MRS C CUNNINGHAM v (1) QUEDOS LTD (2) JOHN WYETH & BROTHER LTD [2003] UKEAT 0298_03_1411

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0298_03_1411Case No Appeal No. UKEAT/0298/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS C CUNNINGHAMAPPELLANT(1) QUEDOS LTD (2) JOHN WYETH & BROTHER LTDRESPONDENT
Before
His Honour Judge J McMullenDate 14 November 2003
[1]APPEARANCES For the Appellant MS CLAIRE McCANN (of Counsel) Instructed by: Messrs Denison Till Solicitors Stamford House Piccadilly York YO1 9PP For the Respondent MS HELEN GOWER (of Counsel) Instructed by: Messrs Morgan Cole Solicitors Apex Plaza Forbury Road Reading Berks RG1 1AX HIS HONOUR JUDGE J McMULLEN QC This case is about the burden of proof in sex discrimination, and the unusual liability of a person aiding unlawful sex discrimination. The judgment represents the views of all three members. We will refer to the parties as Applicant and Respondent or Wyeth (the original Second Respondent). References to Quedos are to the original First Respondent. Introduction[2]It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sitting over four days at Leeds, Chairman Mr H G Forrest, registered with Extended Reasons on 20 January 2003. The Applicant was represented here by Miss Claire McCann and there by different Counsel who has since retired. The Respondent was represented there and here by Ms Helen Gower of Counsel.[3]The Applicant claimed unfair dismissal and sex discrimination. The Respondents denied the claims. The Issues[4]The essential issues, as defined by the Employment Tribunal are now the subject of dispute. In broad terms, the Applicant complained of sex discrimination and unfair dismissal. She settled her claims against Quedos without admission of liability and its representative withdrew from the proceedings. She withdrew claims of unfair dismissal against Wyeth. As defined by the Tribunal, the issue was as follows: Legal Basis of the claim against the 2 nd respondent 10 "Wyeth were not and would never have been the applicant's employer. The applicant's claim against Wyeth cannot therefore be brought under section 6 of the Sex Discrimination Act, since that deals only with discrimination by employers. The claim is brought under section 42 of the Sex Discrimination Act on the basis that Wyeth, by failing to put forward the Applicant for employment with Quedos (assuming their failure to do so was influenced by the applicant's pregnancy), would have been aiding Quedos to do an unlawful act. Quedos' subsequent refusal to employ the applicant, acting on Wyeth's instruction or recommendation, would then have been tainted with discrimination. Quedos would have been acting unlawfully within section 6 (1) (c) of the Act by refusing or deliberately omitting to offer the applicant employment. 11 Had it been necessary to decide the point, this might have raised an interesting question as to what the words "knowingly aids" mean in section 41 (1), particularly if the tribunal were to find unconscious sex discrimination on the part of Wyeth interviewers. On the facts, as found by the tribunal, it was not necessary for the tribunal to consider that point." The Decision[5]The Employment Tribunal decided that the Applicant's claim of sex discrimination against Wyeth failed. It refused Wyeth's claim for costs of the withdrawn unfair dismissal claim. She appeals against the substantive decision.[6]Directions sending this appeal to a full hearing were given at a Preliminary Hearing by His Honour Judge Serota QC and members. The Applicant there had the assistance of her husband and Ms McCann, acting under the ELAAS Scheme. Two out of the five issues on appeal were held to be reasonably arguable, three were dismissed. They have not been appealed. The Legislation[7]The relevant provisions of the legislation are sections 1 and 6 of the Sex Discrimination Act 1975 which together outlaw discrimination in recruitment for employment and in arrangements made for promotion by employers.[8]Section 42 is relevant for the slightly more remote relationships which might be involved in discrimination: 42 " Aiding unlawful acts(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 41 (or would be so liable but for section 41(3)) shall be deemed to aid the doing of the act by the employer or principal.