MRS AISLING SYKES v J P MORGAN [2002] UKEAT 279_00_1207

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 279_00_1207

Case No Appeal No. EAT/279/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS AISLING SYKESAPPELLANT

J P MORGANRESPONDENT

Before

Mr Justice Lindsay

Date 12 July 2002

[1]APPEARANCES For the Appellant MISS I SIMLER (of Counsel) Instructed By: Ms S A Thompson Messrs Archon Solicitors Sun Court 67 Cornhill London EC3V 3NB For the Respondent MISS L COX QC And MISS D ROMNEY (of Counsel) Instructed By: Messrs Baker McKenzie Solicitors 100 New Bridge Street London EC4V 6JA MR JUSTICE LINDSAY (PRESIDENT): Mrs Aisling Sykes was dismissed by her employer, J.P. Morgan & Co. Ltd., on the 4th November 1998. Morgan gave redundancy as the reason. Mrs Sykes presented an Originating Application for unfair dismissal and unlawful sex discrimination. The Tribunal at London (North) held that she had been unfairly dismissed but had not been discriminated against. Mrs Sykes, who appeared below and appears before us by Miss Simler, appeals against the decision as to discrimination. Morgan, which appeared below by Miss Romney, appears before us by Miss Cox Q.C., leading Miss Romney. The procedural background

[2]On the 3rd February 1999 Mrs Sykes, a lawyer, presented an IT1 for unfair dismissal and sex discrimination. She had been employed by Morgan from 28th October 1991 to 4th November 1998. At the point of her dismissal she was some 2-3 months pregnant with her fourth child. Her job had been as Vice-President of the Transaction Execution Group (the "TEG"). She said that £70,000 per annum was her salary and gave £42,680 as her annual bonus. The TEG, she said, provided support to other business groups within Morgan and was responsible for the execution of mandates and the structuring and negotiation of documentation for a variety of capital market products. Mrs Sykes claimed that at the point of her dismissal her manager, Mary Hustings, was aware or suspected that Mrs Sykes was pregnant. Mrs Sykes claimed that she had been selected for (alleged) redundancy and had been dismissed by reason of unlawful sex discrimination. She said that Morgan's refusal to accommodate her request for flexible working arrangements was itself a form of indirect sex discrimination. Her dismissal was, in any event, she asserted, procedurally unfair.

[3]On the 19th April 1999 Morgan's IT3 gave redundancy as the reason for the admitted dismissal of Mrs Sykes. She had not been selected for redundancy on the grounds of her sex, it was asserted, and Morgan had not known of her pregnancy at the time. Her initial requests for more flexible working arrangements had been accommodated but her later requests had been refused as they were incompatible with business needs. Morgan asserted that the dismissal was fair and at that stage made no concession as to procedural unfairness. Sex discrimination was denied.

[4]After an Interlocutory Hearing at which the issues were agreed, there was then a hearing before the Employment Tribunal at London (North) spread over some 5 days between the 5th October and 29th November 1999. On the fourth day Morgan conceded that the dismissal had been procedurally unfair. On the 10th January 2000 the unanimous decision of the Tribunal, under the Chairmanship of Mr D.H. Roose, was sent to the parties. The Tribunal held that Mrs Sykes had been unfairly dismissed but that Morgan had not unlawfully discriminated against her on the grounds of her sex.

[5]On the 18th February 2000 Mrs Sykes lodged a Notice of Appeal. It is directed only against the Tribunal's conclusion that Morgan had not unlawfully discriminated against her. Within that description, Mrs Sykes appeals as to both the direct and indirect components of her case as to sex discrimination. The facts found by the Employment Tribunal

[6]Of the facts found by the Employment Tribunal not all have a bearing on issues as to sex discrimination but the following have been mentioned in the course of argument before us. Thus:-(i) There were five vice-presidents in TEG, all of whom were female. Mrs Sykes reported to Mrs Mary Hustings, a Managing Director who in turn reported to Mr Cook, Global Head of Capital Markets. The TEG also had within it two male associates and two female trainees. Attached to it were five transaction specialists, all female.

