THE UNIVERSITY OF HUDDERSFIELD v DR P R WOLFF [2003] UKEAT 0596_02_1607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0596_02_1607Case No Appeal No. EAT/0596/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE UNIVERSITY OF HUDDERSFIELDAPPELLANTDR P R WOLFFRESPONDENT
Before
Mr Justice BurtonDate 16 July 2003
[1]APPEARANCES For the Appellant ROBIN ALLEN QC MS R CRASNOW (of Counsel) Instructed by: Messrs Walker Morris Solicitors Kings Court 12 King Street Leeds LS1 2HL For the Respondent MS T GILL (of Counsel) Instructed by: Messrs Michael Scott and Co Solicitors 27 Britannia Street London WC1X 9JP THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal against the unanimous decision of the Employment Tribunal at Leeds, which heard the matter over six days, between 11 February and 18 February 2002, and gave a Reserved Decision on 15 March, handed down on 18 April, that the Respondent, the University of Huddersfield, discriminated against the Applicant by reason of her sex, contrary to the provisions of section 1 of the Sex Discrimination Act 1975 .[2]Dr Wolff's complaint arose because she was not promoted to the post of Principal Lecturer in the summer of 2000. The system at the University of Huddersfield for promotion was criticised by the Employment Tribunal, although as Mr Allen QC has pointed out, having put forward certain criticisms, which appeared on the face of them to be based upon academic experience, they subsequently made clear that they had no such academic experience, so some of the criticisms may have been uninformed.[3]But, nevertheless, it does appear that there can be criticism levelled at the system at least from the point of view, as Ms Gill has submitted today before us on behalf of the Applicant, of transparency, and certainly nobody kept a record of what occurred, and, as Ms Gill again pointed out, there appear to have been no clear instructions to those attending as to how to carry out their function.[4]When we refer to "attending" we refer to the meeting which made the ultimate decision, in relation to her promotion, called the "DNC" or "Dean's Nomination Committee". We should explain the process in a little more detail. It seems that there are, in relation to each School at the university, a number of departments. The Applicant was employed within the School of Health and Human Sciences as a Senior Lecturer, and that school had four departments, the Applicant's department being the Department of Health and Social Work Community Studies. There is, in relation to each school, a meeting (the School's Nomination Committee (SNC) ) at which it is concluded as to whether any, and if so which, potential candidates should be put forward as the School's nominees to the DNC. It appears that one can put forward one's own name for consideration by the DNC as a so-called "independent", but inevitably independents have less chance of success than those who have the backing of their school.[5]At the DNC meeting in question, in 2000, a number of schools put forward two candidates for the DNC, and that is what occurred in relation to the Applicant's School of Human and Health Sciences; she was put forward as the preferred candidate of the School, but there was a second candidate ranked number two behind her, in the shape of Dr Roberts. It appears that the Huddersfield University Business School also put forward two candidates, as did the School of Music and Humanities, but other Schools only put forward one candidate.[6]At the School meetings, arguments in favour and against various candidates are canvassed and the outcome of the SNC is a written document which is then submitted to the DNC for consideration, as being the School's endorsement and explanation of the merits, and no doubt, as appropriate, the demerits, of the candidates that they had endorsed. That occurred in relation to both the Applicant and Dr Roberts in relation to this case.[7]The system at the University is that the candidates do not attend themselves at the DNC for interview, but that the written reports from the Schools, together with CVs, are considered at the DNC, at which the Dean, or if he is unable to attend, a deputy, of each of the Schools are present and act as assessors. On this occasion there were ten such assessors; it appears that two Deans were absent and sent in pre-assessed scores and two Schools were represented by Deputy Deans.