(3) A person does not under this section knowingly aid, another to do an unlawful act if - (a) he acts in reliance on a statement made to him by that other person that, by reason of any provision of this Act, the act which he aids would not be unlawful, and (b) it is reasonable for him to rely on the statement.(4) A person who knowingly or recklessly makes a statement such as is referred to in subsection (3) (a) which in a material respect is fa1se or misleading commits an offence, and shall be liable on summary conviction to a fine not exceeding [level 5 on the standard scale]."[9]The burden of proof in a sex discrimination claim is now regulated by section 63A which was inserted pursuant to a European Union obligation: 63A "Burden of proof: employment tribunals(1) This section applies to any complaint presented under section 63 to an employment tribunal.(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent - (a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2, or (b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act." Employment Tribunal Directions[10]The Tribunal cited by number those two provisions and directed itself to the leading authorities. Its total direction is contained in the following paragraph: 12 "It was agreed with both counsel that the tribunal should follow the approach set out in the well known case in King v Great Britain China Centre [1991] IRLR 513 , as endorsed by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36 . Moreover, the tribunal should if necessary bear in mind the recent provisions of section 63A of the Sex Discrimination Act on the burden of proof." The Facts[11]The principal actors in this case, who gave evidence before the Employment Tribunal in addition to the Applicant, were Mr Woodrow, Sales Manager, Ms Joynes, Regional Business Manager in the area where the Applicant worked, Miss Readings, Sales Manager who was to manage a new sales team and who interviewed the Applicant, and Mrs Howarth a Recruitment Executive who interviewed the Applicant together with Miss Readings.[12]The EAT summarised the background in the judgment of Judge Serota as follows: 2 "The background facts to this dispute were that Wyeth, as we shall call it, is a manufacturer of drugs. It had an agreement with Quedos that Quedos would employ a sales team to promote Wyeth's products. Wyeth wanted a sales team put together, and arranged with Quedos that Quedos should put forward candidates for consideration by Wyeth at interview. 3 Ms Cunningham was a sales representative with Quedos at a time when she was pregnant; she applied for a post on the Wyeth sales team to Quedos; she was in fact put forward, but only after some protest, and her belief was that the reason she was not being put forward in the first place was because in her opinion she was treated in a discriminatory way because she had fallen pregnant. Nonetheless, after her protests, she was put forward for interview by Wyeth and Wyeth rejected her. The case put forward by Ms Cunningham was that she was rejected by Wyeth because she was pregnant. The case, as eventually put forward against Wyeth, was on the basis that Wyeth had provided knowing assistance to acts of discrimination by Quedos under section 42 of the Act. 4 She was interviewed, as we have said, on 23 January 2002; Wyeth's case was that she scored very badly compared to other candidates. One of the interviewers knew that she was pregnant, the other one that the Employment Tribunal found that it did not; Ms Cunningham said the whole interview was a sham. However the Employment Tribunal accepted the evidence of the interviewers that there was no bias and that she was fairly scored, even if the Employment Tribunal did not agree with every marking of her by the interviewers. The conclusion of the Employment Tribunal, having gone through all the evidence and considered in particular the evidence at the interview in great detail, was that they were:
"satisfied by the explanation given by the Second Respondent (that is Wyeth) for their failure to put the Applicant forward for employment by Quedos. She was not selected solely because, on the day, her performance at interview did not sufficiently impress her interviewers. It had nothing to do with her pregnancy. The question of drawing an inference, of sex discrimination or otherwise, does not therefore arise. The Second Respondents did not treat the Applicant less favourably by reason of her sex and her claim for sex discrimination against them therefore fails"."