(ii) In relation to the births of her first three children Mrs Sykes had taken statutory maternity leave, on each occasion then returning to full-time work.

(iii) Mrs Sykes first raised the question of flexible working time in December 1994 and was accommodated to the extent only of being required to work at the office from 9.0 a.m. to 6.15 p.m., then starting work again at home at or around 7.30 p.m. Morgan helped her by installing technology at her home which connected her to the office.

(iv) Morgan had a published policy as to flexible working which included:- "In some cases there is no substitute for full-time, face to face contact and in-the-office availability; some jobs and circumstances demand it."

(v) Mrs Sykes' appraisal from Mrs Hustings in 1997 was less good than had been her generally good earlier standards; it was noted that she regularly arrived at the office at or after 9.30 a.m., took personal calls and over-used office facilities for personal business.

(vi) Mrs Sykes had re-acted to that by claiming that the complaints thus made were related to her (third) pregnancy which, she had complained, Morgan had treated as if it was something against Morgan's core values. Morgan had investigated that complaint and, without interviewing her or making any written report, rejected it.

(vii) In January 1998, on return from maternity leave for her third pregnancy, Mrs Sykes again requested more flexible working hours. Mrs Hustings asked her to produce a draft proposal, which Mrs Sykes did in early 1998. It proposed that she should be able to work at home during quiet periods and when client commitments allowed it. Mrs Hustings turned this down on the ground that the nature of the work performed by the TEG made it impracticable. It is plain from our papers that from time to time Mrs Sykes was involved in deals arising in time-zones other than ours, such as the United States and Australia.

(viii) Mrs Sykes made repeated requests and inquiries relating to flexible working and there were a number of meetings on the subject until, at a meeting on 29th July 1998, Mrs Sykes made it clear that Morgan was not prepared to accommodate her requests.

(ix) "Thereupon", held the Employment Tribunal, Mrs Sykes "Confirmed her commitment to working full-time with TEG subject to her continuing to leave at 6.15 and working at home. She also indicated that her long-term objective was to achieve more flexibility so that she might see more of her children.".

(x) At Morgan's 1998 staff appraisal Mrs Sykes was more favourably viewed than she had been in 1997 but, held the Employment Tribunal, "There was a view expressed at the meeting that she had lost energy, motivation and focus for the rôle she was currently performing.".

(xi) Also in October 1998 Mr Cook, Mrs Hustings and (from Morgan's Personnel Department) Ms Glenister, met more than once to see how the TEG's budget could be reduced following a deterioration in emerging markets. No records were kept of their meetings, nor was any decision taken.

(xii) On the 4th November 1998 Mrs Sykes was called to a meeting with Mr Cook and Ms Glenister. She had not been given notice of the meeting. She was informed that she was redundant, that the decision was not performance-based but that she was nonetheless dismissed with immediate effect.

(xiii) As the Tribunal held:- "She was told that she would not be allowed back to her desk, her bank ID was taken from her and she was informed that her belongings would be collected for her. She was told to give up AMEX and other cards and was not permitted to go anywhere other than personnel before being required to leave the building. She was not paid the sum in respect of the entitlements to a redundancy payment and pay in lieu of notice until the following March."

(xiv) At the effective date of termination no-one employed by Morgan was aware that Mrs Sykes was pregnant, nor was there any suspicion that she might be.

