MS L HANCOCK v KENT TRAINING & ENTERPRISE COUNCIL LTD & MR M ALLAN [1999] UKEAT 575_99_1110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 575_99_1110Case No Appeal No. EAT/575/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS L HANCOCKAPPELLANTKENT TRAINING & ENTERPRISE COUNCIL LTD & MR M ALLANRESPONDENT
Before
His Honour Judge J HicksDate 11 October 1999
[1]APPEARANCES For the Appellant IN PERSON JUDGE HICKS: Ms Hancock, the Appellant, was employed by the Kent Training and Enterprise Council Ltd until she was dismissed on 5 August 1998. The employers were a substantial organisation with a staff of some 150 and a turnover of £40 million and had a correspondingly elaborate (by the standards of smaller organisations) staff evaluation system. At the period with which the Tribunal was concerned there was a proposed merger with other organisations and discussions in progress as to the consequences for the positions of staff, in particular the managerial level of staff of which Ms Hancock was a member, she having been Public Relations Manager from August 1995, when she began to work for the employers, and later having changes of job title and discussions about other potential changes, some of which did not occur. In August 1996 she was Corporate Marketing and Public Relations Manager.[2]She was summarily dismissed on the date which I have already mentioned, 5 August 1998, following a disciplinary hearing called at very short notice, and by reason of the shortness of notice and other matters the Tribunal came to the conclusion that she had been unfairly dismissed, and moreover dismissed in breach of contract, and her complaints in those regards were upheld. But she had also complained of sexual discrimination and harassment and of victimisation and those complaints the Tribunal rejected.[3]Her appeal is against the rejection of those complaints and the grounds of appeal which Ms Hancock, who has represented herself, has developed with skill and moderation can conveniently be addressed under the heads which she herself has used. They are all within the general complaint that the Employment Tribunal failed to deal with the matter in the way indicated in particular in the case of Qureshi v Victoria University of Manchester , that is to say, first by making the necessary findings of primary fact in relation to each complaint of unlawful discrimination and secondly by looking at the totality of the evidence and those findings of fact, in particular to determine whether it is appropriate to draw an inference that any less favourable treatment was on the grounds of sex.[4]It is part of the first phase, according to Ms Hancock's grounds of appeal, and we accept, that in relation to the complaints individually it is necessary not only to find the primary facts but to determine whether there was less favourable treatment than would be accorded, in the case of a sex discrimination complaint by a female, to a male. The process of looking at the totality of the evidence is concerned primarily with considering whether that less favourable treatment, so far as found, was on the grounds of the sex difference.[5]Under that general head Ms Hancock relies on seven specific matters. The first is that in paragraph 22, in what amounts to the statement of case forming part of her Originating Application she relies upon the fact, as she alleges, that in July 1998 Malcolm Allan, the Chief Executive, decided without warning that her department should be reorganised. She elaborates in her statement of case on that allegation and her complaint is that in the Tribunal's reasons there is no finding on that specific allegation. The Tribunal deals with the findings of primary fact in a very long paragraph 9 of its reasons, which runs to some 57 sub-paragraphs, each containing specific findings and it is true that in that chronological history and series of findings of fact the sub-paragraphs which deal with July 1998 (sub-paragraphs 42 and 43) do not specifically address paragraph 22 of the statement of case.[6]In our view there is no error of law shown on the part of the Tribunal in that respect. They, in our understanding, have very fully dealt with all the findings of fact which were necessary or appropriate for their conclusions and they cannot be required, in our judgment, on pain of being held to have gone wrong in law, to make specific findings as to particular sub-paragraphs of the Applicant's statement of case which they do not consider necessary to their findings and conclusions on the allegations of sex discrimination and victimisation.[7]The next head we can dispose of very shortly because it arises again out of another very specific paragraph in the statement annexed to the Originating Application, and that is paragraph 7, but that paragraph was struck out by order of a Chairman of Tribunal in the process of the interlocutory stages of this application. There was no appeal against that striking out and it therefore no longer formed part of Ms Hancock's case at the substantive hearing. She says that it was nevertheless dealt with in evidence as part of the background. That may be so, but it was not a matter on which the Tribunal had any obligation to make any findings of primary fact in those circumstances.[8]The next matter that Ms Hancock draws attention to is the subject dealt with in paragraph 24 of the Tribunal's reasons in which the Tribunal finds in relation to unlawful sex discrimination that Ms Hancock's complaint about lack of managerial support is not substantiated by the evidence and they give reasons for that by saying:
"She did have support from Malcolm Allan and, although there was a long gap between the work programme reviews, this has been explained by Malcolm Allan's absence from the office. We do not find, and we cannot draw any inference, the Applicant was not given the same managerial support as any male colleague."
