MRS M SOOD & OTHERS v IMMIGRATION ADVISORY SERVICE [2002] UKEAT 0153_01_2510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0153_01_2510Case No Appeal No. EAT/0153/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M SOOD & OTHERSAPPELLANTIMMIGRATION ADVISORY SERVICERESPONDENT
Before
His Honour Judge D Pugsley Mrs M McArthur Mr H SinghDate 25 October 2002
[1]APPEARANCES For the Appellant MR P MEAD (Of Counsel) Instructed by: Messrs Thompsons Solicitors Employment Rights Unit Congress House Great Russell Street London WC1B 3LW For the Respondent MR S STANTON-DUNNE (Solicitor) Messrs Merricks 207-208 Moulsham Street Chelmsford CM2 OLG JUDGE PUGSLEY This is a case in which we have the good fortune to have copies of the Skeleton Argument prior to the hearing. Each member of this Tribunal felt a certain degree of unease about the order that the Employment Tribunal made as to costs. The circumstances of this case are that the Applicants were employed by the Immigration Advisory Service. They all took part in the making of an application to the Tribunal of sex discrimination, based on the fact that hitherto they have had the facility of working full flexi time and now it was proposed to change that to fixed hours.[2]The Tribunal in a decision promulgated on 16 May 2000 dealt with this matter in a careful way. They set out the fact that in 1991, in 96% of families it was a mother who was primarily responsible for care for the children and in 3% it was a father who had such responsibility. Fifty per cent of mothers of children aged under 5 are in work compared with the 89% of fathers, 65% of mothers with children aged under 5 and working as employees are in part-time workers compared with 3% of fathers. The Tribunal noted that in addition to this statistical evidence, which they accepted, they took judicial notice of the fact that a considerably smaller proportion of women than men can work full-time because of childcare responsibilities.[3]The Tribunal then set out the area of law and concluded at paragraph 8 of their Decision:
"The issue of fact is whether in practice she cannot comply: see Briggs v North Eastern Education and Library Board [1990] IRLR 181. 'Detriment' means 'putting under a disadvantage' Ministry of Defence v Jeremiah (an old case) [1980] ICR 13, CA. 'Detriment' may be shown not only where a woman is forced to resign from her work, but also where she manages to continue to work, but only with difficulty or by making an extreme effort see the case of Home Office v Holmes [1984] IRLR 299, EAT."
[4]The Tribunal carefully summarised the submissions made on behalf of both parties. The Tribunal made careful findings in the case of each Applicant which are set out in Paragraph 15 of the Decision. The overall conclusion was that each of the Applicants had failed to show that the requirement was a detriment with which they could not comply although the Tribunal noted that some of the Applicants got nearer to showing that they could not comply with the requirement than did others. The Tribunal then noted at Paragraph 16 that even if the Applicants had shown that there was a case of indirect discrimination the Respondents had satisfied them that the requirement was justifiable irrespective of the sex of the person to whom it applied.[5]This was a balanced decision not unsympathetic to the Applicants although there were adverse findings of credibility in relation to Mrs Ray. We have some difficulty in reconciling the initial decision on liability with the changing tone of the tribunal towards the Applicants in their subsequent decisions as to costs.[6]In their decision promulgated on 8 December 2000 the tribunal concluded at Paragraph 4 that:
"Our unanimous opinion under Rule 12(1) of the Employment Tribunal Rules of Procedure 1993, is that in bringing and conduct the proceedings, although Mrs Ray did not act abusively, Mrs Ray, Mrs Sood, Mrs Lawal and Ms John did act unreasonably. We accept that there was no indication by the Tribunal at the preliminary hearing that the Applicants were acting abusively or unreasonably. Nor was any indication given at the interlocutory hearing on 29 July 1999. We also acknowledge that detriment may be shown where a woman manages to continue only with difficulty or by making an extreme effort. However this was not the case for any of the four Applicants. At the hearing there was insufficient evidence to show the requirements in this was to the detriment of each of the Applicants, because she could not comply with it, albeit as we noted in our decision on liability (and which may be also be relevant on the question of costs to be paid by each Applicant), some of the Applicants got closer to showing that they could not in practice comply with the requirements that did others."
[7]Then we come to the Tribunal decision, promulgated on 30 January 2001 when they say at paragraph 7 page 39:
"In all the circumstances of this case, it is our unanimous conclusion that the four Applicants knew or ought to have known before they started these proceedings that they had no realistic prospect of success because the requirement in question was not to their detriment. In all the circumstances, we find it extremely difficult to come to the conclusion that the expert legal advice that they received would have led them to believe that their chances of showing detriment were anything other than, at best, very slender. However, in that regard, and in recognition of the fact that showing detriment in cases of this kind is rarely an 'all or nothing' affair, it seems to us that although none of the four Applicants got anywhere close to establishing on a balance of probabilities that the requirement was to her detriment, it would be unjust and unfair, in the exercise of our discretion in determining the amount of each award, not to take account of the fact that some of the Applicants got closer to showing that they could not comply with the requirement than others. As we said in our decision of 6 November 2000, Mrs Sood got closer to showing it than Ms John and Mrs Lawal who, in turn got closer to showing it than Mrs Ray."
Quite simply this Tribunal is surprised that the Tribunal considered this was a case for an Order of Costs. The insufficiency of evidence as to the Appellants' difficulties in complying with the new regime does not in itself give rise to the inference that it was unreasonable to bring the case. We consider it was wrong to propose an unrealistic yardstick to judge a case like this. There was nothing we have found in the findings of the first and second decision that can be reconciled with the findings in the third decision at paragraph 7; namely that the Appellants knew that they had no realistic prospect of success. There is no clear evidence of it. We are baffled, with each of us having our own area of expertise in this area, that any tribunal would say that inherently and intricinsincally this was a case that was bound to fail; or far more importantly that the Applicants would have known that.[8]We have to say that the application of a sliding scale does make us pause for thought as to whether it can possibly be said that this was a proper exercise of discretion. Was their conduct unreasonable or not? If it was unreasonable the costs will flow. The sliding scale applied by the Tribunal is, if we may say so, in our view somewhat muddled and there was no clear differentiation between the award costs for the unreasonable conduct in bringing the case and the costs awarded due to unreasonable conduct during the case.[9]We have come to the view that in this case we do not consider after having looked at the facts of this case that these Applicants did breach the threshold of unreasonableness as set out in Kovacs v Queen Mary and Westfield College [2002] IRLR 414 . It is not sufficient if an Applicant fails to prove her case as was put in one Employment Appeal Tribunal case ET Marler Ltd v Robinson [1974]:
"Ordinary experience of life frequently teaches us that that which is plain for all to see once the dust of battle has subsided was far from clear to the combatants when they took up arms."
We could go on citing the cases but w simply say this; if one awarded costs on the basis, as this Tribunal did, access to Tribunals will be severely restricted because of litigants fear of costs. We do not consider that would be a proper interpretation of the statutory provisions.[10]At the end of the day we consider that this was not a proper basis for awarding costs. This was a case properly brought. It was a case properly resisted and it was a case where there was no frivolous appeal. But we are concerned about the jurisprudential basis upon which one could make a stinging criticism of Applicants in the third decision which has never surfaced in the first, and not in that degree of intensity in the second decision. What are we going to do? We pay tribute to the assistance we have received from both advocates in this case. Both recognise that there are difficulties in this case in sending it back. It is inappropriate to remit it to the same Tribunal and really any other Tribunal is in no better position than we are to make the decision. So under rare circumstance we reverse the decision that costs should be paid by the Appellants of this appeal to the Respondent. We allow the Appeal.