous employment as a discrete issue, in respect of which time began to run for limitation purposes shortly after her return from maternity leave.  It was the Appellant’s case, which Ms Carss Frisk submitted the Tribunal should have accepted, that the failure to permit the Appellant to return to her old employment was part of a continuing practice / policy of discriminatory treatment.  Ms. Carss Frisk relied on Owusu vLondon Fire & Civil Defence Authority [1995] IRLR 574, and Cast v Croydon College [1998] IRLR 318.  She submitted that  there was no rational or legal basis for distinguishing between the failure to permit the Appellant to return to her old job upon return from maternity leave, and the failure to offer the Appellant suitable alternative employment.  The Tribunal should, accordingly, have accepted jurisdiction in respect of her complaint that the failure to permit her to return to her old job amounted to unlawful sex discrimination, and that this was part of the same continuing practice or policy of discrimination.  In the alternative, the Tribunal should have exercised its discretion to extend time on the basis that it was just and equitable to do so.  

13	Ms Carss-Frisk referred to what we agree are several most unfortunately worded comments in the Tribunal’s reasons about the Appellant, and submitted that by taking them into account, the Tribunal misdirected itself by relying on irrelevant considerations.  She referred, in particular, to paragraph 13 of the Extended Reasons in which the Tribunal says:

“13 … The Applicant is a forceful, intelligent woman of mature years who has the substantial wealth at her disposal to employ lawyers who command handsome fees.  Ignorance of the law in such circumstances cannot avail herself of the Tribunal’s discretion to extend jurisdiction upon the principles of justice and equity.  …”

14	Ms Carss-Frisk also complained of paragraph 16 of the Extended Reasons where the Tribunal refers to the “characteristics and wealth of the Applicant”, criticises her “wait and see” policy and continues:

“This is, on the evidence, something of a harsh ‘hard-nosed’ commercial environment for all the players are somewhat ruthlessly pursuing corporate and individual riches.”

15	Ms Carss-Frisk submitted there was no evidential basis of any kind for these observations, nor did they form part of the Respondent’s case.  They should, accordingly, she submitted have formed no part of the Tribunal’s decision.

16	Ms Carss-Frisk further submitted that the Tribunal’s negative attitude towards the Appellant spread over into its consideration of the merits of her case.  She argued that the Tribunal was wrongfully influenced against the Appellant by the fact that she was a high earner, and was employed in an environment with generally high earnings potential.  This perception, she argued, impermissibly influenced the Tribunal’s consideration of whether notwithstanding that she was a high earner she had been unlawfully discriminated against on the ground of sex.

17	Before turning to deal with the factual issues relating to the offer (or lack of it) of alternative employment, we propose to consider the Tribunal’s decision (1) to separate out the failure to offer the Appellant her old job and (2) the continuing failure to offer her suitable alternative employment.  The Tribunal dealt with the matter in this way:

“12  Issue 1 consists of two aspects: whether upon the Applicant's date of return, namely 19 October 1998, she was not allowed to take up the same job that she had held prior to her maternity leave of absence or a suitable alternative because of sex discrimination, or whether she was prevented from assuming a suitable alternative position between 19 October 1998 and the date of presentation of her Originating Application, namely 21 May 1999, for the same reason.  It is necessary, in the Tribunal's judgment, to differentiate between the two for the purposes of deciding the issue of jurisdiction. 
13  First, if a decision was taken to exclude the Applicant from her former position on or before 19 October 1998, that in itself, on the evidence, was a discrete act that took place at least four months and three days outside the three-month jurisdictional limit.  The Applicant is a forceful, intelligent woman of mature years who has the substantial wealth at her disposal to employ lawyers who command handsome fees.  Ignorance of the law in such circumstances cannot avail herself of the Tribunal's discretion to extend jurisdiction upon the principles of justice and equity . Furthermore, it was quite clear before 17 July 1998, when she departed on maternity leave, that her position as Head of the FRA Desk would, in all probability , not exist upon her return.  No conduct on the part of the Respondents could be considered misleading in respect of guaranteeing her that same position.  As to the implementation of a suitable alternative, that is a matter that falls for consideration under the second heading. 
14  Even if, under this first aspect, it may have taken a week or two to ascertain the Respondents' true intentions as far as the Applicant's previous job was concerned, this still does not provide a satisfactory explanation for why it took so long for the Applicant to acquaint herself with legal advice and to invoke the Tribunal's jurisdiction.  In any event, as will become clear from the Tribunal's other conclusions, there is little or no merit in the substance of the point, given the evidence of the Applicant's own witness, Ms Harrington. Accordingly, upon the first limb of issue 1, jurisdiction is declined. 
15  Secondly, as to the second limb, which concerns the complaint that spans 19 October 1998 to 21 May 1999, this is quite a different matter.  By its very definition this was, if borne out by the evidence, a continuing state of affairs inspired by an alleged policy to exclude the Applicant from the money-making potential that she had enjoyed prior to going on maternity leave of absence.  If established by a series of lost opportunities for which no explanation exists of a reasonable and non-discriminatory nature when taking into account appropriate male comparators, there must be considered a sound foundation for a case that can be brought within the provisions of section 76(6)(b) of the 1975 Act.  Jurisdiction is taken accordingly to consider whether or not the Applicant has made out her case in this respect. 
16  For the sake of completeness, the Tribunal would add that it would not have taken jurisdiction under section 75(5) for the purposes of the second limb of issue 1.  Apart from repeating the considerations stated in respect of the first limb about the characteristics and wealth of the Applicant, the Tribunal is also obliged to state that the policy of "wait and see" adopted by the Applicant was not one that would have commended itself to the discretion of the Tribunal.  This is, on the evidence, something of a harsh "hard-nosed" commercial environment for all the players are somewhat ruthlessly pursuing corporate and individual riches.  The fact that one person in the Applicant's position may wish to assert legal rights or acquaint the management of her intention to do so would hardly "rock the boat" as the Applicant put it.  This can especially be illustrated by the fact that she had ample opportunity to produce waves after her bonus level (which she perceived as being wholly inadequate) had been determined in February 1999.”

18	Of this aspect of the case, the Respondent submitted that the Tribunal was correct to decline jurisdiction in respect of the complaint that the Appellant was not permitted to return to the job she had before going on maternity leave, on the ground that the complaint was out of time.  He submitted that the Tribunal was correct to find that any failure to appoint to a particular post is a “one-off” act, and not a continuing act.  The Appellant was, accordingly, out of time in making her complaint about it.

19	Mr Goulding also submitted that, on the facts, the disappearance of the Appellant’s job had nothing to do with her maternity leave, and everything to do  with the restructuring of the FRA Desk  and with the consequence of  the Russian crisis.  He pointed to Ms Harrington’s evidence, given on behalf of the Appellant, that the restructuring could mean the Appellant’s job was not available for her on her return.  He argued that on her return her old job simply did not exist.  Any “refusal” to give her the job back was a “one-off” decision which was complete on her return.  

20	Mr Goulding submitted that the EAT should not interfere with the exercise of the Tribunal’s discretion not to extend time unless it could clearly be shown that the Tribunal had misdirected itself in law.  He argued that the Tribunal was entitled to take into account the Appellant’s financial circumstances, and the fact that she later retained lawyers to represent her.  He argued that all the Tribunal was doing was finding that the Appellant was unable to rely on poverty as the reason why she had not sought legal advice, or pursued her claim at an earlier stage.  He also defended the Tribunal’s finding that the Appellant was working in a “hard-nosed commercial environment where all the players were somewhat ruthlessly pursuing corporate and individual riches”.  He submitted, that in the context of an application for the extension of time, the Tribunal was entitled to be critical of a “wait and see” policy adopted by the Appellant., Finally, on this point, Mr. Goulding submitted that even if the Tribunal had admitted the complaint, it is clear that it would have dismissed it on the merits.  