(xv) There had been no warning given to Mrs Sykes about impending redundancies and no consultation about the need for redundancies or as to any process for selection. There had been no attempt to avoid the need for compulsory redundancies by seeking volunteers, despite the fact that it was clear to Morgan that certain members of staff were likely to leave anyway. (xvi) The selection criteria for redundancy were not reduced to writing and were never discussed with staff representatives or individual employees. There was no record of what such criteria might have been. The Tribunal added:- "The failure to produce but one bit of paper relating to this extensive process was in stark contradiction to the amount of documentation that was generated in relation to the matter of the Applicant's late attendance and other misdemeanours." (xvii) There had been no objective means of assessing whether the criteria had been applied fairly and exceptions had been made in relation to a number of individuals which effectively took them out of the pool of those being considered for redundancy. (xviii) There was no appeal mechanism and no steps were taken to reduce the decision as to redundancy being dependent on a single management view, that of Mrs Hustings. (xix) There was no evidence of counselling as to new employment being offered to affected individuals. (xx) Certain people had been excluded from the pool for redundancy without any real justification for their exclusion. (xxi) Although Morgan's averred intention was to reduce the number of vice-presidents in the TEG by one, one individual, Mr Cooper, was promoted from associate to vice-president shortly after Mrs Sykes had left. His request for that promotion had been sitting in Mrs Hustings' in-tray at the time the decision to make Mrs Sykes redundant was taken. (xxii) The Tribunal noted that at the time of the redundancy two of the vice-presidents were both likely to leave and did in fact leave and that, as to an associate, Mr Spero, there were concerns already about his performance. The Tribunal continued:- "Having regard to all these factors we find the absence of paperwork to be all the more perplexing. We do, however, find that in the circumstances (including the size and administrative resources of the respondent's undertaking) that the respondent acted unreasonably in treating redundancy as a sufficient reason for dismissing the applicant." (xxiii) Mrs Sykes in her evidence had given instances of remarks indicating, she said, a totally unacceptable attitude towards pregnancy on the part of Morgan or colleagues at Morgan. The Tribunal was sceptical about the accuracy of the allegations and noted that not only was there no corroborating evidence but that in its view it was remarkable that such allegations had not been raised at the time of the events complained of. The Tribunal did not accept that the remarks had been made. (xxiv) Indeed, the Tribunal held that Mrs Sykes had been shown to be unreliable in the evidence she had given about her use of Morgan's office facilities, which had been far in excess of that which she had claimed. (xxv) The members in the TEG were required to react to work as and when it presented itself and it was recognised that there were peaks of work without any corresponding troughs. (xxvi) Morgan had applied to Mrs Sykes a requirement or condition that she should attend the office during core hours of 9.0 a.m. to 6.15 p.m. and should be available to recommence work at home at 7.30 p.m. (xxvii) Of the employees in the TEG only one other, Mrs Douchkov, a Vice-President, was allowed concessionary hours; she was allowed to leave at 6.0 p.m. There was a consultant (who was not an employee on a regular contract) in the TEG, a Ms Hurst, who worked at home for 2 days a week. All the other men and women in the TEG worked in the office and remained there until late in the evening. (xxviii) The requirement or condition applied by Morgan to Mrs Sykes was one which the Tribunal held was such that she could comply with it. She had the services of a nanny. (xxix) Mrs Douchkov was of the view that the job that Mrs Sykes held could not be done by a working mother. (xxx) The Tribunal, however, concluded that the requirement or condition applied to Mrs Sykes was objectively justified by Morgan's business needs. The appeal as to Direct Sex Discrimination

[7]A good many of Miss Simler's criticisms of the Tribunal's Extended Reasons consist of assertions that at several points evidence was given, an assessment of which could only have assisted Mrs Sykes's case, but that the Tribunal either failed to mention the evidence at all or left the issues raised by it unresolved. As a single example, the Tribunal mentions Mrs Hustings' evidence that Mrs Sykes regularly arrived at the office late, at about 9.30 a.m., but failed to mention evidence, said by Miss Simler to have been given and, if accepted, possibly conducive to an argument as to sex discrimination, that her lateness was because of difficulties with her childcare.

