MS C E SAMUEL v LONDON BOROUGH OF LEWISHAM [2001] UKEAT 1015_00_3101

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1015_00_3101

Case No Appeal No. EAT/1015/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS C E SAMUELAPPELLANT

LONDON BOROUGH OF LEWISHAMRESPONDENT

Before

Mr Justice Lindsay

Date 31 January 2001

[1]APPEARANCES For the Appellant MR GARY MORTON (of Counsel) Messrs Grant Saw & Sons Solicitors 142 Greenwich High Road Greenwich London SE10 8NN MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Ms C E Samuel in the matter Samuel v London Borough of Lewisham . This morning Ms Samuel has appeared by Mr Morton. On 9th April 1999 Ms Samuel lodged an IT1 claiming unfair dismissal, sex discrimination, race discrimination, breach of contract and what she called "EC Equal Treatment Directive". She had been employed, she said, from October 1990 to January 1999. Her complaint referred, inter alia, to her child and the child's sickness. She said that:

"12. On 9 October 1998 the applicant's baby fell ill with meningitis and the applicant was absent from work for 4 weeks. Upon her return to work on 9 November 1998 she was immediately suspended on full pay for "refusing to work in accordance with her contract"

. The applicant was rostered to do a sleep-in on the day of her return. 13. On 5 January 1999 a disciplinary hearing was held and the respondents held that the allegation of breach of contract was proven thereby constituting gross misconduct. The applicant was formally dismissed on 14 January 1999." She spoke of difficulties that she had in relation to shift working: "14. The applicant was not able to work late or shifts as she was unable to make satisfactory childcare arrangements. Further or alternatively, the applicant wanted to spend more time with her child. … 16. The applicant will say that the respondent's requirement to work shifts is indirectly discriminatory on the ground of sex …" and gave the reasons for that view. On race she said: "19. The applicant is of black british origin. On several occasions throughout the applicant's employment she made complaints about other staff members and/or clients racist behaviour towards her and in general." and she claimed victimisation. That is by no means a full description of her IT1, but it gives a picture of the type of complaint that was going to need to be ruled upon.

[2]On 6th May 1999 there was a long IT3 from Lewisham. They claimed that she had in fact been dismissed for gross misconduct. They said in their paragraph 7: "The Applicant was dismissed for gross misconduct following a disciplinary hearing held on 5th January 1999, when the hearing officer, James Parnell, found the allegation against the Applicant proven, that she had refused to work in accordance with the terms of her contract of employment despite repeated requests form her Service Unit Manager to do so." and there was a detailed rebuttal of Ms Samuel's case. So the gross misconduct relied upon was a refusal to perform her contract.

[3]Some of the complaints in her IT1 were, on the face of things, out of time and so on 28th June 1999 some directions were given in that regard. They are recited in the decision of the tribunal, which we shall come on to, and that directions hearing said, á propos jurisdiction:

"That it has jurisdiction to hear claims of race and sex discrimination and victimisation in respect of the dismissal of the Applicant in January 1999. The Tribunal has no jurisdiction to hear claims of race and sex discrimination against the Applicant in February and September 1998. Directions are given accordingly."

On that basis, then, there needed to be a hearing.

[4]There was then a ten day hearing in all between 23rd November 1999 and 14th June 2000, although the last two days were consideration by the tribunal in chambers. The tribunal was under the chairmanship of Mr D N Milton and Mr Austin and Mrs Singh were the lay members.

[5]On 5th July 2000 a very comprehensive and long decision with extended reasons was sent to the parties and the decision was unanimous and was:

"(i) the Applicant was fairly dismissed; (ii) the Applicant's cases of race and/or sex discrimination are dismissed; (iii) the Respondents are ordered to pay to the Applicant outstanding notice pay for the period of nine weeks (less earnings during that period) from the date of dismissal."

[6]On 18th July 2000 Lewisham sought a review and on 31st August 2000 that review was refused.

[7]On 1st August 2000 there was a Notice of Appeal by Ms Samuel and there are eight grounds of appeal.

