Hillman v BBC Resources Ltd. [2004] EWCA Civ 1760

Case No A2/2004/0816[2004] EWCA Civ 1760
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Prophet)
Venue Royal Courts of JusticeDate Monday, 29 November 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE MUMMERY
LORD JUSTICE RIX
Between
LIZ HILLMANAppellant-v-
Between
BBC RESOURCES LTDRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MISS CATHERINE RAYNER (instructed by Rakesh Patel, Thompsons of London) appeared for Appellant for The Respondent was not represented and did not attend
J U D G M E N T

LORD JUSTICE MUMMERY:

[1]This is a renewed application for permission to appeal. The application is made by Miss Catherine Rayner, on behalf of the applicant Miss Liz Hillman. Permission is sought to appeal against the decision of the Employment Appeal Tribunal, His Honour Judge Prophet presiding, on 30 March 2004.[2]The Employment Appeal Tribunal dismissed Miss Hillman's appeal against a decision of the Employment Tribunal which is contained in its Extended Reasons sent to parties on 15 August 2003. The Employment Tribunal dismissed Miss Hillman's claims for sex discrimination and victimisation against her employers, BBC Resources Ltd.[3]In order to obtain permission to appeal, it is necessary to show that there is a real prospect of the appeal succeeding. In cases of sex discrimination in employment, as other employment cases, it is necessary to show an error of law in the decision of the Employment Tribunal which has a real prospect of success. The Employment Appeal Tribunal explained why they were unable to find an error of law. They refused permission to appeal, despite some initial muddle as to whether permission to appeal was granted. It became clear that it had not been granted.[4]An application was made to this court which was considered by Lord Justice Peter Gibson on the papers. He said, on 19 October 2004, that there was no real prospect of the proposed appeal succeeding. He said in his written reasons:
"The Employment Tribunal explains in paragraph 5 (ab) why less favourable treatment was now shown by reference to the actual comparators belatedly identified by the appellant and states that her case in essence was by reference to a hypothetical comparator. The Employment Tribunal further explains in paragraph 5 (aa) to (ag) why that case failed and states the findings of fact which support that conclusion. The Employment Tribunal set out in paragraph 3 as part of the relevant law both s. 63A SDA and the guidance given in Barton and while it does not expressly state that the appellant established facts from which discrimination could be shown in the absence of an adequate explanation, on a fair reading of the decision the Employment Tribunal did accept that the burden had shifted to the respondent, but found that that burden had been discharged. There is no other compelling reason why this appeal should be heard."
It is in those circumstances that the renewed application is made.[5]The background to the case is that Miss Hillman started to work for BBC Resources as a trainee camera operator in December 1991. She became a camera woman. She had been, between 1991 and 1996, assisting particular camera supervisors on occasions. She started to make complaints about the allocation of work. She complained that she had been routinely not selected to do work with any of the three camera supervisors with special expertise, referred to as the "super supervisors". Because of that, she was denied experience on their crews and denied opportunities to gain expertise in using particular cameras. She was more limited than men who were camera operators in the scope of work she was offered. It was in those circumstances that she made complaints. She says that as a result of raising these issues she was victimised in the allocation of work and in the request she made for part-time work. She has been working part-time since April 2001.[6]It was in those circumstances that she presented to the Employment Tribunal on 8 August 2001 an originating application complaining of direct discrimination on grounds of sex. She was at that time, and has throughout been, represented by solicitors with great experience in this type of case. She was also represented in the Employment Appeal Tribunal, and here, by Miss Rayner. In the details of her complaint she said in paragraphs 2 and 3:
"Work is allocated to camera operators by camera supervisors, who choose a particular crew to work on a particular programme. Over the years it has become apparent to me that certain camera supervisors, all of whom are male, will not have female camera operators working for them. They often use less experienced camera operators or freelance camera operators, rather than use me or other female camera operators. I believe that this pattern of behaviour is discriminatory against me on the grounds of my sex. As a result of the discrimination I have suffered, my career has been adversely affected. I have been prevented from working on the more popular and prestigious programmes."
It will be noted that neither in the passage quoted, nor in the remaining paragraphs of the details of the complaint, has any attempt been made to identify a comparator male camera operator. There were better particulars provided, but no identification of any actual or hypothetical comparators in those pleadings.[7]We have been told that before the matter started - which was in May 2003, and lasted for ten days - it became apparent that both sides had selected comparators. This was apparent from the witness statements that were exchanged, from the bundles of documents that were put in evidence and from the results of an internal investigation which had been ordered by the respondent into the allegations of sex discrimination.[8]The matter was heard by the Employment Tribunal. Both sides were represented by counsel. There was a lengthy hearing which resulted in the unanimous decision of the tribunal that the applicant's complaints of sex discrimination and victimisation failed. I should emphasise that the case was presented throughout as a case of direct sex discrimination and not, as one might have thought from reading the IT1, as a case of indirect sex discrimination based on some practice or rule which had greater adverse impact on women than men in this area of employment by the BBC.