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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Harvey-Bussell v Sun Alliance Group Plc & Ors [1999] UKEAT 721_98_0104 (1 April 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/721_98_0104.html Cite as: [1999] UKEAT 721_98_104, [1999] UKEAT 721_98_0104

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APPEARANCES

 

For the Appellant	MR B BURGHER (OF COUNSEL) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME


 


MR JUSTICE MORISON (PRESIDENT): After a hearing at Ashford in Kent, Mrs Tracey Harvey-Bussell's complaint of unlawful discrimination brought against her former employers, Sun Alliance Group Plc, was dismissed. The decision followed a hearing extending from 8th October through to 16th February, which I think on the latter date was not a public hearing but a discussion between the Tribunal members. The decision of the Tribunal is contained in written reasons which were sent to the parties on 31st March 1998. Those written reasons extend to 70 pages and 144 paragraphs. It is obvious from the weight of the decision itself and the number of days of Hearing that this was a substantial matter which engaged the attention of the Employment Tribunal. There was an Appeal from that decision which has come on before us today and the purpose of this Hearing is to determine whether there are arguable points of law in the Appeal which she wishes to make.

The Appellant has been represented by Mr Burgher of Counsel under the ELAAS scheme, who has had to absorb this long and complicated case. He has represented his client's interests with, if we might say so, conspicuous ability and we are grateful to him and to the ELAAS scheme which is responsible for him being here.

Our initial impression was that there was no real matter of complaint to be brought against the Tribunal's decision but we have been persuaded by Mr Burgher that on analysis, there are matters which should go for a Full Hearing.

The structure of the decision is that it examines, first of all, the witnesses themselves to decide where the truth lies. We agree that it is arguable that the Tribunal's approach to credibility is inappropriate in a discrimination case, placing reliance on the manner and demeanour of the witnesses where that, broadly speaking, may not be a useful yardstick.

They then deal with a number of incidents which took place more than 3 months before the date on which her application, claiming unlawful discrimination, was presented to the Tribunal and as we understand it, that was done because they felt it right to consider those matters to see if they assisted them in drawing any inferences in relation to those complaints which were presented within time. We assume that this is so from paragraph 130 of the Tribunal's decision. Although the original Notice of Appeal takes exception to the findings of some of them in this earlier section, we are not prepared to say that the overall conclusion at paragraph 130 in relation to those matters, was not open to the Employment Tribunal. In other words, it does not seem to us that any legitimate complaint can be made about the findings of fact in relation to the specific matters of complaint relating to events more than 3 months after the date when the complaint was presented. That said, it will be open to the Appellant to raise on the Appeal, her complaint about the way she was treated at the Employment Tribunal. A statement was made in the course of the case which caused her offence and which became the matter of national interest through the newspapers. We have had an affidavit from her about that and have seen the Chairman's response. It seems to us that that is something which this Court should consider in due course and give guidance if needs be about making personal remarks in future, and in that connection, we include the matters on which the Applicant was cross-examined (in relation to her personal life) and we are referring to paragraphs 9 and 10 of the decision.

The real substantive points of law which arise for consideration stem from paragraphs 131 onwards. In paragraph 131, the Tribunal were considering her complaint that she was not provided with proper material to enable herself to prepare for an interview which was to be held in relation to the post of Compliance Officer in the merged organisations. She said that she was provided with material later then the male comparator and the material which she was provided with was incomplete, as a result of which she was treated less favourably than the man.

It seems to us, arguable that the way the Tribunal have dealt with the complaint, both of direct and indirect discrimination, as evidenced by paragraphs 132 and 133, is wrong in law. As to direct discrimination, it appears that the Employment Tribunal were anticipating some evidence of malice on the part of the decision maker, that is, that he was accepting that he was discriminating against her as a woman. In relation to indirect discrimination, it is arguable that the Tribunal have not dealt with the requirements of this type of unlawful discrimination correctly. The last sentence of paragraph 133 and the way they deal with justification in paragraph 134 are arguably wrong. Furthermore, when they deal in paragraph 135 with what they call "detriment" it may be that on this aspect of her complaint the Tribunal have misdirected themselves in law, since her complaint fell within S.6(2)(a) of the Sex Discrimination Act 1975 with a reference back to S.1(1)(a) and, for indirect discrimination, S.1(1)(b).

In relation to the second main head of complaint, the Appellant said that she had not been appointed as Compliance Officer and that that was by reason of her sex. Obviously, for that purpose, she compared herself with the successful male candidate. It is arguable, as it seems to us, that what the Tribunal said in paragraph 137 of the Decision in relation to the comparator is factually inappropriate, having regard to the need for her to compare herself with Mr McLaren and it may be that the Tribunal also have failed to properly enquire into the admitted prejudice of the Appointing Officer in favour of the male candidate and have failed properly to apply the guidelines in King.

The next head of complaint can be put under the umbrella of harassment. We think it is just arguable that the Tribunal have improperly dealt with her complaint in paragraphs 138-141, but we are not minded to take the view that her complaint that she was sent on garden leave gave rise to an inference of sex discrimination. Therefore, we would not think her complaint from paragraphs 142 and 143 should be debated at a further hearing.

That being so, the matter will have to proceed and it should be made perfectly plain to the Respondents who are not entitled to make representations at this time, that the giving of leave does not constitute an indication by the Employment Appeals Tribunal as to the eventual outcome of this Appeal. It simply is a recognition that for present purposes, the grounds of Appeal which I have identified are regarded as arguable, justifying further contention inter-partes. Accordingly, we allow the matter to proceed on that basis.

This is not a case where notes of evidence should be sought. This is not a general perversity appeal, although it might originally have been regarded as such. It seems to us that the arguments on Mrs Harvey-Bussell's behalf can properly be made on the basis of the decision itself and we cannot envisage that the Respondents, who have kindly completely a PHD form, themselves will require the notes of evidence, although they rightly refer to the fact that if the Appeal was to proceed on the basis of factual disputes, then notes of evidence would be required. The Notice of Appeal does not need to be amended in the light of this decision because we can take the Judgment as indicating the issues which will arise at the hearing of the Appeal.

Because it is a discrimination case and because it is a heavy case, I think it right that it should be marked as Category A which means that it should come before a High Court Judge sitting here. Discrimination cases are important and this one is no exception. I anticipate that the length of the Hearing will be no more than a day. Those are the directions that I give unless there are any other applications at this time.