MS K TYSON v CONCURRENT SYSTEMS INCORPORATED LTD [2003] UKEAT 0028_03_0904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0028_03_0904Case No Appeal No. EAT/0028/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS K TYSONAPPELLANTCONCURRENT SYSTEMS INCORPORATED LTDRESPONDENT
Before
His Honour Judge J BurkeDate 9 April 2003
[1]APPEARANCES For the Appellant MR MARC AFEEVA (of Counsel) Instructed by: Messrs Kosky Seal Solicitors Ambassador House 2 Cavendish Avenue Sudbury Hill Harrow Middlesex HA1 3RW For the Respondent MR B REYNOLDS (Representative) Instructed by: Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB HIS HONOUR JUDGE J BURKE QC The Facts Ms K Tyson was employed by Definitive Applications Ltd ("Definitive") as a Support Contract Administrator in October 1998. In May 2001, with Definitive's permission, she moved to live in Cornwall and continued there to work from home on a part-time basis, as she had previously worked in the Newbury area in which Definitive were based before her move.[2]In April 2002 the part of the business in which Ms Tyson worked was taken over by the Respondents under a transfer to which the Transfer of Undertaking (Protection of Employment) Regulations 1981 applied. After the transfer Mr McBurnie, who had set up the Respondents and is their Managing Director, decided that a restructuring needed to be carried out and that savings needed to be made. He concluded that Ms Tyson's role should be combined with that of another employee in the administration department, Mr Vine, who worked at Newbury, and that the job which was thus to be set up should also include some further work.[3]On 17 April Mr McBurnie spoke to Ms Tyson and, as the Tribunal found, clearly indicated that her job, as it then stood, in Cornwall was in jeopardy. A week later he explained to her the new job which he was creating which would absorb her role, the role of Mr Vine, and the further work and told her that she was free to apply for that new job or to take voluntary redundancy. On 30 April Ms Tyson informed Mr McBurnie that she could neither work full-time nor move to Newbury and therefore was not applying for the new job.[4]On 9 May Ms Tyson and Mr McBurnie spoke again. It was the Respondents' case that Ms Tyson was not dismissed on that occasion; but the Tribunal found that Ms Tyson was told that, since she was not going to take voluntary redundancy, there would have to be a compulsory redundancy of her job which would take immediate effect. She was told that a cheque would be in the post. Shortly afterwards her ISDN line which led to the Respondents' database (or databases), which she used for the purpose of her work, was cut off. Thereafter her work was reallocated.[5]The Tribunal found that Ms Tyson was dismissed on 9 May and rejected the Respondents' case that she had not then been dismissed and had not been dismissed until the end of July 2002. The Respondents have not sought to appeal against that finding.[6]The Respondents paid to Ms Tyson her salary, or the equivalent thereof, for the remainder of May and for June; but, on the findings of the Tribunal, not thereafter. It has been suggested on behalf of the Respondents that the Respondents may have paid her some monies in respect of July since the hearing before the Tribunal, but we know nothing of that and the matter remains in the air.[7]Ms Tyson commenced proceedings in the Employment Tribunal by an Originating Application dated 17 July 2002. It is perhaps worthy of mention, since the Employment Tribunal and the Employment Appeal Tribunal are from time to time criticised for delay, that we are hearing this appeal against the decision of the Employment Tribunal less than nine months after the date of her Originating Application.[8]By her Originating Application Ms Tyson complained that she had been unfairly dismissed and that she had been less favourably treated as a part-time worker, in other words she had been discriminated against as a part-time worker, pursuant to the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 .[9]By amendment she also claimed that the Respondents had made unlawful deductions from her pay. The papers before us do not reveal what was the basis of that claim, added by amendment. We have been told that it related to the suggestion that some salary due to her had not been paid. The Tribunal found that there had been no unlawful deduction but that Ms Tyson was still owed £750 by way of redundancy payment and ordered that that £750 be paid. Neither of those conclusions is now the subject of appeal and we need say no more about them.[10]The Tribunal found that Ms Tyson had been unfairly dismissed. While they did not expressly so state, it is manifest that they concluded that the reason for the dismissal was redundancy, otherwise they would not have awarded a redundancy payment in lieu of a basic award as they did.[11]They concluded that the dismissal was unfair because there was no proper consultation with Ms Tyson before the decision to dispense with her services was made. They next concluded, however, that had there been proper consultation "this would simply have delayed the inevitable" (paragraph 15 of the Tribunal's decision), and that she would have been fairly dismissed in any event on one months' notice at the end of May, so that her contract of employment would have ended at the end of June (paragraph 16).