[8]The first one is in relation to the pool that needed to be considered in respect of Ms Samuel's claim for indirect sex discrimination. For the purposes of section 1(1)(b) of the Sex Discrimination Act 1975 one needs to consider whether a requirement or condition applied to a woman, which is also applied equally to a man, is such that the proportion of women who can comply with it is considerably smaller that the proportion of men who can comply with it. That formulation immediately poses the questions, the "proportion of what women" and "the proportion of what men" and hence the 'pools' which need to be considered. The identification of the pool appropriate to a particular case is the subject of guidance from the authorities and quite often it is a difficult issue but there is a dictum of Waite LJ that indicates that the selection and identification of a pool is very much a matter of fact for the tribunal that hears the case and that, unless the tribunal's selection of a pool is downright irrational, it involves no error of law but rather is an issue of fact as to which, of course, the tribunal is master. Here, the tribunal held that the appropriate pool was all those who worked in what was called the CST, the Community Support Team, which is the Unit in which Ms Samuel worked. They were the ones to whom the relevant condition or requirement as to shift working on rota and as to a periodic sleep-in applied. It cannot, in our view, be said that that pool was irrationally selected. As to the pool selection, the first ground of appeal says:

"At paragraphs 33 and 34 of the extended reasons the Tribunal failed to take judicial notice of the fact that the high preponderance of single mothers having care of a child is common knowledge."

But that represents a misunderstanding, as it seems to us, of paragraphs 33 and 34. Each is an obiter view of what the tribunal might have decided if some other pool had been selected than the one which the tribunal in fact selected. Thus, paragraph 33 begins:

"If we are wrong in our conclusion about opting for what we believe and direct ourselves to be the correct pool …" and then it goes on to consider a particular position if they were wrong and paragraph 34 begins: "

Had we been persuaded that the correct pool was a mixed male/female pool of some 7,000 employees …" then certain conclusions would have followed. But both paragraphs 33 and 34 are obiter reflections on what the position would have been if a different pool had been selected than the pool which had in fact been selected. We see no error of law here, only a doubt about what might have been relevant had the tribunal picked another pool than the one that they did. No arguable and material error of law arises under this first ground and consequently the first ground is not to go forward to a full hearing.

[9]The second ground is this, it is headed "justification":

"At paragraph 43 the Tribunal decided that the requirement or condition was justified but in paragraph 97 contradicted themselves when they said that the reasonable employer would not require the mother to justify her intention not to work night duties."

There is, as we see it, no contradiction. At paragraph 43 the tribunal is dealing with whether the employer's action, in applying a condition or requirement to women, was, within section 1(1)(b)(ii) of the 1975 Act "justifiable irrespective of the sex of the person to whom it is applied". Paragraph 97 of the tribunal's decision is in the section headed "Unfair Dismissal" and is dealing with the question of whether, as a matter of contract between employer and employee, a woman is entitled to say, without further justification by her of such a view, that she is not prepared to work nights as that would lead her to be away from her child. It is not easy to see the relevance of the point that the tribunal was making in that unfair dismissal section, but it is plain that the two passages cannot usefully be compared. One is a matter of justification by the employer under the 1975 Act and the other is the Employment Tribunal's view of the breadth of consideration that should be given by a good employer to a woman employee as a matter of contract. They are quite distinct and no inconsistency arises between them. So on this second point or ground we see no arguable error of law and so the second ground is not proper to go forward to a full hearing.

[10]The third ground is this:

"At paragraph 34 of the extended reasons the Tribunal failed to decide whether the Appellant could, or could not, comply with the condition or requirement to work late shifts and sleep-ins but then went on in paragraph 47 to say that she would have been able to cover the weekly night shift without making a finding of fact in this paragraph, or in paragraph 96, as to how she could have done this."

But where indirect discrimination is claimed, which what was in issue here, there is no need to establish whether in fact the complainant could or could not comply with the alleged condition or requirement. What is required under section 1(1)(b) is whether the proportions of the pool who can or cannot comply is relevant, dividing, in this case, between men and women. There is, as it seems to us, no necessary requirement that there should be a finding of the kind which the Notice of Appeal complains was not to be found. So, again, as it seems to us, no arguable error of law arises on the third ground and that should not go forward to a full hearing.

[11]The fourth ground is this:

"The Tribunal failed in paragraphs 86 and 87, despite written documentation and oral evidence from the Respondent's Head of Personnel and Development, to reach a conclusion about whether or not particular documents were, or were not, contractually binding."

Ms Samuel was alleging breach of contract. The onus was on her to prove both the terms of the contract and that those terms were broken. So far as her proving the terms of contract was concerned, she failed to persuade the tribunal that the whole of Lewisham's equal opportunities policy was contractually binding. What the tribunal said was:

"86. … We came to the conclusion that we had insufficient evidence before us to reach what might perhaps be a quite far reaching conclusion about whether the particular documents before us were or were not contractually binding."

