MRS S CULSHAW v ELDONIAN GROUP LTD [2004] UKEAT 0272_04_3009

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0272_04_3009Case No Appeal No. UKEAT/0272/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS S CULSHAWAPPELLANTELDONIAN GROUP LTDRESPONDENT
Before
His Honour Judge McMullenDate 30 September 2004
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED For the Respondent MR M A ROMANO Regeneration Manager SUMMARY No error in ET majority (Chairman dissenting) finding that as a matter of fact the treatment of the Applicant was not related to her pregnancy or maternity leave. HIS HONOUR JUDGE McMULLEN QC This case is about sex discrimination in the case of an employee's maternity leave. The judgment represents the views of all three members who pre-read the relevant papers. We will refer to the parties as Applicant and Respondent. Introduction[2]It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sitting at Manchester, Chairman Miss H J Slater with Mr P R Harris and Mr D A Williams, registered with Extended Reasons on 22 December 2003 following a day's hearing and a day in Chambers. The parties were in person.[3]The Applicant made a number of claims which were disposed of in her favour, but her claim for sex discrimination, the sole remaining claim and alive on appeal was dismissed by a majority. The Respondent contended that the Applicant was not discriminated against on the ground of her sex. The essential issue for the Employment Tribunal relevant to her appeal was to determine the effective reason for the failure by the Respondent to offer her appropriate employment which is categorised as sex discrimination by her. The Tribunal decided in the Applicant's favour in respect of certain monetary claims which we are told today have been met in full.[4]A claim for unfair dismissal was rejected. The Applicant appeals against that decision. Directions sending this appeal to a full hearing were given by me. Today the Applicant has submitted written submissions and has asked that these should be considered in her absence because she is unwell. We have agreed to do that. We have also had written submissions by Mr Romano, the Regeneration Manager who appeared below and has attended today to strengthen those submissions. The legislation[5]The relevant legislation has been set out by the Employment Tribunal in its Reasons and is as follows:
"33. Section 1(1) of the Sex Discrimination Act 1975 (SDA) provides: "(1) In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if – (a) on the ground of her sex he treats her less favourably than he treats or would treat a man …". 34. Section 5(3) of the SDA provides: "
A comparison of the cases of persons of different sex … must be such that the relevant circumstances in the one case are the same, or not mentally different, in the other." 35. Section 6(2)(a), in Part 2 of the SDA, includes the provision that it is unlawful for an employer to discriminate against a woman in the arrangements he makes for the purpose of determining who should be offered that employment. 36. Section 63A(2) of the SDA provides, in relation to claims in the employment Tribunal, "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."[6]The Tribunal directed itself by reference to Webb v EMO Air Cargo (UK) Ltd (No 2) [1995] IRLR 645 and O'Neill v St Thomas More Roman Catholic School & others [1996] IRLR 372 . The Tribunal was seeking the cause of the action taken by the Respondent and whether it was discriminatory. The facts[7]As far as is relevant for the appeal, the Applicant began her employment as an enterprise officer with the Respondent on 18 June 2001:
"Her post was funded by an EGL Liverpool City Council core grant and the European Regional Development Fund. She was engaged initially on a fixed term contract to expire on 31 March 2002. The term was extended to 14 May 2002, then to 24 May 2002, then to 31 March 2003."
[8]By July 2002 the Applicant was on maternity leave. Extensions had been agreed of her fixed term engagement by the Respondent. She was employed at a rate of £21,000 a year. The Respondent is a very small enterprise, dependent for funding and on matching funding. During the course of the applicant's maternity leave, a problem of funding arose and the Applicant, being away from work, was not considered for a further position.[9]The Tribunal recorded what happened as follows at the end of March 2003:
"17. Mr Romano then took a chance, using money saved from an employee's pension contributions and the training budget to carry on engaging Mr Bellmon on a week by week basis. There was no break in this arrangement, so there must have been agreement to continue this prior to 31 March 2003, or in the week following this, although it is not clear exactly when agreement was reached. 18. Mr Romano said in evidence that, had the applicant gone to meet with him, the possibility of the applicant doing one day per week would have been discussed with her. He accepted that, had she not been on maternity leave and had, therefore, been in the office, he would have discussed this possibility with her. Mr Romano accepted that the information was not communicated to the applicant that funding was available for one day per week and there was nothing in the e-mail communication to alert her to this possibility. Mr Romano said he made the assumption that the applicant would be aware that had a programme to meet and had to maintain output. He considered possibilities were best discussed face to face. Since the applicant did not go into the office, the possibility was never discussed with her."
[10]There was a flurry of email between the parties. The essential issue was to decide why it was that that decision had been made. The Tribunal split. It directed itself in accordance with the relevant provisions of the legislation and the authorities and divided on the question of whether the Applicant had proved sex discrimination. The majority view, with the Chairman dissenting, was as follows:
"42. …The majority concluded that the effective cause of no offer being made to the applicant of work for one day per week was not pregnancy. No offer was made because the applicant and respondent never had a conversation about it. The failure to have that conversation was not due to pregnancy but was due to the sum of the applicant's communications with the respondent causing them, not unreasonably, to form the opinion that the applicant would not be interested in working for only one day per week and the applicant failing to respond to the offer to come into the office to discuss the situation. The applicant had said she wished to work full-time, except for a transitional period. She had not responded to the possibility of 2 days per week working mentioned in an e-mail in January. She knew Mr Bellmon had been working one day per week. The respondent did not have the funding to renew the applicant's contract on a full-time basis and the applicant was aware of that funding problem."
Against that position the Chairman decided that there was indeed a connection between the Applicant's maternity leave and the possibility of further working which was denied to her. The Applicant's case[11]The Applicant does not appeal the finding against her on unfair dismissal but does so in respect of sex discrimination. It is fair to say that her skeleton argument essentially rehearses factual material before the Employment Tribunal. She does indicate that Mr Romano points out that the option of her working permanently part-time was not an available one. So she did not apply for the part-time post. That might shed light upon the reason for the part-time post not being available to her.[12]The Applicant has also asked to be introduced into evidence a letter from Mr Les Bellmon. The Respondent does not object but it seems to us it would not be right to allow this material to form a part of our decision making since the Tribunal did not see it and it was bound to make findings of fact which are different from those which seem to amenable in their letter. The Respondent's case[13]The Respondent contends that the Tribunal made findings of fact which were open to it. The majority decision should be followed on those issues of fact and the case should be undisturbed by us. Our conclusions[14]In our judgment this is essentially a fact sensitive issue. The fact that a Tribunal divides is not grounds therefore for attacking it. On the contrary a divided Tribunal on questions of fact often indicates the suitable care which has been given to the Decision – see the judgment of the EAT, Morrison P and members in Chief Constable v Kellaway [2002] IRLR 000 EAT. It seems to us that that was what has happened in this case. The majority of the Tribunal has formed a view about the facts which it was entitled to come to. The fact that a minority forms a different view of those facts is of course evidence that there were factual problems occurring. But unless the majority decision can be attacked as perverse it seems to us the majority should be left alone. We detect no error of law in its approach. The Tribunal directed itself in accordance with the law and authority. We would like to thank Mr Romano very much for coming today to enliven our proceedings. This appeal is dismissed.