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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Herbert Smith Solicitors & Anor v. Langton [2005] UKEAT 0242_05_1010 (10 October 2005) URL: http://www.bailii.org/uk/cases/UKEAT/2005/0242_05_1010.html Cite as: [2005] UKEAT 242_5_1010, [2005] UKEAT 0242_05_1010

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APPEARANCES

 

 

For the Appellant	MR ANDREW HOCHHAUSER QC (One of Her Majesty's Counsel) MR PAUL EPSTEIN (of Counsel) Instructed by: Messrs Farrer & Co Solicitors 66 Lincoln's Inn Fields London WC2A 3LH
For the Respondent	MR CLIVE SHELDON (of Counsel) Instructed by: Messrs Lewis Silkin Solicitors 12 Gough Square London EC4A 3DW

SUMMARY

Sex Discrimination: Direct & Victimisation; Unfair Dismissal: Reasonableness of Dismissal; Part Time Workers

The Employment Tribunal did not err when it upheld Claimant's claims under the above heads, except when it failed to apply an objective test of detriment to one of the Claimant's claims of victimisation.


 


HIS HONOUR JUDGE McMULLEN QC

1.                  This case is about unfair dismissal, sex discrimination and victimisation and discrimination against part-time workers. The judgment represents the view of all three members who pre-read the relevant papers with the assistance of an essential reading list prepared by the parties. We will refer to the parties as follows: the Claimant is Ms Michelle Langton; the Respondents are Herbert Smith Solicitors and Mr George Kalorkoti.

Introduction

2.                  It is an appeal by the Respondents in those proceedings against a reserved judgment of an Employment Tribunal sitting over 15 days and 5 days in chambers at London (Central), chairman Mr S Bedau, registered with Reasons on 8 February 2005. The Claimant was not instructed by the EOC and the EOC did not lend their support to the case when it was before the ET. The Claimant was represented, as here, by Mr Clive Sheldon of Counsel (on appeal, instructed by the EOC. The Respondents were represented by Mr Paul Epstein of Counsel who is today led by Andrew Hochhauser QC.

3.                  The Claimant made many claims against Herbert Smith /or individuals within the firm. They related to unfair dismissal, sex discrimination, victimisation and that she had been discriminated against as a part-time worker. The Respondents denied them all. The essential issues were defined in great and clear detail by the Employment Tribunal. There were comprehensive case management directions and orders extending over nine pages. The Tribunal decided in the Claimant's favour on six of her claims, the remainder being dismissed or withdrawn. It then conducted a remedy hearing. In Reasons registered on 8 February 2005, it awarded the Claimant compensation including aggravated compensation for sex discrimination and victimisation, compensation for unfair dismissal, and ordered Herbert Smith to re-engage her on 30 August 2005 on a specific contract. The Respondents appeal against both those judgments. Directions sending the liability appeal to a full hearing were given in chambers by Burton P. Directions were given by HHJ Peter Clark in the remedy appeal which now will go to a full hearing. The professional teams have scrambled admirably to be ready for a hearing on that. Because the remedy of re-engagement had been ordered, at the request of the parties we gave a judgment without reasons upholding the Tribunal's judgment on unfair dismissal liability and reserved judgment and reasons on the remainder.

4.                  In summary, the Claimant made 20 claims of which 14 were withdrawn prior to the hearing, withdrawn during the hearing or dismissed at the hearing, and six were upheld. They will be known and dealt with in this judgment as Claims 1, 5, 4, 10(i), 6, and 13(v). Claims 1 and 6 were of direct sex discrimination made in respect of both Respondents. The remaining claims were upheld against Herbert Smith alone. The Respondents respectively appeal against each of those findings. Claims 4 and 10(i) of victimisation were upheld against Herbert Smith in respect of action taken by Paula Hodges, a partner in Herbert Smith who heard the Claimant's grievance. She was not a named Respondent.

5.                  In a Judgment extending over 60 pages the Tribunal considered carefully and analytically each of the claims. For the purposes of this judgment, attention focuses only on the claims upheld. In summary, we uphold the Tribunal's judgment on all except Claim 4 where we uphold the Respondents' submission and we substitute our judgment that the Claimant was not victimised.

The legislation

6.                  The Tribunal, as do we, have very extensive written submissions by Counsel. The Tribunal gave a brief summary of the law on the burden of proof in discrimination cases. This case concerns direct and indirect discrimination which are concepts found in the Sex Discrimination Act 1975, section 1(2) of which provides:

"1 (2) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if

(a)            on the ground of her sex, he treats her less favourably than he treats or would treat a man, or

(b)            he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but –

(i)             which is such that it would be to the detriment of a considerably large proportion of women than of men, and

(ii)           which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii)         which is to her detriment".

7.                  The comparison for the purposes of section 1(2) must be such that the relevant circumstances of the Claimant and the comparator are the same or not materially different: section 5(3).

8.                  Victimisation is made unlawful by section 4 which provides, so far as is relevant to this case:

"4 Discrimination by way of victimisation

(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-

…

(c) otherwise done anything under or by reference to this Act … in relation to the discriminator or any other person, or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act …"

There is derivative liability: employers are made liable in addition to their employees found liable for discrimination by section 41; those aiding unlawful acts would be liable under section 42, as was the formal position of Mr Kalorkoti in these proceedings.

9.                  In certain cases, the burden of proof is reversed, as provided for by section 63A:

"63A Burden of proof: employment tribunals

(1) …

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent-

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2, or

(b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act."

10.              Part-time workers are protected against discrimination by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Regulation 2 defines a part-time worker as one who is not identified as a full-time worker. There is special protection for workers returning to part-time work after an absence: Regulation 4. The grounds on which discrimination is made unlawful are set out in Regulation 5:

"5 Less favourable treatment of part-time workers

(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker-

(a) as regards the terms of his contract or; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2) The right conferred by paragraph (1) applies only if-

(a) the treatment is on the ground that the worker is a part-time worker; and

(b) the treatment is not justified on objective grounds."