21	On this part of the case, we are satisfied that the Tribunal did not fall into any error of law.  It was entitled, on the evidence, to treat the fact that the Appellant did not return to her old job as a discrete issue, and one which was separate from any concept of continuing discrimination.  In any event, we agree with Mr. Goulding, that, on any view, there was an abundance of evidence to demonstrate that, even if the Tribunal had assumed jurisdiction on the point, it would have been entitled to find that the failure to offer the Appellant her old job back was not discriminatory, but resulted from a combination of reorganisation and the Russian crisis.

22.	The point which has troubled us is the language which the Tribunal used when giving its reasons for exercising its discretion against the Appellant in relation to the extension of time.  That language is, we think, despite Mr Goulding’s argument, unfortunate and excessive. It strikes a discordant note in  what is otherwise sound reasoning.  If (as in fact we think was the case)  the Tribunal was saying only that the Appellant was an intelligent and forceful woman who had the knowledge, means and opportunity to take competent legal advice within the three month period, then it should have said so in simple and unvarnished language.

23	Ms Carss-Frisk did not, rightly we think, raise any question of bias in the Tribunal. She is, however, in our judgment  entitled to complain of the Tribunal’s language in relation to her client in a number of places in the Extended Reasons.  Her argument that this language gives rise to a suggestion that the Tribunal has taken into account matters which are irrelevant, and which therefore flaws the exercise of its discretion, needs to be considered with some care.  

24.	In the event, on this part of the case, we are satisfied that there was an abundance of material upon which the Tribunal could exercise its discretion in the manner in which it did, and accordingly, in our view, the language which it chose to use about the Appellant is a factor of insufficient weight to vitiate the exercise of that discretion.  We also bear in mind that these are but a few phrases in very lengthy reasons,  which are otherwise couched in careful, judicial language to  which no exception can be taken.  We do not, accordingly, think it would be fair, particularly in the light of the clear  underlying facts,  to pick out these phrases as a basis for a conclusion that the Tribunal had failed in the overall exercise of its discretion.  Nonetheless, it seems to us that part and parcel of the decision of the Court of Appeal in Meek v City of Birmingham District Council that  litigants are entitled to have assessments made of them in fair and dispassionate language, even if the assessments themselves have to contain serious criticisms.  

Alternative employment for the Appellant

25	Some time was spent during the hearing before us looking at the evidence before the Tribunal in relation to alternative jobs for the Appellant.  This area of the case is, in our judgment,  particularly difficult for her.  As Mr Goulding pointed out, the Employment Appeal Tribunal is a tribunal of law. Findings of fact are for the Tribunal. That is why it is known as the “industrial jury”.  It does not matter if we think we might have reached a different conclusion on the facts. What matters is whether the decision under appeal is a permissible conclusion based on the available evidence.  The weight to which the Tribunal attached to any particular piece of evidence is a matter for the Tribunal determining the facts, not for us.   

26	The Appellant complains that she was not offered suitable alternative employment after she returned from maternity leave, and that at no time thereafter up to the date when she presented her Originating Application (21 May 1999) was she offered any suitable job.  The Tribunal rejected this complaint and found that there was no evidence that a suitable alternative job was available to be offered to the Appellant. Ms Carss-Frisk submitted that in this regard the Tribunal ignored and failed to deal with central evidence on behalf of the Appellant that a suitable job was available and that her appointment to that job had been blocked by her Manager, Mr Del Missier.  

27	Central to this part of the case is the Appellant’s assertion that a suitable job was available to her on a highly lucrative desk, known as the Portfolio Desk, managed by one John Porter.  The Appellant’s case is that the possibility of her working on this desk after her return from maternity leave had been specifically discussed between herself and Ms Harrington.  She also argued that there was evidence before the Tribunal that Mr Porter had specifically asked the Appellant’s subsequent Manager, Mr Del Missier, to permit the Appellant to come and work on his desk, but that this had been blocked by Mr Del Missier.  

