MRS A D MARTIN v LANCEHAWK LIMITED T/A EUROPEAN TELECOM SOLUTIONS [2004] UKEAT 0525_03_2203

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0525_03_2203Case No Appeal No. UKEAT/0525/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A D MARTINAPPELLANTLANCEHAWK LIMITED T/A EUROPEAN TELECOM SOLUTIONSRESPONDENT
Before
Mr Justice Rimer Mr D Bleiman Mr G LewisDate 22 March 2004
[1]APPEARANCES For the Appellant MR CHRISTOPHER BAMFORD (of Counsel) Instructed by: Messrs Leo Abse & Cohen Solicitors 40 Churchill Way Cardiff CF10 2SS For the Respondent MR NIGEL LOVERING (Representative) THE HONOURABLE MR JUSTICE RIMER This appeal is by Mrs Alexandra Martin. It is against the decision of an employment tribunal sitting at Cardiff on 29 April 2003 and chaired by Mr R. Harper. The tribunal's decision was promulgated, with extended reasons, on 16 May 2003. Mrs Martin was the applicant. The respondent was her former employer, Lancehawk Limited, which trades as European Telecom Solutions ("Lancehawk"). By her originating application, presented on 3 January 2003, Mrs Martin had made claims against Lancehawk for compensation for unfair dismissal, breach of contract and sex discrimination. By its decision, the tribunal held that Mrs Martin had been unfairly dismissed and awarded her compensation of £6,573.48. It made no adjudication on her claim for breach of contract. It dismissed her claim of alleged sex discrimination. Mrs Martin's appeal is solely against the dismissal of her sex discrimination claim. She was represented before us by Mr Christopher Bamford. Mr Nigel Lovering, Lancehawk's managing director, appeared as a representative of Lancehawk. The tribunal's findings and conclusion[2]Lancehawk sells telecom systems and cheap rate telephone calls. In April 2001, it employed Mrs Martin as a sales manager. In July 2001, Mrs Martin began an affair with Mr Lovering. It continued well into 2002. Lancehawk was a small company, and the fact of the affair was known by other members of staff. At the time, Mrs Martin was married to a man referred to at the hearing as Steve, and Mr Lovering had a partner referred to as Gillian.[3]By October 2002, some cracks were emerging in the affair. On Friday 18 October, Mrs Martin decided that she would have to tell Steve about the affair, of which he was unaware. She broke the news to him either on that day or over the weekend. Steve was upset. On the following Monday, 21 October, Mrs Martin had a conversation with Mrs Linda Crookes, a work colleague, in the Lancehawk kitchen. Mr Lovering had earlier decided to bug the kitchen by concealing a tape recorder there and so the conversation was recorded, but the tribunal found that Mrs Crookes anyway relayed its contents to Mr Lovering. He was upset by it, because whereas Mrs Martin had told him that she was not going to tell Steve of the affair, he had now learnt that she had done just that. And that was not the end of it. He also learnt from Mrs Crookes that Steve was, that very day, going to Gillian's workplace to confront her with a card that Mr Lovering had sent Mrs Martin during the height of their affair.[4]The events of 21 October marked the end of the affair, and Mrs Martin was promptly dismissed from her employment with Lancehawk. The tribunal quoted from a letter written by Mr Lovering to Mrs Martin on 28 October 2002, which said in part:
"As stated previously the events of 21st October 2002 leave me in no doubt that there a [sic] complete breakdown in mutual trust and confidence that must exist for the employment contract to be effective. You have made a number of threats and carried out a number of vindictive actions which leave me in no doubt that you are not wholly loyal to this organisation. As a result, I do not believe it is in either parties [sic] interest to continue with your employment."