11.              By section 94 of the Employment Rights Act 1996, an employee has the right not to be unfairly dismissed. Redundancy is a potentially fair reason for dismissal under section 98(2). The Tribunal rejected the Claimant's contention that her dismissal by reason of redundancy was a sham. That finding is not appealed. Fairness is dealt with by section 98(4) which provides:

"(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

The facts

12.              The Tribunal described Herbert Smith as follows:

"10.1 The First Respondent is a large international firm of solicitors based in the City of London, transacting commercial legal work often of an international nature. There are approximately 200 partners, 900 other fee-earners and 885 staff….

10.2 The First Respondent's premises are at Exchange House, Primrose Street. London. Neither the staff, the partners nor indeed senior management have received any equal opportunities training. There was in fact no system of equal opportunities training provided by the First Respondent. Those in the Human Resources Department have not been trained in equal opportunities. We were told in evidence that this matter is now being addressed with the assistance of outside consultants.

10.3 The First Respondent's Dignity and Equality of Opportunity in the Workplace policy makes no reference to part-time workers notwithstanding the fact that the policy was revised in 2002, some two years after the passing of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000…"

10.5 It was apparent on reading the policy on Dignity and Equality of Opportunity that there is no reference to direct or indirect sex discrimination."

13.              Herbert Smith also has a flexible working policy, a redundancy policy and procedures for dealing with grievances.

14.              As for the Claimant, she is 35 years old and a specialist in information technology. She was paid £36,000 per annum plus a bonus of £4,500 for a 17.5 hour week. The common ground about the Claimant's position is recorded by the Tribunal:

"10.26 It was acknowledged by both parties that the Claimant performed well in her various roles. Her 360° feedback in May 2003 was very positive and showed that she had consistently achieved high standards in her work. There were no issues regarding her capability. She had not been disciplined, either informally or formally. She was highly regarded by her peers, by Mr Rogers and by the partnership. The presentation of her analysis in respect of the Printing Project before the First Respondent's Information Technology Strategy Committee was very well received."

15.              The Tribunal described her as follows:

"10.10 The Claimant commenced employment with the First Respondent on 5 January 1998 as Customer Services Manager in the Information Technology Department. She managed a team of ten software support staff and PC engineers. She was one of the senior managers and reported directly to Mr John Rogers, Head of Information Technology. She went on maternity leave on 1 August 2001. During her pregnancy she experienced severe bleeding and was signed off work by her doctor because of her previous miscarriage, in September 2000, before her maternity leave was due to start. Her daughter, Georgina, was born on 16 October 2001. During her maternity leave she discussed with Mr Rogers her return to work on a part-time basis. She felt that she would be able to work in the office for two days a week. Mr Rogers thought that that was acceptable and also wanted her to stay in touch with the office. He therefore proposed that she work the equivalent of 3½ hours at home spread through the week to answer e-mails and to respond to any telephone calls. The Claimant agreed to this arrangement. A role was created for her of Business IT Relationship Manager. She and Mr Rogers agreed that she would work Wednesdays and Thursdays between 8 or 8.30 a.m. to 4.30 p.m. with the additional half day hours spread over the remaining three days. We were not taken to any contract document confirming this arrangement but we find as fact that it was agreed between Mr Rogers and the Claimant."

16.              That arrangement, described as a variation of contract, was confirmed in writing. John Rogers was replaced by Mr Kalorkoti in September 2002. The Claimant's case on sex discrimination, victimisation and discrimination against her as a part-time worker is based upon the way in which Herbert Smith through its manager, Mr Kalorkoti, its partner, Paula Hodges, and others approached the Claimant's contractual working hours. The short point on her unfair dismissal claim is that the handling of an alternative work proposal was unfair, leading to her dismissal by reason of redundancy, with six weeks' pay in lieu of notice, on 30 January 2004.

17.              In October 2002 following a temporary revision, the Claimant briefly worked full-time. From 15 May to 30 September 2003, she agreed on an interim basis to revert to the role of customer services manager (CSM), four days a week, 9.30am to 5.30pm. She was paid four-fifths of the full-time equivalent salary of £72,000 and it was a condition of the agreement that, upon completion of this role, she would revert to her part-time contract.

18.              The cause of the dispute in relation to the discrimination and victimisation claims was, to put it neutrally, the attitude of the Respondents to the arrangement of the Claimant's working hours once the interim appointment as CSM came to an end on 30 September 2003.

Claim 1: Mr Kalorkoti's "any more children?" remark

19.              At the first meeting between the Claimant and Mr Kalorkoti, a disputed remark was made. The Claimant's account of the meeting was upheld and it is not the subject of appeal. The Tribunal concluded as follows:

"28 In relation to the first matter, namely, direct sex discrimination against the First and Second Respondents, we have found as fact that at the meeting between the Claimant and the Second Respondent on 9 September 2003, the Second Respondent said to her in response to her enquiry as to his plans for her after 30 September, "That really depends on what your long-term plans are... Are you planning on having any more children?" We have concluded that such a statement would not have been said to a man. In that context, we bear in mind what the Second Respondent said at the meeting attended by Sandie Craciun, David Wyles on the document harmonisation project held on 29 September 2003, namely, the reference to Ms Clare Wilson "...when she is not off having babies".

29 The account given by the Second Respondent that the discussion on 9 September was in the context of children and that he had four children, one of whom is autistic, we do not accept. We reject that explanation. The Claimant was clearly upset by that statement. She said she was shocked by the question and did not know what to say. We also bear in mind and have taken into account our finding of fact in respect of the conversation shortly after the meeting on 9 September between the Claimant and Mrs Gorman and reference to children made by the Second Respondent to Mrs Gorman. The Claimant was worried about her future in the firm because it seemed to her, quite reasonably in the circumstances, that it depended upon whether she would be having any more children."

