DR T O'KEEFE v NATIONAL SCHOOL OF HYPNOSIS AND PSYCHOTHERAPY [2002] UKEAT 1065_01_2802

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1065_01_2802

Case No Appeal No. EAT/1065/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR T O'KEEFEAPPELLANT

NATIONAL SCHOOL OF HYPNOSIS AND PSYCHOTHERAPYRESPONDENT

Before

Mr Justice Lindsay

Date 28 February 2002

[1]APPEARANCES For the Appellant MR VINCENT KETER (Representative) MR JUSTICE LINDSAY (PRESIDENT) : We have before us, by way of a preliminary hearing, the appeal of Ms T. O'Keefe in the matter O'Keefe against the National School of Hypnosis and Psychotherapy. Ms O'Keefe is said to be a female transsexual. She is being represented today by Mr Keter.

[2]On 11 April 2001 she presented an IT1 for sex discrimination against the National School to which I have just referred. She said that she had been unlawfully discriminated against by the Respondents because she is a transsexual woman. She had earlier, in different proceedings in 1999, made a claim against the National School for sex discrimination. In those proceedings she had been successful and had been awarded £139,896, although we understand that is under appeal. She had applied afresh to have her registration renewed in the Central Register of Advanced Hypnotherapists and she got an answer from the National School which she did not like. Her IT1 says, amongst other things:

"On 15 January 2001, the Applicant sent a cheque for £40 which was the renewal fee together with the renewal form to the Respondents."

A little later, she said:

"On 8 March 2001, the Applicant wrote to the Respondent to enquire why the cheque had not been drawn and to inform them that she was temporarily resident abroad in Australia."

And then she said:

"The Applicant received a letter in reply from Polly Pengelly dated 27 March 2001 refusing the renewal of her membership. The reasons given were a very recent decision of the CRAH [the Central Register of Advanced Hypnotherapists] council not to allow renewal of membership to individuals resident abroad. The failure of the Respondents to renew the Applicant's membership of CRAH has caused hurt and damage to the Applicant. The Respondents' stated reason for not renewing the Applicant's membership was not the true reason and was discriminatory and unlawful."

That met with an IT3 from the National School on 3 May 2001. They said:

"It is accepted that the Applicant was sent a renewal form for her registration in January 2001. However the Respondents deny that they received from the Applicant the renewal form together with a cheque for £40 which the Applicant claims she forwarded to them on 15 January 2001."

A little later, they said:

"Therefore the refusal to renew membership to the Applicant was only on a temporary basis while she was away in Australia which the Applicant envisaged was only for a one year period. The Applicant was invited to renew her membership upon her return to the UK. Furthermore the Applicant's name has not and will not be removed from CRAH's register of practising members. The register still lists the Applicant's London telephone number which in turn refers callers to other therapists and gives contact details for the Applicant in Australia."

And they said:

"If which it is denied the Respondents have discriminated against the Applicant on the grounds of her sex and/or gender re-assignment taking into account the above, the Respondents fail to see how any damage has been caused."

And then they explain that answer.

[3]On 8 June 2001 there was a preliminary hearing at the Employment Tribunal in order to sort out the issues and specify what they were. On 10 July 2001 there was a hearing at London Central. On 24 July 2001 the Decision of the Tribunal, which was under the chairmanship of Mr M.S. Rabin, was sent to the parties and it was:

"It is the unanimous decision that the Applicant was not discriminated against on the grounds of her gender reassignment, pursuant to sections 1(1)(a), 2A and 13 of the Sex Discrimination Act 1975, as amended."

[4]On 2 August 2001 the Employment Tribunal refused a review and refused also a late amendment of the IT1 to include victimisation. On 3 September 2001 a Notice of Appeal was received from Ms O'Keefe, still giving an address in New South Wales. It is directed only to the decision of 24 July 2001.

[5]First of all it is sought to amend the Notice of Appeal to include an appeal against the Employment Tribunal's refusal to allow amendment of the IT1 after the decision had been promulgated to the parties and, of course, after the hearing completed. It is far from clear that the Employment Tribunal has any power whatsoever to allow an amendment to an IT1 after the decision has been sent out. But, if it had any such power, it would only be exercised in compelling and exceptional circumstances. It seemed, to us, at first blush, that the reason why victimisation had not been included in the IT1 in the first place could only have been an oversight but Mr Keter assures us that it was a deliberate decision. That makes it even more difficult to countenance the possibility of amendment after the sending out of the judgment. It seems to us that the Employment Tribunal could not possibly, on that ground, have permitted an amendment at so late a stage and, therefore, it cannot have been wrong for the ET to have refused it on 2 August 2001.

[6]So we do not permit amendment of the Notice of Appeal to us to raise the issue of whether the Tribunal erred in law in refusing leave to amend the IT1 to include victimisation.

