DR V LEAVERS v THE VICTORIA UNIVERSITY OF MANCHESTER [2000] UKEAT 167_99_2102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 167_99_2102Case No Appeal No. EAT/167/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR V LEAVERSAPPELLANTTHE VICTORIA UNIVERSITY OF MANCHESTERRESPONDENT
Before
His Honour Judge Peter Clark Mrs R Chapman Ms B SwitzerDate 21 February 2000
[1]APPEARANCES For the Appellant MR GAVIN MILLAR (of Counsel) Instructed by: Mr C Romain Messrs Bindman & Partners Solicitors 275 Gray's Inn Road London WC1X 8QF For the Respondents MR NIGEL GRUNDY (of Counsel) Instructed by: Mrs J Evans Messrs Addleshaw Booth & Co Solicitors 100 Barbirolli Square Manchester M2 3AB JUDGE PETER CLARK : This is an appeal by Dr Violet Leavers, the applicant before the Manchester Employment Tribunal, sitting over nine days in October 1998, against that tribunal's reserved decision, promulgated with extended reasons on 17th December 1998, dismissing her complaints of unlawful sex discrimination and victimisation brought against her employer, the respondent University. The appeal is directed solely to the tribunal's findings on direct discrimination. We are therefore not concerned with the finding on victimisation. Amendment The appellant, who holds a first-class degree in physics, conducted her own case before the tribunal. Following the tribunal's decision she drafted her Notice of Appeal dated 23rd January 1999 which set forth grounds of appeal running to eight numbered paragraphs ("the original grounds").[2]When the appeal came on for preliminary hearing (PH) before a division presided over by Morison J on 7th June 1999 she was represented by Mr Hodkinson of Counsel under the ELAAS pro bono scheme.[3]Having considered the submissions made by Counsel on behalf of the appellant the EAT allowed the matter to proceed to a full hearing on certain limited grounds ("the PH grounds"). In delivering the judgment of the EAT on that occasion, Morison J indicated that the full hearing would be confined to the PH grounds (Judgment. Paragraph 8).[4]Thereafter the appellant obtained the assistance of the EOC and obtained representation by solicitors, Bindman & Partners, who in turn instructed Counsel, Mr Gavin Millar.[5]Having considered the matter Mr Millar drafted amended grounds of appeal. In addition to the original grounds further grounds appearing at paragraphs 9-17 of the draft pleading ("the new grounds") were added.[6]A copy of the draft amended grounds of appeal was served on the respondents' solicitors by letter dated 23rd November 1999, seeking the respondents' consent to the proposed amendment. That request was declined by the respondents' letter dated 3rd December 1999. Consequently formal application was made by the appellant for leave to amend to the Registrar on 13th December. A direction was given by Lindsay P that the application for leave be renewed at this full hearing before us.[7]It is common ground that the new grounds of appeal raise matters which were not covered in the original grounds, nor in the submissions advanced by Counsel when representing the appellant at the PH. In the light of Morison J's direction that the only matter to be considered at this full hearing would be the PH grounds, Mr Grundy opposes the application on behalf of the respondents.[8]We see the force of that objection, however we think that there is a distinction to be drawn between a ground of appeal which has been formally dismissed at the PH, and one which has not. This case falls into the latter category. We have therefore treated the application in the same way as any application for leave to amend. Is it just, balancing the interests of both parties, to allow a new way of putting a case to be argued before the Court?[9]First, are the new grounds arguable? We are satisfied that they are. Secondly, are the respondents in a position to deal with the points now raised? Sufficient notice was given; Mr Grundy tells us that he is able to deal with the new grounds in argument today. Thirdly, can the respondents be protected in costs? We indicated that should the argument on the new grounds involve the hearing extending beyond the one day allocated to this case we should look favourably on an application by the respondents for the additional costs incurred. In the event, it was possible to complete the hearing within the time originally allotted.[10]In these circumstances we granted the appellant's application for leave to amend her Notice of Appeal to add the new grounds. The complaint[11]At paragraph 4 of their reasons the tribunal set out both the general and particular complaints made by the appellant in support of her allegations of direct discrimination and victimisation.[12]As we have indicated, the tribunal's findings on the complaints of victimisation made by the appellant following presentation of her Originating Application to the Employment Tribunal on 21st October 1997 are not challenged in this appeal.[13]Further, for the purposes of the appeal, it is common ground that the tribunal's findings in relation to alleged discriminatory acts by various members of the respondents' staff stand or fall on their findings as to the alleged sexually discriminatory behaviour by one Professor Xydeas towards the appellant during the early part of her employment. Accordingly our summary of the facts as found by the tribunal will focus on that aspect of her complaint. The facts[14]It should be borne in mind, as the tribunal point out at paragraph 2 of their reasons, that over the nine days of hearing the tribunal heard evidence from the appellant, at some length in view of the extensive cross-examination by Mr Grundy, who appeared below, and from a further 19 witnesses whose evidence was adduced orally, in the case of eight of those witnesses and the in the form of written statements as to the rest, by the appellant. The respondents called 10 live witnesses and put in the statements of 3 further witnesses. In addition the tribunal had before them a bundle of documents running to 520 pages.