[13]We can add some flesh to that summary. The Applicant began her employment with Quedos on 22 January 2001 as a Sales Representative working on the Wyeth contract. She was reassured by Mr Woodrow as to her future. Miss Readings, on 7 December 2001, asked Mr Woodrow which of the Quedos sales representatives he recommended. The Applicant's name was put forward and Miss Reading passed on that name to Mr Bell of Quedos. Also on that day was a presentation by Wyeth to Quedos employees of the future for them. Promises were made of an interview if they wished to be considered for new roles in Wyeth's sales team. The Applicant was absent because, as became clear, she was pregnant and had to attend for tests.[14]On 8 December 2001 she expressed her wish to apply for one of the new roles and on either 10 or 11 December 2001 Mr Vaughn of Quedos informed the Applicant that he had recommended her to Wyeth.[15]On 13 December 2001 Ms Oram of Quedos sent an email in which it was confirmed that the Applicant would be interviewed for a full-time role on YST and her date would be confirmed before Christmas for interview. On 19 December 2001 the Applicant informed Mr Bell that she was pregnant. He then informed Miss Readings of Wyeth. On 3 January Mr Bell wrote to the Applicant saying that her application would be taken no further and she would not be interviewed by Wyeth.[16]On 5 January 2002, the Applicant wrote in response and asked him to reconsider and to explain why she was not given an interview by Wyeth following the disclosure of her pregnancy. She also emailed Mr Woodrow, complaining about the fact that she had not been interviewed. On 14 January, Mr Bell wrote back to the Applicant stating that he was taking legal advice on her letter and had referred the matter to Mr Woodrow.[17]On 21 January 2002 the Applicant was invited to an interview to be conducted by Miss Readings and Mrs Howarth two days later. However, that very day she was dismissed by Quedos. She was interviewed as planned on 23 January 2002 but on 25 January 2002 Mr Bell informed her that she had been unsuccessful. She issued an Originating Application on 26 March 2002 against both of the Respondents.[18]The Tribunal acknowledged that it was faced with a difficult case, for it said as follows: 16 "The tribunal found this a difficult decision. The tribunal could readily understand why the applicant believes that she is the victim of a co-ordinated series of actions designed to stop her getting a post in the new sales team because of her pregnancy. Certainly some of her treatment at the hands of Quedos calls for a detailed explanation in rebuttal, and the tribunal is conscious that it has not heard that. Much of the evidence, and certainly most of that relating directly to Wyeth's involvement, is neutral in itself; and equally consistent with the applicant's discrimination claim, or with the employer's innocent explanation. 17 In trying to resolve the conflict between the parties, the tribunal have focused on the numerous points in dispute between them over what happened at the interview…"[19]Having examined in detail the interview which it is plain was the central focus of its attention, it came to the conclusion as follows: 22 "It follows from our specific findings above that the tribunal are satisfied by the explanation given by the second respondent for their failure to put the applicant forward for employment by Quedos. She was not selected solely because, on the day, her performance at interview did not sufficiently impress her interviewers. It had nothing to do with her pregnancy. The question of drawing an inference, of sex discrimination or otherwise, does not therefore arise. The second respondents did not treat the applicant less favourably by reason of her sex, and her claim for sex discrimination against them therefore fails."[20]The Tribunal had set out preliminary issues, a background and summary of the claim against Wyeth, the legal basis of the claim, its findings of fact and the submissions of both Counsel, before reaching its conclusions and findings. The Applicant's Case[21]The Applicant submitted that the Employment Tribunal erred in law in that its sole direction on the law was as we have summarised it in paragraph 10 above. There was no direction on the standard of proof. Secondly, the Tribunal had failed to carry out its task to make a finding on the principal basis of her claim.[22]With the express consent of Ms Gower for the Wyeth, the application made by Ms McCann to adduce a witness statement from the Applicant was allowed. This statement deals with the way in which the Applicant considered issues on her case were presented on her behalf.[23]The point is what is described as the knowing assistance point. As it is suggested to be the nub of her case, the Tribunal failed to make a decision upon the principal basis upon which the Applicant was advancing her case.[24]The submissions of the Applicant's then Counsel are shown in full in paragraph 15 of the Tribunal's reasons. The summary of the position is encapsulated in what Ms Gower drafted as a Respondent's Answer in these proceedings, in which it is asserted as follows: 7 "This ground of appeal is pursued on the basis that a "main allegation" against the Respondent was that the Respondent "knowingly assisted Quedos to unlawfully discriminate against the Applicant in not appointing her to 1 of the new roles." 8 The Applicant's case was not presented in this way at the Tribunal hearing. The Applicant was represented by Counsel. At the start of the case the Chair asked the Applicant's Counsel to formulate the case against the Respondent in the light of the withdrawal of her case against Quedos. The Applicant's Counsel indicated that the case was put on two bases:(a) the Applicant was not selected because the second Respondent knew she was pregnant and(b) the interview was a "face saving" exercise or a "sham" because the Second Respondent was aware of earlier events involving Quedos and was covering up for them (or that this should be inferred from the close relationship between Quedos and the Respondent at senior management level). 9 Both these allegations related to the conduct of the interview, although the second involved an issue to some extent of the Respondent's knowledge of earlier events.[25]Judge Serota indicated that that matter would go to a full hearing and in that connection agreement was sought, pursuant to a direction, between the parties as to what in fact occurred. Negotiations failed and so on 23 October 2003 the Chairman of the Tribunal wrote to the EAT indicating the nature of the claim. In it he agreed with the paragraphs which we have set out from Ms Gower's draft of the Respondent's Answer. He says as follows:
"In preparing to hear the case, it was noticeable that the Originating Application never stated what the legal basis of the claim was. So far as the claim against Quedos was concerned, this was not unusual. It could readily be assumed that the claim was brought under Part II of the Sex Discrimination Act, probably Section 6, since Quedos was her employer. However, once the claim against Quedos was compromised, the claim against John Wyeth & Brother Ltd, the Second Respondent, was not so clear. Whilst the Originating Application outlined an allegation of discrimination, within Section 1 of the Sex Discrimination Act 1975, it did not state which part of the Act made this discrimination unlawful. I have therefore raised this question with Mr Mason, Counsel for the Applicant, at the start of the hearing against the Second Respondent, once the claim against the First Respondent had been dealt with. After some hesitation, and discussion, he agreed that the claim against the Second Respondent was brought under Section 42 of the Sex Discrimination Act 1975, on the basis that if the Applicant succeeded on the facts against Wyeth (that is she established that they had rejected her application for employment with Quedos because she was pregnant), and, on the facts she established that Quedos would have acted on Wyeth's selection (or rejection), then Wyeth would be liable within Section 42. This discussion with Mr Mason is reflected in paragraph 10 of the Tribunal's Extended Reasons. … "
Looking at my notes of the two parties' submissions, the point was dealt with by Miss Gower for the Second Respondent, who went first, as follows. She said that the case against Wyeth had originally been put in two ways. It was alleged that the Applicant had been rejected by Wyeth: (a) because the Wyeth interviewers knew she was pregnant and did not want to have a pregnant sales executive. In the alternative, (b) because the Wyeth interviewers were aware of Quedos's earlier allegedly discriminatory actions, and acted in concert with Quedos to further their discriminatory purpose, by refusing to select the Applicant then, on her merits, she should have been selected. Both ways of putting the claim are forms of "knowing assistance" or aiding unlawful acts within Section 42. (b) was not pursued before us at the hearing, in the light of the settlement (without admission of liability) with Quedos. Miss Gower urged us to reject it in any event on the evidence. In his submission, Mr Mason, for the Applicant, did not refer to (b) at all.

(a) "

[26]In response to those comments, as we have indicated, Ms McCann sought to adduce the witness statement of the Applicant which says this:
"I am not in a position to comment on the technical legal discussions which occurred at the outset of the hearing and I cannot dispute any of what the Respondent's Counsel or the Tribunal Chairman have stated in relation to my Counsel's final submission simply because I cannot recall it and made no notes at the time."
[27]The Applicant's case is that she was complaining not only against Wyeth for the conduct of the interview which she complained of as being discriminatory on the grounds of gender; but also that, together with Quedos, it was liable for a course of action which began in early December and ended with her rejection by Wyeth. We will describe that as the wider case and the case about the interview as the narrow case. In support of her contention that this always was the Applicant's case a number of passages have been shown to us, with some substance, in the Applicant's witness statement.[28]The Applicant also relies on cross-examination of witnesses on the basis that it is contended Wyeth was capable of being liable for events before the interview. The Tribunal found that Wyeth pulled the strings. It is contended that an authority relied upon by Ms Gower, Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 , is not applicable in the present circumstances.[29]As to the burden of proof, it is contended on behalf of the Applicant that the Tribunal failed to direct itself correctly on the new approach to be taken. It did not apply the sequential steps enjoined upon a Tribunal by Barton v Investec Henderson Crostwaith Securities Ltd [2003] IRLR 332 , a decision of the EAT, Judge Ansell and members, made after the decision in the current case.[30]It is contended that the findings by the Tribunal indicated that a prima facie case had been made by the Applicant and that the burden shifted to Wyeth to prove on cogent material that it did not act discriminatorily; that is, the burden had shifted in this case and the Tribunal failed to appreciate it. The Applicant contends that the Tribunal failed to address the burden of proof correctly and had it done so Wyeth would not have proved that it did not discriminate.