[7]That leaves the unamended Notice of Appeal to be dealt with by us and we confess to being puzzled by the Employment Tribunal's reasoning. The Respondent, the National School, had sought to say that the steps taken which had excluded Ms O'Keefe were not prompted by her transsexuality but for objective reasons of good administration. That claim was disbelieved by the Employment Tribunal. They said:

"Having considered the evidence of Ms Roche Pengelly, particularly under cross-examination, we find that on the balance of probabilities it is unlikely and implausible that the decision to exclude overseas registrations was taken for the objective purposes of good administration and/or to reduce the burden of administrative work and the potential for claims with which the Respondents would have to deal. There was no evidence before us that this was a current problem and the number of members of CRAH who were actually affected by this decision was so few that the impact on the Respondents would have been negligible."

[8]So the Tribunal was in Zafar territory which they recognised and, indeed, they quoted from Zafar v Glasgow City Council

[1998] IRLR 36

, including the passage that runs as follows:

"If no explanation is put forward, or the tribunal considers the explanation to be inadequate or unsatisfactory, then it is legitimate for the tribunal to infer that the discrimination was on the grounds of sex."

[9]The position, plainly, was that the explanation given had been found not merely to be inadequate or unsatisfactory but to be implausible. The Tribunal therefore saw it that it could be that the treatment of Ms O'Keefe was because she had previously brought a claim against the National School, at an earlier stage, but they never actually hold that to be the case. They recognised it was a thing that they needed to look into as a possibility but what they say on that subject is (with our emphasis):- " It may well be that the true reason why they excluded her was because she had brought a previous claim." A little later, they say:

"They may well have sought to exclude her from membership by reason of her having brought a previous claim in this Tribunal against them."

[10]So they do not actually hold that the earlier claim was being paid back by way of the refusal of registration on the CRAH. That she was being treated as she was because of her transsexuality had not, so far in their reasoning, been ruled out. They had looked at an alternative reason – that she was being paid back for the earlier claim - but never actually conclude that that was the case. They say that they were inclined to the view that what was done was specifically aimed at Ms O'Keefe. They say:

"We are inclined to conclude that the Respondents took the decision to exclude overseas members specifically in order to exclude Dr O'Keefe."

[11]The Tribunal recognised that it would have been obvious victimisation of Ms O'Keefe had certain steps that could have been taken against her been taken against her. They say:

"Therefore, we conclude that while the Respondent acted prejudicially to Dr O'Keefe, they did not do so by reason of her gender reassignment. Although we do not accept the Respondents' explanation, we decline, for the reasons stated, to make an inference of sex discrimination on the grounds of gender reassignment."

[12]We have not understood how it follows - which the word "therefore" normally suggests - that the prejudicial treatment of Ms O'Keefe was not to be inferred to have been by reason of her gender reassignment, given that there was no conclusion that it was instead for some other reason such as, for example, a pay back for the earlier proceedings. Nor have we understood the reference "for the reasons stated" to exclude the possibility of prejudicial treatment, less favourable treatment, on the grounds of gender reassignment.

[13]Accordingly, we see grounds 3 and 4 in the present unamended Notice of Appeal to be arguable and, of course, at this stage that is all that we are concerned about, whether the ground is arguable. Ground 2 of the Notice of Appeal says this:

"The Employment Tribunal misdirected itself in law in holding that the lack of direct evidence of the Applicant's gender reassignment prevented them from making the inference that this was a true reason for the Respondent's prejudicial treatment of the Applicant."

[14]It seems to us that that ground is misconceived. There is nothing to suggest that lack and, even if there was such a lack, there is nothing to suggest that it prevented or deterred the Employment Tribunal from inferring sex discrimination. So that ground is not to go to a full hearing. It is dismissed here and now. Ground 1 says:

"The Employment Tribunal was wrong in law in holding that victimisation was an alternative reason to sex discrimination for the Respondent's prejudicial conduct. The Employment Tribunal ought to have held that the evidence of both parties excluded victimisation as an alternative reason to the Applicant's gender reassignment."

[15]That too, as it seems to us, is misconceived. The Employment Tribunal was entitled, if it chose, to disbelieve the Respondent's evidence that they did not act in reprisal for Ms O'Keefe's earlier proceedings. The Appellant would have been entitled to say that, given the evidence that was adduced on behalf of the Respondents, it was not entitled to submit that victimisation was an alternative to sex discrimination but the weakness of that is that it is not clear that the Respondent ever did so submit.

[16]We will not let ground 1 go forward but we will allow a replacement. We have discussed this with Mr Keter. The Appellant is to replace it within 14 days by an amended ground that the Employment Tribunal's decision (and, in particular, the passage that we have cited beginning "Therefore we conclude") failed adequately to indicate within the principle of Meek v City of Birmingham why it was that the Appellant lost and why the Respondent won and why no inference was drawn of sex discrimination. So, drawing these strands together, we give leave to amend in that behalf only, amending the Notice of Appeal to take the Meek v City of Birmingham point within 14 days.

[17]Grounds 1 and 2 of the Notice of Appeal are dismissed here and now. Grounds 3 and 4 go to a full hearing, together with the ground in the amendment, if it is made within the 14 days and confines itself to the Meek v City of Birmingham approach, which we have just mentioned.

[18]The case is to be marked Category B. It should take no more than an hour and a half. Skeleton arguments should be exchanged within 14 days before the hearing and, of course, be sent to the Employment Appeal Tribunal at the same time.