[15]The tribunal make the point that they do not purport to set out all the relevant evidence in their written reasons. That is quite correct. It is necessary only for the tribunal to make those findings of fact which explain their conclusions.[16]Similarly, on appealing to the EAT, we are concerned only with questions of law. We do not retry the factual questions. As our Practice Direction makes clear at paragraph 6(3), it is the duty of parties or their advisers to prepare an additional bundle containing only those documents which are relevant to the points of law raised in the appeal and likely to be referred to at the hearing. In this case the respondents' advisers saw fit to put their clients to the expense of preparing, in triplicate, two large files containing all the documents which were before the Employment Tribunal and copies of the various witness statements. We did not read those bundles before the hearing and following the hearing I have counted six documents to which reference was necessary. This practice of simply copying every document in the case and lodging large, mainly irrelevant bundles with this Court must cease.[17]We turn then to the tribunal's findings of fact material to the appeal. The appellant was approached by a senior member of the respondents' Electrical Engineering Department to apply for a position as a lecturer in the Signal Processing Ground (SPG) within that Department.[18]She was interviewed for the post, as one of three short-listed candidates, by a panel which included Professor Xydeas, who was then head of SPG. She was offered the post, the panel being unanimous that she was the best candidate. The tribunal found that Professor Xydeas was pleased to have recruited a researcher of such standing and potential. She accepted the offer and commenced employment on 1st February 1994. She then became the only female academic in the school of engineering.[19]Within a short time, the tribunal found, things started to go wrong. In particular, a serious breakdown developed in the relationship between the appellant and Professor Xydeas. The appellant began raising with him criticisms of the work of her colleagues, culminating in her description of Dr Peter Jones as the "most sexist" male that she had known. Professor Xydeas, whom the tribunal described as a determined man who could be abrasive at times, rejected the appellant's criticisms as diplomatically as he could. He was conscious of the need to preserve coexistence within the relatively small research group.[20]That rejection of her criticisms, the tribunal found, marked a turning point in the relationship between the appellant and Professor Xydeas and in late May 1994 she informed him that she could no longer work within SPG. By the end of July 1994 she had transferred out of SPG and was carrying out her research activities under the aegis of the Information Storage Group (ISG) under Professor Middleton. That move did not improve her relationship with Professor Xydeas. It was widely recognised within the School of Engineering that the two were incompatible.[21]In March 1995 SPG acquired two new computers. Although the manufacturers, Hewlett Packard, expressed the wish that the appellant be allowed to use part of that equipment that did not happen. The equipment was absorbed into SPG and the appellant did not ask Professor Xydeas if she could have access to it. That was the subject of an informal complaint by the appellant to Professor Middleton. Professor Farrell (then Head of School) regarded it as a difficult matter, given the sensitivity of relations between the appellant and Professor Xydeas, and so did not interfere with Professor Xydeas' decision.[22]On 16th March 1995 Professor Farrell presided over a meeting attended by Professors Middleton and Xydeas and the appellant. It was clear that Professor Xydeas and the appellant were incompatible, each offering different reasons for the breakdown in relations. In the event, a consensus emerged. The appellant should transfer out of ISG into the Communication Group headed by Professor Farrell. The tribunal observe that the appellant raised no objection to that move until after these proceedings were commenced.[23]In July 1995 a loud argument took place between the appellant and Professor Xydeas, overheard by others.[24]In September 1995 the appellant approached a female academic in the Faculty of Law, Professor Brazier, who in turn contacted Steven Grant, then the respondents' Equal Opportunities officer. Mr Grant arranged a meeting with the appellant and the tribunal found that at that meeting the appellant complained that Professor Xydeas was bullying her and preventing her from carrying out her research. However, they rejected the appellant's evidence, disputed by the Mr Grant, that at that time she raised a formal complaint about Professor Xydeas or that she complained of sexual harassment or of sex discrimination.