[5]Lancehawk asserted in its IT3 that Mrs Martin had been dismissed for gross misconduct. Lancehawk is a limited company, and was the sole respondent to Mrs Martin's claims. But its IT3 appeared to identify Mr Lovering as the real respondent. It alleged in paragraphs 4 and 8 that:
"4. In late October [2002] the Respondent was made aware by a member of staff that [Mrs Martin] was undermining his position, searching his desk and confidential records and that she had threatened to bring the Company into disrepute. The Respondent investigated these allegations and concluded that there was sufficient evidence to indicate that [Mrs Martin] was behaving in this manner and given that she was threatening to cause harm to the business this behaviour represented a serious breach of trust and confidence. … 8. i) [Mrs Martin] was dismissed for gross misconduct. ii) The incident was investigated, the matter was put to [Mrs Martin] and [Mrs Martin] confirmed this. The Company believes that a reasonable procedure was followed. iii) The Respondent had cause to believe that [Mrs Martin] represented a serious threat to the business, and acted, as any reasonable employer would do under similar circumstances to protect the business."
The tribunal found that the "incident" referred to in paragraph 8 was the tape recording, although we think it probable that what it meant was that the tape-recording was part of Mr Lovering's investigation of the "incident", namely the misconduct of which Mrs Martin was accused.[6]It was Mr Lovering who made the dismissal decision and he gave evidence to the tribunal. The tribunal recorded that he confirmed in cross-examination that:
"… the reasons for the dismissal were firstly the conversation on tape which confirmed to him, as he saw it, that [Mrs Martin] had lied to him and, secondly, the actual contents of the conversation with Mrs Crookes."
We interpret the tribunal as having accepted that those were the reasons for the dismissal. The tribunal also said that "we do not think that the evidence supports the contention that there was misconduct here" and we interpret that as a rejection of Mr Lovering's contentions in paragraphs 4 and 8(i) and (iii) of the IT3. The tribunal also held that, in circumstances in which Lancehawk had no relevant procedures in place, the dismissal was procedurally unfair. It referred to the tripartite test outlined in British Home Stores v Burchell [1978] IRLR 379 , and said that:
"… [t]his requires, in a conduct dismissal, for there to be a genuine belief by the respondent that the applicant has done something wrong and that genuine belief is after a reasonable investigation. Here, there was no investigation of any substance as to the matters for which [Mrs Martin] was dismissed."
It concluded by finding:
"… that in relation to the claim for unfair dismissal that both substantively and procedurally it succeeds."
[7]The tribunal then turned to the sex discrimination claim, which it disposed of in a single paragraph:
"14. …Here we have to look at the Sex Discrimination Act Section 1(2)(a) and what is being alleged here is direct discrimination that [Mrs Martin] was treated less favourably as a result of being female. The simple position here is that the evidence did not support the contention that this applicant was being treated less favourably as a result of her gender and that claim is dismissed."
The appeal to this appeal tribunal[8]Mrs Martin's appeal starts from the point that it is a proper inference from the tribunal's findings that Lancehawk had not demonstrated a potentially fair reason for the dismissal. Her notice of appeal asserts that nor did the tribunal make a finding as to why she had been dismissed and Lancehawk's answer makes the same assertion. However, in his skeleton argument Mr Bamford submitted that the primary facts found by the tribunal invite the irresistible conclusion that the reason for the dismissal was the breakdown of the affair.[9]We agree that that is an irresistible conclusion. Whilst the tribunal does not reduce it to a formal finding of fact – and we consider it would have been better if it had done so – we have already said that we interpret the tribunal as having accepted Mr Lovering's confirmation of the reasons for the dismissal, namely that Mrs Martin had lied to him and the fact of her conversation with Mrs Crookes. We interpret that as a finding that Mr Lovering dismissed her for a reason which had nothing to do with her performance as a Lancehawk employee but everything to do with the breakdown of their personal relationship and, in particular, with Mr Lovering's view that Mrs Martin had lied to and betrayed him.[10]That was, however, not enough to entitle Mrs Martin to succeed on her sex discrimination claim. For that she had to show that Mr Lovering's treatment of her by dismissing her was directly discriminatory of her on the ground of her sex. She had to show that, on the ground of her sex, he treated her less favourably than he would have treated a man. The relevant provisions in the Sex Discrimination Act 1975 ("the SDA ") are as follows:
"1 Direct and indirect discrimination against women (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, or … 5 Interpretation … (3) A comparison of the cases of persons of different sex or marital status under section 1(1) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. … 6 Discrimination against applicants and employees … (2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her- … (b) by dismissing her, or subjecting her to any other detriment."
