Davidson v The London Docklands Development & Anor [1995] UKEAT 481_95_1310

EAT
Davidson v The London Docklands Development & Anor
[1995] UKEAT 481_95_1310 · 1995-10-13

JUDGE HULL QC:

This is an appeal to us by Mrs Davidson against the decision of the Industrial Tribunal which sat at London (North) under the Chairmanship of Mr Roose with two industrial Members on 28 February and 1 and 2 March 1995, to hear her complaint that she had been discriminated against on the ground of sex by the Respondents, who are two in number - The London Docklands Development Corporation and a firm of architects, W A Fairhurst & Partners. Mrs Davidson works in computer-assisted design. That, as we understand it, is essentially the function of a draughtsman/designer. The work is now done with the aid of modern electronic machines which can do a certain amount of the drudgery and produce for example from a one-dimensional drawing other views and 3-dimensional projections and so forth. At any rate, however that may be, it is very skilled work and Mrs Davidson was substantially rewarded for her efforts.The way in which her labour was provided to The London Docklands Development Corporation was through a company which employed her, Flintlake Ltd., which entered into a contract with W A Fairhurst & Partners which entered into a contract with The London Docklands Development Corporation, or at any rate that appears to be the situation. She was a contract worker and not an employee of The London Docklands Development Corporation and she first provided her services in 1986 and worked thereafter on work for The London Docklands Development Corporation, as a member of a group of other skilled people in the same field. There was a time when they were arranged in a team. It was suggested that a supervisor should be appointed from among their number; that she objected to. (This is all dealt with in the reasons given by the Industrial Tribunal.) She objected to this introduction of a fresh layer of responsibility or reporting. That was not proceeded with.In due course there was a reorganisation and Mrs Davidson's services were dispensed with as were those of another designer, that was a man. She was the only woman engaged in the activity and so she complained, not unnaturally, that she had been discriminated against. She has pointed out to us the relevant provision which is Section 9 of the Sex Discrimination Act 1975 which says:"(1) This section applies to any work for a person ("the principal") which is available for doing by individuals ("contract workers") who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal.(2) It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a woman who is a contract worker--(a) in the terms on which he allows her to do that work, or(b) by not allowing her to do it or continue to do it, or(c) in the way he affords her access to any benefits, facilities or services or by refusing or deliberately omitting to afford her access to them, or(d) by subjecting her to any other detriment."It is pointed out to us by Miss Badrick who appears today, that detriment means disadvantage. If you look at Section 1, you see there what discrimination means:"(1) 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"...I will not go on with other types of discrimination but that is the essence of discrimination on the grounds of gender, which like discrimination on the ground of race, is of course prohibited in all sorts of ways by Acts of Parliament.She made the complaint against both The Docklands Development Corporation and Fairhurst & Partners. That is what the Tribunal had to decide. I will not read the whole of their decision. They made it after 3 days of hearing and one of their Members was a lady. They enquired into all the facts and it was their duty to decide whether the discrimination which was alleged had indeed taken place. Miss Badrick has emphasised to us that Mrs Davidson was disadvantaged. When her services were dispensed with, of course that was a disadvantage to her. It is said there were other disadvantages to her. That is not the question which the Tribunal had first and foremost to consider; what they had to decide was whether she was disadvantaged in that way because she was discriminated against on the ground of her sex.Having dealt with the appointment of a Mr Watts in a supervisory capacity, they say:"(f) From the circumstances which led to the appointment of Mr Watts and the termination of the Applicant's services we do not draw any inferences that the Respondents or either of them lawfully (they should have said there "unlawfully") discriminated against the Applicant by reason of her sex or victimised her."...
"5. For the Respondent Mr Curl acknowledged that any member of the team could have done the co-ordinator's job. It was, however, Mr Watts' experience and background that commended him. Mr Hunt did not remember saying we have the best man for the job and no one else at the meeting other than the Applicant remembered his saying it. On the matter of flexibility the Applicant was an insular person who preferred to work alone and ring-fence her activities. She was inclined to be abrasive at times which had the potential to affect the productivity of the team as a whole. The Applicant was treated preferentially in being allowed to work flexi-time and take time off in lieu. This privilege was not accorded to any of the men. Furthermore her experience of CAD only extended back for two years. So far as the co-ordinator's appointment was concerned she had demonstrated no interest in the job. Each member of the team had special strengths and the First Respondent was entitled to strike the balance that it needed. The Applicant had not been selected to go on the grounds of her sex and she had not been victimised."