[25]Mr Grant followed the matter up. He arranged a meeting with the appellant and Professor Farrell on 2nd November 1995 at which Professor Farrell acknowledged that Professor Xydeas could be "difficult to work with". Following the meeting Professor Farrell told the appellant that he had no intention of sacking Professor Xydeas.[26]In Spring 1996 the appellant was asked to act as a woman Student's Counsellor by Dr Cunningham, the new Head of School. After initial objection the appellant accepted that job.[27]The tribunal noted that in July 1996 the appellant had a staff appraisal. She made no complaint at that time of sex discrimination.[28]In May 1997 the appellant was put in contact with Dr Jill Barber of the Faculty of Science and Engineering, following a complaint which she made about her working conditions to Professor Donnachie, Dean of the Science Faculty. As a result of meeting with Dr Barber a statement setting out the appellant's employment problems was prepared and amended by the appellant. That document makes no mention of the appellant's allegations of sexist comments or other sexually discriminatory treatment on the part of Professor Xydeas, later raised in these proceedings.[29]On 29th July 1997 the appellant went on extended sick leave.[30]In Autumn 1997 the appellant made a formal complaint, which was dealt with by Mr Grant, now Personnel Officer for the Faculty of Science and Engineering. He conducted an investigation. He carried out a lengthy interview with the appellant and Dr Barber. Still the appellant made no mention of the sexist comments and discriminatory behaviour on the part of Professor Xydeas raised before the Employment Tribunal, particularly during the period February-September 1994.[31]The appellant's objections to Mr Grant investigating her complaint were overruled by Mr Kellett, Director of Personnel, and the investigation continued through Mr Grant and the new Head of School, Professor Wood.[32]In the course of subsequent interviews with members of staff a picture emerged that Professor Xydeas was difficult to work with and could be bullying with everybody, regardless of their gender.[33]Mr Grant and Professor Wood concluded that whilst the appellant had suffered a disadvantage and her career had been damaged by having to leave SPG, Professor Xydeas' conduct was not gender-related. He was guilty of inappropriate behaviour to a number of his subordinates.[34]As a result Professor Wood imposed a rare sanction on Professor Xydeas by issuing him with a written warning and moving him from the Headship of SPG.[35]It is worth setting out that warning letter, dated 11th December 1997, in full:
"Dear Professor Xydeas, Further to our discussion of 8th November 1997 concerning our investigation into allegations made against you by Dr Violet Leavers. Mr Grant, Ms Binks and I have now concluded our investigation into Dr Leavers complaint that you subjected her to harassment on grounds of sex. Whilst we do not accept your treatment of Dr Leavers was motivated by consideration of her gender we do find that the manner in which you relate to junior members of staff has occasionally created a hostile and intimidating environment. We have reached this conclusion having heard from Dr Leavers and others. The purpose of this letter is to formally warn you as to your future conduct. Any further complaints will be properly investigated and could result in our proceeding to the next stage of the disciplinary process. This letter will remain on file for one year."
[36]By then the appellant had commenced these proceedings. In their Notice of Appearance dated 21st November 1997 the respondents acknowledged that the appellant had, in common with other junior members of the academic staff, been subjected to treatment by Professor Xydeas which constituted harassment contrary to the University's policy. However it was denied that she received less favourable treatment on the grounds of her sex. The tribunal decision The Law[37]At paragraph 6 of their reasons the tribunal set out the statutory provisions and the principles of law which they sought to apply to the facts as found. Having set out ss. 1(1)(a) (direct discrimination); 4 (victimisation) and 6(2)(b) (detriment) of the Sex Discrimination Act 1975 they refer to the meaning of detriment in Jeremiah v Ministry of Defence [1979] IRLR 436 , and the well known approach of Neill LJ to the question of drawing adverse inferences of unlawful discrimination in King v Great Britain China Centre [1991] IRLR 513 , approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36 .[38]Finally, they summarised the principles which they drew from two authorities relied on by Mr Grundy. The first was Nagarajan v London Regional Transport [1998] IRLR 73 in the Court of Appeal. Correctly, the tribunal observe that in that decision the Court of Appeal determined that victimisation requires conscious motivation on the part of the discriminator. Subsequent to this tribunal's decision the House of Lords disapproved that approach in Nagarajan [1999] IRLR 572 . However, the point does not arise for consideration in this appeal, there being no appeal against this tribunal's finding on victimisation.[39]Secondly, the House of Lords decision in Zafar . The tribunal, having observed that the House of Lords approved the Court of Appeal's guidance in King , stated the following further principle which they derived from Zafar :
"… "less favourable" treatment cannot be inferred merely from the fact that the employer has acted unreasonably, nor can it thus be inferred that the treatment was racially/sexually motivated."