Claim 5: Pressure to change contractual hours

20.              Following that meeting, at various meetings in September and early October 2003, the Claimant in this part of her case claimed that she was put under pressure to change her original (not interim) contractual hours and that this constituted less favourable treatment of her as a part-time worker. The Tribunal upheld her claim saying as follows:

"37 Following on from the departure of Mr Rogers, the Second Respondent wanted a team which in his view was likely to take the department forward. That for him meant a team prepared to put in the hours required. A part-time senior management position did not quite fit in with the scheme. The Claimant was pressured by the First Respondent and Human Resources to change her contractual arrangements.

38 We look at the position of the Claimant under regulation 4(2) and concluded that she could be her own comparator. At the meetings in September, she did not have an identifiable role. There was pressure even at the highest level for her to change her hours and where she should work. No similar approaches were made in respect of the other senior managers as they worked full-time. The Claimant was, in our conclusion treated less favourably because she worked part-time. We disagree with Mr Epstein that causation had not been established. He submitted that the Second Respondent did not seek to pressurise the Claimant to change her hours on the ground that she was a part-time worker but did do so because he wanted her to work in the office during core hours. This ignored the part-time working arrangement that she agreed with Mr Rogers. She would work two days in the office and three and a half hours at home over the remaining three days. As a part-time worker, she was pressurised into changing her working hours. Causation is established. The Claimant suffered a detriment. The detriment need not be financial. Mr Epstein summed it up in his written submissions in the following way:

"A detriment is something which a reasonable person in the position of ML [the Claimant] might consider put her at a disadvantage."

(see the case of Shamoon -v- Chief Constable of the RUC [2003] ICR 337, Lord Hope).

39 The Claimant suffered a detriment in that her working environment was strained. She felt apprehensive about her future in the firm, made all the more worrying in view of the fact that there was an imbalance of power in the discussions. The atmosphere was confrontational and she felt unsupported by Human Resources. It was reasonable for her to feel that her working environment was hostile and intimidating.

40 …We have come to the conclusion that this claim is well-founded."

Claim 4: Paula Hodges' prejudgment of the grievance

21.              This part of the Claimant's case is based upon a grievance which she submitted on 6 November 2003. The grievance asserted less favourable treatment on the grounds of sex and of being a part-time worker and alleged victimisation, essentially in relation to the pressure to change her hours. The grievance was heard by Paula Hodges on 26 November 2003. The Tribunal accepted the Claimant's account of the grievance meeting where this is said by Ms Hodges:

"33 …so" the impression, again as I say, because I am seeing you first and haven't spoken to anyone, is that because George is trying to raise the profile of the department of the firm, I think it's important that there's a lot more of client facing, customer facing things going on, it's better for you to be in the office to do that, so if you can have a think.. So far as I am aware, the 8.30 am. to 4.30 pm. will be in place even though it's not set in stone."

34 In that statement, we have concluded that Mrs Hodges had come to the conclusion that It would be better for the Claimant if she was in the office carrying out her client-facing role. This statement was made during the interview with the Claimant. It was Mrs Hodges' first interview in the grievance process. It was in the Tribunal's view a prejudicial statement made prior to considering all of the evidence. At that time, Mrs Hodges was, understandably, aware of the Claimant's grievance. The comparator would be someone who had brought a grievance that did not contain the sex discrimination and victimisation elements and who had not lodged a grievance. There was a causal connection between the statement referred to above and the Claimant's grievance. We, therefore, have concluded that the victimisation claim has been proved by the Claimant. In this regard, we bear in mind the conclusion arrived at by Mrs Hodges to reject the grievance. The detriment was the belief that Mrs Hodges would not give her a fair hearing in relation to the hours issue."

22.              Following this meeting the Claimant launched her first Employment Tribunal proceedings on 8 December 2003. Ms Hodges' formal decision on the grievance, rejecting it, was sent on 10 December 2003 but she had not seen the Tribunal claim at that time.

Claim 10(i): Victimisation by Paula Hodges in failing to investigate

23.              Linked to Claim 4 is the Claimant's case that the Respondent, through Paula Hodges, victimised her because she had done the protected acts of lodging a Sex Discrimination Questionnaire and a grievance referable to the Sex Discrimination Act 1975. The Tribunal's conclusion is as follows:

"45. Claim No.10 is sex victimisation made against the First Respondent …. As regards Mrs Hodges, the protected acts are the first Originating Application, the questionnaire and the grievance documents. The comparator may well be a male person who had submitted a grievance. Would he have been treated any differently? We have concluded that he would have been. We accept Mr Sheldon's submissions on this point. Mrs Hodges had asked or invited the Claimant to consider at the commencement of the grievance investigation, working three and a half hours consecutively in the office before investigating her grievance. She stated that the First Respondent would like the Claimant to work half a day in the office. Mrs Hodges was prepared to describe the Second Respondent's behaviour in ways which did not acknowledge discrimination. Although her investigation was thorough, her conclusions were inadequate. The Tribunal cannot say that she should have found the grievances proved, however, the lack of any analysis of the evidence and findings in respect of the Claimant's detailed allegations, left the Claimant unclear as to what was the basis or bases for Mrs Hodges' conclusions- We have come to the view that Mrs Hodges' letter to the Claimant in relation to her conclusions, were structured having regard to the protected acts. The lack of any analysis of the evidence, we have inferred, was an attempt to prevent any information being used by the Claimant to strengthen her case against the Respondents. Mrs Hodges was quite capable of expatiating her findings and conclusions but chose not to do so. The detriment here was the Claimant having to challenge Mrs Hodges' conclusions as she was in ignorance of her reasoning. This was a great disappointment to her. As can be seen from her grievance letter, much time and effort was spent in setting out her complaint. We have, therefore, concluded that this claim is well-founded". (our emphasis)