[8]This type of argument, though, depends, (in the absence, as here, of any agreement as to precisely what the evidence had been) upon the Appeal Tribunal, by way of a Chairman's Notes of Evidence, being able to see just what the evidence was that is said to have been ignored or the issues in which are said to have been left unresolved. However, there are no Chairman's Notes and, that being so, a good deal of Miss Simler's argument cannot be usefully considered. There is, though, one area which stands out because the Tribunal below received, and recorded its receipt, of written submissions in order to supplement the oral submissions made to it. We have those written submissions. At paragraph 4 of Miss Simler's closing submissions below, at a point before the submissions turn to deal in detail with the factual background, we find:- "It is the applicant's case that the real reason for her selection for redundancy/dismissal was her continuing drive for flexible arrangements to accommodate a better balance with her domestic needs. Consciously or unconsciously, a view was formed that because of her desire to have daily contact with her children she had lost the requisite commitment to her career and was no longer viewed as a serious member of the team (as Lindsey said to the Evaluation Committee:

"There was a view Aisling had lost energy, motivation and focus for the rôle she is currently performing" ..... She was the only V.P. to push for more flexibility and the only one to criticise [Mary Hustings] in relation to her attitude to working mothers, and to raise the question of discrimination. Thus, when it came to selecting someone from TEG, she was the obvious candidate for [Mrs Hustings]."

It will be convenient to call this "the stereotypical argument".

[9]At paragraph 47 of those written submissions Miss Simler asserted that the inevitable inference was that Morgan had discriminated against Mrs Sykes on the grounds of her sex in selecting her for dismissal.

[10]The stereotypical argument is one which, at least arguably, does not require a male comparator to be identified but which may require either no comparisons or comparisons with women who did not have young children or, perhaps, any children.

[11]It is the chief ground of Mrs Sykes's argument on the appeal as to direct discrimination that the Tribunal erred in law by failing adequately or at all to deal with this central argument.

[12]It has to be said that the principal factual ingredients necessary for the stereotypical argument are to be found amongst the Tribunal's Extended Reasons. Mrs Sykes had raised the question of flexible working arrangements as early as December 1994. She returned to the subject in January 1998. She produced draft proposals on the subject. She had a number of meetings on the subject down to the 29th July 1998 when, whilst confirming her commitment to full-time working, she indicated her long-term objective was to achieve more flexibility so that she might see more of her children. She was reported upon as having lost energy, motivation and focus for the rôle she was then currently performing. There is no finding of any other Vice-President having persisted with requests for flexible working. There is no finding that another Vice-President, Mrs Douchkov, once she had obtained the right to leave at 6.0 p.m., had pressed the matter any further. There is no express finding, either, that Mrs Sykes did or did not criticise Mrs Hustings' attitude to working mothers but that it is not say that there was no evidence given on the subject and, given that there were a number of meetings between Mrs Sykes and Mrs Hustings that touched on the subject, it is not improbable that Mrs Sykes was, if only tacitly, critical of Mrs Hustings' attitude on the topic. Morgan's written closing submissions below speak of Mrs Sykes's portrayal of Mrs Hustings as someone inimical to working mothers. It is thus easy to see, on the basis of the factual content of this argument, that Mrs Hustings could have regarded Mrs Sykes as the obvious candidate for redundancy. The argument, in other words, was, so far as concerned its factual content, not one bereft of some basis in the evidence that was given below.

[13]As for the legal content of the stereotypical argument, it is plain that it is no defence that the discrimination complained of was not conscious - Nagarajan -v- LRT

[1999] IRLR 572

H.L. at paragraphs 17 and 37 . Thus Miss Simler's submission was not weakened but broadened by her saying - see paragraph 8 above -"Consciously or unconsciously". Moreover, a stereotypical view that a woman's desire to have an adequate contact with her children is likely to lead to her having a diminished commitment to her job is, as it seems to us, exactly the sort of stereotypical cause of less favourable treatment of women which the 1975 Act was intended to reduce and eventually to eliminate by way of meeting it with declarations, compensation or by requiring the taking of remedial steps within section 65 .

[14]The stereotypical argument presented below, claiming to identify what was the real reason for Mrs Sykes's dismissal, was not just an argument as to unfair dismissal but one also as to discrimination on the grounds of sex within the 1975 Act. It purported to identify a detriment (selection for redundancy and consequential dismissal) within section 6 (2) (b) of the Act. It pointed to a form of less favourable treatment, Mrs Sykes's dismissal whilst others on the staff (those, for example, not having young children, or not looking for more flexible hours, or not the butt of stereotypical assumptions) were retained. It asserted, by inference from the surrounding circumstances, that the less favourable treatment was to be taken to have been on the grounds of sex. Miss Simler tells us, as to inference, that King -v- G.B. China Centre

[1991] IRLR 513

C.A. was mentioned to the Tribunal. The argument was, in our view, a serious argument that required a serious answer.