[40]We shall return to that self-direction when considering the submissions in this appeal on the new grounds. The tribunal's conclusions[41]The tribunal concluded that the foundation-stone of the appellant's complaint was her allegation that Professor Xydeas discriminated against her on grounds of her sex by his being critical and dismissive of her professional abilities, making sexist comments regarding her "direct" behaviour, denying her access to resources, having her removed from sight and ultimately by shouting at her in July 1995. Her further complaints against other senior members of staff relate to their alleged failures to properly act upon her complaints about Professor Xydeas, and in particular a complaint of sexual harassment against him which she says she made to Mr Grant in July 1995. Those complaints, the tribunal found, fail if the complaint against Professor Xydeas fails. Mr Millar does not quarrel with that approach.[42]As to the role of Professor Xydeas, the tribunal made the following findings:(1) Witnesses called by the appellant, particularly Dr Harrison and Dr Goble, did not support the appellant's allegation that Professor Xydeas was motivated by issues of gender. Dr Goble gave no direct evidence of being present when remarks complained of by the appellant were allegedly made by Professor Xydeas; Dr Harrison's evidence was inconsistent with what he had, the tribunal accepted from them, told Professor Wood and Mr Grant in late 1997. They found Dr Harrison's evidence to be unreliable.(2) The appellant made no complaint of sexual harassment or discrimination by Professor Xydeas to Mr Grant in July 1995. They found it significant that no such complaints were contained in her own notes made prior to the meeting with Mr Grant and none appear in the document which she later prepared with Dr Barber's help in August 1997. The first mention of such complaint was contained in the appellant's letter to Mr Grant of 14th October 1997 where she said:
"As I feel that I have exhaughsted [ sic ] all other possibilities I now have no alternative but to proceed to making a formal complaint of sexual discrimination."
No such formal complaint, as the appellant alleged, had earlier been made, so the tribunal found. (3) In summary, the tribunal concluded: (a) Professor Xydeas and the appellant were incompatible. Sex had nothing to do with their disagreements. (paragraph 16). (b) Professor Xydeas, in his relationship with and treatment of the appellant was not motivated by considerations of sex. He may well have been a very difficult person to work with, but it was plain that he was at least even-handed in his behaviour to people. Other subordinates (who were mainly, if not solely, men) had complained about Professor Xydeas' behaviour towards them. (paragraph 17). (c) On the relatively minor complaints by the appellant the tribunal found no reliable evidence of a difference in treatment between the appellant and male comparators in the matters of facilities, resources, funding and/or workload. (d) Having rejected the appellant's case against Professor Xydeas, the remaining complaints against those involved later in the history also failed. Both the claims of direct discrimination and victimisation were dismissed. The Appeal The new grounds[43]In a nutshell, Mr Millar submits that this tribunal fell into the "motive trap" and thereby misdirected itself in law when considering the question of direct discrimination under s.1(1)(a) of the 1975 Act.[44]It is clearly established by the highest authority that in finding whether or not a case of direct sex or race discrimination is made out the alleged discriminator's motive or reason for doing the acts complained of is irrelevant. See per Lord Goof in James v Eastleigh Borough Council [1990] ICR 554 , 576C-E. The same is true of victimisation. See now the House of Lords in Nagarajan .[45]However, as Mr Grundy points out, in that speech Lord Goff also said this, 574F-G:
"Of course, there may be cases where the defendant's reason for his action may bring the case within the sub-section, as when the defendant is motivated by an animus against persons of the complainants sex, or otherwise selects the complainant for the relevant treatment because of his or her sex."