[11]Mr Bamford's criticism of the tribunal's decision is that he says that it did not ask itself whether the treatment meted out to Mrs Martin would have been similarly meted out to a male comparator. He submitted that the moment in respect of which that question had to be asked and answered was the moment of dismissal. He said that, in considering whether a male comparator would have been subjected to like treatment, the tribunal ought to have had regard to the requirements of section 5(3). He said the due performance of that comparative exercise would have required the tribunal to consider how Mr Lovering would have dealt with a heterosexual male employee of Lancehawk in like circumstances. He said that Mr Lovering would not have had an affair with such a male employee and so no circumstances would have arisen in which he would have dismissed him. He said it followed that Mrs Martin was treated less favourably than such a male employee and that the only reason she was dismissed was because of her sex. He submitted that the question whether her less favourable treatment was on the ground of her sex was one which had to be assessed objectively, for which he relied upon the decision of the House of Lords in James v Eastleigh Borough Council [1990] IRLR 288 . He said that the only reason that Mr Lovering had an affair with Mrs Martin was because she was a woman. Therefore, "but for" her sex as a woman there would have been no relationship from which it followed inexorably that "but for" her sex she would not have been dismissed.[12]We have to say that, when Mr Bamford first outlined that argument to us, our instinctive reaction was to regard it as deeply flawed. It seemed to us that the critical issue posed by section 1(1)(a) was whether Mr Lovering dismissed Mrs Martin "on the ground of her sex", an issue requiring a consideration of why he dismissed her. As we have said, we interpret the tribunal as having found that the dismissal was because of the breakdown of the relationship. That, therefore, was the reason for the dismissal, not because she was a woman. We accept that, but for her sex, there would have been no affair in the first place. It could, however, equally be said that there would have been no such affair "but for" the facts (for example) that she was her parents' daughter, or that she had taken up the employment with Lancehawk. But it did not appear to us to follow that reasons such as those could fairly be regarded as providing the reason for her dismissal. As for the suggestion that it would have been helpful for the tribunal to have compared Mrs Martin's position with that of a heterosexual male employee with whom Mr Lovering would not have had an affair, we could not understand how that could have been of any help. If, which we doubted, this was a case in which a hypothetical comparator had to be constructed, our instinctive reaction was that the right one would be a male employee with whom Mr Lovering had had a homosexual relationship which had ended in like tears. We can see no reason for assuming that Mr Lovering would have dealt with any such male comparator differently. That would tend to suggest that Mrs Martin had not suffered any discriminatory treatment at all.[13]Mr Bamford was, however, able to support his submissions by reference to the decision promulgated on 24 April 2002 by the Manchester Employment Tribunal (chaired by Mrs C. Porter) in Schofield v Stuart Kaufmann t/a Kaufmann & Co Solicitors , unreported, a decision upheld by this appeal tribunal on 11 October 2002. There is no need to go into much detail about the facts of that case, which are not edifying. Mr Kaufmann, a solicitor, was a sole practitioner. Mr P was a fee-earner whom he employed, with 12 years' service. Miss S. began working for Mr P. as his secretary. They had a short sexual relationship. After it ended, Mr P. became openly hostile and rude towards her. Relations between Miss S. and Mr P. worsened to the point that the latter made clear to Mr Kaufmann that, unless he dismissed Miss S., he would resign. Mr Kaufmann dismissed Miss S. on the pretence that she was redundant and against the background of an explanation that the tribunal found was a device or a sham. Miss S. brought tribunal proceedings based on alleged sex discrimination.[14]The tribunal summarised the opposing arguments, which were essentially on the lines of(a) those advanced to us by Mr Bamford, and(b) those we have outlined as reflecting our instinctive response to them. The tribunal directed itself to sections 1(1) and 5(3) of the SDA and that:
"The test for direct discrimination is a causative one: would the applicant have received the same treatment as a man but for her sex? James v. Eastleigh Borough Council [1990] ICR 554 ."