[15]Apart from a confusing sentence in the Tribunal's paragraph 13 (that said that "From the above facts", which were by no means all the relevant facts, "we draw no inference" of sex discrimination) the Employment Tribunal mentioned inference no further and dealt with direct sex discrimination in only one further paragraph, paragraph 20. The paragraph begins:- "The applicant's selection for redundancy was not due to sex discrimination, nor was there any suspicion by the respondent that the applicant was pregnant at the time of that redundancy." Paragraph 20 then goes on to deal with Mrs Sykes's pregnancy not being known; it rejected and gave reasons for rejecting Mrs Sykes's evidence as to unacceptable remarks having been made by colleagues as to her wishing to see her children and as to babies and the paragraph continues:- "It has not assisted her that her fellow Vice-Presidents are women who in many cases also have children." But one does not disprove that one woman was selected for redundancy for a stereotypical discriminatory reason by showing that there were other women not selected for it. In any event, for there to be a significant comparison with her fellow Vice-Presidents who had children, an analysis would have needed to have been made, but was not attempted by the Employment Tribunal, as to the ages and numbers of the children concerned.

[16]Paragraph 20 of the Extended Reasons continues:- "While the respondent has pointed to its flexibility policy as an indication of its approach, we have noted that again there is a lack of documentation to record the occasions and the circumstances on which this policy has been applied to individuals." The Tribunal thus leaves in the air, unresolved, the question of whether Morgan had truly implemented the policy which it claimed to have espoused. The Tribunal then concluded its paragraph 20 by saying:- "Under this heading, it is for the applicant to prove her case on the balance of probabilities and we find that she has failed in that objective."

[17]Miss Simler thus argues that the Tribunal never even attempted to deal with the stereotypical argument which had plainly been advanced as a main plank of Mrs Sykes's case.

[18]In response, Miss Cox accepts that the Extended Reasons have a weak structure, that there are some questions of fact that were left unresolved and that the circumstances did trigger a need for an explanation to be given by Morgan but at first she argued that the stereotypical argument had not formed part of Miss Simler's "pleaded" case, which had relied on the assertion (rejected by the Tribunal) that Mrs Sykes's pregnancy had been known to Morgan. That the stereotypical argument was plainly raised appears, as we have shown, from the written submissions put before the Tribunal below. Employment Tribunals commonly and rightly allow an applicant's argument to range beyond the case outlined in the IT1 itself, leaving the respondent to oppose that in an appropriate case or to seek an adjournment where there is any prejudice. No adjournment was sought by Morgan; no surprise seems to have been claimed and Morgan's written closing submissions below, under the heading of "Direct Discrimination" said:- "If the Employment Tribunal finds that J.P. Morgan dismissed Mrs Sykes .... because she was perceived as less able to work full-time because of her childcare problem, the dismissal would be .... discriminatory." Morgan's argument below then sought to reject the stereotypical argument by reference to the facts, which included evidence said to have been given as to others in the TEG, Mrs Hurst, Mrs Ghosh, Mrs Douchkov, Mrs DeSouza, Ms Pinto and Ms Pitman, none of which evidence finds its way into relevant findings of fact by the Tribunal. A glance at Morgan's written closing submissions below, so far from suggesting that it would be wrong to allow Mrs Sykes now to rely on a case which had not been put below, instead emphasises that the argument was comprehensively dealt with below, both for and against, and that it was and was seen by the parties themselves to be a serious argument that required an answer. In the circumstances we attach no weight to this first objection.