[8]At the DNC the procedure is that there is first of all an oral endorsement and an explanation of the written endorsement of the candidate or candidates from each School, by the Dean or his or her Deputy of that School, and there is then discussion of all the candidates among the Deans, during which marks are arrived at by each member and, as appropriate, a reply by the relevant Dean in support of his or her school's candidate; the marks are then arrived at. We have been shown what has been called a "protocol" which explains the basis expected for promotion, the various criteria, and we have been shown a document which explains the methodology of marking, which is between one and five. There is no pre-determined number of successful candidates, or at any rate there was none at the DNC in question in 2000.[9]The result of the DNC, in relation to Dr Wolff, is that she was not recommended for promotion. The marks show that there was one candidate from the School of Engineering with a total of 40 marks, there then followed a candidate with 38 and a candidate with 36. It appears that those three were generally regarded as outstanding candidates. There was then a group of three candidates with 34. The first of those, at any rate in alphabetical order, was a lady doctor from the School of Music and Humanities, but one of the others on 34 was Dr Roberts, who was the only second-placed candidate from his School who was thus recommended or accepted for promotion. The second candidates from the Business School and the School of Music and Humanities, the latter being a lady, were, as will be seen, together with Dr Wolff, not promoted. After the three on 34, there was then one on 33. Dr Wolff had 31, and the next candidates, to whom we have just referred, had 30 and 28. The four independent candidates had 26, 25, and two were 21. The outcome was that the DNC decided to make the cut-off at 33, and thus Dr Wolff with 31, together with the other two non-independent candidates, missed the cut and thus missed promotion.[10]Ms Gill has emphasised that it was regarded as unusual for a second rank recommended candidate from a School to be promoted, and not the first recommended candidate, and, although it is not mentioned in the Tribunal's Decision, she showed us a note taken by the only one of the assessors who, it seems took, or at any rate, kept his notes, in which against the arrow by which he showed that Dr Roberts had moved above the Applicant in the reckoning, he had written the word "gosh!" It may well be that it was that factor, quite apart from the fact that the Applicant was no doubt disappointed not to be promoted herself (and she had previously been in the running for promotion in 1999, although that was a fact known to one of the assessors) but which he did not reveal, either in her favour or against her, to his fellow assessors, which caused the Applicant to be particularly concerned. Nevertheless, whether or not she was disappointed or concerned, of course, is not important, what matters is whether, as the Tribunal indeed concluded to be the case, she was the subject of racial discrimination.[11]The Tribunal recognised that the Respondent has in place equal opportunities procedures, and in paragraph 24 of the Tribunal's Decision, it commends the University for those policies and procedures, but as we have indicated, nevertheless, it found that there had been discrimination. The Decision is now appealed by the Respondent University, which has been represented today by Mr Robin Allen QC, leading Ms Crasnow, of Counsel, who appeared below, and as we have indicated, Ms Gill, of Counsel, who appeared below for Dr Wolff, has appeared again before us.[12]The Respondent University has launched a full frontal attack on the inadequacy of the Decision of the Tribunal. There is, of course, no need for Tribunal decisions to be very lengthy documents, and conciseness is welcome. The Tribunal's Decision is not in the ordinary form, which has become recognised as useful and regular by this Appeal Tribunal, in any event, although it is by no means a necessity that that should be the case; such form being to set out the issues to be decided, then to make material findings of fact dedicated towards those issues, and as appropriate then to set out the law and, at any rate in some detail, it is usual to set out the respective submissions of the parties (although that can be done by cross-reference to written submissions where appropriate) and then the conclusions of the Tribunal.[13]In this case it could certainly not have been told at first glance not only that this hearing took place over the period of the six days which I recited at the outset, but that evidence was, as was set out in paragraph 2 of the Reasons, taken from thirteen witnesses, all of whom, as we understand it, were cross-examined, with a witness statement from a fourteenth witness. The significance of that is that, with the exception of the witness whose evidence was taken as read, all the ten assessors at the DNC came to give evidence as to what had occurred yet, as will be apparent, the findings of fact as to what occurred are very exiguous.