[9]The crucial parts of the Extended Reasons are contained in the part of the decision that deals with the tribunal's assessment. I should refer to the fact that before reaching that part of the Extended Reasons the tribunal had set out in detail both the relevant statutory provisions and the main authorities on direct sex discrimination, in particular the provisions in the Sex Discrimination Act, the amendments which have brought in changes in respect of the burden of proof in Section 63 (A) and the leading decisions in the House of Lords on both direct discrimination on grounds of sex and on victimisation.[10]In her submissions Miss Rayner said she had concerns about the way in which certain aspects of the law were treated by the Employment Tribunal in this section of the Extended Reasons, but she accepted, rightly in my view, that she was unable to point to an error of law in the self- directions in that part of the Extended Reasons. There was then a section I need not deal with about time limits and the reasons to extend them on just and equitable grounds. There is a long section in paragraph 4 setting out the material facts which the tribunal found and which they take into account.[11]The main criticisms that Miss Rayner has made are in relation to the findings of fact, or rather the absence of findings of fact, by the Employment Tribunal in relation to two aspects of their decision: first, in relation to the comparators, and, secondly, in relation to the explanation given by the respondent BBC for the less favourable treatment of Miss Hillman. The criticisms that are made I will deal with first and then I will go to the decision in the relevant paragraphs.[12]Miss Hillman's first main point is that the Employment Tribunal erred in law by failing to assess the comparators correctly. They failed to apply the law correctly in explaining the process of their reasoning on the comparators. Their most serious error was not to make findings of fact about the qualities, circumstances and treatment of any of the individual named men who were referred to in the evidence as actual comparators or as cases which could be used to construct a hypothetical male comparator. She said the Employment Tribunal had not dealt with the evidence of more favourable treatment of some of the comparators who were male but were in similar material circumstances to Miss Hillman. In a sentence, the error was lack of consideration and fact finding in relation to the comparators.[13]A similar criticism is made on a ground which is obviously relevant to discharging the burden of proof. Miss Rayner said that the Employment Tribunal had failed to make a clear finding that there was a prima facie case for the BBC to answer and they had then failed to assess, in a legally correct manner, the validity of the reasons put forward by the BBC which, it was contended, were not discriminatory reasons. Again, the tribunal had failed to find facts which they should have done. There were a number of areas in which findings of fact ought to have been made with regard to the explanations put forward by the BBC: for example, in relation to the issue of "attitude" by Miss Hillman, in relation to the matter of crew continuity, and in relation to the matter of availability to do assignments.[14]The particular passage in which these criticisms were focussed is in paragraph 5 (ab) of the Extended Reasons, referred to by Lord Justice Peter Gibson in refusing permission on paper (page 100 of our bundle). The tribunal said:
"The respondents did not fail to investigate the complaints which she made. Insofar as she alleged that there were specific occasions of less favourable treatment in relation to the 'Parkinson' and 'Mr Charity' shows or the preference shown by Mr Box for Dave Bowden, there were reasons for the crewing decisions which were not gender discriminatory. Insofar as some supervisors could be shown to have few women in their crews as camera operators, this was shown not to arise from a conscious or subconscious decision of supervisors to treat women less favourably. The fact was that the applicant had between 1995 and 1999 become a part of the regular crew of John Vincent and therefore it was not possible for her to also become a regular crew member of other crews, particularly for the 'super supervisors' where crewing opportunities were rarely available. She was building a career nevertheless and it has been shown by the respondents, by reference to actual male or hypothetical comparators, that she was not treated less favourably as a woman, since all camera operators were faced with the same hurdles to overcome at the outset and early years within Studios. The applicant's case was put on the basis that by comparison with her male counterparts including those recruited in 1991, she was treated less favourably. However, it was established by the respondents that individual careers, regardless of gender, developed in a variety of directions. Ms Smith, for example, had transferred to lighting in 1996, for which she had a particular flair. The applicant's case was, in essence, a hypothetical one that but for the fact of her being a woman, she would have been operating cameras in the crews of Messrs Saunders, Box and Tivers. [They are the three super supervisors]. The references to actual comparators were too diverse to show, by like for like comparison, that the applicant was treated less favourably than named individuals."
