Richmond v Rac Insurance Brokers Ltd [1994] UKEAT 47_91_2601

EAT
Richmond v Rac Insurance Brokers Ltd
[1994] UKEAT 47_91_2601 · 1994-01-26
MR JUSTICE MUMMERY (PRESIDENT) : This is a preliminary hearing of an Appeal against the decision of the Industrial Tribunal sitting at Middlesbrough on 24 October 1990.The majority of the Tribunal decided that the Respondent, RAC Insurance Brokers Ltd, had not committed an act of sex discrimination against Mrs Richmond, the Applicant, contrary to Section 6(1)(a) of the Sex Discrimination Act 1975.Mrs Richmond was dissatisfied with the decision. She therefore decided to appeal. The grounds of her appeal are set out in the notice of appeal of 24 December 1990.A long time has passed since the notice of appeal. Part of the explanation for that is that there was an unsuccessful application made to this Tribunal on 30 September 1992, on behalf of Mrs Richmond, for the Chairman's notes of evidence. For the reasons given by Mr Justice Wood, who was then the President, that application was dismissed. The other reason for the delay is, unfortunately, the very long list of cases waiting for hearing.I now come to the question on this hearing. That is whether this appeal is on the grounds of an error of law on the part of the Industrial Tribunal in reaching its decision. This Tribunal only has jurisdiction to deal with appeals that raise a point of law. To decide that it is necessary to look at the facts of the dispute and the reasons given by the Industrial Tribunal for rejecting Mrs Richmond's complaint of sex discrimination.The facts were that Mrs Richmond was employed by the RAC Insurance Brokers Ltd as an underwriting clerk from July 1982. Her employment ended on 29 September 1989. Her complaint to the Tribunal was that there had been unlawful discrimination against her on the grounds of her sex on 17 February 1990. The facts which gave rise to the complaint were that she became pregnant in the summer of 1989. She decided that she would prefer to have part-time employment rather than full-time employment, if possible. She resigned full-time employment. She applied for part-time employment. Her application was unsuccessful. She complained that the rejection of her application for part-time work was an act of unlawful discrimination on the grounds of her sex. That is a brief summary of the background to the hearing, which took place on 24 October 1990.At that hearing Mrs Richmond was represented by Mr Trenouth of the Darlington Citizens Advice Bureau, who had been named as her representative in the notice of application. The RAC were represented by their divisional manager, Mr Bacon, who had been involved in the decision to turn down Mrs Richmond's application for part-time work.It is important to note what the Tribunal said in paragraph 2 of its decision:
"This case does not depend upon the resolution of conflicts of fact which relate to particular incidents. It depends primarily on the evaluation of events and the credibility of the explanations offered for them. The most convenient approach is to set out the findings of fact and the issues as they arose in the course of the evidence."
There is a summary of the facts, which I need not repeat in full. It refers to the work which Mrs Richmond did with the RAC, to illnesses which she had, in particular, a vertigo attack in July 1988. It refers to her pregnancy and confinement. It appeared that Mrs Richmond had the right to return to full-time work, but she did not want full-time work. She preferred part-time work.After referring to details of the evidence, relating in particular to Mrs Richmond's absence through ill health in 1983 onwards, the Tribunal in paragraph 8 of the decision gave a summary of what the parties agreed were the cases of the respective parties. Mrs Richmond's case was that, when Mr Bacon advised that he was not prepared to consider any further application from Mrs Richmond for part-time employment, he was discriminating against her in the arrangements he made for the purposes of determining who should be offered part-time employment. The advice was given, on Mrs Richmond's case, on the basis of her poor attendance record from 8 July onwards through ill health caused by her pregnancy and, as such, this amounted to sex discrimination.The Tribunal then stated the RAC's case. The advice given by Mr Bacon was on the basis of the entire attendance record of Mrs Richmond. That record is referred to earlier in the decision as including a long period of illness in 1986 and 1987. Mr Bacon would have treated a man with a similar record the same way as he treated Mrs Richmond.When the Tribunal made a decision on the rival cases, they were unable to agree. They divided in the way set out in paragraphs 9 and 10 of the decision. The majority view accepted Mr Bacon's evidence. They found him to be an honest witness, and not a devious one, although they made criticisms of certain aspects of Mr Bacon's conduct and his presentation of the case before the Tribunal.They concluded, after reviewing the details of his evidence, that they considered that Mr Bacon treated Mrs Richmond the way in which he would have treated either a man or a woman. The dissenting Member stated that she simply did not accept Mr Bacon's evidence; in particular, the answers he gave to the challenges in cross-examination. She came to the conclusion, in view of her poor view of Mr Bacon's evidence, that Mr Bacon disregarded the application for part-time employment made by Mrs Richmond on what he considered to be her conduct during her pregnancy. On that basis he had discriminated against her.That is the decision. The notice of appeal sets out grounds which, when considered with the submissions made on Mrs Richmond's behalf by her husband this morning, showed that the appeal is not on any point of law. The appeal is on a point of fact. We have no jurisdiction to deal with it. We have examined the decision. It does not appear that there was any misdirection by the Tribunal on the relevant law. Under Section 1 of the Sex Discrimination Act 1975:
"A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if - (a)on the ground of her sex he treats her less favourably than he treats or would treat a man, or (b)he applies to her a requirement or condition which applies or would apply equally to a man but - (i)which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, 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 because she cannot comply with it.Section 6 is referred to by the Tribunal. It provides that:
"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman - (a)in the arrangements he makes for the purpose of determining who should be offered that employment."
The Tribunal correctly directed themselves on the relevant statutory provisions. The complaint which Mr Richmond has made this morning is really that the majority should have taken the same view of Mr Bacon as the minority. He criticized Mr Bacon to us as untruthful and inefficient in the way he presented the case, bringing along notes, for example, on the day of the hearing. He said that the health record referred to by Mr Bacon was not a bad record. Mr Richmond emphasized the point that the RAC had unfairly treated his wife, because she had been led to believe in a telephone conversation with Mr Bacon that, if she resigned the full-time employment she had with the RAC, she would be granted part-time employment if she applied for it.The difficulty with these points is that they are all matters of fact. These points were made to the Tribunal. They appeared from correspondence which we have been shown relating to Mrs Richmond's complaints. The case against the RAC was presented solely on the grounds of sex discrimination. There was no complaint of unfair dismissal or constructive dismissal.We look at the grounds of appeal. What they seek to bring before this Tribunal are complaints that the Industrial Tribunal made decisions, against the weight of the evidence, on matters of fact. They cannot be entertained on an appeal.For all those reasons we are unable to find any error of law in the decision. We sympathize with the sense of grievance that Mrs Richmond may have about her treatment and about the results of her application before the Industrial Tribunal. But there is nothing that can be done in this Appeal Tribunal, as there is no error of law. For those reasons, there is no arguable case and the appeal will be dismissed.