[14]In short form, what took place was as follows: the recommendation or written report on the Applicant from her SNC, was it seems, although of course commendatory, not entirely supportive, and contained, as one would expect in a frank system, certain matters of implicit criticism. It was signed by Professor Frost, who was the Dean of the Applicant's School and a lady; she was unable to attend at the DNC and sent Dr Cliff as her deputy. As will appear, the Tribunal was somewhat critical of Dr Cliff, but what is on any basis clear is that he made an enthusiastic, indeed the Tribunal say, in paragraph 13 of its Decision, over-enthusiastic endorsement of Dr Wolff, as well, of course, as supporting Dr Roberts, and he gave both the Applicant and Dr Roberts the maximum mark of 5 in the vote and they were the only 5s that he gave.[15]In the course of the discussion that followed, it is apparent that the implicit criticisms in the Applicant's reference from the school were probed, and it is also apparent, both from Mr Weston's notes and from the Skeleton submissions below from Ms Crasnow which make reference to the evidence that there was in relation to some of the other candidates, that there was examination of other candidates' failings, or at any rate their less positive features, as well. We have a table which was prepared by Ms Crasnow for the purposes of her submissions, which show that in relation to the candidate who eventually came out top, three of the assessors changed their original marks upwards in the course of that discussion. With that exception, not many of the marks which had been originally put down by the assessors were altered during the discussion.[16]So far as one of the unsuccessful candidates is concerned, who was an independent, one assessor moved him up and another assessor initially moved him up, but then moved him back where he was. There were two other candidates, one of them female and both of them ultimately successful, in respect of whom one of the assessors moved his mark up in the course of such discussion. But with the exception of the top candidate, the most movement upwards was in fact that relating to the Applicant. With regard to her, although one assessor moved her down in the course of such discussion, two assessors moved her up, and one other assessor originally moved her up but then moved her back down again. She was, therefore, a net beneficiary, it seems, of the discussion that took place. But, as we have indicated, this was not sufficient to ensure her promotion; and it is apparent, as was asserted by both Mr Allen QC and Ms Gill before us, that what thus became central was the position of three of the assessors, numbers 8, 9 and 10 who, in fact we now know to be Professors Arthur and Weston as far as 8 and 9 are concerned, and in respect of 10 either Professor Calderbank or Professor Page (the other being 7) because neither Professor was able to identify the handwriting of the figures on the respective sheets.[17]In regard to 8, 9 and 10, Dr Wolff was awarded a 2, which were the lowest marks she got, and it certainly could be said that but for those three 2s,(a) she would have clearly had a higher overall total;(b) it was possible that the cut might not have been operated against her. At any rate, with those three 2s, she only totalled 31, she fell two behind the next one up (who was not Dr Roberts, as we have indicated) and when the assessors came to decide where to place the cut, both because of the gap and no doubt because of the number of 2s (although, again, this is not a matter that was dealt with in the Decision) she fell below that cut. Those are the facts of the case.[18]Mr Allen accepted that there was a number of respects in which it was proper for the Tribunal, with the able advocacy of Ms Gill on behalf of the Applicant behind them, to examine the question of discrimination, and it is apparent, both from Ms Gill's closing submissions and, even more clearly from the very full submissions of Ms Crasnow below, that the Tribunal was given all the help it could have wished from both sides in relation to the issues of discrimination or no, which appear.[19]The different aspects in which discrimination fell to be considered have been referred to in argument as boxes, whether appropriately or not perhaps does not matter. The first box could be said to be the discussion at the SNC. It is apparent that in fact either the Applicant did not direct any fire at that or, at any rate, that the Tribunal reached no conclusions that it was at the SNC at which any discrimination occurred. In any event, the Tribunal made findings which were favourable to Dr Cliff as to what occurred at the SNC.