Wray v Bradbury & Anor [1995] UKEAT 465_95_1110

EAT
Wray v Bradbury & Anor
[1995] UKEAT 465_95_1110 · 1995-10-11
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at Leeds on 2 March 1995. In the extended reasons sent to the parties on 24 March 1995, the Tribunal explained why they had unanimously decided that neither of the Respondents to the case, Mr S W Bradbury and the Governors of Royds Hall High School, had unlawfully discriminated against the Applicant, Mrs Angela Wray, contrary to the Sex Discrimination Act 1975 . Mrs Wray appealed by a Notice of Appeal dated 30 April 1995. Neither side has attended the hearing today. Each side has submitted full written arguments and each side has asked us to decide the appeal in their absence.The background to the appeal is that the proceedings were started by Mrs Wray on 27 June 1994, when she presented an Originating Application to the Industrial Tribunal complaining of sex discrimination. The complaint was that she had not been appointed to the post for which she had applied as Head of the Physical Education department at the school, Royds Hall High School. A Mr Wood had been appointed. The details of the complaint were that Mrs Wray fulfilled the job specification better than Mr Wood. She set out five particular matters: first, that she had a wider teaching experience in different schools, whereas Mr Wood had taught in one school before being seconded to Royds Hall. Secondly, that she initiated and taught a new GCSE course for 3 years, achieving results which received favourable comments from the Head. Mr Wood had not taught GCSE before. Thirdly, she had had a good standard of physical fitness and mobility, whereas Mr Wood had a history of back trouble and was at that time off work for a second period of time since joining the school. Fourthly, in relation to outdoor pursuits, she had a canoeing qualification and various other awards, including an award for expedition leadership, whereas Mr Wood had no formal qualifications. Fifthly, she had been Acting Head of the Department for 20 months with responsibility for GCSE and had steered the department through an Authority inspection. She added finally that it was a matter of concern, on a general level, that there were no female Heads of Departments in the school.In a Notice of Appearance served by the Governors of the school on 14 October 1994, they resisted the application on the grounds that they denied that they had subjected the Applicant to unlawful discrimination, whether direct, indirect or otherwise. They had acted reasonably in all the circumstances. They adopted various documents which had been referred to in a Notice of Appearance submitted by the Headmaster, as if they had been filed on their behalf and relied on the contents of them, so far as the contents were relevant and material in resisting the same.Those were the issues that came before the Industrial Tribunal. It is not necessary to examine in detail the full reasons for the decision, since the principal complaint by Mrs Wray on this appeal is in relation to the procedure adopted by the Industrial Tribunal. What happened was this. Mrs Wray was represented by a union representative. The Governors were represented by a solicitor. The Tribunal heard evidence from Mrs Wray and two former teachers, a Mr Ian Arnold and a Miss Rita Oldroyd. The Tribunal reached their decision without having heard any evidence from witnesses for the Respondent Governors. The Notice of Appeal summarises the complaints of error of law succinctly and clearly. The grounds of appeal are: first, that the Tribunal dismissed Mrs Wray's claim without hearing evidence from the Respondents. Secondly, in the absence of the Tribunal suggesting that this was an exceptional, frivolous or hopeless case, it was wrong for an Industrial Tribunal to find, having heard only evidence from her and her witnesses, that there was no case to answer and that it was not necessary to hear what the Respondents had to say about it. Thirdly, that in consequence neither the Tribunal Members nor her representative had had an opportunity to question the Respondents' answers to the case, or to test their evidence. Finally, in the circumstances, the Tribunal in accepting the Respondents' submission that there was no case to answer, had failed to ensure that justice was seen to be done.There is some amplification of the circumstances of the "no case to answer" submission in Mrs Wray's Skeleton Argument. She points out that there was never any suggestion, and there is not now any suggestion, from the Respondents, that her case was exceptional or frivolous. She says, correctly, that there had been no pre-hearing review. She took that as indicating an acceptance that she had an arguable case. A bundle and a list of witnesses was agreed between the two sides. She expected and planned for an opportunity to question the Respondents' witnesses as part of proving her case. Had she known that she was to be denied the opportunity, she would have included the Respondents' witnesses in her list of witnesses. That should not be necessary she argues, when both sides had agreed which witnesses would give evidence.On the day of the hearing, all the witnesses who had been agreed between the parties prior to the hearing were present at the hearing. She and her witnesses finished their evidence by the middle of the afternoon. There was no suggestion from the Chairman of dismissing her case or of not hearing the Respondents' evidence. There was a break asked for by the Respondents' solicitor, for the purposes of going to the toilet. The