The tribunal then said in paragraph 12 of its extended reasons:
"12. The question is whether the applicant was treated less favourably on the grounds of her sex. When deciding whether the applicant was subjected to less favourable treatment it is necessary for the Tribunal to compare like with like. … The submissions made on behalf of both parties relate specifically to the act of dismissal. However, in deciding whether the applicant has been treated less favourably we must examine all the circumstances and decide whether the acts as a whole amount to less favourable treatment and discrimination on the grounds of sex. In this case Mr Parker treated the applicant differently, less favourably, following the termination of a brief sexual relationship. … Mr Parker treated the applicant less favourably by, firstly, being rude and hostile to the applicant in front of others, making it clear that he was not happy to be in her company and, secondly, by delivering an ultimatum to Mr Kaufmann that the applicant either be dismissed or he, Mr Parker, would leave. There was less favourable treatment of the applicant. It was to her detriment in that she was upset and humiliated by it and ultimately she was dismissed because of it. The question is whether the applicant was treated less favourably than a man with whom she fell to be compared. The Tribunal must compare like with like and examine the treatment of the applicant by Mr Parker and compare it with his treatment of a comparable man, actual or hypothetical. The applicant is a heterosexual female. The comparator is a heterosexual man, actual or hypothetical. It would not be right to change the characteristics of the alleged discriminator, Mr Parker, and it would be wrong for us to hypothesise at this stage how Mr Parker would have treated a man if he, Mr Parker, was homosexual. We find that the proper approach is whether Mr Parker, a heterosexual man, would have treated a heterosexual male differently. We find that Mr Parker would not have treated a heterosexual male in the same way as he treated the applicant. Mr Parker would not have had a sexual relationship with a heterosexual man and consequently would not have been rude or hostile to a heterosexual male and would not have delivered an ultimatum to Mr Kaufmann. The less favourable treatment of the applicant was on the grounds of her sex. Mr Parker treated the applicant less favourably because she finished a sexual relationship with him. But for her sex Mr Parker would not have treated her in that way. Mr Parker discriminated against the applicant on the grounds of her sex."
[15]The appeal against that decision came on for a preliminary hearing before a division of this appeal tribunal presided over by Wall J. It was argued in support of the appeal that the tribunal had erred in law in choosing a heterosexual man as the appropriate comparator. Wall J summarised the argument as follows in the judgment:
"10. …Given that Mr Parker was himself a heterosexual man it is, Miss Barry argues, nonsensical to hypothesise as to whether Mr Kaufmann would have treated a heterosexual male sexually differently because Mr Parker would not have had a sexual relationship with a heterosexual male comparator. 11. Because there was no actual comparator, Miss Barry submits that the appropriate hypothetical comparator would either have been a male secretary with 8 months' service who had a sexual relationship with a female fee-earner with 12 years' service; or a homosexual male secretary with 8 months' service who had a sexual relationship with a male fee-earner of 12 years' service."
[16]Wall J then said that the tribunal "was having none of that" and, after quoting paragraph 12 of the tribunal's extended reasons, said of the tribunal's conclusions:
"13. In our judgment that reasoning is not only common sense but fulfils the terms of the statute. In our judgment the Tribunal was absolutely right to deal with the matter as it did and plainly chose the correct comparator. In these circumstances we feel there is no point in allowing this appeal to go forward to a full hearing as it would be bound to fail."
