LONDON BOROUGH OF SOUTHWARK v MS D A WHILLIER [2000] UKEAT 495_99_0303
[1]APPEARANCES For the Appellant Mr P Oldham (of Counsel) Instructed by Mr R Bielby London Borough of Southwark Southwark Legal (Contract) Services South House 30-32 Peckham Road London SE5 8UB For the Respondent Mr M Ford (of Counsel) Instructed by Mr J Clinch Legal Officer UNISON 1 Mabledon Place London WC1H 9AJ MR JUSTICE BURTON: Ms Whillier, the Respondent, was employed by the London Borough of Southwark. the Appellant, commencing her employment in November 1990. The Employment Tribunal in this case had to deal, over the period of some 13 days of hearing, with a lengthy history of her employment by the Appellant, because there was a claim included in her originating application for unlawful deduction from wages, which had led to a dispute and the activation of grievance procedures over a long period of time. That claim was dismissed by the Employment Tribunal, Mr Bano as Chairman, when he gave the unanimous decision of the Tribunal in February 1999. The Respondent made two other claims in respect of which she was successful before the Employment Tribunal The first was a claim under Section 146 of the Trade Union and Labour Consolidation Act 1992 on the basis of action short of dismissal on grounds related to union activities, and the second was a claim of sex discrimination.[2]This is an appeal brought by the London Borough of Southwark against that unanimous decision. The two claims which succeeded, unlike the claim which failed, were centred on a very short period of time indeed and had they stood alone would only have needed, as we see it, a very short hearing; but the result of their forming part of a lengthier hearing is that it is not been thought necessary or appropriate to produce notes of evidence of that lengthy hearing, and in addition that Mr Oldham, who appears before us for the Appellant, as he did below, has without those notes of evidence, not been able to supplement from his own recollection, even had he been otherwise entitled to do so, the rather short way in which the Employment Tribunal in fact deals with its decision on these two claims, while Mr Ford who appears today for the Respondent was not instructed below.[3]The claim in respect of Section 146 and the Sex Discrimination Act claim both arise out of the same series of events. What very shortly happened was that, as a result of all the various grievance procedures to which I have referred, an internal hearing was held on 17 September 1996, which was designed to and probably did finally resolve that stage 2 grievance, although not entirely to the satisfaction of the Respondent, hence her eventual claim before the Employment Tribunal which failed, but which resulted in the Applicant's making an offer of promotion. The offer that it made was it seems on the same basis as that which is expressly contained in a letter, subsequently written by Mr Bull of the Appellant to the Respondent on 12 November 1996, to which I shall refer in a moment. At that stage, it seems, there was no particular job in mind so far as concerned that offer of promotion, but at some stage after that hearing, in September or October, the job in question materialised, it seems, as a job as a Training Officer, which would involve an upgraded position and consequently an upgraded salary for the Respondent as and when that job was agreed upon by her.[4]She had, however, during the course of the grievance procedures, and hence of the ongoing dispute between herself and her employer, been elected as Branch Secretary of UNISON, and that position as Branch Secretary involved a full time release. There was, and there no doubt still is, an agreement between UNISON and the employer, called the TOFTUDS Agreement, (Time off for Trade Union Duties Scheme), which was, although it has not been put before us, and indeed was not lengthily canvassed, if at all, before the Employment Tribunal, dedicated towards funding payments made by the Appellant to those who were on full time release as Trade Union employees while retaining, but not carrying out their employment with the Appellant. On 11 July 1996, Ms Whillier in her capacity as Branch Secretary of UNISON wrote a letter to a Mr Dorey, Business Unit Manager (Purchasing) which included the following paragraph: - "I was concerned to learn that it could be problematic to find me a PO post, given that I am currently on full time release as Branch Secretary. Given the arrangement under the TOFTUDS agreement, I would be released regardless of my substantive post and money is available from the TOFTUDS budget to fund cover. Any attempt by the Council to delay the resolution of this matter can only be considered as an attack on my activities as a Trade Unionist and would necessitate a legal remedy. Given the protracted and unnecessary manner in which the Council has dealt with my case, it is clearly in nobody's interest to drag this matter out any further than necessary."[5]Mr Dorey, did not give evidence before the Employment Tribunal, but that letter was certainly before the Tribunal. It is right to say that it does not in terms address the possibility, which eventually arose, of promotion to the post without the salary to go with it, but it certainly in general terms put the Appellant on notice that the expectation of the Respondent was that there would be promotion and that money would be available from the TOFTUDS budget to fund cover. There then came, as I have indicated, the meeting of 16 September 1996, and in a letter of 12 November 1996 to which I have referred, Mr Bull, who had been the Assistant Director at Community Care present at the meeting at 17 September, wrote to Ms Whillier substantially as follows:- "I am writing to set out the outcome of your grievance which was heard as you know by Liane Venner, (Senior Regional Officer) and myself. The contents of this letter have been agreed with Liane. I would also like to apologise for the delay in this response being sent to you although the outcome was conveyed to