[12]The Tribunal then assessed compensation for unfair dismissal. They made no basic award because they were awarding a redundancy payment (paragraphs 17 and 22) and made no compensatory award because they concluded that her compensatory award had been accounted for by the payments already made; that is to say, by the payments of salary which the employers had made to the end of June, which was the date at which the Tribunal found Ms Tyson's contract would have come to an end had she been fairly dismissed (paragraph 18).[13]Next the Tribunal turned to the claim under what we shall call, for the sake of brevity, the 2000 Regulations. They concluded that Ms Tyson had not been treated less favourably because she was a part-time worker (paragraph 19) and that the effects on Ms Tyson of the employers' acts, insofar as they were alleged to constitute unfavourable treatment under the 2000 Regulations, were justified on objective grounds (paragraphs 20 and 21). They accordingly dismissed the claim under the 2000 Regulations. Ms Tyson, by this appeal, appeals against the Tribunal's calculation of a compensatory award for unfair dismissal and against the Tribunal's conclusion that her claim under the 2000 Regulations failed.[14]Before us, Ms Tyson has been represented by Mr Afeeva of Counsel. The Respondents have been represented by Mr Reynolds of Peninsula Business Services Ltd. Mr Reynolds has not put in any Skeleton Argument on this appeal and has not sought to present any arguments against the appeal, although he has made no concessions in respect of the appeal. He has made some observations as to what happened at the hearing before the Tribunal but has chosen, unusually, simply to stand on the decision made by the Tribunal without any argument to support that decision. The Compensatory Award[15]The Tribunal's finding that had the Respondents observed a fair procedure Ms Tyson would have been fairly made redundant in any event with effect from the end of June 2002 is not challenged.[16]The basis of Ms Tyson's appeal, as set out in the Notice of Appeal and in Mr Afeeva's helpful Skeleton Argument, is that the Tribunal, having dealt with loss of earnings as they did, have made no reference at all to the following heads of damage or compensation which, according to Mr Afeeva's Skeleton Argument, they should have taken into account. Those heads are:(a) future loss of salary;(b) loss of fringe benefits;(c) loss of pension rights;(d) loss of statutory rights and notice period; and(e) compensation for the manner of dismissal.[17]So far as future loss of salary is concerned, the Tribunal have plainly dealt with that. They have decided that there was no loss of salary beyond the end of June 2002 because Ms Tyson would have been fairly dismissed in any event with effect from that date. There was no further question of any future loss of salary being the subject of compensation once that finding had been made.[18]As to loss of fringe benefits, loss of pension rights, expenses and compensation for the manner of dismissal, there is nothing in the papers which indicates that those heads of claim were ever put before the Tribunal as part of Ms Tyson's claim. There was a formally drafted schedule of loss put before the Tribunal in this case, we assume by the solicitors representing Ms Tyson before the Tribunal. That schedule claimed loss of a compensatory award, all of which, save for £200 for loss of statutory rights, was for loss of earnings, in a figure well over £100,000. It might be described, having regard to the limit on compensation, as a somewhat adventurous schedule; but whether it deserves that adjective or not, what is important for present purposes is that it does not suggest in any way that there was any claim being made or loss of fringe benefits, loss of pension rights, possible expenses or compensation for the manner of dismissal.[19]Leaving on one side the controversial nature of any claim for compensation for the manner of dismissal, we thought it right to point out to Mr Afeeva the difficulty that his client faced in now claiming the heads of compensation to which we have just referred when those heads did not seem to have been claimed before the Tribunal. Mr Afeeva, having considered the matter, and with exemplary good sense, indicated to us that the appeal against the compensatory award should proceed only in relation to the head of loss of statutory rights which was expressly referred to in the schedule.[20]We therefore, under this part of the appeal, deal with that head alone. We can deal with it very briefly. It is apparent from the Tribunal's decision that they simply omitted to address it. There was no basis which we can discern, once the decision was made that Ms Tyson had been unfairly dismissed, on which she could properly be denied an award in or about the standard sum for loss of statutory rights and that sum ought to have been awarded by the Tribunal. The sum claimed was £200 and that is the sum which the Tribunal ought to have awarded under this head.[21]Thus the appeal in relation to the compensatory award will be allowed to the extent that we substitute for the Tribunal's decision that there should be no compensation for unfair dismissal an order that there should be compensation for unfair dismissal in the sum of £200. The Claim Under the 2000 Regulations[22]Regulation 5 of the 2000 Regulations reads as follows:
" Less favourable treatment of part-time workers 5 (1) "
A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker – (a) as regards the terms of his contract; or (b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (2) The right conferred by paragraph (1) applies only if – (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds."[23]A Tribunal before whom a claim under the 2000 Regulations is made has therefore to decide firstly whether the employer has treated the part-time worker Applicant less favourably than the employer has treated a comparable full-time worker in the respects set out in sub-section (1).[24]In this case, sub-section 1 (b) is relied upon in the Originating Application. Three forms of detriment are put forward, namely:(1) the dismissal;(2) the disconnection of the ISDN line; and(3) the re-allocation of Ms Tyson's work to Mr Vine.[25]In respect of those detriments which are relied upon and if they are established, the Tribunal had to undertake an exercise in comparison. The exercise which it has to undertake, however, is not the same exercise, as it seems to us, as that which arises in the case of the Sex Discrimination Act 1975 or the Race Relations Act 1976 , or even under the Disability Discrimination Act 1995 . The treatment of the part-time worker has to be compared with the treatment of a comparable full-time worker.[26]A comparable full-time worker is defined by Regulation 2 (4), which reads as follows: (4) "A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place-:(a) both workers are – (i) employed by the same employer under the same type of contract, and (ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and(b) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements."[27]Mr Afeeva submits that the Tribunal here did not undertake the exercise in comparison which, in the provisions to which we have referred and which we have quoted, the Regulations direct. He submits that in their decision the Tribunal only looked to see what would have happened to Ms Tyson had she not been a part-time worker. In other words, he submits, the Tribunal were erecting a hypothetical comparator consisting of Ms Tyson in a different factual situation. He says that the Tribunal should have made a direct comparison with Mr Vine.[28]We must be careful not to go beyond what is necessary for the purposes of this decision, bearing in mind, firstly, that we have only heard argument on one side and, secondly, that it appears that there are as yet no decisions, either of the Employment Appeal Tribunal or at a higher level, on the nature of the exercise of comparison required of a Tribunal under the 2000 Regulations.[29]It does seem to us to be at least arguable that the familiar approach of the construction of a hypothetical comparator, where there is no like for like actual comparator, under the Race Relations Act 1976 and the Sex Discrimination Act 1975 , is not apposite under these Regulations. But if it is apposite, it can only become apposite once the exercise of comparison with an actual comparable full-time worker has been undertaken and no such actual comparable full-time worker has been identified.[30]The Tribunal in this case did not address the question as to whether Mr Vine or anybody else was a full-time worker who was a comparable full-time worker within Regulation 2 (4); and in that respect it may be said that the Tribunal erred in law. However, that error of law would not have mattered if the Tribunal were entitled to come to the conclusion that the treatment was justified on objective grounds, because such a finding would defeat the claim, assuming that the correct exercise of comparison had been carried out; and, the Tribunal, having found that the treatment was justified on objective grounds, it becomes all the more important that we should express reservations, as we have, about the view we take on the nature of the exercise of comparison. If the Tribunal's conclusion as to justification stands, then the claim must fail; and the Tribunal were right; whether they were right or wrong in the exercise of comparison to dismiss the claim under the 2000 Regulations.[31]It is next necessary to identify the nature of the attack upon the finding of justification which is put forward by Mr Afeeva on behalf of Ms Tyson. He does not criticise the findings as to justification in respect of the first of the three detriments set out in the Originating Application which we have identified.[32]However, in relation to the two remaining alleged detriments (that is to say, the cutting off of the ISDN line and the re-allocation of Ms Tyson's work), he submits that the Tribunal have failed to provide any or any sufficient reasons for their decisions that those acts on the part of the employer were objectively justified.[33]The Tribunal directed themselves to take into account, and did take into account, the DTI guidance note on justification. That guidance note says:
"Less favourable treatment will only be justified on objective grounds if it can be shown that the less favourable treatment: (1) is to achieve a legitimate objective, for example, a genuine business objective; (2) is necessary to achieve that objective; and (3) is an appropriate way to achieve the objective."
