MS SHARON WILCOCK v STOCKTON-ON-TEES BOROUGH COUNCIL [2000] UKEAT 205_00_1705

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 205_00_1705

Case No Appeal No. EAT/205/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS SHARON WILCOCKAPPELLANT

STOCKTON-ON-TEES BOROUGH COUNCILRESPONDENT

Before

Mr Justice Burton Mr J C Shrigley Ms B Switzer

Date 17 May 2000

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR NERTNEY (Solicitor) Legal and Administration Services Stockton-on-Tees Borough Council PO Box 11 Municipal Buildings Church Road Stockton-on-Tees TS18 1LD MR JUSTICE BURTON : This is the preliminary hearing of an appeal against the unanimous decision of the Employment Tribunal at Thornaby-on-Tees on 17th November 1999.

[2]The Appellant alleged before the Employment Tribunal, as set out in paragraph 1 of its decision, that she was indirectly discriminated against by her Respondent employer, by the imposition of a requirement or condition which prevented her accepting the post of Senior Youth Arts Officer, and that as a consequence she was made redundant from her employment and that her dismissal was unfair. The problem for the Appellant was carrying out evening work, because of her own young children, when the Respondent required evening work from those youth and community workers like the Appellant, whose task it was particularly to assist at youth clubs, which open in the evenings. The Tribunal found that the Appellant was unable to meet that requirement, and that, as it concluded that proportionally fewer females than males complied with the requirement to work evenings, so in consequence of such requirement the Appellant had been discriminated against, indirectly. The issue then for decision was whether the imposition of such a requirement was justifiable. The Tribunal concluded as follows:

"11 … The tribunal was satisfied that the respondent had established that the requirement to work evening sessions was a necessary part of the job of the specialist senior youth officers. The Tribunal took into account the fact that part of the duties of the Youth Workers … was to support the implementation of programmes into Youth Centres and to deliver training to volunteers who were available in the evenings when the Youth Centres were open. The Tribunal found that there was a probability that the job of necessity required actual attendance at Youth Clubs, in order to monitor programmes as set out in the job description. There was, therefore, a real need to impose the requirement, or condition, upon Senior Youth Officers, even though it had a disproportionate effect upon females. Accordingly, the Tribunal found that the complaint under the Sex Discrimination Act 1975 must fail."

[3]The Tribunal also concluded that the reason for the Appellant's dismissal was redundancy (paragraph 12) and that the requirements for the application of fair and objective selection criteria, adequate warning and consultation, involvement of the trade union and availability and offer of alternative employment were not breached and/or were complied with. However, it concluded:

"16 … that the respondent had not followed it own procedure, when it failed to inform the applicant, that she could appeal against the decision to dismiss her by reason of redundancy. Accordingly, the dismissal of the applicant was unfair. The Tribunal take the view that this is a procedural matter only."

[4]The Appellant has appealed on three bases:(1) That the Tribunal erred in dismissing her application under the Sex Discrimination Act 1975 .

(2) That there was no redundancy.

(3) That the finding in paragraph 16 that the unfairness of the dismissal was a "procedural matter only" was an error. This finding is characterised by the Appellant in her Notice of Appeal as a conclusion that the "failure to inform the Appellant of her right of [ internal ] appeal against dismissal was merely a procedural matter which would have made no difference to the Appellant's dismissal " , although the Tribunal did not expressly so find, and indeed if it had so found it may not have made a finding of unfair dismissal at all on the basis of the first option in Polkey vAE Dayton Services Ltd

[1988] AC 344

[5]The Respondent in completing its PHD Form intimated an intention to cross-appeal, and as a result prior to the preliminary hearing the Respondent was requested to produce such cross-appeal, supported if it wished by written submissions, and invited to appear on this preliminary hearing, so that the impact of the cross-appeal could be considered and directions be given as appropriate. In the event such proposed cross-appeal and written submissions were provided: the Appellant has appeared before us in person, and the Respondent has been represented by its solicitor Mr Nirtney.

[6]The proposed cross-appeal, which is not an independent appeal because it was not issued as an appeal within the original 42 days, and no extension of time has been sought, such that it falls if on this preliminary hearing the Appellant's appeal is dismissed, is on three bases:(1) That the Tribunal erred in concluding that there was a condition imposed with which the Appellant was unable to comply and was thus discriminatory. This is obviously more of a proposed Respondent's Notice, supporting the Tribunal's decision on sex discrimination on alternative grounds.

(2) That the Tribunal erred in concluding that the Respondent's procedures provided for an internal right of appeal against a decision to dismiss on grounds of redundancy and that the Respondent had not followed its own procedure (paragraphs 4(k) and 16 of its decision), because there was no such evidence given, and in fact the Respondent's procedure did not contain any such internal appeal.