24.              As can be seen, this paragraph relates to Ms Hodges' short letter dismissing the Claimant's grievance on 10 December 2003. As we have placed in emphasis there is one error and one lack of clarity in this paragraph, neither of which had been seen by the parties. The reference to "sex victimsation" is plainly to victimisation under the Sex Discrimination Act 1975. No point is taken on this. The reference to "a male person" as comparator seems inappropriate and indicates a confusion of expression. For victimisation under the Sex Discrimination Act 1975, the gender of the complainant and the comparator are irrelevant. When the point emerged at the hearing, Mr Hochhauser in reply sought to impugn it but he had to admit that if the Claimant was treated less favourably on that ground than a person, whether male or female, who had not submitted the grievance, she would succeeed. We think this is a simple error of expression, but if intended it does not threaten the finding.

Claim 6 – Mr Kalorkoti's treatment of the Claimant at a management meeting

25.              A management meeting was held on 11 December 2003. The Tribunal's finding and conclusion in relation to this claim, which is made against Herbert Smith and Mr Kalorkoti, are as follows:

"10.83 At the meeting on 11 December 2003 attended by Ms Wendy Vaughan, Ann Gorman, Mike Shore, Keith Price, the Second Respondent and the Claimant, the Second Respondent circulated a document listing priorities for 2004. He gave to those in attendance a copy of the Information Strategy document. Upon receiving it, Mr Price raised two matters, firstly, the absence of a management structure and, secondly, whether implementation of the strategy would lead to redundancies. The Second Respondent reply was that he would not be discussing those issues at the meeting. He said that he had taken 16 December 2003 out of his diary for meetings with senior management. He wanted their comments on the strategy document on or before that date. The Claimant, who had been given instructions by the Second Respondent to take her remaining holidays before the end of the year, asked of him, "George, as you know, it's my last day today before I'm off on holiday for Christmas?" He responded by saying, "Are you saying you won't come in on Tuesday?" Her reply was, "I need to find out whether this is possible, I do have a very young child and I can't commit to that until I know whether I can arrange for my childminder to look after her." He then said, "It's a reasonable management request." She responded by saying that she would do her best but if she was unable to attend personally at the office she would send her comments by e-mail. She was concerned not about the request but by the Second Respondent's tone of voice. We accept that according to Mr Price, Ms Vaughan and Mrs Gorman, that when the Claimant raised the issue of her childminder the Second Respondent became irritated and responded in a hostile and intimidating manner. We further find as fact that when Mr Price raised two issues one being the absence of a structure chart in the Information Strategy document and, the second, being whether it would lead to any redundancies, the Second Respondent responded in a reasoned manner. Stating that he was not going to discuss them at the meeting.

41.                          Claim No.6 is direct sex discrimination against the Respondents, based on the Second Respondent's treatment of the Claimant on 11 December 2003. We disagree with Mr Epstein that the Claimant had not established less favourable treatment compared with a hypothetical male comparator for whom all the material circumstances are the same. We do not accept that the Second Respondent threw the draft IS report at her as she alleged. Copies of the report slid along the table to those in attendance. The Second Respondent knew about the Claimant's holiday as it was he who had instructed her to take her outstanding holidays by the end of the year. The Claimant initially stated that she could not attend or respond by 16 December 2003 as she would be on holiday and had childcare commitments. Had it been a male senior manager, in our view, he would have been treated that person differently. The Second Respondent would have requested feedback whether by e-mail or personally, given the urgency of the situation. In any event, what was of concern to the Claimant was not so much the instruction in relation to the feedback but the Second Respondent's tone in constructing the building blocks for the hypothetical comparator to assess less favourable treatment, we take into account the reasoned way Mr Price was treated notwithstanding the fact that he had an ongoing issue with the Second Respondent's management style The hypothetical male comparator would have been treated differently. The Respondent stated that the Claimant was aggressive, we reject that account. Our findings lead us to conclude that the Second Respondent's tone changed when the Claimant raised the issue of her childminder. The detriment to her was the hostile unpleasant and intimidating working environment."

Claim 13(v) – Unfair dismissal

26.              The Claimant appealed against Paula Hodges' grievance decision to Mr Long. Quite separately on 7 January 2004 the Claimant was told at a meeting with Mr Kalorkoti that her position was under notice of redundancy due to a restructuring. This restructuring had begun with a draft report issued in May 2003. She appealed unsuccessfully against that decision and against the grievance decision so that on 27 January 2004, she was given notice of termination. She presented her claim on 4 March 2004.

27.              The Tribunal summed up the Claimant's case and its conclusion on unfair dismissal in the following terms:

"57. The final claim in respect of the Claimant's dismissal is that it was unfair, contrary to section 98, Employment Rights Act 1996. We do not conclude that it was a sham dismissal and automatically unfair. The Claimant was told by Mr Rogers that her position was going to be made redundant, hence the drawing up of the job description for Business Liaison Manager. Redundancy is a potentially fair reason for dismissal. Was it fair, having regard to section 98[4] Employment Rights Act 1996? Mr Epstein submitted that the guidelines in the case of Williams v Compair Maxam [1982] IRLR 83, EAT, were followed and, accordingly, her dismissal was fair.