Chairman granted a five minute break. When the hearing resumed, the Chairman asked the Respondents' solicitor to call his first witness. It was at that point that the Respondents' solicitor made an application that Mrs Wray's case should be dismissed. The initiative thus came from the Respondents' solicitor, not from the Tribunal. The Tribunal heard the application, retired to consider it and, when they returned, the Chairman announced the decision to dismiss her complaint.Those are the circumstances in which the Tribunal came to its decision. The submission of Mrs Wray, by reference to two authorities, is that there was an error of law on the part of the Tribunal in reaching a conclusion in her case, without hearing the Respondents' evidence and giving her an opportunity to test it. She appreciates that, in cases of sex discrimination, the burden of proof is on the Applicant, but goes on to say that it is usual for an Industrial Tribunal to afford two means by which Applicants are given an opportunity to prove their case. First, by presenting their own evidence, secondly, by examining the Respondents' witnesses and questioning them on relevant matters. The latter was denied her by the procedure adopted by this Tribunal. So she was not given a sufficient opportunity to discharge the burden of proof upon her. The first case cited is Oxford v Department of Health and Social Security [1977] ICR886 where the Industrial Tribunal is quoted as saying this:
"At the conclusion of the [complainant's] case, we were inclined to reject his claim on the basis that no case against the [employers] had been established. Nevertheless, bearing in mind the difficulties the [complainant] faced, we decided to hear evidence from the [employers] and to give the [complainant] every opportunity to examine their witnesses and question them on matters he considered relevant."
The E.A.T. said in their judgment at page 887:
"It seems to us that that was a very proper course to have adopted, and we would recommend it as being the course which in most circumstances is the right course to adopt. It further seems to us that, while the burden of proof lies upon the applicant, it would only be in exceptional or frivolous cases that it would be right for the industrial tribunal to find at the end of the applicant's case that there was no case to answer and that it was not necessary to hear what the respondent had to say about it."
Mrs Wray repeats that there was no suggestion in her case that it was exceptional or frivolous. It was therefore wrong for the Industrial Tribunal to find that there was no case to answer, without first hearing what the Respondents had to say about it. The second case cited is the decision of this Tribunal in Humphreys v St George's School [1978] ICR549 , a sex discrimination case in which the Industrial Tribunal were found to have erred in law by dismissing the case without hearing evidence from the employers. She quotes from a passage on page 549:"... In truth an application of this kind, and the nature of the hearing before an industrial tribunal, if justice is to be done, must partake of something at all events of the nature of an inquiry into what has gone on. We do not say, we cannot say, that in no circumstances at all can the industrial tribunal, having hear the applicant, say "That is enough; we wish to hear no more." But such a course should be reserved, we think, for what we described as exceptional or frivolous cases."...She reiterates that there is no evidence that her case was regarded by the Tribunal or by the Respondents as an exceptional or frivolous case. The wrongness of the Tribunal's decision to decide the case against her, without the Respondents giving evidence, is confirmed by the fact that there are included in the Extended Reasons for the decision against her references to evidence of the Respondents, as if that evidence had been established as a fact. She asks rhetorically how can that be established without the Tribunal having heard evidence given and tested?That is the case presented by Mrs Wray. In our view, she has a valid criticism of the course adopted in this case. The points she has made led us to examine the Extended Reasons further. We find that, in addition to the complaints which she has made, there is a mis-direction contained in the first paragraph of the decision in relation to the burden of proof. The position on the burden of proof is set out by the Court of Appeal in the judgment of Lord Justice Neill in King v Great Britain China Centre [1992] ICR516 at 528 . Principles and guidance derived from earlier authorities are summarised by Lord Justice Neill. He points out that it is for the applicant who complains of discrimination to make out the case. If the case is not proved, on the balance of probabilities, the complainant will fail. He goes on to point out the difficulties in discrimination cases, particularly the lack of direct evidence. The case will usually depend, in those circumstances, on proper inferences to be drawn from primary facts. In cases where there has been different treatment of persons of different race or different sex, that will often point to the possibility of unlawful discrimination. So the Tribunal looks to the employer for an explanation. If no explanation is then put forward, or if the Tribunal considers the explanation to be inadequate or unsatisfactory, the Tribunal may legitimately infer that the discrimination was on unlawful grounds. There is an important observation about the burden of proof:
"(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."
