Mansfield v Leeds City Council [1996] UKEAT 24_94_2305

EAT

Mansfield v Leeds City Council

[1996] UKEAT 24_94_2305 · 1996-05-23

MR JUSTICE BUTTERFIELD : This is an appeal against the decision of the Industrial Tribunal sitting at Leeds, promulgated to the parties on 16th November 1993, whereby the appellant's complaint brought under the provisions of Section 1(1)(a) and Section 4 of the Sex Discrimination Act 1975 was dismissed. In respect of direct discrimination to which most of the appellant's claim relates, the 1975 Act provides that:

"(1) A person discriminates against a woman ... if- (a) on the ground of her sex he treats her less favourably than he treats or would treat a man"

A subsidiary complaint made by the appellant was that the respondents had discriminated against her by way of victimisation because she had brought proceedings against the respondents under 1975 Act.

The circumstances giving rise to the appellant's complaints are in outline as follows.

In 1991 the respondents undertook a restructuring of part of their environmental health department. A Mr Barker was employed within that department. He applied for and was appointed to an SO2 post. There was ring-fencing applied to that restructuring within Mr Barker's section, thereby preventing the appellant from applying for this post. She does not complain of that ring-fencing, accepting it as being the policy then in place. Her complaint relates however to the fact that when in 1992 further restructuring was carried out within the same department, ring-fencing was not to apply to the same extent.

In 1992 the appellant worked and indeed still works for the respondents in the environmental services division of the Leeds environmental department. The respondents undertook a restructuring of that division in 1992. The Industrial Tribunal found that there were consultations between management and unions on how the restructuring should be effected. The consultation, the tribunal found, was extensive and a compromise was finally reached between unions and management with the full agreement of the unions.

The agreement reached was that all posts in the new structure with the same job description as the posts in the existing structure should be allocated to those employees holding such posts in the existing structure. However, whether an employee qualified for such an allocation or not, he or she could apply for any other post in the new structure which fell within the same band of responsibility the employee currently held or one band of responsibility higher than the employee's current post.

The bands of responsibility were colour coded. At the time of the 1992 restructuring the appellant's band of responsibility was designated `yellow'. The next band of responsibility was designated `blue' and beyond that `orange'. Under the restructuring arrangements the appellant could accept an allocated post, if one was offered to her, or apply for any other post within the yellow or blue bounds of responsibility,

In due course the appellant was allocated the post of Senior Support Services Officer Grade 6 in the new structure, which was the equivalent of her old post. The post of her fellow employee, Mr Barker working in the same division but in the blue band, was deleted. He applied for and obtained a post in the orange band as an Assistant Officer Manager. Originally he was in competition for that post with Mr Kemp. Mr Kemp withdrew his application and took early retirement leaving Mr Barker as the only candidate in the field. Since Mr Barker fulfilled the relevant criteria, he was appointed.

The appellant also applied for the post awarded to Mr Barker, but was not even granted an interview in respect of that application. She complained to the Industrial Tribunal that this amounted to less favourable treatment on the ground of her sex. The respondent's answer to that complaint was that she was not granted an interview because she was not permitted under the restructuring arrangements to apply for any post in the orange band, since that was two bands higher than her existing band. That rule, said the respondents, applied to any employee irrespective of their sex. Nobody was permitted to apply for a post more than one band above their existing band.

Having heard the evidence of the respondents on this issue, the Industrial Tribunal found that the reason advanced by the respondents was indeed the true explanation for the respondent's conduct. The restriction applied irrespective of sex and thus could not constitute sex discrimination.

The appellant further complained of victimisation.

Her complaint related to the events following the appointment of Mr Barker and the withdrawal of Mr Kemp. Before his retirement Mr Kemp had occupied the post of Senior Officer, which fell within the blue band of responsibility and was thus within the permitted range for the appellant. A vacancy for that post was thus created by the retirement of Mr Kemp. The respondents appointed a woman, Mrs Tinsdale-Biscoe, to that post. The respondent was obliged to look to fill that post first from the ranks of those who had been made supernumerary as a result of the restructuring. The appellant was not such a person. She had been allocated a new post commensurate with her previous position.