58. We have concluded that the First Respondent did not go "the extra mile" on behalf of the Claimant. The decision was taken on 19 December 2003 to make her redundant and "not offer her alternative employment" is not consistent with the part time position that was discussed and offered her. It was, however, clearly too junior for her with the probability that she would reject it. She was told about her redundancy when she returned to work on 7 January 2004. The Business Analyst post she was interested in but unlike Mr Shore, who was accommodated by retaining the Switchboard responsibilities, no attempt was made to convey to the Claimant that travelling to the First Respondent's international offices would not be necessary in her case. This omission was quite serious for the Claimant as it would have meant that her employment would have been preserved rather than terminated on grounds of redundancy. It was very striking to us when the Second Respondent said in evidence that he would not have allowed either a pregnant woman or a young mother to do international travel. Such an attitude was critical to the Claimant's decision. She wanted to keep her employment as she enjoyed working for the First Respondent. The Business Analyst position would have suited her but no one considered informing her that international travel was not going to be a requirement in her case. It was for her the difference between employment and dismissal. That failure to inform her was fundamental and was more than procedural. It was substantive. Her employment would have continued. This point was either not considered or not given much weight on appeal as there was no reference to it in Ms Cearns' witness statement admitted in evidence. Accordingly, we have concluded that the Claimant was unfairly dismissed".

Discussion and conclusions

28.              We will take submissions, discussion of the submissions and conclusions in the same order as we have presented the factual background above.

Claim 1: Mr Kalorkoti's "any more children?" remark

(Paragraph 19 above)

29.              This was an adverse finding against both Respondents. The criticism is that an error of law is committed by the Tribunal's failure to analyse whether the comment amounted to treatment and detriment. In oral argument, however, Mr Hochhauser accepted that the comment might be a detriment depending on the circumstances. It is accepted that a single remark can be treated as racial abuse or sexual harassment, see Thomas v Robinson [2003] IRLR 7 and cases cited in it. He admitted crass and insensitive comments could be viewed in different ways depending on the context and timing. The Tribunal further was criticised for having failed to carry out the exercise required by reference to Law Society v Bahl [2003] IRLR 640 at paragraph 86 (Bahl) which provides as follows:

"It is clear from the structure of the statutory provisions that the need to identify a detriment is in addition to finding less favourable treatment on the prohibited ground."

30.              It was contended that the findings by the Tribunal recorded above (Reasons paras 28, and 29) did not identify the component parts as required by the judgment in Bahl.

31.              Mr Sheldon reminded us of the epigrammatic comment made by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 at paragraph 28 that "in law context is everything". The context for the making of the comments is amply demonstrated in the Reasons. The comment would not be made to a man. It clearly upset the Claimant. She did not know what to say. She was worried about her future. Her future apparently depended on whether she would have more children. The claim had been squarely put at a directions hearing paving the way for the liability hearing where "treatment" and "detriment" are both directly referable to the comments made at the meeting (see Reasons paragraph 5). In our judgment, an act taking the form of a single comment which would not be made to a man, and which has an adverse effect on a female claimant, is both less favourable treatment of her and constitutes a detriment to her. This ground of appeal is dismissed.

Claim 5: Pressure to change contractual hours

(Paragraph 20 above)

32.              This finding made against Herbert Smith was based upon in part a report of the attitude of Mr Kalorkoti made by Ann Gorman, the later Customer Services Manager to Ms Hodges who reported that "He will not have part-time working – comes out all the time" (Reasons paragraph 10.68). The Respondents' case is that the finding by the Tribunal that the Claimant was pressurised "as a part-time worker" does not fall within the Regulations. There appears in these submissions to be no criticism of the use by the Tribunal of the Claimant's term of "pressurised". But a distinction is sought to be drawn between hours which are part-time, and times of the day when those hours are worked, and the place of work - in our case, different start and finish times, and some hours being worked at home rather than all hours in the office. It is contended that the Tribunal misdirected itself in construing the Regulations.

33.              In our judgment, adoption of such a submission would seriously undermine the Regulations and the protection they give. The attitude of Mr Kalorkoti to part-time working was revealed and accepted by the Tribunal. The Tribunal made findings that such pressure would not have been brought to bear if she were not a part-time worker. Similar approaches were not made in respect of other senior managers because they worked full-time. The findings of the Tribunal are apt to demonstrate that pressure was brought upon her which would not have been brought had she been a full-time worker – the comparison is with herself when she was working full-time hours. Such pressure is less favourable treatment. The pressure was to change hours and location. All of the elements within the Regulations are satisfied. This ground of appeal is dismissed.

Claim 4: Paula Hodges' prejudgment of the grievance

(Paragraph 21 above)

34.              This is a claim of victimisation against Herbert Smith based upon the conduct of Paula Hodges. It is the sole ground of appeal which we uphold. The nature of the Claimant's grievance which was entrusted to Ms Hodges to hear was that, before investigating the grievance, Ms Hodges had asked the Claimant to consider working 3½ hours on a single day in the office and that she did so by reason that she had made a protected act i.e. lodging an SDA grievance. It must be recalled that the Tribunal held (Reasons paragraph 45) that it "cannot say that she should have found the grievances proved". It should also be borne in mind that the Tribunal found Ms Hodges' investigation was thorough (Reasons paragraph 10.76).

35.              The Tribunal found that the comment by Ms Hodges was made at the beginning of her investigation, for the start of her investigation into the Claimant's grievance was to interview her. The impression one gets from reading the Reasons is that these were the opening remarks of Ms Hodges. Yet they appear on page 17 of a 23 page transcript of the meeting. The Claimant accepted in her evidence (and we have been taken in detail to the agreed notes of evidence) that Ms Hodges' conclusion at the end of her investigation was to hope that the Claimant's grievance would be resolved satisfactorily.

36.              We accept the Respondents' contention, echoing the submission made by Mr Sheldon, that context is all. On this basis we have to say that the Tribunal made an error for it misunderstood and misconstrued this evidence. Given the positioning of the comment towards the end of the interview, and the Claimant's acceptance as to the purpose of Ms Hodges' conclusion, and that she carried out a thorough investigation reaching a conclusion which could not be faulted, we hold that the comment was not evidence of prejudgment. A brief examination of the transcript of the interview immediately before and after the passage extracted by the Tribunal indicates Ms Hodges suggesting a number of approaches including a possible conclusion by Ms Hodges that Mr Kalorkoti had behaved inappropriately.

