SINCLAIR ROCHE & TEMPERLEY JEFF MORGAN STUART BEADNALL MICHAEL STOCKWOOD STRUAN ROBERTSON v SIÂN HEARD SIÂN FELLOWS [2004] UKEAT 0738_03_2207

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0738_03_2207Case No Appeal No. UKEAT/0738/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SINCLAIR ROCHE & TEMPERLEY JEFF MORGAN STUART BEADNALL MICHAEL STOCKWOOD STRUAN ROBERTSONAPPELLANTSIÂN HEARD SIÂN FELLOWSRESPONDENT
Before
Mr Justice BurtonDate 22 July 2004
[1]APPEARANCES For the Appellants MR I GATT (One of Her Majesty's Counsel) Instructed by: Messrs Stephenson Harwood Solicitors 1 St Paul's Churchyard London EC4M 8SH For the Respondents MR D BEAN (One of Her Majesty's Counsel) MS J EADY (of Counsel) Instructed by: The Respondents SUMMARY Sex discrimination claim by former partners against the partnership and individual partners: direct discrimination (in both cases) and indirect discrimination (in one) found by ET.(i) ET must, if ordering written submissions, allow sufficient time for them to be prepared and in particular to be considered and assimilated by the other party and the Tribunal before oral submissions.(ii) Findings of direct and indirect discrimination set aside and remitted. Respondent must be entitled to give, and have considered, justification and/or non-discriminatory explanations for an adequately established prima facie case of unfavourable treatment or discrimination ( Anya , Wolff and Bahl applied).(iii) Remitted to same Tribunal – principles for the taking of such course set out.(iv) Issues of knowingly aiding and of indemnity/contribution between partners for acts of discrimination considered and remitted. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by the Respondents, namely Sinclair Roche and Temperley ("SRT"), a firm of solicitors which has now ceased to trade after a merger with another firm, and four individual partners in that firm, Messrs Morgan, Beadnall, Stockwood and Robertson. The appeal is against the decision of an Employment Tribunal at London Central in favour of the Applicants, two former partners in SRT, Ms Heard ("SH") and Ms Fellows ("SF"), that SRT and the four individual partners discriminated against SH and SF on the grounds of their gender, contrary to the Sex Discrimination Act 1975 ("SDA"). The hearing lasted for twelve days of evidence, starting on 31 March and concluding on Maundy Thursday 17 April 2003, in circumstances to which I will refer. There were oral submissions on the afternoon of Easter Tuesday 22 April, and the Decision was handed down on 30 July 2003.[2]Before dealing with the substance and the outcome of the appeal before us, we wish first to set out what appears to us to have been an inappropriate and, in the event, unfortunate procedure which was adopted by the Tribunal, in a number of respects: 1 At the outset of the hearing, Mr Gatt QC, who appeared below and before us on behalf of all the Respondents, sought to persuade the Tribunal that there should be a Summary of the issues to be heard, in what was inevitably likely to be, and in the event was, a lengthy and diffuse hearing. The events in issue covered a period between October 1993 and May 2002: there were substantial bundles of documents and a considerable number of witnesses to be called (in the event nineteen); and there were several different issues of discrimination, both direct and indirect, and some difficult time/limitation issues. Ms Jennifer Eady of Counsel, who again appeared below for the Applicants, and has appeared before us led by David Bean QC, was content for such course to be taken, and both she and Mr Gatt QC provided suggested lists of issues for the Tribunal, separately for SH and SF. The Tribunal unfortunately did not adopt that course. All that they set out in paragraph 5 of their Decision under the heading " The Issues ", by way of terms of reference, was a short statement of the three causes of action:
" These issues were agreed as being that each Respondent discriminated against each Applicant in the following ways; (i) unlawful direct sex discrimination/discrimination on the ground of marital/family status (ii) unlawful indirect sex discrimination (iii) unlawful sex discrimination by way of victimisation " (both Applicants' complaints in this regard were in the event dismissed and no appeal has been pursued against such dismissal). As will appear, the adoption of a summary of the central issues to be found by reference to the facts of the case would have avoided many of the problems which have become apparent on this appeal, and in particular would have enabled the Tribunal and the parties to deal with: (i) issues changing in the course of the hearing as the evidence developed: had there been a summary of issues this would have been apparent and such summary of issues would and could have been amended accordingly and/or the difference between the issues eventually left to be decided and those originally formulated would have become apparent, at the latest at the time of closing submissions; (ii) new and possibly unexpected issues arising at the stage of closing submissions and, it may be, only in the Decision. The fact that such issues were fresh would once again have been appreciated and provided for. 2 Mr Gatt QC raised two preliminary points at the outset of the hearing before the Employment Tribunal, which have, in the event, gone on to be discrete grounds of appeal before us. The second of these was that, so far as concerned the four individual Respondents (against whom, as against SRT, a generalised case of sex discrimination had simply been broadly pleaded (paragraph 8 of the Decision)), " there was no allegation against any individual Respondent that he knowingly aided the First Respondent to discriminate against either of the Applicants ": he was in effect, perhaps in terms, seeking further and better particulars of those allegations. The claim was that SRT had discriminated. The only way in which the individual partners could be liable would be under s 42(1) of the SDA which reads as follows: "(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."