[19]Morgan's next response to the complaint that the stereotypical argument was never dealt with by the Employment Tribunal was to answer that it was dealt with sufficiently but was rejected by the Employment Tribunal. There is no finding of any hostility to working mothers, asserts Morgan, nor of any stereotypical view as to their commitment to work. It was the nature of Mrs Sykes's job that made further flexibility than she had been granted impracticable. That, though, whilst it might have provided a reason for not giving her greater flexibility when and if she next asked for it, would not be a reason for dismissing her, she having confirmed her commitment to working the full hours ascribed to her. For our part, we cannot see in the Extended Reasons any passages that, separately or together, can fairly be read to be a dealing with, let alone to be a rejection of, the stereotypical argument.

[20]That would furnish no good ground of appeal if it was plain that the argument would have been bound to fail. Here Mrs Sykes, whilst not saying the argument was bound to succeed, draws attention to a number of features that are at least such as to require the Tribunal to ask for an explanation from Morgan. The Employment Tribunal itself held that it was difficult to see why Mrs Sykes had been selected for redundancy. If the object was to reduce the number of Vice-Presidents by one, why was it that Mr Cooper's pending application for promotion to Vice-President was granted? Why was it not established which, if any, of them would leave voluntarily? If there was, instead, a general need to reduce TEG employees by one, why was Mr Spero, about whose performance there were already doubts, kept on, rather than Mrs Sykes, as to whose performance there was no current doubt, being dismissed? If there was some categorical inability for employees in the TEG to be permitted to work office hours fewer or other than those required of Mrs Sykes, why was Ms Hurst permitted to work at home 2 days a week? Why were there no documents recording the workings of the selection for redundancy, despite there being masses of paper available as to alleged shortcomings on Mrs Sykes's part? Why, in an undertaking with a personnel branch, was an unfair disciplinary process deployed (Morgan having admitted, but only on the 4th day of the hearing, that the dismissal was procedurally unfair)? Why was Mrs Sykes obliged to make an exit from the office which would have been more appropriate for a thief caught red-handed than for an established employee whose dismissal was said to be only for redundancy and not to be performance based? Why was there a long delay before Mrs Sykes was paid her due? In the absence of satisfactory explanations from Morgan, discrimination, says Miss Simler, might have been inferred.

[21]As we see it an adequate treatment of the stereotypical argument required findings on a number of facts which, in the present Extended Reasons, go unresolved. Nor have we understood Miss Cox to argue that the stereotypical argument was inevitably doomed by reason of there being within it no specified male or other comparators. In any case, there was detailed evidence given about many other Morgan employees and the Tribunal (which began its discussion of sex discrimination with a question - paragraph 18 - more fitting Race than Sex Discrimination) came to no expressed conclusion either as to the need for comparators or as to whether the need had been met.

[22]We must not be thought to be giving an answer to the stereotypical argument but we do hold that it was an argument that was central to Mrs Sykes's case, was not bound to fail and was not dealt with, adequately or at all, by the Employment Tribunal. Either the Tribunal considered it but failed to say what the outcome of their consideration was or they failed to consider it at all; either way the Tribunal, in our judgment, erred in law as to Mrs Sykes's claim for direct sex discrimination. The appeal as to Indirect Sex Discrimination

[23]Mrs Sykes's case had been that a condition was applied to her with which she could not comply, which was accordingly to her detriment, which was such that the proportion of women who could comply with it was considerably smaller than the proportion of men who could comply with it and which was not justifiable for reasons irrespective of her sex. The condition, which it was accepted had been applied to her, was as to her working hours being, as we have noted, from 9.0 a.m. to 6.15 p.m. in the office and with her thereafter working at home from 7.30 p.m.

[24]The Employment Tribunal held that Mrs Sykes could comply with the condition and that in any event the condition was justified on grounds irrespective of sex. Accordingly, for those two reasons, Mrs Sykes's claim as to indirect sex discrimination failed. Miss Simler challenges both conclusions.