[20]The second potential box related to the document that emerged from that SNC. Some reference is made in the Decision to what is called the 'oblique' written reference, in paragraphs 9 and 13 of the Decision, but once again, it is clear that the Tribunal did not reach any conclusion hostile to the Respondent in relation to that reference.[21]The third box can be described in general terms as Dr Cliff's championship of the Applicant, the fourth box as the debate at the DNC about the candidates, the fifth box as the marking of the candidates and the sixth box the drawing of the line, or of the cut, as it eventually emerged. There was some consideration by Ms Crasnow in detail in her submissions below in relation to the equal opportunities policy and the general compliance with race relations good practice by the Respondent University, which, as we have indicated, again did not lead to a hostile conclusion by the Tribunal, indeed it gained its general commendation and so that box, if it had been a box, would not arise.[22]There were, therefore, four boxes or areas in which careful consideration was required to be given by the Tribunal in order to arrive at its conclusions, so far as discrimination was concerned. There was no issue that the comparator whom the Applicant was putting forward as the appropriate one for consideration under the Sex Discrimination Act was Dr Roberts. It remained a significant factor, of course, that the Applicant was not the only woman who was rejected for promotion, nor indeed who was being considered for promotion. One woman was promoted, one other woman was not; all the four independents were men, but there was one other non-independent man who, like Dr Wolff, was not promoted. But the Tribunal was being invited to compare the position of the Applicant with Dr Roberts.[23]There was, or remained, no issue in general terms that, in terms of outcome, the Applicant was less favourably treated than Dr Roberts; after all, she was not promoted and, as Ms Gill has pointed out, there was the additional factor, at any rate by reference to expectation, that he had been originally the second ranked recommendation of the SNC, and she the first ranked. There was also, quite obviously, no dispute that there was a difference in sex between the Applicant and Dr Roberts.[24]None of those matters remained in issue when the Tribunal came to its decision. The issue was whether the less favourable treatment was on the ground of the Applicant's sex.

(a) of the 1975 Act, which reads:

"(1) In any circumstances relevant for the purposes of any provision of this Act …….. a person discriminating a woman if ……. (a) on the ground of her sex he treats her less favourably than he treats or would treat a man"
As from 12 October 2001, a new provision was introduced into the 1975 Act, namely section 63A, and it reads as follows:
"(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 ….. 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."
[25]Mr Allen QC, rightly, refers to the very helpful recent decision of the Employment Appeal Tribunal per Judge Ansell in Barton -v- Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 , in a case in which, as it happens, Mr Allen himself appeared, when, no doubt with guidance from Mr Allen, Judge Ansell set out what he called fresh guidance in the light of the statutory changes. The relevant passage at paragraph 25 of the report reads as follows:
"(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…... 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. ….. (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 ……from an evasive or equivocal reply to a questionnaire ….. (7) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account …... 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."
[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.[27]The Tribunal addressed the burden of proof, and the passing of it, in five paragraphs, starting at paragraph 18. They read as follows:
"18 The Applicant's direct comparator is Dr Roberts. He came from the same School. He was the second choice candidate of the SNC. After the presentations, discussions and scoring at the DNC, he fell in the Group just ahead of the Applicant and he was promoted. Applying the provisions of the [1975 Act], we are satisfied that the Applicant by not being promoted was treated less favourably than Dr Roberts who was promoted. We are satisfied that there was a difference in sex between the Applicant and Dr Roberts."