The Tribunal did not accept Mr Gatt QC's submissions and (paragraph 8) " indicated that this was a matter for closing submissions ". The result is that the case against those individual Respondents was never identified prior to their giving evidence, so that the case that they had knowingly aided the alleged discrimination could not be fairly put or defended, and the nature of it, which was left to closing submissions, was, as will appear, never in the event made clear at all, and yet the Tribunal found them liable in paragraphs 127-132 of the Decision. The problem, which we discuss below, would have been entirely avoided had there been a direction that the Applicants must particularise their case, both as to the aiding by the four Respondents and, in particular, as to their alleged state of knowledge. 3 Most worrying of all was what occurred at the end of the evidence on Maundy Thursday; and it arises from a misguided emphasis on apparently up-to-date procedures, without thinking through the consequences. The Tribunal had, it seems, set aside Wednesday to Friday 23 to 25 April for their Chambers discussions. When the evidence ended in 12 days there was only one working day, namely Easter Tuesday 22 April, before that period set aside for discussion commenced, and it seems that the Tribunal imposed the timing for delivery of submissions in order not to lose any of those three days of discussions. At the close of the evidence, it seems that directions were given that written closing submissions should be supplied, and at the suggestion of the Chairman – very sensibly – should contain a summary of each side's case on every material point or issue, with a list of suggested findings of fact and cross-reference to the evidence. This was to be delivered by Tuesday 22 April. This in effect was the next working day, since the day after Maundy Thursday was, of course, Good Friday, and then the Easter Weekend and Bank Holiday Monday. No allowance was made for this (although a concession of extension to Tuesday mid-day for delivery of submissions was given) but then Counsel must occasionally suffer for their profession, as these Counsel did. Excellent and detailed submissions were produced by both Mr Gatt QC and Miss Eady, miraculously as we see it, because they must have taken every bit of the time over the Easter Weekend, within the deadline: in the case of Mr Gatt QC's submissions they were 97 pages long, with 206 cross-referencing footnotes, and in Miss Eady's case they were 'only' 67 pages with 64 footnotes. They must have been of very considerable value to the Chairman in writing the Decision. However, valuable as this adoption of the American system of briefs may well be, it is not, and under the English system is not intended to be, a substitute for oral argument. Provision was made for 1½ hours for each side on the Tuesday afternoon, and that is what occurred. That may well be of sufficient allowance if the oral submissions take place after delivery and assimilation of the written submissions, but it is simply the introduction of apparent speed and efficiency for the sake of it if neither the other party nor the Tribunal have had any opportunity prior to the giving of and listening to the oral submissions then made to have read – never mind understood – the written submissions. Without that occurring, the oral submissions then made simply amount to a brief repetition or summarisation of the contents of the written submissions, no doubt rounded off with a purple passage. After a lengthy hearing like this, where written submissions are then sensibly ordered by the Tribunal, we are quite clear that this should only take place on the following basis: (i) The timescale for preparation of the submissions must be a sensible one. It seems to us to have been quite unfair for such pressure to have been imposed on both Counsel as was here imposed, and we have already indicated how, in the best traditions of the Bar, they more than fully complied with their obligations – although, again as will be seen, it was inevitable under this time pressure that matters would be omitted. (ii) It is essential that the timescale should provide for the submissions to be provided to the other party in sufficient time before the oral submissions for the other party to be able to assimilate them, and thus comment upon them. Unless the submissions are to be consecutive (and even then there must be time after the delivery of the first), oral submissions are of very much less, possibly no, value if the written submissions have not been read in advance by the other party, so that that party can, in his or her oral submissions, comment upon, address and seek to answer them. As will be seen in this case, problems can inevitably arise otherwise. Points are made which have never been made before, and yet the other side does not have the opportunity either to answer them or to seek to object to their being made. Incorrect submissions or incorrect references to the