A number of supernumeraries applied for the post in early April 1993 and Mrs Tinsdale-Biscoe was selected, because, as the tribunal found, she had the requisite experiences and skills. The appellant of course cannot and does not complain that this amounted to direct sex discrimination, indeed it is self-evident that such a complaint would inevitably fail. She believes, however, that she had not been chosen or offered the post because she had lodged her originating application to the Industrial Tribunal and was therefore being victimised within the meaning of Section 4 of the 1975 Act.

The tribunal held, however, since a suitable supernumerary was available to fill the post, and further since the appellant's complaint was made to the Industrial Tribunal at least one month after the supernumeraries put in their applications, her complaint in respect of victimisation also failed.

The appellant requested a review of the decision by letter dated 18th November 1993 in which inter alia she requested production of certain documents by the respondents which she contended would have a direct bearing on the decision. The request for a review was refused by the Chairman.

The appellant thereupon appealed against the decision of the Industrial Tribunal by notice dated 13th December 1993.

One of her grounds of appeal was an assertion that there was new documentary evidence available which would irrefutably deny the respondent's claim that the banding restrictions, to which we have referred, applied to the restructuring arrangements.

On 18th May 1994, the appeal was heard pursuant to the new procedure listing direction. This tribunal ordered that the appeal should proceed to a full hearing and directed that the documentary evidence not before the Industrial Tribunal should be exhibited to a sworn affidavit to be filed within 42 days. No such affidavit was filed.

It appears that the Employment Appeal Tribunal had misunderstood the position. In fact the appellant had no new documents to produce. However, she believed that the respondents were in possession of relevant documents which would support the proposition advanced in her Notice of Appeal. Once that misunderstanding was identified, the appellant by her solicitors who were then acting for her, applied for an order for discovery in this appeal tribunal. The respondents resisted the application and the matter came before the President, Mummery J. on a directions hearing on 1st November 1995. The application was refused. The Employment Appeal Tribunal held that the application was in effect an application for leave to adduce new evidence not in the possession of the appellant. The application could not satisfy the first test for the admissibility of such evidence, namely that the evidence could not have been obtained with reasonable diligence for use at the tribunal hearing. No request for discovery of it had then been made prior to the hearing before the Industrial Tribunal. However, the respondents were invited to consider disclosing the documents sought voluntarily, in order to allay the suspicions of the appellant. The respondents have in the event disclosed the documents but sadly have failed to allay any suspicions in the mind of the appellant.

Against that background we turn to consider the substance of the appeal before us.

The main thrust of Mrs Mansfield's appeal as she has developed it today, if we may say so skilfully and sympathetically, is that the finding of the Industrial Tribunal that the unions had agreed the banding arrangements was perverse in that there was no documentary evidence to support the oral evidence called by the respondents to that effect. The appellant asserts as she did in evidence before the tribunal that there was no such agreement between management and unions, and that respondent's evidence to the contrary is wrong.

We have available the Chairman's notes of evidence on this matter. One of the witnesses who gave evidence was Mr Watkinson, the senior officer personnel training and administration. His evidence to the tribunal was to the effect that reports were sent to the trade union for consultation and slotting-in arrangements were agreed with the trade unions. He pointed out that the code of practice usually applicable to the appointment of staff and promotion of staff, mentions that restructuring falls outside the normal promotion practice. He asserted that all these matters had been agreed with the trade unions.

Mr Wixey, the assistant director for environmental services employed by the respondents, gave more detailed evidence about negotiations with the unions. He told the tribunal that he had had numerous discussions with the unions over restructuring and that there had been eventually a compromise between the respondent's view that applications should only be accepted from employees for jobs in their existing grades, and the union's view that there should be no restriction at all on applications. The compromise was the banding provisions which we have sought to describe.