[17]With respect and diffidence, we are unable to agree with the approach favoured by the employment tribunal and by this appeal tribunal in that case.[18]First, we consider, if we may say so, that the decision in James v. Eastleigh Borough Council – by which the tribunal in Kaufmann was plainly influenced and upon which Mr Bamford relied before us - is not one which provides the most helpful assistance to the resolution of the type of problem raised by the present case. James was the well-known case of the local council which imposed a basic 75p charge for the privilege of using its swimming pool but which exempted those of pensionable age from such charge. This meant that women could have free swims at 60, whereas men had to keep paying until 65. Mr James claimed that the council's policy discriminated unlawfully against men. It was not suggested that, in adopting the policy, the council was motivated by any wish or intention to discriminate against men. Its intention was the benevolent one of discriminating in favour of pensioners generally (both male and female) as a section of the community whose resources were likely to have been reduced by retirement. The leading judgment in the Court of Appeal was given by Sir Nicolas Browne-Wilkinson, V-C, who rejected the claim that the council's policy was discriminatory against men. He said that the language of section 1(1)(a) of the SDA was directed at the case in which, subjectively, the alleged discriminator has treated the claimant less favourably because of his or her sex. He emphasised that what was relevant was the alleged discriminator's reason for doing the act complained of, not the causative effect of the act.[19]By a majority of three to two, the House of Lords reversed the decision of the Court of Appeal and found the council to have been guilty of unlawful discrimination against men. The majority comprised Lord Bridge of Harwich, Lord Ackner and Lord Goff of Chieveley. Paragraph 9 of Lord Bridge's speech can be interpreted as rejecting any notion that section 1(1)(a) is referring to the alleged discriminator's subjective reason for doing what he did. On the other hand, Lord Goff in his speech (paragraph 36) appeared to recognise that it will or may be relevant to consider the reason why the alleged discriminator acted as he did, although that will not necessarily be conclusive as to the disposition of the instant case. He said:
"In other words, I do not read the words 'on the ground of sex' as necessarily referring only to the reason why the defendant acted as he did, but as embracing cases in which a gender-based criterion is the basis on which the complainant has been selected for relevant treatment."
[20]Lord Ackner said he entirely agreed with the speeches of Lords Bridge and Goff, although in paragraphs 29 and 30 he appeared to prefer the view that the council's subjective reasons for adopting the policy it did were irrelevant, because they could not alter the fact that:
"… the Council had decided to implement and had implemented a policy by virtue of which men were to be treated less favourably than women, and were to be so treated on the ground of, i.e. because of, their sex."
[21]The point about the James case is therefore that, whatever may have been the motive of the council in introducing the relevant policy, the fact remained that the policy was one which, viewed objectively, introduced a charging scheme which was geared to a discriminatory gender-based criterion. The reasoning of the majority was that no amount of non-discriminatory intention will prevent such a scheme from being relevantly discriminatory within the meaning of section 1(1)(a).[22]The situation in James was, therefore, very different from the type of sex discrimination issue which most commonly arises in the workplace, namely one involving an inquiry as to whether the employer's treatment of a particular employee amounted to discrimination against her on the ground of her sex. In such cases there will usually be no scope for assessing from a supposed objective standpoint whether the employer's acts have been relevantly discriminatory. It will instead be essential to enquire why the employer acted as he did, a question which, once answered, will usually show whether there has been any unlawful discrimination. This is made clear by the decision of the House of Lords in Nagarajan v. London Regional Transport [1999] IRLR 572 . That was a race relations case, but section 1(1)(a) of the Race Relations Act 1976 ("the RRA ") is, for relevant purposes, in terms essentially identical to those of section 1(1)(a) of the SDA . In paragraphs 13 and 14, Lord Nicholls of Birkenhead said:
"13. … To be within s.1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to enquire why the complainant received the less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances. 14. The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred. For the purposes of direct discrimination under s.1(1)(a) …, the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign. For instance, he may have believed that the applicant would not fit in, or that other employees might make the applicant's life a misery. If racial grounds were the reason for the less favourable treatment, direct discrimination under s.1(1)(a) is established."
