Select Appointments Plc v Vandenberghe [1992] UKEAT 587_91_1206

EAT
Select Appointments Plc v Vandenberghe
[1992] UKEAT 587_91_1206 · 1992-06-12
MR JUSTICE KNOX: This is an appeal by Select Appointments plc against a decision of the Industrial Tribunal sitting at Reading on the 9th April and 10th July 1991.The decision was that the Applicant's, Mrs E J Vandenberghe, application for relief in respect of discrimination contrary to the Sex Discrimination Act, was successful.The facts are within a fairly narrow compass in that Mrs Vandenberghe had a series of interviews with Select Appointments plc officers during July and August of 1990. As a result of that on the 16th August of that year she was told that she had got the job for which she applied, which was as a recruitment consultant in an employment agency. She started work on the 17th September. Two days later she discovered that she was pregnant and she, as required by her terms of employment, which were sent to her when she was taken on under cover of a letter of 16th August, gave notice to her immediate superior of that fact. There then ensued a certain amount of "toing and froing". At first there were various options regarded as being open for her notably, one to leave their employment; secondly to stay in Reading, which was where she was to be taken on and where there was a good deal of work, which she anticipated, with encouragement from her employers, would fill the gap between her basic salary and her total take-home pay by substantial commission payments. The third possibility, which was the one that crystallised to the one that eventually was left to her, was that she would transfer to another office at Maidenhead which for reasons of a personal and financial nature, she, at the end of the day, did not accept. She accordingly left within a very short time of her original employment on the 26th September 1990. It is perfectly clear that her pregnancy was a factor in the situation that thus arose, of her leaving Select Appointments employ, and it was on that footing that her Originating Application was based. She presented that on the 18th December 1990 saying that her complaint was, what she described as, "right not to be unfairly dismissed for reasons connected with pregnancy".The Industrial Tribunal dealt with the matter by setting out the basic facts which were not very seriously in dispute. They put the position of Select Appointments plc in paragraph 12 of their decision, wherein they quoted a letter that had been written by Select Appointments plc's solicitor on the 27th February 1991 in response to an Order for Further and Better Particulars. What that letter had said, and this is set out at paragraph 3 in the decision below, was this:"`The respondent had employed the applicant at its Reading branch as a permanent consultant in the hope that she would be able to develop and build up the business at that branch. It would have taken many months before the business would have developed to the extent where the applicant was profitable. The respondent was informed of the applicant's pregnancy very shortly after she joined the company. This meant that she would have been leaving their employment after only 3 to 4 months. The respondent therefore wanted to transfer her either to the Maidenhead branch or to the Bracknell branch where there was a more urgent need for staff and where the applicant would have been more profitable in the short period she was to remain with the company. [Now we come to the critical sentence] Had the applicant been a man who had told the respondent that he would have had to leave their employment after only 3 to 4 months then he would have been treated in exactly the same way'".In relation to that the Industrial Tribunal, in paragraph 12 of its decision, says this:
"This submission is important in 2 ways. It in effect links the fact of the applicant's pregnancy with the effect on her future employment and on her profitability. Secondly it compares the applicant's situation, when pregnant, with that of a man who had told the respondent that he would have to leave their employment after only 3 to 4 months and would have been treated in exactly the same way. We do not think it necessary to analyse that analogy because of what we shall say subsequently in paragraphs of this decision."