It is to be noted that the Tribunal did not find in that paragraph, or indeed at all on the face of the Decision that we can see, that the Applicant was treated less favourably than Dr Roberts on the grounds of her sex or that there could be such a finding, i.e. that there was a prima facie case to be concluded. "19 We are deciding this case in 2002 in relation to events that occurred in 2000. Nonetheless the provisions of [section 63A] apply. … 21 We are applying the statutory provisions and we do so in the light of the fact that once we have determined that there is an ostensible act of discrimination in that the Applicant has been less favourably treated and there is a difference in sex, we are required to look at the explanation given by the Respondent. We are required to uphold her complaint unless we are satisfied on the basis of the explanation that the Respondent proves that it did not commit the act complained of." That is the concluding paragraph of the passage which begins with paragraph 18, in which incidence of the burden of proof is referred to by the Tribunal In paragraph 21, the Tribunal recites again what it has already stated in paragraph 18, by cross-reference, namely that the Applicant has been less favourably treated and that there is a difference in sex. Once again, it does not recite a conclusion that there has been prima facie less favourable treatment of the Applicant on the grounds of sex . We shall consider later in the judgment whether, notwithstanding that the Tribunal has not expressly so found, and, on the face of it, incorrectly applied section 63A of the Act, the same decision can be arrived at, notwithstanding that the Tribunal did not say so, by applying the right test by reference to the findings of fact that it did make.[28]Once the burden is reversed, of course, the burden falls upon the Respondent in the manner described by Judge Ansell in Barton , and the explanations have to be looked at. It is the more important that there be appropriate findings on the basis of which the prima facie case of less favourable treatment on the grounds of sex are made, and, of course, above all that there is such a prima facie finding, because it is only once there is such a finding that the Respondent knows, and thus the Tribunal knows, what the Respondent has to justify.[29]The conclusion of the Tribunal, once it has reached the issue of placing the burden on the Respondent, comes remarkably quickly. We read the balance of the judgment after paragraph 21, or at any rate the material parts of it, to indicate how that happens. "22. We are not satisfied that the explanation given by the Respondent does discharge the burden now placed upon it." That, of course, is the conclusion very speedily stated by the Tribunal, but not in express terms, again, by reference to unfavourable treatment on grounds of sex, and not, of course, giving any reasons, because it is an anticipatory announcement, but one then looks to see what those facts and explanations are, and as to why they are not acceptable, or why the Respondent fails to satisfy the burden. "The evidence given by the Respondent in relation to all stages of the process leads the Tribunal to conclude that there has been less favourable treatment of the Applicant." Once again, it does not say on grounds of sex. "It may well be that in relation to most of those involved, any discrimination which occurred was unconscious. That is not a relevant factor for us to consider. If there has been an act or acts of discrimination, the motive of the discriminator is not for us to determine. If discrimination has occurred then the Respondent is vicariously liable for those acts of discrimination."[30]The Tribunal then continues in paragraph 23:
"Employers facing a claim of discrimination will sometimes advance in their defence the argument which has sometimes been described as the "duff employer syndrome"
. An argument that although they may have treated the employee badly and that treatment may appear on a first glance discriminatory, the reality is that they treat all employees badly and bad treatment does not equate to discriminatory treatment." It is not clear to us that the "duff employer syndrome" was either expressly or even impliedly run by the Respondent University. What they put forward, to which we will refer, were the explanations for what they said was treatment which was not on grounds of sex. Paragraph 24 records that fact:
"The Respondent does not put its case in that way, it does not seek to assert that it is indeed the duff employer who will get things wrong, irrespective of the gender of the particular individual who was involved. Indeed, the Respondent went to some lengths to put its case upon the basis that it is a well organised institution with proper procedures and substantial resources, which are properly deployed so far as matters of appointment, promotion and equal treatment are concerned. The Respondent has in place equal opportunities procedures. It has training for those involved in the selection, promotion and recruitment process which is all very commendable, but unless it can demonstrate that those procedures and polices have properly been followed through, and unless it can demonstrate the treatment that they afforded to the Applicant has been in accordance with those policies and procedures and not discriminatory, then it will fall foul of the legislation. Unfortunately, that is the way that we as a Tribunal see things, the policies and procedures may be designed there, but the application of these policies and procedures on this occasion has been found to be sadly lacking."