28	Ms Carss-Frisk submitted that this evidence of the denial of a suitable job, which the Appellant had specifically made clear to the Respondent she would have considered suitable, is not mentioned anywhere in the Tribunal’s decision, and no finding of fact is made in relation to it.  As a consequence of this submission, some time was spent at the hearing before us looking at the Chairman’s notes and at Mr Del Missier’s statement in relation to this issue.  
29	What matters for our purposes, of course, is that there should have been a proper  evidential foundation for any finding of fact made by the Tribunal.  The finding which it made is contained in paragraph 11(xlii) in these words:

“(xlii)  In the latter part of 1998 Mr Del Missier held a conversation with Mr Porter about recruitment in the Bonds Desk.  In accordance with a management directive, Mr Porter was informed that a freeze was in operation with regard to external and internal recruitment.”

The reference to the Bonds Desk is an error, and should read “Portfolio Desk”.  However, the finding at (xlii) is  based on several passages of the Chairman’s notes recording the evidence of Mr Del Missier.  Mr Del Missier had made a statement in which he specifically denied that he had refused to allow Mr Porter to hire the Appellant to work on his desk.  He accepted that he and Mr Porter had discussed recruitment issues in the latter part of 1998, at which point he had made Mr Porter aware of the recruitment freeze which the Management Committee had decided upon in September 1998 as a way of reducing costs after the collapse of the existing markets.  At that stage, he says, he did not want Mr Porter to hire anybody to work on the desk because of the recruitment freeze and because at that stage the Respondent was still discussing the direction in which it wanted to take the Portfolio business in 1999.

30	In these circumstances, we can find no error of law in the Tribunal’s conclusion.  In our view, the Tribunal was plainly entitled to reach the factual conclusions it did on this part of the case, and to come to the conclusion that the Appellant was not discriminated against  on  the grounds of her sex.

Misdirection as to test for discrimination
31	Ms Carss-Frisk took the point that although the Tribunal had correctly set out the terms of the relevant parts of Sections 1 (“treats her less favourably than he treats of would treat a man”) and 6 of the Sex Discrimination Act 1975 in paragraph 5 of its Extended Reasons, it misdirected itself in law when it omitted the four words “would have treated” in paragraph 6 of the Reasons in the sentence:

“The test we apply is this:  are we satisfied, on the balance of probabilities and with the burden of proof resting on the Applicant, that this Respondent treated this Applicant less favourably than he treated a man, given she was an employee returning from maternity leave and an employee with childcare responsibilities”.  

32.	Ms Carss-Frisk says this is significant, because the omission of hypothetical examples meant that the Tribunal concentrated on how the Respondent had treated certain named male employees as compared to the Appellant, and failed to ask itself whether the Respondent treated the Appellant less favourably than it would have treated a man.

33	We do not think there is anything in this point.  This case was, as it happened, about actual comparators.  There is no suggestion that the evidence before the Tribunal or its findings would have been in any way different if these four words had been included in the Tribunal’s Reasons.  In our view, this part of the argument smacks of the “detailed analysis” criticised by Donaldson LJ (as he then was) in Ucatt v Brain [1981] IRLR 225 at 227, as cited by Bingham LJ in  Meek v. City of Birmingham District Council. . It certainly comes nowhere near a misdirection in law.   

The bonus

34	The Appellant complains that for her work in 1998 she was only awarded a bonus of £25,000, approximately 10% of the bonus she had received in the previous year £220,000.  The bonus was awarded, annually, in February, and related back to the work of the previous calendar year.  

35	There was evidence that the Appellant’s line Manager, Mr Mark Dearlove, had told the Appellant shortly before the bonus decision was communicated to her that she was going to feel like she had been “kicked in the teeth”.  She argued, accordingly, that the £25,000 in February 1999 was discriminatory. 