"6. ... Whether there is less favourable treatment is for the Tribunal to decide. In this case we have heard from a great many witnesses. There have been areas of conflict. We were particularly impressed by the evidence of Mr Wishart, Mr Sheppard and Miss Ross-Green. We were also impressed by the evidence of Mr Blythe on the comparative strengths of the individual members of the team. On balance we preferred their evidence to the evidence of the Applicant."...That was their finding on parts of the evidence. They again referred to this remark, which if it were made was possibly an indication of discrimination or possibly simply a way of speaking; that "Mr Watts was the best man for the job." One would remind oneself that the word "man" does not necessarily mean a male person but at any rate in the origins of our language refers to persons of either gender. Certainly, conventionally, if one speaks of somebody being the "best man for the job" one now adds "best man or woman". That would be the right way of doing it.They said that:
"... Mr Wishart struck us as a truly impartial witness who while helpful in some respects to the Applicant was similarly helpful in others to the Respondent. He did not believe he saw any evidence of sex discrimination. While the Applicant was a capable and conscientious worker we accepted the evidence that her colleagues could also be similarly described. In the way in which she was able to work flexi-time she was treated preferentially to her colleagues. We are satisfied that she showed no interest in doing the job of co-ordinator. Furthermore we formed the impression that she resented the further layer of supervision that this would imply. She also resented other people working on what she saw as her projects. While this might have been a relevant objection in the past it had lost that relevance when the work was carried out on a computer. These complaints have been brought under the 1978 Act relying partly on evidence of direct discrimination and partly on a failure to follow procedures which might have been relevant if the Applicant was an employee who under the Employment Protection (Consolidation) Act 1978 was claiming that she had been unfairly selected for redundancy. We have found against her on the evidence. In relation to the procedures while there may have been some problems were the matter to be considered under the 1978 Act, this is something which we were not required to do. Our remit is under the 1975 Act and in that context we find that the Respondents acted fairly and reasonably and did not treat the Applicant less favourably on account of her sex. The complaints are accordingly dismissed."
It is alleged by Miss Badrick that one of the witnesses, by whom the Tribunal have said they were less impressed than by the others, was caught out in two lies and that, she said, is quite obviously a detriment to the Applicant. That was one of the matters of fact which was for the Tribunal. It was suggested that Mr Hunt had said that "she had altered the password, to prevent other people getting at her computer" and that was untrue. That was one of the matters which was in front of the Tribunal like all the other matters and their finding is quite plain, that she was not treated less favourably on account of her sex. She was the longest serving person there and in those circumstances we can hardly refrain from saying that we have great sympathy with her. We can certainly understand her suspecting and putting forward a case that she had been treated less favourably. She put it forward and over three days, we are sure at great expense of time and effort by all concerned, but in particular by her and her representative, these matters were duly laid in front of the Tribunal.We can only entertain an appeal against the unfavourable finding of the Tribunal if we are able to detect a matter of law. Under Section 136 of the Act giving us our right to entertain appeals, we can only entertain appeals on question of law. The Industrial Tribunal is the Tribunal of fact. With Miss Badrick's assistance, and looking at the documents, we have tried to see whether we can discover any point of law upon which we could allow the appeal to proceed. Having considered it as carefully as we can, we have none of us been able to discover any point of law. That is not to say that we would necessarily have decided the case in the same way as the Tribunal if we had been sitting as the Industrial Tribunal, or that a different Industrial Tribunal would. It is in the nature of decisions of fact that they are not necessarily the same as might be reached by a different jury, or Tribunal, or Court. That is all beside the point. The point for us is whether we can find a point of law and we cannot find a point of law, even with Miss Badrick's assistance; and therefore we have to say the appeal must be dismissed at this stage and not give rise to yet further expense and effort in pursuing it to a full effective hearing. That is the order which we make. The appeal will be dismissed.