evidence may be made in good faith which are never corrected. A new case may be put forward which is not answered. A good point is made which could have been countered but had not been anticipated when the other side's written submissions were prepared. It is only thus that the oral submissions can be well and sensibly used in a combination of emphasis of the original points and countering of the points made in the other party's written submissions, together with the making of any objections or of any fresh arguments as necessary. (iii) It is equally, if not more, essential that the Tribunal has had the opportunity to read the submissions, which again was not the case here. Points that are taken by the parties will not be tested and may be misunderstood. New points which do not arise out of the evidence or are incorrectly made but never corrected by the other party may be accepted by the Tribunal. Points that are not made in the closing submissions (possibly for good reasons) but which appeal to the Tribunal will never be canvassed with the parties. In this regard too, some of the problems in this appeal can be ascribed to this course being taken. We can understand that there must have been a concern with the Tribunal at the possible waste of time in respect of the days set aside for discussion if a longer period were given for the written submissions. But then it is plain that it will have been apparent for some time prior to the close of the hearing, given the timetabling that was being adhered to for the hearing of the evidence, that it would be completed on the twelfth day; and it seems to us that it would therefore at a relatively early stage have been seen that it was inevitable that there would have to be time for written submissions to be delivered and assimilated, and that the aspiration of using the three days for Chambers discussions would have to be shelved. No doubt if such decision had been taken at a relatively early stage in the evidence it might still have been possible to have found other business for the Chairman and the members to deal with, pending receipt of the written submissions. We can sympathise with what the Tribunal was seeking to achieve, but sympathise even more here with Counsel and the parties. Mr Gatt QC in particular rightly or wrongly feels that the labour which he put into his submissions was largely wasted.[3]The grounds of appeal and cross-appeal before us, so far as their substantive content is concerned, can be broadly summarised as follows:(i) The challenge by the Respondent to the findings of direct and indirect discrimination against SH and SF (Ground 1).(ii) The cross-appeal by SH and SF against the finding of the Employment Tribunal in paragraph 126 of its Decision (on limitation/continuing act) that " having considered the matter carefully, we find that the Respondents' treatment of the Applicants amounted to a continuing act which commenced in January 2000. To some extent this is an arbitrary starting point. Insofar as there are complaints of sex discrimination which precede this date, we are not prepared to extend time for the consideration of these acts " (Ground 2).(iii) The finding by the Employment Tribunal that the four individual Respondents are liable for knowingly aiding within s42(1) of the SDA (Ground 3).(iv) The finding by the ET - in part at their liability decision and in part when, by agreement between the parties the matter was reconsidered, in their Remedies Decision (when, by Decision handed down on 19 March 2004, they awarded more than £900,000 between the two Applicants) - that in respect of the liability of SRT, of which each was a former partner, to both SH and SF, each of them would not be liable to indemnify the partnership, or pay her share, not only in respect of the partnership's liability to herself but also to the other (Ground 4).[4]It was apparent to us, at the outset of the hearing, that we should deal first with Ground 1, because the fate of Grounds 2, 3 and 4 would very much depend upon what our decision was on Ground 1 i.e. whether we were going to allow the appeal and remit it in whole or in part to the Employment Tribunal, or simply dismiss the appeal would impact upon both our decision and possibly the parties' decisions or approaches in respect of Grounds 2, 3 and 4. Both during the hearing therefore and now in the course of this judgment, we deferred and shall defer consideration of Grounds 3 and 4, and to a large extent 2 (although, for reasons which will appear, it was and will be necessary to pay regard to the issues underlying Ground 2 for the purpose of considering Ground 1). Ground 1[5]It became clear fairly early in the argument, and certainly by the end of it both Counsel agreed, that so far as Ground 1 is concerned - the question of whether or not there was direct discrimination by SRT against SH and SF and indirect discrimination by SRT against SF - the Employment Tribunal's decision, and whether it could be supported, depended upon