[23]The reasoning in paragraph 14 is, in essence, Lords Nicholls's explanation of the decision in James , to which he referred in paragraph 16: "16. The reduction in swimming pool admission charges was geared to a criterion which was itself gender-based. Men and women attained pensionable age at different ages. Lord Bridge of Harwich, at p. 765, described Lord Goff's test in the Birmingham case [ R. v Birmingham City Council ex parte Equal Opportunities Commission [1989] IRLR 173 ] as objective and not subjective. In stating this he was excluding as irrelevant the (subjective) reason why the council discriminated directly between men and women. He is not to be taken as saying that the discriminator's state of mind is irrelevant when answering the crucial, anterior question: why did the complainant receive less favourable treatment? " [Our emphasis of the last sentence][24]In his speech, Lord Steyn said much the same. e said, in paragraph 38: "38. … In James v. Eastleigh Borough Council [1990] IRLR 288 , Lord Bridge of Harwich (with whom Lord Goff of Chieveley and Lord Ackner agreed) adopted and applied the cited dictum in the Equal Opportunities Commission case. Lord Bridge of Harwich observed that 'the subjective reason for the differential treatment is quite irrelevant': 292, 11. In context Lord Bridge plainly meant that the subjective reason why the council discriminated directly between men and women was immaterial as a criterion of liability. He was not saying that evidence of the alleged discriminator's state of mind is irrelevant to the critical question of causation, viz why did the complainant receive less favourable treatment? " … [Again, our emphasis][25]Lord Hutton and Lord Hobhouse of Woodborough agreed with Lords Nicholls and Steyn. Lord Browne-Wilkinson delivered a dissenting judgment, in which he made clear (in paragraph 6) that he regarded Lord Lowry's dissenting speech in James as providing the soundest guide to the interpretation of section 1(1)(a), and (in paragraph 7), after referring to the reasoning of Lords Bridge and Goff, said that he found "it difficult in these circumstances to know exactly what was decided by the James case."[26]The House of Lords returned to the same theme in Chief Constable of West Yorkshire Police v. Khan [2001] IRLR 830 , another race relations case. In paragraph 29, Lord Nicholls of Birkenhead considered the sense of "by reason that" in section 2(1) of the RRA (which defines discrimination by way of victimisation), and said:
"29. (3) 'by reason that' Contrary to the views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause, or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan v. London Regional Transport [1999] IRLR 572 , 575-576, a causation exercise of this type is not required either by section 1(1)(a) or s.2. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
[27]Lord Hutton agreed with Lord Nicholls's speech, as did Lord Hoffmann in a substantive speech of his own. Lord Mackay of Clashfern and Lord Scott of Foscote also added substantive speeches of their own, but did not focus specifically on the ingredients of section 1(1)(a).[28]We refer finally to the decision of the House of Lords in Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 , a sex discrimination case. In paragraph 7 of his speech, Lord Nicholls of Birkenhead explained how tribunals dealing with direct sex discrimination allegations will normally consider, first, whether the claimant received less favourable treatment than the comparator (what Lord Nicholls called the "less favourable treatment" issue); and, secondly, whether that treatment was on the proscribed ground (the "reason why" issue). He recognised (in paragraph 8) that such a two-stage approach is in some cases a convenient and helpful one to the essentially single question of whether the claimant, on the proscribed ground, received less favourable treatment than others. But he also recognised that it can cause problems, particularly when there is a dispute about the identity of the comparator. He said that often the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. He explained (in paragraph 9) why Shamoon was a good example of that. He pointed to the fact that the two male comparators whom had been identified had not, unlike the claimant, been the subject of complaints and representations to the Police Federation, so that to compare her case with theirs was not to compare like with like. If a more apt, and hypothetical, comparator were constructed, it would then be necessary to inquire whether the claimant had been treated less favourably than he would have been treated – an inquiry which necessarily requires the tribunal to answer the reason why issue. This was because, as Lord Nicholls said (in paragraph 10), "It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was." Lord Nicholls then said:
"11. This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others."