36.	There was a great deal of evidence given before the Tribunal on the bonus issue.  The Tribunal directed itself correctly that whereas it was not disputed that the bonus was discretionary, this did not provide a blanket answer to a complaint of sex discrimination.  The calculation of bonus by the Respondent for any employee was the subject of a judgment in relation to which several factors came into play.  These are described in detail within the Tribunal’s findings of fact.  The Tribunal approached the matter in this way:

“30  … The emphasis and degree of these factors has fluctuated in terms of their presence and importance within the confines of the Respondents' case reflected by the pleadings and the questionnaire, not to mention some of the oral testimony provided to this Tribunal.  Furthermore, the Tribunal has also borne in mind the fact that a transparent policy setting out in writing the factors and the weight given to them does not exist.  However, it is clear from the evidence that team and individual performance in making money are paramount.  The former is going to be more significant if the individual concerned has direct and primary responsibility for a particular desk and its profit line. 
31  As part of this environment, should the scenario encompass a financial disaster of the scale involved in the summer and autumn of 1998, those not guaranteed a bonus level would be affected by the limited resources available in the form of an artificially created bonus pool.  Bearing these factors in mind, it is clear to the Tribunal that whether the Applicant's individual profit figure was £2.4 or £3.2 million is of little significance within the context of this case. 
32  Additionally, the other factor concerned in the bonus calculation is an acknowledgement of the individual's worth so as to encourage staff retention.  This might be regarded as an incentive payment to remain with the company and to prevent staff from being recruited by rivals within the same market.  This is certainly a factor that came into play via the submissions of Messrs Dearlove and Munari when they persuaded Mr Del Missier to change his initial position which was to award the Applicant no bonus at all.  However, in some cases it played a significant part in the bonus calculations and no doubt it has a substantial bearing upon why recently recruited individuals are guaranteed large bonuses (and the Applicant has enjoyed such a facility in the past). 
33  Critical examination the bonus figures provided for comparison, the desk profit figures and the guaranteed bonus payments effectively answer the Applicant's case.  Looking at the responsibilities of the individuals concerned and the individual profit figures generated, the Tribunal is of the view that there is no evidence of a persuasive nature to indicate that, in terms of the bonus calculation, the Respondents treated the Applicant any differently from a man in a truly comparative position with her.”

37.	The question for us is whether these were conclusions which the Tribunal was entitled to reach on the evidence.  We think they were.  The Appellant agreed in cross-examination that the five comparators she put forward were not in fact comparable with her position at all.  Ms Carss-Frisk complained strongly, that when the Appellant had attempted to put forward a further comparator at the outset of the proceedings before the Tribunal, she had been refused permission to do so.  Yet, she argued, the Tribunal made and relied upon a finding of fact at paragraph 11(xxxviii) to this effect:

“23 February 1999:  The Applicant receives her bonus which, added to her salary, produces a total remuneration package of £135,000 for the 1998 year.  Effectively, this reflects 5.625% of her generated profit, which is within the normal range.  Of 300 individuals managed by Mr Del Missier, 36 got no bonus at all and the majority of those individuals are male.  Of those who received no bonus, four individuals were on salaries of £100,000 or more and they were all men.  In terms of the percentage of her bonus in comparison with her total salary package, the Applicant receives a larger percentage then the majority of the traders who are, in fact, male.”

38.	Ms Carss-Frisk says it was unfair to admit that evidence whilst shutting out her further comparator.  However, the Tribunal’s finding is based upon Mr Del Missier’s statement, and upon the evidence he gave to the Tribunal.  At paragraph 31 of the statement, Mr Del Missier says this:

“I considered paying no bonus at all on the basis of the team performance but in consultation with Mark Dearlove and Andrea Munari felt that that would give the wrong message to Debbie.  The indication which I wanted to give was that we did not wish to lose her, but that her team had not made significant amounts of money in the previous year.  ”

39.	In these circumstances, it seems to us that the Tribunal’s findings of fact in relation to the bonus are unassailable.  

40	In all the circumstances of this case, we are satisfied  that the Tribunal was entitled to reach the conclusion that the Respondent had not unlawfully discriminated against the Appellant on the grounds of her sex.  The appeal will, accordingly, be dismissed.