[25]As for Mrs Sykes's inability or ability to comply with the condition, she might have harboured the objective of achieving greater flexibility but that indication was more of a wish than anything identifying an inability. The Tribunal did hold that Mrs Sykes had complained of stress after working long and late on deals but there was no finding as to the frequency of that particular work and one does not prove stress merely by complaining of it. There was no medical evidence as to any inability to perform the condition that was in question or as to any deleterious consequences of doing so; there was no finding that the hours were making Mrs Sykes ill. It was held that she sometimes (indeed, "regularly") arrived late at the office but, as Miss Cox argues, one cannot jump from non-performance by Mrs Sykes to a conclusion that there was an inability to perform what was required of her, which was, after all, what she had expressly confirmed she was willing to do. Nor was there any finding that Mrs Sykes's lateness was because of child-care difficulties.

[26]Miss Simler argues that in this part of the case, as in direct discrimination, there were relevant matters given in evidence but which led to no findings on the part of the Tribunal. As we indicated earlier, in the absence of Chairman's Notes of Evidence that is not form of argument we can usefully respond to. Miss Simler argues also that the Tribunal relied, in this part of the case, on some irrelevant considerations; we would agree that questions such as whether other women were able to comply with the condition and points as to Mrs Sykes's remuneration were irrelevant to this issue but Miss Simler's complaints do not, as it seems to us, damage the Tribunal's conclusion that Mrs Sykes could in fact comply. The authorities, argues Miss Cox, point to ability or inability to comply with a condition being proper to be approached by a Tribunal as a practical matter and as one of fact. We agree.

[27]It is required of a relevant detriment consequent on the application of a condition under section 1 (1) (b) (iii) of the 1976 Act that in order for it to be such the condition has to be one which the complainant cannot comply with. The Tribunal held there was no detriment relevant to indirect discrimination because Mrs Sykes was able to comply with the condition applied to her. We see no error of law in that.

[28]Next Miss Simler attacks the Tribunal's conclusion that the condition was justified. The Tribunal held:- "The respondent had a real need to have the work done in a department in which there was no regular through-put. The members in TEG were required to react to work as and when it presented itself. It was recognised that there peaks without any corresponding troughs. The requirement or condition was appropriate to achieve that aim and the employees were generously remunerated. The requirement imposed was necessary to achieve the end. Having regard to the competing needs of the applicant and the respondent, the requirement or condition was objectively justified by such needs and this was recognised in July 1998 by the applicant." A little later the Tribunal said that the condition was "one which was wholly justifiable in the circumstances".

[29]Miss Simler argues, again, that there was material evidence which would have assisted Mrs Sykes's case but which has led to no findings on the Tribunal's part. Again, that is not an argument with which we can deal in the absence of Chairman's Notes. But we reject the argument that the Employment Tribunal was saying that, because Mrs Sykes was well remunerated, she had to swallow the fact that she was being discriminated against. We accept that the right to discriminate cannot be bought by paying a generous salary but we do not read the Tribunal as having said that. The TEG, so the Tribunal found, was a body that had to react to work as and when it presented itself. There were peaks without corresponding troughs. There was no regular through-put and it is plain that the TEG operated in global markets and hence was from time to time likely to have to respond to business needs outside those conveniently within the ordinary hours of our domestic time zone. It cannot be said that there was no evidence whatsoever which could have supported the Tribunal's conclusion as justifiability as Miss Simler's own argument includes that Mary Hustings had given evidence that the condition was justified.

[30]We are unable to see any error of law in the Tribunal's conclusion as to justifiability. Conclusion

[31]For the reasons we have given, we allow the appeal as to direct discrimination but dismiss it as to indirect discrimination.

[32]We do not see the case as being one in which we could with any assurance say what the conclusion should have been had the Employment Tribunal dealt adequately with direct discrimination. Accordingly we remit the question of direct discrimination to a different Employment Tribunal. Of course, because here the form of discrimination alleged is related to a dismissal, the fact that it is only the issue of direct discrimination which is remitted will not preclude evidence as to the selection for dismissal and as to the dismissal itself. It will be for the Tribunal to determine whether it would be appropriate to have a Directions Hearing to identify what evidence, oral or documentary, will be appropriate and whether skeleton arguments are to be supplied to the Tribunal and exchanged between the parties.