[31]That reads to us like a persuasive preface to the reasons which would ordinarily then be set out as to why the Tribunal rejects the explanations and justifications put forward by the employer and concludes that the burden of proof has thus not been satisfactorily complied with, and thus that the only answer is that which was prima facie already found to exist when they transferred the burden under section 63A. Unfortunately in this case, nothing follows. All that follows is paragraph 25, the last part of the Decision. "We conclude that the promotion round to Principal Lecturer in 2002 was effected in such a way as to discriminate against the applicant. As we are not satisfied with the Respondent's explanation, we find that the Applicant's complaint is proved."[32]Mr Allen QC has submitted that the Tribunal's Decision is not simply flawed on the basis of a failure to give reasons for its Decision which are comprehensible by the parties and, indeed, any outsider, or indeed Appeal Tribunal, contrary to the principles laid down by Meek -v- City of Birmingham [1987] IRLR 250 . He submits that in fact the Tribunal has erred in its approach by failing to apply section 63A properly or at all, and then, once and if it were satisfied that the burden of proof were transferred, in failing to address the question of making appropriate findings of fact, for the purpose of establishing whether the Respondent has satisfied the burden.[33]The authorities such as Anya -v- Oxford University [2001] ICR 847 and, indeed, the earlier authority referred to in Anya of King -v- Great Britain China Centre [1991] IRLR 513 , make it clear that, so far as cases of discrimination are concerned, in the days before the transfer of the onus, it was essential for a Tribunal to make the findings of primary fact from which the inferences could then be drawn, and that that, of course, was important from the point of view of the Applicant, upon whom the onus lay; but he also submitted that this is no less significant now that the onus can shift in relation to the similar but reverse obligation now resting on the Respondent. We agree that this Tribunal Decision fails on both those counts.[34]Ms Gill submitted that the question of whether the burden of proof under section 63A has been properly dealt with by the Tribunal does not fall squarely within the Notice of Appeal. She did not suggest that she was prejudiced by that fact, even if it were so, and indeed was able fully to argue it; but in any event, we are entirely satisfied that, by their attack on paragraph 18 of the Tribunal's Decision in the Notice of Appeal, and the allegation that it constituted or evidenced an error of law by the Tribunal, that point was, indeed, fair and square before us. But in any event, we are satisfied that the failures by the Tribunal to consider, set out and draw conclusions from the material facts related both to the establishment of the prima facie case, under section 63A which was necessary even before the onus passed, and, even assuming they did correctly apply section 63A, to the consideration of the Respondent's explanations after the passage of the onus.[35]Because we are satisfied that this appeal must be allowed and the matter referred back to an Employment Tribunal for a re-hearing, it would be wrong for us to in any way give an indication as to prejudging any issues in this case, but we would simply seek to mention matters which arise in respect of what one might call the live boxes, although, of course, on any rehearing other matters might appear to become live, or liver.[36]So far as the third box is concerned, what we call Dr Cliff's championship, the Tribunal has made criticisms of Dr Cliff, indeed, strong ones. In the last sentence of paragraph 12, the Tribunal stated as follows:
"The conclusion of the Tribunal is that his conduct in both roles" that is at the SNC and the DNC, as we understand it "appears to have been flawed and indeed significantly flawed."
No explanation is given as to how such conduct was "indeed significantly flawed", save in certain minor respects to which we will now refer. First, in paragraph 13, he is described, as we have set out above, as having been "over enthusiastic" at the DNC in the light of the oblique reference in the written advocacy from Professor Frost. In the last but one sentence of the same paragraph, the Tribunal record:
"When the other members of the DNC did open up the issue, Dr Cliff in his response gave rise to a critical discussion of the Applicant which was contributed to by other Deans."
[37]Ms Gill submits that what that meant was a finding by the Tribunal that Dr Cliff had been critical of the Applicant. We are not at all sure that it should be read in that way, certainly in the light of the balance of the way in which the Tribunal approached Dr Cliff, and their reference to his over enthusiasm in the endorsement of the Applicant, although Ms Gill submits that that should be seen as a reference to his first statement, as opposed to his reply statement, if that is what in fact happened.[38]The fact is, however, that as we have indicated earlier, it does not appear as though the critical discussion of the Applicant, if such there was, did result in the changing of any marks materially to the Applicant's detriment. In paragraph 15 of the Decision, the Tribunal say this about Dr Cliff:
"Dr Cliff's own marking skews the scores. It does so in favour of the Applicant and also her comparator Dr Roberts the other candidate from her own School. Once Dr Cliff marked the Applicant and Dr Roberts with the maximum mark of 5 (and those were the only 5s he gave) candidates who by common consensus appear to be ahead of Dr Roberts and the Applicant were deprived of marks which Dr Cliff should have given them had he been marking in accordance with what appears to have been the system used by most of the other assessors. The Applicant and Dr Roberts were effectively pushed up. We do not feel, however, that Dr Cliff alone can be blamed for his apparent naivete in the way he approached his task."