The Industrial Tribunal thus has, for reasons which then seem to it to be good, and which they subsequently set out, expressly declined to make any finding at all on the question of how a man would have been treated in as near comparable a situation as can be devised. The subsequent paragraphs rehearsed on the one hand the decision of this Tribunal in Webb v. EMO Air Cargo (UK) Ltd [1990] ICR 442, where, as the Industrial Tribunal accurately said it was held that the test to be applied in such circumstances was whether the woman had been less favourably treated than a man would have been treated in comparable circumstances, for example, where a man needed a similar period of absence due to a medical condition. The Industrial Tribunal in this case, again as it seems to us clearly correctly, described that decision as clear guidance, but the Industrial Tribunal then went on to say that it appeared to them to conflict with decisions of the Court of Justice of the European Communities, notably Dekker v. V J V-Centrum [1991] IRLR 27 and another case, which emulating the Industrial Tribunal, I shall not try to pronounce in full but call Handel's [1991] IRLR page 31, as indicating that the decision in Webb v. EMO Air Cargo (UK) Ltd was incorrect. Whatever the merits of that conclusion might have been at the time when Webb's case was only decided in the Employment Appeal Tribunal, and in passing we would say that it is very doubtful how far an Industrial Tribunal should, when there is a case which is directly in point in this Tribunal, prefer European authorities which have been considered in the Employment Appeal Tribunal decision itself, nevertheless, whatever the rights and wrongs of that, now that Webb's case has been before the Court of Appeal, as it has, the report being [1992] IRLR 116, it is clear in our view that there is authority which is binding upon us, and a fortiori, upon an industrial tribunal, that the comparative approach which was adopted in Webb's case both in the Employment Appeal Tribunal and in the Court of Appeal, is the one which rules and that the Dekker case is not authority for the proposition that any dismissal connected with pregnancy, per se, constitutes direct discrimination on grounds of sex. It therefore seems to us that we are bound by authority which is binding on us not only to the effect that Webb's case was correctly decided but also to the effect that the European Court of Justice authorities, which in this case the Industrial Tribunal referred to, are not authority for the proposition for which the Industrial Tribunal cited them. In those circumstances, it seems to us inevitable that this appeal should be allowed because, in that sentence which I read from paragraph 12 of the Industrial Tribunal's decision there was a specific refusal to carry out the process, which in our view, is an inevitable one, namely that of comparison with a male placed in similar circumstances, so far as that can, in the particular case, be done.It therefore seems to us necessary that this appeal should be allowed and that the matter be remitted to the Industrial Tribunal to carry out the process that Webb v.EMO Air Cargo (UK) Ltd requires.At an earlier stage today we gave our decision that there was a plain error of law in the Industrial Tribunal's decision in this case, which meant that the decision as such could not stand, we need not go back to that. The question then arose what effect that should have on the decision as it stands. It was submitted to us by Mr Grobel, there being no appearance on behalf of the Respondent employee before us, that on the facts as found by the Industrial Tribunal it was only possible, properly, to reach the conclusion that there was no such discriminatory conduct on the part of the employer as to justify the finding that there had been an infringement of the Sex Discrimination Act 1975.We have no Notes of Evidence before us and there is therefore no question of our being able to reach conclusions based on any discrepancy that there might between the evidence that was actually given in the Industrial Tribunal and the findings of fact that are recorded in the Industrial Tribunal's decision. Mr Grobel very properly accepted that he was confined to the findings in the Industrial Tribunal decision. It would also, it seems to us, be the case that the Appellant employers are bound by the Further and Better Particulars that, through their solicitors they gave, which I read in the earlier decision and need not repeat, but it is clear, we think, from those particulars that Mrs Vandenberghe's pregnancy was not claimed to have no connection at all with the way in which her continued employment was proposed to be dealt with. Subject to that, we have looked carefully at what is in the Industrial Tribunal's decision, with a view to seeing whether there is material upon which the Industrial Tribunal could arrive at the conclusion that there had been direct discrimination, within the meaning that that phrase is usually given, as an infringement of the provisions of Section 1(1)(a) of the Sex Discrimination Act 1975, when applied to the employment field in Part II of that Act.The Industrial Tribunal decision does not, in terms, individually identify the particular forms of discrimination but it is perfectly clear, if one reads the decision as a whole, that that was the conclusion to which the Industrial Tribunal came, namely that there had been such discrimination. One therefore has to look and see in the statements of facts what it was that the Industrial Tribunal found that bears upon this question, whether there was such discriminatory conduct.One starts with Mrs Vandenberghe's previous position, which was that she was earning something compared with which her proposed basic salary of £9,700 constituted a considerable drop. It is not, in terms, said precisely what her earlier employment produced for her, but it fairly clearly was significantly more than £9,700. What she was told was that she could with commission achieve an income of £17,000, and at another time that it would be possible for her to earn £16,000 in the office in which it was proposed that she should be employed, namely the Reading office. It seems a reasonable inference that her previous salary had been perhaps a little lower than that but certainly not seriously different from that.The other background fact which is significant is that the terms of employment that she was given included the following clause and is shown in paragraph 6(i) of the Industrial Tribunal's decision:
"the company reserves the right to make reasonable changes to your terms and conditions of employment. Any change will be notified in writing before it is to take effect."
