Lardier v British Gas Research & Technology Plc [1998] UKEAT 247_98_2011

EAT
Lardier v British Gas Research & Technology Plc
[1998] UKEAT 247_98_2011 · 1998-11-20
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Miss Lardier wishes to make against a decision of an Industrial Tribunal held at London (North).The main point in the appeal, as it seems to us, which we do think to be arguable, is the way the Industrial Tribunal have not dealt with Miss Lardier's claim that her employers were in breach of contract in relation to the grading appeal procedure and the consequences that that had on her opportunities for redeployment in a redundancy situation. The two are inextricably interlinked as it seems to us.Essentially, her case on the grading appeal procedure is that there was until 1994 a third stage to the appeal on a grading issue. The employers removed that stage. She says that that was a breach of contract by them in doing so and, in any event, bearing in mind that she had attempted to invoke that stage of the appeal procedure it was wrong for the employers to have approached the question of redeployment in the way that they did simply looking at Grade G2 posts when what she had been attempting to do was to obtain what she perceived to be a fairer and proper grading namely a Grade 3 post. In those circumstances, she would wish to say that there was both a breach of contract and an unfairness in the way in which the employers dealt with her redeployment opportunities.In paragraph 7 of their decision the Industrial Tribunal take a position about the grading appeal and we refer also to what they said at paragraph 5, typescript page 4, of the Industrial Tribunal's decision. She says, and we see the force of it, that the Industrial Tribunal really may have misunderstood the significance of the grading appeal issue which applied both to the breach of contract claim and also to her unfair dismissal claim. We regard those points as arguable.She also raised a complaint about Mr Flint's handling of the case, saying as has been said before, that he appeared to be asleep and therefore cannot have paid proper attention to the case. That is always a troubling allegation, but it seems to us having looked at the letter which came from Mr Flint, that we ought not to allow the appeal through on that ground itself. He denies he or any member of the tribunal was asleep. It is difficult for us to see how we can go behind that denial.There is a further point which Miss Lardier would wish to argue on the appeal which relates to the rejection by the Industrial Tribunal of her complaint of sex discrimination. Essentially her case is that the women who were doing the administrative tasks were discriminated against by comparison with the men who were doing technical work. She was pointing out that because of the work which the men were doing was treated as more valuable they had more redeployment opportunities to other places including Loughborough where their services were required, whereas what was essentially the women's work in the administrative services was not treated in the same way and that out of her department only one woman relocated and in circumstances which were not happy. She says that this is a sign of institutional discrimination, that women's work is undervalued and there should not be a heading such as 'Women's Work' at all and that each person's work should be properly valued for its worth rather than by reference to the gender.Whilst we fully agree with much of what she has to say about her discrimination case in general terms, the problem for her, as it seems to us, is to assert that there has been some kind of misdirection in law by the Industrial Tribunal when they deal with her specific claim of sex discrimination.She says that there was a relocation agency which took a different attitude towards the availability of money to be obtained from the accommodation of a type which she had, namely leasehold premises, and the way they dealt with men who were in a similar position. But if that was her case, it does not seem to me to be expressly mentioned in her IT1. It is not referred to in the Industrial Tribunal's decision, and I think it would not be fair to criticise the Industrial Tribunal for not expressly dealing with it. In so far she is really claiming an institutional or society discrimination against women, that would not be determinative of her complaint of discrimination. The law requires that she should be able to compare her treatment with that of a man or a hypothetical man. The tribunal said this in their decision:
"8 ... the Applicant was unable to point to any disparity of treatment between men and women either in respect of the move to Loughborough or in respect of the provision of alternative employment. Such a claim cannot succeed unless the Applicant succeeds in comparing herself and the treatment meted out to her with the treatment meted out to a male employee. We find that there was no difference at all in the way in which male and female employees were treated and consequently this claim to must be rejected."
It seems to us that in the light of those circumstances and in the light of a certain amount of questioning and representations from Miss Lardier, that we are not in a position to say that that decision is susceptible to an appeal on a point of law only. We want to emphasise that our jurisdiction is limited, hence the purpose of this hearing which was to determine that which was arguable as a point of law and that which was not. On this basis, the appeal will go ahead on the basis on which we have indicated.