[39]We are left completely uncertain as to what was meant by Dr Cliff's conduct being "significantly flawed", but in particular we are wholly unclear as to whether it is sought to be suggested or included by the Tribunal that his conduct amounted to less favourable treatment of the Applicant on grounds of sex. If it is less favourable treatment at all, it does not appear to us to even raise an inference of being on grounds of sex. Of course, there may be explanations that could be made as to the conduct of Dr Cliff, that in some way it could amount to being objectionable so far as the Sex Discrimination Act is concerned, but if that were possible, then it was not so found, as we conclude, by the Tribunal.[40]We turn to the second box. Although, as we have indicated, it does appear that there were, as would be expected, some criticisms of the other candidates, quite apart from any of Dr Wolff, the Tribunal finds, in one sentence at the end of paragraph 13, "on the evidence that nothing similar happened in relation to any of the other candidates," that is what was described as the "critical discussion of the Applicant". That may be sufficient of itself to give rise to an inference of unfavourable treatment on the grounds of sex, but it would appear to us not to be capable of doing so without further consideration or findings as to what was said in relation to the other candidates; and in particular in the context, as we had indicated, that in fact oral discussion of the Applicant resulted in her moving up rather than down in the overall picture. Of itself, it would certainly not appear to be sufficient, perhaps even for a prima facie case, but certainly not so as to offset an explanation by the Respondent.[41]So far as the fifth box is concerned, that relates to marking. As we have indicated, both Counsel before us referred as crucial to the fact that the Applicant received three 2s. There is no mention of that at all in the Decision. Indeed, there is no criticism, or reference, indeed, to marking at all in the Tribunal's Decision. The Tribunal concludes in paragraph 15 that "the scoring system seems to the Tribunal to lack any rationale, science or objectivity". In paragraph 16, to which Ms Gill referred us in relation to this topic, there are references made to the evidence of some of the witnesses who were called by the Respondent, out of the ten assessors to whom we have referred.[42]The Tribunal was hypercritical of the two witnesses who could not recognise their own figures, that is not their handwriting but the numbers that were written on unidentified documents. Indeed, the Tribunal goes so far as to say that "their recall, or rather lack of it, only added to the overall impression that the proceedings at the DNC were completely lacking in structure or cohesion." The Tribunal makes reference to other witnesses who said that their recall were lacking or that they could not really recall what they did on this occasion, but based their evidence on what they usually did, making the assumption that it would have been the same. But what the Tribunal does not do in any way is to draw any conclusions out of the marking as to whether it forms part of the prima facie case, nor, on the other hand, at all address the very detailed case which Ms Crasnow put forward on the Respondent's behalf by reference to the marking in her closing submissions on the issue, as to whether that meant that the Respondent would have satisfied the onus. Ms Crasnow referred to the various marks that were given, and how the various assessors had voted, and showed, for example, that in relation to those assessors who might have been criticised for the way in which they approached the Applicant, explanations could be given by reference to the way they had voted for other candidates, including Dr Roberts and the other female candidates.[43]Ms Gill submits, and of course rightly so, that it is possible for there to be a finding of discrimination against a woman, even there has been simultaneous favourable treatment towards other women, but not, as we conceive, without at, any rate, some conclusion in that regard, or at least some addressing of the facts, and, in particular where the onus of proof has shifted under section 63A, some consideration of the explanation put forward by the Respondent.[44]The last box to which we have referred relates to the question of the cut-off process or drawing of the line. This is dealt with at some length in relation to the finding of fact in paragraph 17 of the Decision, but once again, this does not feature in a consideration, once the onus of proof has passed, as to whether the explanations given by the Respondent are sufficient to satisfy the burden of proof.[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.[46]For the reasons that we have given as to the substantial areas in which facts, and indeed, available inferences, were not dealt with at all by the Tribunal, we are satisfied that we cannot ourselves, as we are in any event encouraged not to do, pick up pieces of a jigsaw and put them back together again, and we regret that the only possible course in this case is for the matter to be reheard.