Mr Wixey said that after the compromise was reached a letter dated 28th October 1992 was sent to each of the unions concerned. Paragraph 4 reads:

"Staff will be eligible to apply for posts one band of responsibility higher than their responsibility level on the current structure."

At about the same time, an internal memorandum was circulated to all staff affected by the environmental services division restructure. The relevant passage within that memorandum reads as follows:

"Regardless of whether you have been slotted in or not you may apply for other posts in the structure. You may only apply for posts which are one band of responsibility higher than your responsibility level in the current structure or posts in the same responsibility level as you are currently in."

There was thus abundant evidence to support the findings of fact made by the Industrial Tribunal. We are invited to hold that their finding was perverse in the sense that no reasonable tribunal hearing that evidence and properly directing itself on the law could have reached such a conclusion. We are quite unable so to conclude. In our judgment, the tribunal was almost bound to find as it did that the unions and management had agreed on the arrangements which we have described.

However, it is important to note two matters. Firstly, the appellant plainly and some may think justifiably feels very strongly that this restriction on the facility to apply for higher grade posts was an unreasonable working practice.

Of more central importance to the appeal itself however is this. Even if the Industrial Tribunal is wrong about the agreement between management and the unions, even if those arrangements had not been agreed with the unions, the arrangements did not discriminate against women. The arrangements treated all employees in exactly the same way, as indeed the Industrial Tribunal found. There is, in our judgment, no error of law therefore disclosed in the way in which the tribunal considered the question of the banding arrangements.

Mrs Mansfield makes a further submission in relation to documents and witness orders. She says that her requests for witness orders were refused, thereby denying her the opportunity to refute claims by the respondents. She says that there were witnesses who were available to attend but were reluctant to do so without being served with witness orders because they were employees of the respondents and had they attended voluntarily their own employment prospects might have been seriously damaged.

However, the tribunal Chairman who is responsible for the procedure to be adopted at the Industrial Tribunal, plainly took the view that the evidence of the witnesses concerned was not necessary for the disposal of the case. That was the proper test for him to apply and this court can only interfere with the exercise of that discretion if it can be shown that he acted perversely in so concluding. We have given anxious consideration to this aspect of the appellant's claim as indeed to all aspects of it. We are unable to discern any way in which the tribunal can be said to have acted perversely in taking the course it did. It is in truth difficult to see what witness could be called to deal with the central and only important issue in the original application, that is to say whether what occurred so far as the appellant is concerned discriminated against her because she was a woman. We therefore reject that ground of appeal additionally.

The final matter raised by Mrs Mansfield concerns her claim for victimisation. In effect what she says is that the person appointed was not suitable for the post, certainly less suitable than she was and that in those circumstances we should infer victimisation whenever it may be that the application was made by the supernumerary.

The difficulty with that submission is that we are faced with a clear finding of fact by the tribunal that the supernumerary appointed, Mrs Tinsdale-Biscoe, was chosen because she had health and administrative skills and for those reasons was suitable for the post. That was a finding which was open to the tribunal to reach on the evidence before it, and it cannot be said that the finding was perverse.

Before leaving this appeal however, we wish to make a general observation. It is, it seems to us, clear as Mrs Mansfield has forcibly pointed out to us, that there was no banding procedure used at Dudley House in 1991 when that department or division was restructured, there is no provision for banding in the code of practice and there is no provision for banding in the housing department. She asks, rhetorically, why apply banding in one department only. It is of course entirely a matter for the respondents as to how they choose to conduct their affairs. But in the absence of a cohesive policy, policies limited only to some departments and not applied to all departments are, in the considered view of the lay members of this appeal tribunal likely to cause suspicion, resentment and considerable damage to staff morale. Such differences are a potential recipe for bad relationships within the workplace. If these policies are still in place we would invite the respondents to give careful consideration as to whether they should remain.

However, for the reasons which we have sought to express, the decision of the Industrial Tribunal does not disclose any error in law and, in those circumstances, this appeal must be dismissed.