37.              It should be noted that the prejudgment is said to have occurred prior to the conclusion of the investigation but it must be said that it was at a stage very substantially after the Claimant's grievance and her own oral presentation of it in the grievance meeting. Prejudgment might more logically be said to have occurred if Ms Hodges had first interviewed Mr Kalorkoti and formed the view and made the comment which she did before hearing the Claimant's side or even during the course of the meeting when the Claimant was interviewed after Mr Kalorkoti.

38.              With respect to the Tribunal, we hold that it misunderstood the evidence and the context in which the comment was made by Ms Hodges. It follows that we accept the Respondents' further submission that the Claimant had "an unjustified sense of grievance about an allegedly discriminatory decision" and this "cannot constitute detriment": Law Society v Bahl (above) paragraph 88; Shamoon v Chief Constable of the RUC [2003] ICR 337 HL para 35.

39.              If we are wrong in our conclusions and the Tribunal's finding is correct, we would reject the Respondents' submission for the reasons given by the Claimant. She had a grievance about a senior manager which was placed in the hands of a senior partner for investigation and, on the footing that the finding by the Tribunal stands, she was faced with a prejudgment as to who was correct before a full investigation.

40.              It was submitted that the Tribunal had failed to apply the correct objective standard to this aspect of the case. The Tribunal gave itself the correct direction paraphrasing the "unjustified sense of grievance" citation from Shamoon (above) (Reasons paragraph 24). That the standard is objective comes from the use of the word "unjustified" and also from a passage slightly above that cited in the speech of Lord Hope at paragraph 35 as follows:

"…One must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances, it was to his detriment?"

41.              The Tribunal had no difficulty in applying that objective standard to Claim 1, for the Claimant was held to be "quite reasonably" worried (Reasons paragraph 29) above and also to Claim 5 (Reasons paragraphs 39). This, however, does not appear in relation to claim 4, where the detriment is entirely the Claimant's subjective belief. We accept the submission that the Tribunal has here failed to apply the objective standard to the facts it found. That is sufficient for us to allow the appeal on this claim, but two further points are made which we will address, lest we be wrong in the foregoing.

42.              Mr Hochhauser submitted that the Tribunal had failed to examine the mental processes of Ms Hodges and this amounted to an error of law. Reliance was placed on the speech of Lord Nicholls in Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065 at paragraph 29 where he said this:

"Contrary to views sometimes stated, the third ingredient ("by reason that") does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the "operative" cause, or the "effective" cause. Sometimes it may apply a "but for" approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [1999] ICR 877, 884-885, a causation exercise of this type is not required either by section I(I)(a) or section 2. The phrases "on racial grounds" and "by reason that" denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact".

43.              Support for that submission comes from the use by the Tribunal of the words "a causal connection". By this, it is said, the Tribunal is applying a "but for" approach. As Lord Nicholls said in Nagarajan v London Regional Transport [2000] 1AC 501 at 511:

"This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances".

44.              In our judgment, that submission fails on the facts in this case. The Employment Tribunal has examined carefully the statement which Ms Hodges made and the conclusion which she had come to. It expressly deals with what Ms Hodges was "aware" of and her "impression". In any event, the criticism is of Ms Hodges' making a "prejudicial statement." It is plainly by the use of that adjective, and its fuller description of the statement, a reference to the state of mind of Ms Hodges through her judgement and prejudgement. These are archetypal references to the mental processes of a decision-maker. The finding by the Tribunal is that Ms Hodges had made up her mind "prior to considering all the evidence", another reference to her state of mind. In the context of those findings therefore, the reference, said to be improper, to "a causal connection" is not an error.

45.              Furthermore, an approach based exclusively on Lord Nicholls' speech in Khan gives a simple solution, but this is more complex when the speech of Lord Hoffman in Khan, also relying on Nagarajan, is placed beside it, for he said this:

"56. There are parallels between the purposes of sections 1 and 2 of the Race Relations Act 1976 (and between the corresponding sections 1 and 4 of the Sex Discrimination Act 1975): see Nagarajan v London Regional Transport [1999] ICR 877. But the causal questions which they raise are not identical. As Mr Hand, who appeared for Mr Khan, readily accepted, one cannot simply say that Mr Khan would not have been treated less favourably if he had not brought proceedings. It does not follow that his bringing proceedings was a reason (conscious or subconscious) why he was treated less favourably. In Nagarajan's case Lord Steyn said, at p 893, that section 2:

'contemplates that the discriminator had knowledge of the protected act and that such knowledge caused or influenced the discriminator to treat the victimised person less favourably than he would treat other person…But…it does not require the Tribunal to distinguish between conscious and subconscious motivation'.

57.           This is not at all the same thing as saying that but for the protected act, he would not have been treated in the way he was".

46.              As can be seen, that passage cites the speech of Lord Steyn. Both Lord Hoffman and Lord Steyn use language associated with causation. So, incidentally, did Lord Nicholls twice in his "because" passage in Khan at paras 31 and Lord Mackay at para 44. What emerges from this, in our judgment, is that it is wrong to take a "but for" analysis and resort must be had to finding the reason why a person did a particular thing. As long as that distinction is clear to the Tribunal, its use of the words "causal connection" is not an error of Law.

.