There is there a very specific finding of fact and we see no ground upon which that can be attacked as arguably wrong in law - indeed Ms Hancock very fairly conceded in the course of her submissions that that might well be the case.[9]The next head is dealt with in paragraph 10 in the Notice of Appeal. This head concerns the final appraisal assessment by Malcolm Allan, and paragraph 10 reads (and these are particulars of the general complaint of the failure to make necessary findings of fact and to look at the totality of the consequences): "In particular but not exclusively the Employment Tribunal failed to consider the complaint that the Applicant had been ostracised [so this is part of the victimisation claim] following the presenting of the claim to the Employment Tribunal … and failed properly to consider the complaints of victimisation namely… " and then there are various heads of which the one in question here is the final appraisal assessment by Malcolm Allan.[10]The final appraisal assessment by Malcolm Allan is referred to in the course of the Tribunal's findings of fact, and indeed they find at paragraph 19 sub-paragraph 47 of their reasons that on 5 August Malcolm Allan handed to Ms Hancock, among other things, an envelope containing her annual appraisal report. In those circumstances there is the appropriate finding of fact and we see no reason whatsoever to suppose that in dealing with the outcome of the victimisation claim the Tribunal failed to have their own finding on that matter and their conclusions from it in mind, so we see no arguable ground of appeal there.[11]In paragraph 27 of the statement annexed to the Originating Application Ms Hancock had complained that approximately £660 holiday pay had been wrongly deducted. That claim by her had before the matter reached the hearing at the Tribunal, as we understand it, been acknowledged as well founded by the employers and the money had been paid. It therefore no longer remains as a substantive ground of complaint, but Ms Hancock says that it should have been taken into account as part of her allegation that she had been victimised, the point being, as we understand it, that the initial failure to pay that holiday money was motivated by her earlier complaints. Again, the Tribunal in rejecting the victimisation claim and finding that it was not made out, states that they accept the Respondent's explanations for the incidents as they occurred and we see no reason for thinking it arguable that in so far as this matter was advanced by Ms Hancock at the hearing for that reason it was disregarded or ignored or left out of account by the Tribunal in reaching its conclusion.[12]Next Ms Hancock complains that the employers failed to implement their own equal opportunities policy and code of practice and that that way of putting her case was not the subject of proper findings and conclusions by the Tribunal. The Tribunal did deal with this in paragraph 35 of their reasons. They say the employers:
"… did have an equal opportunities policy which has been under revision. Some complaint has been made against certain of the Respondent's employees because of their lack of training in equal opportunities, but having heard them give their evidence, and particularly in relation to Malcolm Allan and Carolyn Bruce, we find that they did have a genuine and acute awareness of equal opportunities policies. Neither Malcolm Allan, nor KTEC, [that is the employers] discriminated against the Applicant in any way on the ground of her sex, and her claims for unlawful sex discrimination are dismissed."
The last sentence of course deals with the whole of the sex discrimination case but the earlier part of that paragraph is specifically directed to the relevance of the equal opportunities policy.[13]The existence of an equal opportunities policy may, as we understand it, be relevant in a number of ways. First of all an equal opportunities policy commonly, and no doubt in this case, repeats the obligations which would in any event exist under the statute. In so far as it does that we see no reason why any Tribunal need deal with that as a separate head. The question is whether there has indeed been sex discrimination, which if it exists will be contrary both to the statute and in that respect the equal opportunities policy. Secondly an equal opportunities policy may lay down more specific undertakings and assurances by an employer as to particular steps which it will take. In this case clearly one of those was the matter of training, because that it is specifically referred to in paragraph 35 of the Tribunal's reasons, and Ms Hancock agrees and indeed asserts that that was one of the matters that she was complaining of, namely failure to implement that aspect of the equal opportunities policy. But it simply cannot be said in our judgment that the Tribunal failed to deal with that. They expressly do so.[14]The remaining point, which is of the same kind in the sense of being some specific additional undertaking in an equal opportunities policy, is in relation to monitoring, which Ms Hancock says came up in evidence. Well, maybe it did, but she accepts that it was not a separate ground of complaint in her Originating Application. We see no arguable ground that the Tribunal erred in law in failing to make a more specific reference to it than their general treatment of sex discrimination and equal opportunities.[15]Finally, under this head, Ms Hancock in her Notice of Appeal complains that the Tribunal failed to have proper regard, or any regard, to the nature of the employer's replies to the questionnaire which is issued to Respondents in cases of complaints of sex discrimination. She tells us that the matter of those replies was gone into at great detail at the hearing and again we see no reason to suppose that the Employment Tribunal disregarded or forgot that aspect of the matter in reaching their conclusion and we cannot find it to be an arguable ground of appeal that they do not canvas it in detail in their reasons. Reasons must, although they should be adequate, be kept within some bounds and in this case there are reasons running to some 30 pages and we reject any submission that in this particular respect they should have gone yet further.[16]Finally Ms Hancock draws attention to the relationship between her success in her application on the ground of unfair dismissal and breach of contract and her complaints of sex discrimination and victimisation and says that the Tribunal failed to take into account the need for an explanation of the unfairness and breach of contract if it was not to be accepted, and the inference was not to be drawn, that that was itself motivated by sex discrimination or victimisation. She opened this part of her submissions by drawing attention to the fact that the findings on sex discrimination and victimisation as a matter of arrangement come in the Tribunal's reasons before they deal with the breach of contract or unfair dismissal.[17]She accepted however, very fairly and properly, that in a case of this kind, where after a hearing the Tribunal reserves its reasons and discusses the matter and then issues reasons prepared by the Chairman, the mere fact of the order in which as a matter of arrangement topics are dealt with in those reasons cannot of itself be used to suppose that the Tribunal has as a matter of the progress of discussion and reaching conclusions done so in relation to sex discrimination and victimisation totally without regard to the issues of unfair dismissal and breach of contract. In the end she did not suggest that the Tribunal could have forgotten or ignored its findings on unfair dismissal and breach of contract when dealing with the to sex discrimination and victimisation cases.[18]The most she can say and the highest she puts it is that that may be so, but that the reasons do not demonstrate that those matters were taken into account. This is yet another example in our view of making criticism of the Tribunal's reasons which supposes that they must in every case and in every smallest aspect of the disputes before them spell out everything in great detail. We do not believe that to be the right approach and we see no reason to suppose that this Tribunal overlooked the significance of their conclusions on unfair dismissal and breach of contract when addressing the complaints of to sex discrimination and victimisation.[19]We therefore find no arguable error of law which would justify sending this appeal forward to a full hearing and we dismiss it.