Based on that, it is submitted that there was a right to ask her to work in a different office, at any rate if it would be reasonable so to do. That she was taken on to work in the Reading office needs no emphasis. When she revealed that she was pregnant, which was immediately after she found it on the 19th September 1990, as stated in our earlier decision, at first there were various alternatives canvassed but they narrowed down at the end of the day to an offer to her to transfer to the Maidenhead office. If one looks at the facts as found, it does seem to us to be clear, that the factual material includes a statement that Mrs Vandenberghe regarded the proposal that she should work at Maidenhead as having the following disadvantages seen from her point of view. First of all it would cause extra travel. That has two repercussions, one that it takes time and two that it costs money. That as a matter of fact is not disputed because it was accepted that her base was Reading and it stands to reason that it takes longer to go to Maidenhead than to go elsewhere in Reading. Secondly, seen from her point of view, the Maidenhead office was a smaller one with, what she regarded as, less earning potential than the big office in Reading had. Next, there was more Saturday work in view at Maidenhead than in Reading, one in three in Maidenhead, one in seven in Reading.

(n) of the decision:

"Mrs Hughes told us and we accept that during the summer of 1990 there was a substantial drop, 52% in placements ie jobs found by the respondents. She [Mrs Hughes] was away on holiday from the 13 to 25 September 1990. When she went away Reading was having a very disappointing time and there were no signs of recovery. On her return she found that the trend had continued and the following day she had fully briefed herself in respect of the position at the Reading office. She learned that Miss Sidhu [that is Mrs Vandenberghe's immediate superior] was impressed with Mrs Vandenberghe's performance. Because of the position at Reading she [Mrs Hughes] looked at the possibilities for her [Mrs Vandenberghe] to go to Bracknell or Maidenhead and duly spoke to her in the evening at home. She congratulated her on her pregnancy and explained what the options were. They did not include remaining at the Reading office because of the level of business and suggested that she take the post of permanent counsellor at Bracknell or at Maidenhead. Mrs Vandenberghe said she understood the situation and would think about it."
Then there were conversations with Mrs Sidhu and it appears that Mrs Vandenberghe did come into the office at Reading on the following day. What the Industrial Tribunal actually says about that is that there was a conflict of evidence as to the circumstances in which Mrs Vandenberghe actually left the Company but the effect was that, Mrs Vandenberghe decided that if the option to stay at Reading was not open she would like to get temporary work in Reading. Miss Sidhu tried to persuade her to go to another office of the firm but she said that she felt that with her wedding and honeymoon imminent she would rather do temporary work and so she left.It does not seem to us possible for this Tribunal, which is not the fact finding Tribunal, on those findings of fact to conclude that there was no material upon which an Industrial Tribunal could come to the conclusion that there had been discriminatory conduct sanctioned by the Sex Discrimination Act 1975. We see that there are possibilities of argument in relation to that, but that is not good enough for this Tribunal. We have to be satisfied that it is the only possible legitimate conclusion on the findings of fact and we therefore do not feel able to say, more especially in the light of the Further and Better Particulars that were given, that it would be only possible to find that there was no unlawful discrimination in this case.That raises the question as to the further conduct of this matter. There were in principle two possibilities, one to remit the matter to the Industrial Tribunal merely to carry out the comparative exercise of seeing what treatment a man would, in as near comparable situation as could be imagined, have received. That seems to us to be unsatisfactory because the Industrial Tribunal would be having to compare conclusions of fact, which are not entirely straightforward by any manner of means, that were arrived at probably over a year ago, with other hypothetical conclusions as to what would have happened to a man,in the hearing that is to take place later this year at best. It seems to us, unfortunate though it is, that the matter has got to be considered afresh and that the whole of the findings of fact as they are now will have to go, so to speak, back into the melting pot, because it seems to us entirely unsatisfactory, that what has been done to date should be kept, and a mere comparison indulged in in relation to that.We therefore allow this appeal, and remit the matter to be reheard de novo by a newindustrial tribunal.