In our view, although the Extended Reasons refer in paragraph 1 to King v Great Britain China Centre it has not been properly applied in that paragraph. The Tribunal say:
"... The tribunal heard evidence from the applicant and two former teachers, a Mr Ian Arnold and Miss Rita Oldroyd. As the tribunal were not satisfied that the applicant had discharged the burden which is upon her of proving discrimination the tribunal did not hear evidence from the respondents . The tribunal must make findings of primary fact on the evidence before it. The burden of proving facts which are alleged by the applicant lie on the applicant. She has to prove those facts on the balance of probabilities as to whether any discriminatory action shown by the primary facts is taken on sexual grounds and is therefore unlawful. We bear in mind the Court of Appeal case King v Great Britain China Centre 1991 IRLR513 which gave guidance to tribunals on the correct approach, to the effect that tribunals must remind themselves that they must look at all the evidence and that the applicant must show that it is more probable than not that on sexual grounds the respondents treated her less favourable than they treated or would have treated others."
In our view, although it is correct to say that the burden of proof is upon the Applicant, it is made clear in King v Great Britain China Centre that the question whether that burden of proof has been discharged should be addressed after all the evidence has been heard. In this case, the Tribunal looked at the evidence given by the Applicant and her two witnesses. That would include evidence given by them under cross-examination by the Respondents. But they heard no evidence at all given by the Respondents explaining why Mr Wood was appointed to the post for which Mrs Wray had applied and why Mrs Wray was not appointed. The Tribunal have not therefore given themselves a correct direction as to the stage in the proceedings at which they should ask whether the burden of proof has been discharged. That is not to say that it is impossible for a Tribunal to ask itself, at the end of an applicant's case, whether it is a frivolous or hopeless case. There may well be cases, described as exceptional in the authorities, in which a Tribunal, having heard only the Applicant's evidence, is entitled to form the view that it is a hopeless and frivolous case and that there is no point in incurring any further time or costs in troubling the Respondents to give evidence. It has never been suggested that this was such a case. It is clear from the detailed reasons given by the Tribunal that they addressed in detail various requirements regarded as essential in relation to the appointment and various requirements which were described as being desirable. At a number of points relevant to those essential and desirable requirements, they refer to what has been noted by the Respondents in relation to the qualifications of Mrs Wray.In our view, Mrs Wray is entitled to complain that what has been done by the Tribunal is to put into the reasons for the decision against her various points made by the Respondents, presumably in the documents and in cross-examination, without having heard any evidence given on behalf of the Respondents and without her having been given an opportunity to test that evidence in cross-examination. The written submissions of the Respondents make the position that we can only entertain an appeal from a decision on an error of law, that is a mis-direction of law or a misunderstanding or mis-application of it, or a perverse decision which no reasonable Tribunal could have arrived at. The point made by the Respondents is that the simple fact that the Tribunal did not hear direct evidence from the Respondents, is by itself not an error of law. There was a discretion by the Tribunal as to the proper manner in which they conducted the proceedings. If there is a criticism of the discretion, we can only interfere with it if there was no evidence available to support the conclusion which the Tribunal reached. If there was evidence to support the Tribunal's facts and its conclusions, as the Respondents submit there was, the Tribunal have not erred in law by failing to follow the guidance given by the higher Courts as to the desirability of hearing evidence from both sides in discrimination cases. They referred to another decision (not cited by Mrs Wray) Coral Squash Clubs v Matthews . They cite the headnote in which the E.A.T. held that the