[15]Miss Rayner says - I think with some justification - that that was a rather compressed way of treating the evidence heard by the tribunal about comparators by reference to actual male employees, some being named by Miss Hillman and others being named by the respondent. She says that they should have made specific findings of fact in relation to the qualities, circumstances and treatment of the various comparators. This was, she said, something that recent authorities had emphasised in their decisions. She referred, in particular, to the decision of the Employment Appeal Tribunal in Sinclair Roche & Temperley v Heard [2004] IRLR 563 where it was said - "In order to find discrimination, an Employment Tribunal should set out the relevant facts, draw its inferences if appropriate and then conclude that there is a prima facie case of unfavourable treatment by reference to those facts, and then look to the respondent for an explanation to rebut the prima facie case. If the tribunal satisfies itself that there has been on the face of it unfavourable treatment, it has effectively only reached halfway. It must set out clearly its conclusions as to the nature and extent of such unfavourable treatment, so that the respondent can understand what it is it has to explain." I have read there an extract from the headnote of the report. There are particular passages, in particular between paragraphs 10 and 16, in which the position is explained in more detail by reference, among others, to another authority cited by Miss Rayner of University of Huddersfield v Wolff [2004] IRLR 543, which again emphasises the importance of making findings of fact. She referred to paragraph 26 in which the Employment Tribunal said:
"The right course, therefore, for the tribunal, had it set out at first to find material facts, but in any event even though it did not quite follow that format, would be to address s.63A and, in particular, to conclude that the burden moves where the applicant has proved facts from which inferences could be drawn that the respondents have treated the applicant less favourably on the grounds of sex. It must therefore arrive at a conclusion that there is a prima facie case that the respondent has treated the applicant less favourably on the grounds of sex. Once it has done that, then it passes to consider the respondent's explanation; it must, if it has not already done so, make findings of fact, or draw inferences from findings of fact, for the purposes of concluding whether any of the explanations put forward by the respondent satisfy them, the burden being on the respondent to show that the less favourable treatment was not on the grounds of sex."
Reference was also made to Chamberlain Solicitors v Emokpae [2004] IRLR 592.[16]Miss Rayner submitted that the tribunal had not approached the fact finding function in that way. It should have made specific findings of fact in relation to the different kinds of sex discrimination which were alleged. It should have made findings of fact in relation to the actual comparators put forward by each side. It should have made an express finding of fact that a prima facie case had been established in relation to those matters before it then proceeded to deal, as it did, with the explanations put forward by the BBC.[17]In my view there is some justification in these criticisms. No decision of an Employment Tribunal is perfect. No doubt, this decision could have been improved by setting out, in even greater detail than it already had done, the process of its fact finding and its reasoning to the conclusions it had expressed. In my view, it is not enough to make these criticisms of ways in which the decision could be improved. The question is whether these criticisms disclose that there is an error of law by the tribunal in its decision. In my view the reasons which the tribunal has given in this 31-page decision are sufficient to support its conclusion that there was no sex discrimination or victimisation in this case. On the specific points which have been made by Miss Rayner, it is made clear at the end of paragraph 5 (ab) what the tribunal's conclusions were about the evidence relating to comparators whether actual or hypothetical. They said:
"The references to actual comparators were too diverse to show on a like for like comparison that the applicant was treated less favourably than named individuals."
[18]In my view, although that may be thought an over-brief way of explaining that conclusion, it is sufficient to justify the decision they made. I would not regard the absence of further findings as amounting to an error of law. As I explained to Miss Rayner during the course of argument, appellate courts have to keep a sense of perspective about criticisms made on the drafting of decisions, in particular whether they should be more detailed or not.[19]What the applicant is seeking in this case is permission to appeal which, if the appeal is successful, would inevitably lead to a direction that the whole of this case has to be re-heard by a different tribunal. It is not one of those cases in which an appellate court or tribunal would be in a position to substitute a different decision. The most it could say is that there is some error in the initial decision which justified the matter being re-heard.[20]I have reached the conclusion that the criticisms that have been made, very clearly and cogently by Miss Rayner, do not amount to an error of law in the conclusions of this tribunal that the claim for sex discrimination and victimisation fail.[21]I also have to add, as may have been picked up from the earlier comments in my judgment, that the unsatisfactory nature of the evidence about comparators may well have existed in this case from the very beginning. It is important in direct sex discrimination cases, as in direct race discrimination cases, for the pleadings in the case to identify who are the actual or hypothetical comparators. This is not an over-technical approach to a broad brush jurisdiction. It is important that before evidence starts to be prepared - not just heard - the parties know what the issue is about comparators. If the comparators are not identified in the initial originating application they ought certainly to be identified in the particulars given or at any directions hearing that is held in order to identify the issues on which evidence is going to be brought and heard by the tribunal.[22]It seems to me that the comments made by the tribunal in paragraph 5 (ab) of their decision is borne out to some extent by the pleading history of this case.[23]No doubt, Miss Hillman will be disappointed to know that, in my view, there is no real prospect of this appeal succeeding. I have carefully considered the decisions of the Employment Tribunal and the Employment Appeal Tribunal in the light of Miss Rayner's criticisms, and the conclusion I have come to is that this application should be refused because there is no real prospect of the appeal succeeding.[24]The application is refused.

LORD JUSTICE RIX: I agree.

Order

Application refused.