[34]Mr Afeeva accepts that the Tribunal, having decided that they would test justification against those three requirements set out in the DTI guidance note, sufficiently and properly concluded in favour of the employers in respect of the first of those three criteria, i.e. that there was a genuine business objective. But, he submits, although the Tribunal found that it was necessary for the employers to achieve that objective to act as they did, and that acting as they did was an appropriate way to achieve that objective, those conclusions have not been the subject of any reasoning on behalf of the Tribunal. We do not know, he says, from what primary facts they came to that conclusion, how they reasoned their way from the facts which they had set out earlier in the decision, to those two conclusions.[35]We agree with him about that. While we would not wish to discourage brevity in Tribunal decisions in the light of the well-known principles set out in the case of Meek v City of Birmingham District Council [1987] IRLR 250 , recently reinforced by the Court of Appeal in the case of English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 and in the light of the well-known further expositions of the duty of a Tribunal in respect of reasons, set out in the case of Tran v Greenwich Vietnam Community [2002] IRLR 735 , we have come to the conclusion that, while the conclusions are stated in paragraph 21 of the Tribunal's decision, the reasons are not sufficiently stated to satisfy the requirements of the law.[36]What should we do about the absence of proper reasons? Until recently we would have had no alternative but to remit this case either to the same Tribunal or to a different Tribunal for them to reconsider the justification issue. Having regard to the likelihood that compensation under this head of claim will be small, as it seems to us (a point to which we will return hereafter), we are reluctant to order such a remission if it can be avoided.[37]The case of English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 provides to the Employment Appeal Tribunal a different solution, namely that of adjourning the appeal and asking the Tribunal through this judgment (which will have to be transcribed and provided to them) to supply the missing reasons for their conclusions.[38]Mr Afeeva sought to persuade us that the right course here was to remit to a different Tribunal; but even without the new course the possibility of which has opened up, as we have just explained, we would still not have remitted this question to a different, as opposed to the same, Tribunal. Mr Afeeva, with good sense and realistically, when we put the option to him of a remission to the same Tribunal, or of asking for the same Tribunal to produce reasons for the conclusions which we regard as insufficiently reasoned, told us that he preferred the latter course to the course of remission.[39]Accordingly, we think it right to take that later course, i.e. to adjourn this appeal, insofar as it relates to the claim under the 2000 Regulations, generally with liberty to restore and to direct the Employment Tribunal to provide reasons for the conclusions which they reached on the justification issue in respect of the two acts of detriment which we have identified, namely was that treatment necessary to achieve the objective of the employers and was it an appropriate way to achieve that objective.[40]We need to mention two more points. The first is, as is apparent, that it is at the very least arguable that the two acts of detriment which we have identified occurred after the end of the employment. However, no point was taken on that below and no point has been taken as to that here, and, therefore it seems to us that the point has not been made and we need say no more about it. It is not now a live point. It is a point which may excite considerable controversy in another case, but not in this one.[41]Secondly, we have pointed out to Mr Afeeva and he has gracefully agreed that there does not appear to have been any financial loss suffered by Ms Tyson as a result of the two alleged detriments which are now still in issue.[42]Regulation 8 of the 2000 Regulations provides that, where a complaint presented under the Regulations is found by the Tribunal to succeed, the Tribunal, among other remedies, shall order the employers to pay such compensation to the complainant as is just and equitable. But Regulation 8 (11) makes it clear that such compensation does not include compensation for injury to feelings.[43]Mr Afeeva has suggested that injury to feelings is not the same as stigma damages or stigma compensation and that stigma damages and stigma compensation are not excluded by Regulation 8 (11) and can be awarded in a claim such as this. Stigma damages which do not include loss of earnings produced by the stigma of dismissal appear to us to be difficult to bring within the provisions of Regulation 8. We are doubtful whether it can be successfully argued that they do not fall within Regulation 8 (11), but that point too has not been fully argued before us and is not for decision by us.[44]We only mention it because this appeal having been adjourned, for the reasons that we have described, the parties may wish to consider carefully to what extent any further expenditure of time or money on this case is fully merited. That is not, however, to suggest that where a person has suffered discrimination that person is not entitled to a decision that that discrimination has indeed been suffered and has been committed by the employers who are alleged to have committed it.