(3) That in any event in finding that simply because the Respondent had not followed its own procedures the decision to dismiss the Appellant was, without more, unfair, the Tribunal had erred in law. This met head on the question to which we have referred above, namely that insofar as there be a finding that failure in relation to the dismissal was "a procedural matter only" , then that might, within Polkey , lead to a conclusion, once the matter is further considered, either that loss was nevertheless suffered, at least to the extent that there was a reduction in the chance of being retained in employment, or, if there were a finding that the carrying through of such procedures would have made no difference, there might be a finding of unfair dismissal but no loss suffered or there might be a finding that the dismissal was not in the event unfair (particularly given that this was, on the Tribunal's conclusion, a dismissal for redundancy). The Tribunal has thus foreclosed that last mentioned option, without having heard the evidence or in any event given any reasons. The Sex Discrimination Act Appeal

[7]We considered this by way of preliminary hearing on an ex parte basis, namely without considering any question of the proposed Respondent's Notice, and simply addressing the question as to whether the Appellant herself had shown a sufficiently arguable case for her appeal to survive the test of a preliminary hearing. The Appellant submitted that the Tribunal failed to consider, when concluding that the requirement imposed by the Respondent was a necessary requirement, whether, as was put in paragraph 6 of her Notice of Appeal, it was "reasonably necessary in the light of the resources of the Respondent, the circumstances and objective it was trying to achieve." While recognising that the Tribunal correctly understood that the onus of establishing justification was on the Respondent, and that the conclusion was a matter of discretion for the Tribunal, the Appellant submitted that the onus was a heavy one and that the Tribunal had failed to balance the discriminatory effect of the condition against the reasonable needs of the party which applied the condition. We conclude, having carefully considered the decision of the Employment Tribunal and its findings of fact in paragraph 4, that the essence of this Appeal is simply asking for an appellate body to reconsider either those findings of fact or the Tribunal's conclusion in paragraph 11. We do not consider that there is any ground for challenge to the Tribunal's decision either on the basis that it has applied the wrong test, or that it has failed to consider the relevant circumstances or been perverse in its conclusions, and accordingly, at the conclusion of the oral hearing, we dismissed the Appellant's appeal. Unfair dismissal

[8]It is apparent from our summary above, that it was clear that both sides were challenging the conclusion of the Tribunal in paragraph 16 of its decision. On the one hand the Appellant asserted that there was, within paragraph 16, an implicit conclusion that the holding of an internal appeal would have made no difference, foreshadowing an eventual finding of no loss, when the Appellant would wish to be free to assert at the remedies hearing that some alternative outcome to dismissal would or could have been arrived at. The Respondent, on the other hand, recognises that, on the face of it, the Tribunal may have signalled, by its conclusion that the unfairness of the dismissal was only procedural , that it might, in the end, find that there was no loss, because the holding of an internal appeal would have made no difference; but nevertheless, as set out above, complains that by that very same finding the Tribunal shuts out a possible conclusion that, notwithstanding the absence of an internal appeal (which it would seek to argue was not part of its procedure in any event), since any further appeal or indeed consultation could not have led to any other outcome, thus the dismissal for redundancy was in fact not unfair, as per Polkey . In those circumstances we suggested, having, as set out above, previously indicated that it would be helpful if both parties appeared on the preliminary hearing, that there could be agreement that paragraph 16 of the decision (and of necessity, although this was not specifically canvassed at the oral hearing, also paragraph 4(k)) should be quashed, and the Tribunal left to continue with the remedies hearing with its findings of fact otherwise unaltered, but leaving open the arguments which both sides would wish to contend for, as set out above. Such a quashing could, on a preliminary hearing, only occur by consent because, without consent, the only options open to this Tribunal would be to allow the Appellant's appeal in respect of the unfair dismissal finding to proceed to a full appeal (accompanied by the corresponding cross-appeal by the Respondent) or to dismiss her appeal, in which case the cross-appeal would also fall. Because the Appellant was, notwithstanding the fact that both her Notice of Appeal and her written submissions had been prepared and submitted by legal advisers on her behalf, counsel and solicitors respectively, in fact unrepresented at the hearing, we wished her to have the opportunity of consulting her solicitors. The Respondent gave, by Mr Nirtney, its consent to the course proposed, and we gave the opportunity for the Appellant, having consulted her solicitors, to notify the Tribunal by 4 p.m. on Friday, 14th April, if she were willing to consent to the course proposed, otherwise we would on a reserved judgment, simply decide whether to give leave for, or dismiss, her appeal.

[9]By fax dated 17th April 2000 the solicitors for the Appellant confirmed the Appellant's , consent to the quashing of paragraphs 4(k) and 16 of the Tribunal's decision. We accordingly make that order, and make no order on appeal or cross-appeal other than to remit the matter for further consideration based on the balance of its findings to the same Tribunal. The Tribunal can then make its decision on the outstanding contentions set out above, and if it concludes that the dismissal was unfair and that loss was suffered, can simultaneously determine the appropriate remedy.