you orally at the end of the hearing." And then there are a number of bullet points and I read only selectively:- "The panel agreed that you should be offered an alternative job in line with the outcome of the occupational assessment, which has already taken place. During the course of the grievance I let you know of suitable vacant posts in Social Services within the PO1-3 range. I understand that you are still considering the possibility of the Training Officer post. I have also written to the Head of Personnel asking him to facilitate the process of your being considered for similarly graded posts across the Council." And he concluded with this penultimate paragraph: - "At the grievance hearing on 17 September you raised the issue of when you would be paid your increased salary from, should you take up any offer of a new post. I am advised that you would be paid from the point where you took up the duties of the new post. Should you have any queries about this position, given your current full time release on trade union duties, then you should raise these with either the Head of Personnel or the Chief Personnel Officer."[6]It was that letter which set out in writing the position which that had already been made clear by Mr Bull as there appears at the meeting on 17 September, which led to both complaints before the Employment Tribunal, namely that this decision, that whatever promotion was offered, probably to Training Officer but as yet to be clarified, would be on the basis that it would not carry with it an immediate increase in salary, but only as and when the Respondent ceased her full time union activities, was both action short of dismissal, in breach of Section 146, and amounted to sex discrimination. By a letter dated 11 November 1996, namely the day before this letter was sent, Ms Whillier, the Respondent, again on Southwark UNISON No 1 branch notepaper, had written to Mr Walker, and she wrote in paragraph 6 of that letter that she still considered that she should be paid the differential in salary for past employment which had led to the disputed claim for wrongful deduction of wages, which she lost in the Employment Tribunal. She then continues: - "I was advised verbally that I would not be remunerated at the upgraded rate of my new post until I finished being Branch Secretary. Applying the 'but for' test, this is clearly discrimination on the basis of my trade union activities." This letter was received by Mr Walker but there is no reference in the Employment Tribunal's decision to any evidence, nor can Mr Oldham remember whether any was given, as to whether the letter was received by Mr Walker, before the despatch of Mr Bull's letter of 12 November 1996. It is certainly right to say that the letter of 12 November: - a) does not purport to be an answer to that letter b) makes no reference to that letter c) has a self standing purpose, as being a rather belated record of what had occurred on 17 September d) was written by Mr Bull and not by Mr Walker.[7]The letter of 12 November was explained in evidence by Mr Bull, as was described in paragraph 41 of the decision of the Employment Tribunal, as having been sent by him in accordance with advice from Mr Walker, who was his senior. We are told by Mr Oldham, although it does not appear from the decision of the Tribunal, that Mr Walker's evidence was, in general terms, that he believed that any advice had been misunderstood and that there was some kind of communication failure between him and Mr Bull.[8]The final fact that we should record is this. By an amendment to the Originating Application, the Respondent added a paragraph 15a, which read as follows: - "The Applicant believes that other male branch secretaries have been upgraded and paid at the higher rate despite being on trade union release. This constituted sex discrimination." Although there was, it seems from the decision, mention made, at some stage during the lengthy hearing, of other names, in the event this point crystallised only on the evidence of a Mr McLaughlin. Mr McLaughlin had it appears been elected as Staff Side Secretary, carrying full tine release in 1987, and it seems from paragraph 46 of the decision that Mr McLaughlin's evidence was that in the summer or autumn 1988 he applied successfully for an upgraded permanent position, and was paid the salary for the upgraded position whilst still on full time release. He was male.[9]The claim under Section 146 was that the proposition by the Appellant that there would be a promotion, but only on the basis that she was paid for the job as and when she actually began the duties, was action short of dismissal, taken against her as an individual by her employer for the purpose of deterring her from taking part in the activities of UNISON or penalising her for doing so.[10]The Employment Tribunal found that that claim was proved. They dealt with it very shortly indeed. The letter in question of 12 November was set out in paragraph 32 of the decision. In paragraph 35 the following is set out by reference to the grievance hearing on 17 September where the Chairman says as follows: - "Although it appears that difficulties about the Applicant's promotion while carrying out her duties as Branch Secretary were first raised by Mr Dorey on 5 July 1996, it appears from the Applicant's letter of 11 July that Mr Dorey's position was that there would be difficulties in finding the Applicant a post while she was still Branch Secretary. The position taken by Mr Bull in his letter of 12 November was somewhat different, namely, that the Applicant would not be paid the salary appropriate to any new post until she took up the duties of such a post. That position appears to have been conveyed to the Applicant for the first time on the last day of the Stage 2 grievance hearing on 17 September 1996." Then in paragraph 39 the Chairman says: - "On the basis of the way in which the Respondents' position was stated in Mr Bull's letter of 12 November 1996, it is apparent that they decided that the Applicant would not be allowed to take up the duties of a new post while she was on trade union release."