[31]The Applicant relies upon two principal features:(a) The change of mind by Wyeth;(b) The timing of the events including the change of mind. The chronology which we have set out above is illustrative of both points. The Respondent's Submissions[32]On behalf of the Respondent it is contended that the Chairman has accurately summarised the state of play at the hearing, that reliance should be placed upon the Chairman's account, supporting as it does Counsel who was present, rather than the way in which the Applicant puts it, as she does in her statement. It was always the Applicant's case against Wyeth, that it had assisted Quedos in the way in which it conducted the interview. That is the narrow approach which we have described above. Although there are traces of the collusion argument, they are relevant to the finding on the narrow approach and do not point inevitably to the wider approach being argued.[33]The Applicant's complaint about the use of the questionnaire does not arise following the judgment at the Preliminary Hearing when this matter was dealt with.[34]As to the burden of proof point, two points are taken. It is contended that the Tribunal rightly concluded that there was no prima facie case for Wyeth to answer. Alternatively, if there were such a case, the Respondent had satisfied it. Reliance was placed upon the rider to the Barton judgment given by Burton P in University of Huddersfield v Wolff (Unreported) EAT/0596/02/S 16 July 2003.[35]It is further contended that there is no obligation on an Employment Tribunal to consider a stage by stage approach: see paragraph 37 of Beart v HM Prison Service [2003] IRLR 2238 (CA). It is accepted that if the stage is reached when a prima facie case is made the case must be decided on the balance of probabilities. It is further accepted that the Tribunal did not say that a prima facie case had been met and that the burden shifted; but this was not essential in this case. The Legal Principles[36]The legal principles are now clearly set out for the determination of a claim of sex discrimination, where the burden of proof under section 63A applies, in Barton (above) at paragraph 25: 25 "We therefore consider it necessary to set out fresh guidance in the light of the statutory changes:(1) Pursuant to s.63A of the Sex Discrimination Act 1975, it is for the applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondents have committed an act of discrimination against the applicant which is unlawful by virtue of Part II or which by virtue of s.41 or 42 SDA is to be treated as having been committed against the applicant. These are referred to below as 'such facts'.(2) If the applicant does not prove such facts he or she will fail.(3) It is important to bear in mind in deciding whether the applicant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.(4) In deciding whether the applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.(5) It is important to note the word is 'could'. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts proved by the applicant to see what inferences of secondary fact could be drawn from them.(6) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s. 7 4 (2) (b) of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74 (2) of the Sex Discrimination Act: see Hinks v Riva Systems EAT/501/96.(7) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining such facts pursuant to s.56A (10) SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.(8) Where the applicant has proved facts from which inferences could be drawn that the respondents have treated the applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent.(9) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act.(10) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.(11) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question.(12) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice."[37]To those principles can be added the following rider taken from the University of Huddersfield (above) at paragraph 26: 26 "The right course, therefore, for the Tribunal, had it set out at first to find material facts, but in any event even though it did not quite follow that format, would be to address section 63A and, in particular, to conclude that the burden moves where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex. It must therefore arrive at a conclusion that there is a prima facie case that the respondent has treated the applicant less favourably on the grounds of sex. Once it has done that, then it passes to consider the respondent's explanations; it must, if it has not already done so, make findings of fact, or draw inferences from findings of fact, for the purposes of concluding whether any of the explanations put forward by the Respondent satisfy them, the burden being on the Respondent to show that the less favourable treatment was not on the grounds of sex." The President also indicated the following: 45 "We have considered the question whether, notwithstanding the apparently insufficient way in which the Tribunal approached the test under section 63A, and that fact that at no stage, either at the burden stage or after the passage of the burden, have they even used the words "less favourable treatment on grounds of sex", never mind made a finding, prima facie or otherwise, in regard to it, whether what is stated in the Decision in the earlier paragraphs can be sufficient to amount to an answer."[38]It must be borne in mind that guidelines must not be applied mechanistically: see Beart (above) at paragraph 37: 37 "Mr Underwood rightly accepted that it is not an error of law for a tribunal to have failed to follow sequentially the series of steps indicated by Bell J, provided that it is apparent that the tribunal's decision that they had properly applied themselves to considering whether the requirements of the statute were satisfied."[39]In addition, of course, the deathless guideless given by Neill LJ in King v Great Britain China Centre (above) will apply, subject of course to the change enjoined upon Tribunals by the burden of proof. Conclusions[40]Applying those principles to the arguments we have heard, we uphold the Applicant's case in respect of the burden of proof and dismiss her complaint in respect of the lack of a finding.