That was looking at the equal opportunities policy as a whole. More specifically the tribunal went on to say this:

"87. Our conclusion on the merits of the application and argument is that the various passages [ that is a reference to passages in the equal opportunities policy related documents ] relied upon by the Applicant during the course of the build-up to the disciplinary hearing and indeed the passages relied upon by Mr Morton during the course of the hearing and in his final submissions to us were too vague to give rise to a contractual obligation by the Respondents of the precision and degree of obligation advocated by the Applicant. …"

So first of all there was doubt and a lack of a finding as to the incorporation, so as to be given contractual weight, of all of the documents. But when one looks at the matter in more detail, the tribunal does hold that such parts as were specifically relied upon were too vague to give rise to a contractual obligation of the precision and degree advocated by the applicant below. So the position was that Ms Samuel had not proved to the necessary degree the terms of the contract which she had been asserting. The onus was upon her. She failed in that onus. We see no arguable error of law in the conclusion of the tribunal in that respect.

[12]Then one comes to the fifth ground. That is as follows:

"At paragraph 52 the Tribunal accepted that the Appellant had made complaints against Mr Purser which were protected acts within the meaning of the Sex Discrimination Act 1975. At paragraphs 53 and 56 the Tribunal found that the Appellant was not prepared to work at Bargery Road with Mr Purser and that Mr Oliver would not let the Appellant pick and choose where she could work. The Tribunal failed to find that but for the Appellant's complaint about Mr Purser she would have been allowed by Mr Oliver to work at the other two houses."

There is a finding in paragraph 51 of the tribunal's extended reasons that says this:

"We spent a measurable quantity of time in our evidence investigating the circumstances of the only complaint made by the Applicant which could be viewed as a protected act within the Sex Discrimination Act, namely her complaint which she certainly did make about Mr Purser in July 1996. …"

One notes the date – July 1996. Later, in the summer of 1998, Lewisham was trying to cope with Ms Samuel's requests and as to that the tribunal said in their paragraph 53 as follows:

"The problems of that incident came to light again two years later during the summer period of 1998 after the Applicant had returned from her maternity leave and Ms Ridings in particular was seeking to juggle the rosters and arrangements to cope with the Applicant's reluctance to do sleep-ins and late shifts. One short-term measure proposed by management and set out in correspondence at the time from Mr Oliver was that the Applicant could use up annual leave and work day shifts in some of the other houses including the Bargery Road House where Mr Purser was the Manager. The Applicant's response was to state that because of what had happened in 1996 she was not prepared to work in Bargery Road. Mr Oliver's response was in turn that the Applicant could not pick and choose and that that incident in 1996 had not given rise to any contractual right on her behalf not to work with Mr Purser."

Now there is no indication that it was ever workable that she should work at other houses not including the Bargery Road house or that she lost the ability to work at other houses not including the Bargery Road house (assuming that she would have been willing to work in those other houses) simply because of an unwillingness to work at the Bargery Road house. There is no indication that her claim in respect of victimisation was presented in any such way. There was no indication, so far as we can see, that working at the other two houses but not at Bargery Road, was ever a viable alternative form of work. So far as concerns, more broadly, alternative forms of working, the tribunal was satisfied that Lewisham made comprehensive efforts, albeit unsuccessful ones. In their paragraph 93 they said this:

"Faced with that kind of situation we came to the conclusion that the Respondents as a large organisation with a degree of flexibility were required to act as they in fact did. They were required to find to allow the Applicant a period of grace to attempt to make arrangements. This we find they did to a very reasonable degree extending the deadline on a number of occasions. They were required we find to look for alternative employment for the Applicant and to give her a reasonable chance within such a large organisation to be considered for suitable alternative job roles. We believe that the Respondent's acted eminently reasonably in operating the redeployee procedure because that in turn allowed the Applicant the opportunity to apply for jobs before they were offered by public advertisement. We find that the Respondents indeed did act reasonably by circulating the Applicant's details and putting her forward for some possibilities."

There is no ground for supposing that the body of evidence laid before the tribunal, looked at as a whole, was such that no Employment Tribunal properly directing itself could have failed to hold that but for the appellant's complaint about Mr Purser in 1996 she would have been allowed by Mr Oliver in 1998 to work at the other houses excluding Bargery Road. It seems to us, therefore, there is no error of law in the fifth ground and we therefore do not let it go forward.

[13]Then comes the sixth ground, which is this:

"The reason for the dismissal is the reason given by the employer, i.e. gross misconduct. Impermissibly in paragraph 101 the Tribunal substituted its own reasons, i.e. either capability or some other substantial reason."