Industrial Tribunal had not erred merely by acceding to a submission on behalf of employees at the end of the company's evidence, that the employers had failed to satisfy the burden of showing that the dismissals were fair. The headnote states that though normally it is of great importance to hear both sides, the E.A.T. has never said that an Industrial Tribunal cannot stop a case at the end of the case of the party whose evidence and submissions come first. It is a power which must be exercised with caution. But if the Tribunal is satisfied that the party on whom the onus lies and who goes first has clearly failed in law, or fail to establish what he set out to establish, then that Tribunal is entitled to decide the case at that stage.The Respondents submit that this Tribunal did not err in law in accepting the submission of no case to answer. This submission is elaborated in more detail in the Respondents' Skeleton Argument. It is pointed out how difficult it is for an appeal to succeed on the grounds that there has been a perverse decision. The position is that if there is some material upon which the Industrial Tribunal could reach the conclusion that they did, then there are no grounds of appeal. They refer to a number of other cases which indicate that in discrimination cases the evidence of both sides should be heard, unless there are exceptional circumstances or the case is frivolous. They refer to Khanna v Ministry of Defence [1981] IRLR331 and J.S.V.Oxford v Department of Health and Social Security [1977] IRLR225 . They submit that stopping a case half-way is not necessarily wrong. There has to be a good reason for doing it. That reason should fit into the category of an exceptional case. They accept that no indication has been provided as to what is an exceptional case. They do not, however, suggest that this was in any case a frivolous or hopeless application.The conclusion of the Respondents' submissions is this: that the Tribunal made findings of fact based on evidence. There is no appeal from those. There is no mis-direction in law because the Tribunal did not act unlawfully in accepting a submission of no case to answer. What the Tribunal did was to exercise a discretion they were entitled to exercise and which was based on ample material before them. In those circumstances the appeal ought to be dismissed. They add, for good measure, that there was no perversity in the decision. It was a permissible option to come to the conclusion that there was no sex discrimination in this case. There are further detailed arguments in the Respondents' Skeleton, but it is not necessary to examine those in any further detail.Though the Respondents' written submissions have been well deployed in the Skeleton Argument, they do not persuade us that the course adopted by the Industrial Tribunal in this case should be supported. We have made the position clear in the reasons given earlier. That, briefly, is that the Tribunal in this case erred in law in not following the usual procedure of hearing both sides before coming to a decision, whether the Applicant had discharged the burden on her of proving that she had been discriminated against unlawfully on the ground of sex. The Tribunal mis-directed themselves by asking the question about the burden of proof at a premature stage, namely when they had only heard evidence from the Applicant. They never addressed themselves to the question as to whether this was an exceptional, frivolous or hopeless case. We assume that, if they had thought that, they would have said so. As they did not address their minds to it, they were not justified in dismissing it on the basis of no case to answer. For those reasons and the fact that in parts of the decision they did refer to and rely on material put in by the Respondents which the Respondents never proved in evidence, we direct that this appeal should be allowed. This is a case which should be remitted to the same Tribunal. They have given their careful consideration to what they had heard so far. The purpose of remitting it to them is to complete the hearing of the evidence in the case before they make a final determination. The case is remitted to the Industrial Tribunal at Leeds, constituted as at the 2 March 1995, if that is possible, for them to determine whether or not, having heard all the evidence, Mrs Wray has discharged the burden of proving that she has been unlawfully discriminated against on the ground of sex. The appeal is allowed with that direction.