[41]Taking that latter point first, in our judgment the Employment Tribunal correctly diagnosed what the issues were. This Employment Tribunal, because it was dealing with an unusual case, was at pains to seek from Counsel then representing the Applicant the basis upon which he was advancing the case. The Tribunal correctly approached the matter by reference to the final submissions made by Counsel given the firm evidence of the Employment Tribunal Chairman, supporting as he does the Respondent's Answer drafted by Counsel for the Respondent who was at the hearing, as against the understandably less cogent submission of the Applicant herself.[42]We are satisfied that the Tribunal had in mind the narrow approach to the claim against Wyeth and for that reason focused correctly upon the interview, for in paragraph 17 all of the debate relates to issues within the interview by Wyeth.[43]We reject the contention that the Tribunal got the issue wrong or somehow failed to notice the issue as it was being put. True it is that in the witness statements there is an indication that the Applicant is complaining of sex discrimination by way of collusion between the two Respondents; but as the case was developed before the Employment Tribunal and as became clear from the submissions, a narrow rather than a wide approach to those complaints was being advanced. The Tribunal cannot be faulted for its decision on the narrow approach against Wyeth. We bear in mind the Court of Appeal's approach to this matter set out in Mensah (above) by Peter Gibson LJ, that, broadly speaking, there is no obligation on an Employment Tribunal to consider and make decisions upon matters which are not ultimately in issue.[44]We thus reject the Applicant's ground of appeal based on this point and turn to the second. On this aspect we agree with Ms McCann's submissions. The self-direction on the burden of proof in this difficult case is very short. There is no indication that it clearly understood, as Tribunals now with the benefit of Barton will understand, how the mechanics of the new burden will be worked through.[45]It is sufficient for us to recall the citation above from paragraph 16 of the Reasons, because this indicates that there was a prima facie case made out as against Quedos for there is no other reason for the assertion that Quedos' treatment required an explanation in rebuttal. Secondly, the Tribunal's finding that much of the evidence is neutral and equally consistent with innocent and discriminatory explanations, is itself a finding that there was a prima facie case. The Applicant relied upon the connection in chronology and change of heart by Wyeth. Those matters are ones which would be sufficient to indicate a prima facie case. She had no difficulty in indicating a difference in treatment (she was not given the job by Wyeth) and a difference in gender or in this case that she was pregnant.[46]The requirement in the Huddersfield case for there to be some connection is in our judgment indicated by the Tribunal's finding that there was evidence which was neutral and equally consistent with a discriminatory basis. That being so, the burden of proof would have shifted to Wyeth to prove on cogent evidence that its explanation was correct rather than a discriminatory explanation.[47]Although the Tribunal has gone to considerable pain to look both analytically and holistically at all of the components in the interview, and has come to conclusions, that in our judgment ought to be seen in the context of its failure to deal directly with the change in the burden of proof. The findings in favour of Mrs Howarth that her lack of knowledge of the Applicant's pregnancy does not change the position, nor does the evidence of there being no gender bias in the pattern of appointments in the Respondent.[48]Thus, we have come to the conclusion that the Tribunal failed to recognise that it had been presented with a prima facie case of sex discrimination by Wyeth and so failed to turn to it to require it to prove that discrimination was not the reason for the Applicant's treatment. Disposal[49]Having canvassed the disposal of this case with Counsel, our initial view was that a Tribunal, now with the advantage of Barton and Huddersfield , might be able to direct itself correctly on the law; but Ms McCann submits it would not be just to send the matter back to the same Tribunal because it will be in some difficulty about treating the matter afresh. Ms Gower did not resist that application and so it will go back to a differently-constituted Tribunal.[50]There should be a fresh hearing without any strings attached. Ms Gower can point to no case in which there has been a remission on facts such as these where there has not been a fresh hearing of the whole case. We have considerable sympathy with her when she submits that it might seem that the practical result of her success on half of this case is to disappear. We can see no way round that given that a case should be tried on the Originating Application and Notice of Appearance, and if those reveal a dispute on what we have described as the wider issue, so be it. If they do not, it will be for the Applicant to make an application to the Employment Tribunal to have the issue clarified.[51]As for permission to appeal, it is contended by Miss Gower that guidance should be given by the Court of Appeal on section 63A. We, however, already have the advantage of the very recent guidance comprehensively given by the EAT in Barton , approved and followed in Huddersfield . They are not suggested to be wrong, and were indeed relied upon by her. They give, as Ms Gower put it, day-to-day guidance to Employment Tribunals and would have been of great assistance to the present Employment Tribunal had the decision been made later. We will refuse permission as having no reasonable prospect of success.