There is a recent authority in the Court of Appeal critical of undue formalism or what is there referred to as nominalism – see Wilson v Post Office

[2000] IRLR 834

, in particular paragraph 29. There is no doubt that Ms Samuel knew of the reasons why she was dismissed in terms of the events and the conduct which were being relied upon by Lewisham. It may well have been unnecessarily wounding for her conduct to have been described as gross misconduct but the label attached did not affect her knowledge of the case as it was being developed against her or affect her ability to counter it. The Act of course speaks only of misconduct without the wounding vituperative epithet 'gross' being added. The tribunal looked at this part of the case in paragraphs 101 and 102. In those paragraphs they said:

"101. In our judgment the correct label to attach to the clear and obvious factual reasons for the dismissal in this case was either "capability" or "some other substantial reason"

. Although we considered carefully therefore whether by attaching the wrong legal label to the unargued factual reasons for the Applicant's dismissal the Respondents could then be said to be acting unreasonably within the meaning of section 98(4)." 102. We find that as a matter of fact they acted in most regards as if the Applicant was at risk of dismissal for redundancy or capability save by the attaching of the label and implementing the suspension. We have no doubt that the Applicant found her suspension and the label attached hurtful and we find that that was unnecessary hurt which she did not deserve. On the other hand we find that the procedure adopted by the Respondents the efforts to find alternative employment for the Applicant the amount of time she was given to wait for opportunities to come up and the very extensive consultation discussion and exchange of arguments about all the possibilities and alternatives over a number of months were all eminently reasonable and particularly reasonable in the face of the very intransigent attitude being adopted by the Applicant. For these reasons therefore we also came to the conclusion that the Applicant's claim for unfair dismissal fails." The tribunal, therefore, regarded the matter as being a dismissal truly for incapability or for some other substantial reason. The tribunal went on to say that because it was not a gross misconduct case (and therefore that to that extent should have been no question of immediate dismissal) Ms Samuel should be entitled to pay in lieu of notice. In their paragraph 105 they say:

"On this what we find ultimately to be a narrow issue therefore it is our conclusion that the Respondents were in breach of contract in not providing proper notice and/or money in lieu of notice. We had information that the Applicant was able to gain some employment during January and February but we had insufficient detail to reach a conclusion as to her precise entitlement. It is we believe obvious that her entitlement would be the difference between old net wages for the period January 16th for nine weeks less whatever earnings she received during that period from other sources. We believe these mathematics ought to be capable easily of agreement between the solicitors."

So she became entitled to an award on the basis that she had not been guilty of gross misconduct, but for all that, that there was good reason to dismiss her. Would it, in the circumstances, have been nominalist and over-formal to insist on the right label having been applied to her behaviour? After all she did know precisely what was being laid against her as an accusation and was able fully to respond to it.

[14]This is not an easy area. The sixth, seventh and eighth grounds are all closely related to this question of whether it is open to a tribunal to find that the reasons ascribed by employer are incorrect and yet to hold that the dismissal was not unfair. It is not an easy area and the recent case to which we referred in the Court of Appeal shows that there can be cases where the label can be regarded as less than significant. But it does not follow that in all cases the label is such that it can be overlooked. We do, on balance, find that there is something reasonably arguable in ground 6 and in the related ground 7. There might possibly be none in the eighth ground but the three are not unrelated and it seems to us appropriate that all three should be permitted to go forward. Of course it does not follow that a victory would greatly assist Ms Samuel, even if she were to succeed. If she could have been fairly dismissed for "some other substantial reason" rather than for gross misconduct, then it could be that she would be likely to walk away from any tribunal with nothing more than payment in lieu of notice, which, in fact, is what she was in any event awarded. Moreover, a further point is likely to rise and that is whether the tribunal was right to see this matter as one of incapability rather than misconduct. After all, the Act does not speak of gross misconduct, it simply speaks of misconduct. It could be that the tribunal was wrong in seeing it not as a matter of misconduct but as incapability. It is difficult to see it as a matter of incapability without it being proven that Ms Samuel could not do that which was required of her, rather than, as would seem to be a more likely conclusion, that she chose not to do what was required of her. But these are all issues that will need to be gone into in the sixth, seventh and eighth grounds. It may be that whereas it is over-nominalist to distinguish between some categories, it is not over-nominalist to distinguish in other categories and, here, where one has the hurtful epithet 'gross' added to misconduct, it could be that the suggestion that is implicit in gross misconduct, of truly bad behaviour, is such as might have an affect on a future career that goes beyond merely a nominalist view of what is the appropriate label. Such issues do seem to us to be arguable.

[15]So we allow the sixth, seventh and eighth grounds of appeal to go forward to a full hearing, but none of the others. At the full hearing it will only be those three grounds that will be permitted to be argued, unless, of course, the full hearing tribunal at the EAT elects otherwise.