47.              The second subsidiary issue in relation to this claim, although it was put very firmly at the forefront of Mr Hochhauser's submissions, is that Claim 4 was not put to Ms Hodges. The law does require a complaint to be put whether in the written statements of case before a hearing (inaptly thoroughout this case called "pleadings" in a jurisdiction where they have never existed) or in cross-examination: see Bahl in the Court of Appeal, paragraph 144. The answer to this submission is again found in the order for directions, cited at Reasons paragraph 4. It specifically involves Ms Hodges and is therefore the responsibility of Herbert Smith and it complains of her "asking [the Claimant] to consider working 3.5 hours consecutively and in the office before investigating [the Claimant's] grievance". (our emphasis)

48.              We also were taken in detail to her cross-examination where she acknowledges the suggestion was made that she had made up her mind beforehand. On the basis of those two pieces of material, we would reject the submission that Herbert Smith and Ms Hodges, who was not a Respondent did not know that this complaint was being made.

Claim 10(i): Victimisation by Paula Hodges in failing to investigate

(Para 23 above)

49.              In simple terms, the claim of victimisation was upheld because Ms Hodges did not provide the kind of information which she would have provided had a grievance of sex discrimination not been made. She failed to provide that information in order to prevent the Claimant from using the material to strengthen her case. Before coming to that conclusion, the Tribunal compared the detail of the Claimant's written grievance and Ms Hodges' written response, making this finding:

"10.76 Having regard to the detailed nature of the Claimant's grievance letter and the various matters raised by her and put to the witnesses, we find that the letter from Mrs Hodges lacked detail. There was no detailed analysis of the evidence; no findings of fact on the issues in dispute and no evidence or findings of fact in support of the various conclusions she arrived at. In evidence, she told us that the remarks made by the Second Respondent were not "very PC and should not be said. They were not bullying, harassment or victimisation. I accept that they should not have been made in this day and age." We raise these concerns notwithstanding our finding that Mrs Hodges' investigation was thorough".

50.              Herbert Smith's criticism of this finding is, first, that the point was not made by the Claimant. This is unsustainable in the light of the Further Particulars provided of the Claimant's case that Ms Hodges did not deal with all or a sufficient number of the points of her grievance, she failed thoroughly to investigate the allegations and to make findings of fact about what occurred, setting out what Ms Hodges accepted or rejected and explaining or providing evidence for and further reasoning for the findings. We hold that in those particulars the Claimant is right in asserting that it was not necessary for her to allege that the act was deliberate: liability would be founded if the action were conscious or subconscious: Nagarajan (above).

51.              It was finally contended in relation to Claim 10(i) that the action of Ms Hodges in being deliberately unanalytic, if the Tribunal's finding is upheld, was not unlawful. Reliance was placed on the judgment of Lord Nicholls and Lord MacKay in Khan (above) as follows:

"31. … Employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation. This accords with the spirit and purpose of the Act. Moreover, the statute accommodates this approach without any straining of language. An employer who conducts himself in this way is not doing so because of the fact that the complainant has brought discrimination proceedings. He is doing so because, currently and temporarily, he needs to take steps to preserve his position in the outstanding proceedings. Protected act (a) ("by reason that the person victimised has-(a) brought proceedings against the discriminator…under this Act") cannot have been intended to prejudice an employer's proper conduct of his defence, so long as he acts honestly and reasonably. Acting within this limit, he cannot be regarded as discriminating by way of victimisation against the employee who brought the proceedings.

….

44.    The advice of the solicitor advising the chief officer was laid fully before the industrial tribunal and no challenge was made of it. It was to the effect that because there was pending litigation raising issues which were relevant to the reference it would be inappropriate for the chief officer to give a reference. In my opinion in these circumstances the chief officer having acted in accordance with that perfectly understandable advice did not treat Sergeant Khan less favourably than he would have done others applying for a reference by reason that Sergeant Khan had brought proceedings under the Act".

In other words, an employer is entitled to take the steps which Ms Hodges did.

52.              To this, Mr Sheldon raises a persuasive argument that the point was not put before the Employment Tribunal and the EAT's jurisprudence indicates that only exceptionally should a new point be allowed to be taken on appeal: See our judgment in the Blackpool Fylde and Wyre Society for the Blind UKEAT/0035/05 as follows:

"27 Both parties were offered the opportunity to consider the judgment of the Employment Appeal Tribunal and the Court of Appeal in Orthet Limited v Sarah Vince-Cain to which we will return.

The legal principles

28. The legal principles to be applied in a case such as this have been approved by the Court of Appeal, most recently in Orthet. There were two judgments which I handed down on behalf of the Employment Appeal Tribunal and two judgments of the Court of Appeal which Lord Justice Sedley, with Lord Justice Peter Gibson agreeing, handed down refusing permission to appeal.

29. In our first judgment UKEAT0801_03, we set out the law as we understand it in relation to the hearing of new points at the Employment Appeal Tribunal:

'As can be seen from our first preliminary ruling, this is a point which is free of authority. We do not shrink from our duty to determine a point fairly put to us by an Appellant aggrieved at a decision on a matter of law made by an Employment Tribunal. The principle, however, which requires us to operate when a new point arises is clearly set out in the following authorities, in addition to Kumchyk: Jones v The Governing Body of Burdett Coutts School [1999] ICR 38 CA; Hellyer Brothers Ltd v McCleod [1987] ICR 526 CA; Glennie v Independent Magazines (UK) Limited [1999] IRLR 719 CA; Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 CA; Divine-Borty CA; Craig EAT; Dimtsu EAT; Derby EAT. Of those, 5 Court of Appeal and 4 EAT authorities dealing with the issue of new points, it is fair to say that they point in one direction, which is that new points may only in exceptional circumstances be raised at the EAT. The high water mark we suppose is Mensah where a point of law wrongly conceded by counsel could not be unpicked on appeal to the EAT however unfair that result might appear. Those then are the principles which inform our approach to the submissions.'

30. The Court of Appeal of appeal approved of that approach: see 24 June 2004, para 12

31. It again approved that approach when the matter came back before it: see 25 September 2004, para 20.

32. In the judgment of the Court of Appeal, Robert Walker LJ in Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 paragraphs 19, 20 and 29, it is clear that a new point of law may not be taken simply because it is arguably or even demonstrably correct by the time it reaches appeal."