[46]An obvious example arises in cases of sexual harassment. That was a part of the appellant's case here. We shall give but one example. We have before us the Chairman's notes of the evidence of Professor Clegg, a witness called by the appellant. We see that in chief the appellant put to him a question along the lines: do you think that Professor Xydeas' treatment of me was because of the Greek/Mediterranean culture and attitude towards females? That gives us a glimpse of the case which the appellant was advancing as to Professor Xydeas' motivation. It was a case with which the tribunal were bound, in our judgment, to deal in their reasons.[47]We return to the tribunal's self-direction as to the effect of Zafar and the question as to whether it was to be inferred that the treatment complained of was racially/sexually motivated. We raised the question as to whether this represented a misdirection on the part of the tribunal. However, Mr Grundy referred us to the speech of Lord Browne-Wilkinson in Zafar , expressing the unanimous opinion of the House, and it will be seen, at paragraph 14, that that expression is used by his Lordship in recording a submission made by Counsel for the applicant. We are not satisfied that this tribunal can be taken to have directed themselves that it was a prerequisite of establishing direct discrimination that the appellant could show conscious motivation on the part of Professor Xydeas. Had she done so, she would have succeeded, but her case did not end there.[48]We accept, as Mr Millar submits, that the question posed by s.1(1)(a) involved a two-stage test:(1) was the appellant treated by Professor Xydeas less favourably than he treated or would treat a man in a comparable position, if so(2) was that treatment on grounds of sex? Martins v Marks & Spencer PLC [1998] IRLR 326 , paragraph 49-50, per Mummery LJ, applying Zafar .[49]Mr Millar has submitted that the tribunal failed to apply that two-fold test; they failed to identify the relevant comparators and further failed to make all necessary findings of fact in order to answer the two questions raised by the statute.[50]We reject those submissions. As to the findings of fact, we are satisfied that the tribunal's reasons sufficiently set out the detail of the breakdown in the relationship between Professor Xydeas and the appellant; they rejected the allegations that Professor Xydeas had made sexist remarks to the appellant. As to the question of comparators, the critical finding, in our view, was that Professor Xydeas treated his subordinates even-handedly; that is, badly, without discriminating between the sexes. To that extent this case is not dissimilar to Zafar . Where specific named comparators were relied upon, those comparisons are dealt with in paragraph 18 of the reasons.[51]In short, we have concluded that the new grounds disclose no error of law on the part of the Employment Tribunal. The PH grounds[52]At the PH Morison J, giving the judgment of the EAT, identified four matters on which this case would be allowed to proceed to a full hearing.[53]It is important to recognise, as Morison J pointed out at paragraph 7 of his judgment, that at the PH only the appellant's side is heard. We have now heard the respondents' side and had before us a wealth of documentation, together with the witness statements, which were before the tribunal. We have been taken to the relevant extracts.[54]Having considered those submissions we say at once that in our view no error of law is disclosed by the PH grounds. Indeed, we asked Mr Millar in relation to each of the four matters, where is the error of law? We received no satisfactory reply on each occasion. We shall deal with each point shortly.(1) the tribunal appeared to be seeking more direct evidence of sex discrimination that was likely to be available. That is a reference to their treatment of the evidence of Dr Goble at paragraph 11 of their reasons. We see nothing in that point. The tribunal was merely commenting on the evidential value of Dr Goble's own experiences with Professor Xydeas, as opposed to those of the appellant.(2) It is suggested that the tribunal "over-concentrated" on the question of whether the appellant made a timeous complaint of sex discrimination against Professor Xydeas in July 1995. We disagree. The question as to whether the appellant made such a complaint to Mr Grant went to her credibility (she was disbelieved on this point) and to whether those complaints, raised late in the day, were genuine. It seems to us that these are matters of weight and credibility which the tribunal properly took into account.(3) The evidence of Dr Barber. At the PH the EAT were under the impression that the tribunal had, or may have unfairly prevented the appellant from adducing evidence from Dr Barber. On examination the position is rather more convoluted than it no doubt appeared at the PH. Prior to the hearing there was a direction for exchange of witness statements. The appellant did not disclose a witness statement from Dr Barber within time. She was granted an extension and served a witness statement on 7th July 1998. On 22nd October 1998 the respondent agreed that witness statement. At the hearing the appellant wished to call Dr Barber. The respondents objected. The appellant was permitted to file a further witness statement from Dr Barber. That she did. The second witness statement (in draft) was agreed by the respondents. On 27th October 1998 the appellant's case was closed. On 28th October she sought to produce further written comments by Dr Barber on the second statement. The tribunal decided that enough was enough. They refused that application. Mr Millar has sought to persuade us that the tribunal erred in refusing to admit relevant and probative evidence from Dr Barber. We reject that submission on two grounds. First, having looked at Dr Barber's comments on the second (draft) statement, we are not satisfied that they would have materially advanced the appellant's case, but, secondly, we cannot say that the tribunal's exercise of discretion in refusing the appellant's further application, in view of the history relating to Dr Barber's evidence, was perverse in the sense identified by Arnold J in Bastick v Lane [1979] ICR 778 , 782B-C.(4) The evidence of Professor Clegg. This point relates to the tribunal's assessment of Professor Clegg's evidence. All, we think, the tribunal was saying at paragraph 17 of their reasons was that Professor Clegg was not prepared to agree unreservedly with the appellant's proposition, did he think that Professor Xydeas' treatment of her was gender motivated. For these reasons we do not consider that the appellant has made out her case that the tribunal fell into error based on the PH grounds. Conclusion[55]It follows, in these circumstances, that this appeal must be dismissed.