[29]The importance, for present purposes, of Lord Nicholl's observations in Shamoon lies in the emphasis he again attaches to the need for the tribunal in a direct sex discrimination case to decide the "reason why" issue, an exercise requiring an examination of all the facts of the case.[30]We revert to the decision of the employment tribunal in Kaufmann . If we may respectfully say so, it appears to us that the tribunal fell into error in that case by failing to attempt an answer to the "reason why" question. It found that Miss S. had suffered detriment, whose nature it described in paragraph 12 of its reasons. But it appears to have made no real attempt to consider whether the reason why she received that treatment was because of her sex. All it did was to compare her situation with that of man with whom Mr P. would not have had a sexual relationship, conclude that such a man would not have suffered from like treatment and conclude in consequence that Miss S.'s less favourable treatment was on the ground of her sex.[31]That reasoning appears to us to have been defective. First, to compare Miss S's position with that of a heterosexual man with whom Mr P. would not have had a sexual relationship was to make a futile comparison. It is obvious that such a man – whom we will assume must also be taken to have been a model employee - would not have received the sort of treatment that Miss S. did. Secondly, it was a mistake on the part of the tribunal to conclude from such an inapt comparison that the reason for Miss S.'s unfavourable treatment was her sex. That was simply a non sequitur . That would have been obvious to the tribunal had it, for example, tested the soundness of its logic against a consideration of how Mr Kaufmann would have treated another hypothetical comparator – a female employee with whom Mr P. had not a sexual relationship. He would not have dismissed her either, despite her sex as a woman. Yet he did dismiss Miss S. That comparison would have shown that the reason for Miss S's dismissal either was not, or probably was not, anything to do with her sex, and would have pointed to the need for the tribunal to focus specifically on the reason for it. Had the tribunal done so, it would or should have been clear to it that the reason why she was dismissed was because the aftermath of her sexual relationship with Mr P. had led to turmoil in the office as a result of which Mr Kaufmann was faced with the problem that, if she stayed, Mr P., a valued fee-earner, would go. Mr Kaufmann wanted to retain Mr P. and so he dismissed Miss S. The reason for the dismissal was therefore clear. It had nothing to do with Miss S.'s sex but everything to do with the personal hostility which had developed between her and Mr Parker and, in particular, Mr Kaufmann's wish to keep Mr P. In our view, and with respect to the conclusion of the tribunal in the Kaufmann case, its decision was wrong; and, with like respect, we consider that this appeal tribunal was equally wrong to conclude that the tribunal had made no error of law in arriving at it. In the circumstances, we do not regard the Kaufmann decision as providing any helpful guide for the disposition of this appeal.[32]Turning to the present case, it follows that we are unable to accept Mr Bamford's submissions. We consider that, in the particular circumstances of this case, the employment tribunal's primary task was to consider, and decide, the "reason why" question. It decided that question by accepting Mr Lovering's evidence that the reason why he dismissed Mrs Martin was because of the taped conversation, which confirmed to him that Mrs Martin had lied to him, and the contents of the conversation with Mrs Crookes. That was not, it seems to us, a reason that was in any way based on Mrs Martin's sex. It was one based on the breakdown of their personal relationship. We reject Mr Bamford's suggestion that the tribunal should have compared Mrs Martin's position with that of a heterosexual man with whom Mr Lovering would not have had a sexual relationship, and whom he would not therefore have dismissed. For reasons we have given, that would not have been to compare like with like, and would have been pointless. If a hypothetical comparator did need to be constructed, we consider that a more apt one would be a male with whom Mr Lovering must be assumed to have had a homosexual relationship which had ended in a like fashion. But to construct such a comparator would still not have provided much help in answering the crucial question, namely why was Mrs Martin dismissed? That required a consideration of the evidence, assessed against a reminder that the reasons why human beings act towards others in the ways they do are many and various and are not automatically to be presumed to have been motivated by the sex of those others. In the present case, the answer to the crucial question was obvious, and was nothing to do with Mrs Martin's sex. We presume that that is why the tribunal felt able to dismiss her sex discrimination case in the summary way it did.[33]In deference to Mr Bamford's sustained and careful argument, we have not felt able to dispose of Mrs Martin's appeal quite so summarily. But, for the rather fuller reasons we have given, we are satisfied that the tribunal made no error of law in its rejection of Mrs Martin's sex discrimination claim. We dismiss her appeal.

Cited in 1 later judgment