53.              He points out that the case was run below by experienced Counsel and Herbert Smith as a tribunal user knows the law. No reasons, whether exceptional or otherwise, have been pointed out to us, giving us justification for exercising our discretion in Mr Hochhauser's favour. We will not do so.

54.              If we were to descend into this matter, it must be borne in mind that both in Khan and in the other authority cited to us, St Helen's MBC v Derbyshire & Others [2005] EWCA Civ 977, a positive case was put by a witness indicating why a step was taken which might otherwise be regarded as victimisation: see Khan at paragraphs 31 and 44. No such positive case was advanced by Ms Hodges and so even if, procedurally, we had decided to allow the point to be argued, it would necessarily fail for the absence of any factual material to back it up.

55.              We reject the contention ultimately made by the Respondents that the decision on this claim was perverse. An overwhelming case must be made on the facts for this to succeed: Yeboah v Crofton [2002] IRLR 634 CA. There was ample material upon which the Tribunal could draw inferences and make conclusions.

Claim 6 – Mr Kalorkoti's treatment of the Claimant at a management meeting

(Paragraph 25 above)

56.              The Respondents' challenge to the finding under this claim is said by the Claimant to be unclear and imprecise. The Respondents argue, by reference to an earlier finding of the Employment Tribunal (Reasons paragraph 32) that its findings in these two paragraphs is inconsistent. It is suggested that there is confusion between the concepts of direct and indirect discrimination. We see no difficulty in finding a properly made out claim of direct sex discrimination. The Tribunal found that a male senior manager reporting childcare commitments would have been treated differently. The Tribunal accepted the Claimant's description of the incident and its effect on her. It did not, nor was it necessary for it to, make any findings about whether a considerably larger proportion of women than men have childcare responsibilities and are unable to commit to full-time working, the essence of an indirect sex dsiscrimination claim on this subject. This claim was made as direct discrimination and there are adequate findings of fact leading to the establishment of liability for less favourable treatment on the ground of sex leading to the Claimant's detriment. This ground of appeal is dismissed.

Claim 13(v) – Unfair dismissal

Paragraph 26 above

57.              The Claimant made two points. The Tribunal rejected her first, that the dismissal was automatically unfair for being a sham. Secondly, Herbert Smith did not treat her fairly. It is not disputed that within the duties set out in Williams v Compair Maxam [1982] IRLR 83, an employer dealing with a potential redundancy should take reasonable steps to see if alternative work is available. The Tribunal found that Herbert Smith had unfairly dismissed the Claimant because it failed to draw to her attention an aspect of the job of business analyst which was that international travel was not required.

58.              An issue arose as to whether or not, had the job been offered to her on a full-time basis, she would have accepted it. We have been taken in detail to the evidence of the Claimant and shown that she accepted that, faced with redundancy, she would have been interested in the business analyst role. The reason for not accepting the offer, which had not been properly explained to her, was that it involved international travel. Furthermore, the evidence was that the business analyst role could have been open to the Claimant on a part-time or job share basis. In our view, the previous attitude of the Claimant to working full-time, as opposed to part-time, was found by the Tribunal to have given way to a more flexible approach faced with the ultimatum of redundancy. That was her final position on re-examination.

59.              Secondly, it is contended by the Respondent that the Tribunal, in the passage cited at Reasons paragraph 58, had misdirected itself in law. The phrase "the extra mile" is adopted from the submissions of Mr Sheldon in his written closing. This must be seen in context. The Claimant understood the role to involve international travel, yet Mr Kalorkoti had indicated that that would not be a requirement for the Claimant since neither pregnant women nor young mothers would be subject to that requirement. Yet no one informed the Claimant of that situation, which of course was hers. It must be borne in mind that an employer in such a situation is to take such steps as are reasonable. It involves providing a potentially redundant employee with sufficient information for her to make relevant decisions: see Modern Injection Moulds Limited v Price [1976] IRLR 172 at paragraph 15.

60.              An updated approach was taken by the EAT to this situation in Fisher v Hoopoe Finance Limited UKEAT/0043/05 where HHJ Birtles and members said this:

"17. However, in our judgment good industrial practice has moved on since Modern Injection Moulds Ltd. The case was decided on 30 April 1976 some 29 years ago. In our judgment the law should be that where there are one or more possibilities of suitable alternative employment available to an employee who is to be made redundant then the employer should normally inform the employee of the financial prospects of those positions. We note that it may not be practicable to provide such information because the financial prospects of a particular position may not yet have been determined. Furthermore, a failure by an employee to indicate an interest in a particular position and/or to request further information (including financial information) is a factor which the Employment Tribunal may wish to take into account in reducing an award under Sections 112 (3) and 123 (6) of the Employment Relations Act 1996.

18. In this case … the Respondent either had that information available to it when referring the Claimant to those vacancies (we emphasise the plural) or it could easily have found out what the potential financial prospects of those positions offered by Southern Finance Ltd were to be. No evidence was produced to the Employment Tribunal to explain why no information about the financial prospects of those positions was unavailable in April 2004. For these reasons we think the Employment Tribunal was in error".

61.              The Tribunal cannot be criticised for adopting a colloquial submission in writing of Counsel and again, seen in context and against those two authorities, it did not fall into the error of imposing too high a standard above that of the reasonable employer upon Herbert Smith. This ground of appeal is dismissed.

Disposal

62.              We would very much like to thank all Counsel for their considerable help in this case, both orally and in writing. The appeal on claims 1, 5, 10(i), 6 and 13(v) is dismissed. The appeal on claim 4 is allowed and the Tribunal's finding that the Claimant was victimised is substituted by a finding that she was not victimised, and dismissal of claim 4. There will now be a full hearing before us of the appeal on remedy.