[11]I interpolate to say that as Mr Oldham has pointed out, that is plainly erroneous because its reason she could not take up the duties of a new post was just because she was a Branch Secretary, and no complaint could be, or was, made about this. But then the Chairman continues; "as well as deciding that she would not be paid at the rate for the new job until she took up the duties." At paragraph 41, the Chairman recites the Tribunal's conclusion: - "We have reached the conclusion that the purpose of the action taken by the Respondents in relation to the Applicant was to deter her from taking part in the activities of her trade union. Although Mr Bull stated that his letter was written in accordance with advice from Mr Walker, Mr Walker, who was responsible for the TOFTUDS scheme, said in his evidence that the fact that the Applicant was on (trade union) release did not affect her taking up promotion in the usual way. Whilst Gallacher v Department of Transport (above) decides that there is a difference between purpose and effect, there is therefore no basis in this case for holding that the Respondents' purpose was anything other than to oblige the Applicant to choose between promotion and remaining in office as trade union branch secretary, and thereby to deter her from remaining in the office. Both Mr Walker and Mr Bull denied any hostility to trade unions and, whilst we do not wholly accept Mr Walkers evidence to that effect, we do not consider it necessary to our finding to hold that any of the Respondents' employees were motivated by hostility to trade unions or, as the Applicant suggested, because she was particularly effective in carrying out her trade union duties. For the reasons given below, we consider that the Respondents' action against the Applicant was the result of sex discrimination, but we do not consider that that finding prevents us from holding that the Respondents' action was also in breach of section 146."[12]It appears that what weighed most heavily in the minds of the Tribunal was the evidence of Mr Walker, which is there recited. Mr Walker apparently gave evidence that the fact that the Respondent was on trade union release did not affect her taking up promotion in the usual way, and by in "the usual way" we interpret that as meaning on the basis of receiving the appropriate salary for the promoted job. Given that the evidence of Mr Walker himself, therefore, was that there was no reason why the Respondent should not have had her promotion, and given that the burden under section 148 (1) is on the Appellant to show the purpose for which action was taken against the complainant, it appears to us that it was particularly necessary for the Appellant to have explained why it was that it was thought appropriate to do what they did, namely to say that promotion would be given, but without the concomitant increase until she began her duties.[13]It may seem to an outsider strange that it should be considered appropriate that somebody should be entitled to increased pay for promotion to a new job, when in fact she would not be doing that new job, but would be continuing doing exactly what she had been doing namely being on full time release as branch secretary, but: - That was, it seems, what the TOFTUD scheme was there to fund Mr Walker, when he gave evidence appears to have said that that would indeed have been usual practice. "A finding of hostile treatment, even if that treatment is not satisfactorily explained, does not entitle the Tribunal to make a finding of sex discrimination, unless the Tribunal is also satisfied that a person of the other sex, was, or would have been, treated more favourably." "We have, however, concluded that the treatment given to the Applicant in relation to her promotion whilst carrying out trade union duties was less favourable than that given to Mr McLaughlin, and we have also concluded, in the absence of any satisfactory explanation for the Applicant's less favourable treatment, that it was on the ground of the Applicant's sex." In paragraph 50, the Chairman refers to Mr Oldham's submissions that the Tribunal should not compare the treatment of the Respondent with the treatment given to a male employee some eight years earlier, and also Mr Oldham's submission that Mr McLaughlin was not promoted but was either re-graded or was on a career progression scheme. But the Chairman then continued: - "However we see no reason to reject Mr McLaughlin's evidence that he applied for and was being given a job at a higher grade, and was paid the salary for that job even though he was on full time trade union release. There does not appear to have been any change in the position with regard to the promotion of employees on full time trade union release in the period from 1988 to 1996, and we do not consider that there were any material differences between the case of the Applicant and that of Mr McLaughlin. Even without taking into account the evidence of prior hostile treatment of the Applicant, we are satisfied that the less favourable treatment given by the Respondents to the Applicant in comparison to that given to Mr McLaughlin was on the ground of the Applicant's sex." (4) "Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds [and of course instead of race, sex must be interpolated, where appropriate] a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds." As to this, it appears to us, for reasons that I have given, that the lack of explanation by the employer in this case could well have been understandable, simply by virtue of the passage of time. But more significantly and I say this with diffidence, is that it may be worth adding slightly to the words of Lord Justice Neill, in order to be more comprehensive. It seems to us that the explanation does not necessarily need to be "put forward" by the employer. It could be put forward, or be available to be put forward, from some other source, and in particular from the Tribunal's own decision.