two issues alone. The Referrals Issue[6]It was common ground by the end of the hearing that (at any rate on the findings of the Employment Tribunal) the crucial criterion for consideration for and appointment to Senior Equity Partner ("SEP") – a rank which neither of these Applicants attained – was the quantum of the prospective partners' billings. Whether or not, at some stage, there may have been some suggestion that this itself was a discriminatory criterion, such was not in any event the issue by the end of the Employment Tribunal hearing; and the case revolved around the question of referrals. Referrals occur where work is passed on by one partner to another partner, i.e. the client or the work is not personal to the partner who does the job, but has been the subject of an internal referral. Naturally in almost all cases assistant solicitors will only carry out work on jobs that are referred in the broadest sense to them, in the sense of delegated to them by their own supervising partner, or asked to do work by another partner. But a partner is expected to go out and get his or her own work: yet there will also be internal referrals from other partners for whatever reason, for example, because a conveyancing client of the conveyancing partner suddenly needs litigation advice etc. The case that the Applicants made was that their billings were not as great because they had inadequate referrals; and/or, in particular by comparison with two males who were, like them, Junior Equity Partners (JEPs), but were, unlike them, made up to SEP, on the basis of their billings, namely William Cawley ("WLC") and Tim Addis-Jones ("TAJ"), they were discriminatorily treated so far as referrals are concerned by SRT. Although at an earlier stage it appears that other male solicitors were named as comparators or potential comparators, by the end of the hearing before the Employment Tribunal TAJ and WLC were the designated comparators. The issue was whether there was discriminatorily unfavourable treatment in relation to referrals as between SH and SF on the one hand, and WLC and TAJ on the other. If there was, then, although before the Employment Tribunal, no doubt because of the unfocussed nature of the argument in the absence of a summary of issues, there was a good deal of disputation about the SEP process, and about the precise circumstances of the two sets of merger negotiations, each with a different firm of solicitors (the second being successful), nevertheless before us at any rate it was common ground that the referrals issue was crucial: and that if the difference in billings was attributable to discriminatory treatment in relation to referrals, it would follow as a necessary consequence that SH and SF would be entitled to complain that their reduced billings impacted upon(i) their chances of becoming an SEP(ii) the treatment of both of them as significant or insignificant players in both the first and the second merger negotiations. The Part-time Working Issue.[7]The second of the two central issues, as they were accepted to be before us, related to the fact that SF in October 2000 raised the possibility with the then managing partner, Mr Morgan, of working part-time. SF's case on discrimination in this regard evolved, as will be seen; and it is this issue in particular which exemplifies the concerns which we have set out above as to the absence of a summary of issues, which could have indicated this evolution to the parties and to the Tribunal (and we shall refer in greater detail to this below). But it resulted in a finding, limited to SF, that (paragraph 117 of the Decision), by reference to the existence, as the Tribunal found, of a " requirement or condition, or subsequently a criterion, that anyone in the partnership had to work full time ", there was indirect discrimination by SRT. The Law[8]The law central to this appeal relates to the way in which the Employment Tribunal was required to approach the issue of discrimination. Mr Gatt QC makes a general allegation by reference to Meek v City of Birmingham District Council [1997] IRLR 250 and English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409 , that the Tribunal was obliged to give, and failed to give, adequate reasons for its decision. He set out in a note a detailed set of propositions, primarily drawn from English , to which Mr Bean QC only in some respect demurred. Clearly the passages in the judgment in English of Lord Phillips MR, with regard to the requirement to give reasons under common law, particularly at paragraphs 6 and 15 to 21, are of significant importance. However most of Mr Gatt QC's attack was directed at the whole of the Employment Tribunal's Decision, and at many of its findings of fact – some of them, as he submitted, plainly wrong or misconceived (e.g. the apparently muddled statistical approach in paragraph 18 of the Decision, whereby it is apparently to be assumed that one third of assistant solicitors being female in 1995 should lead to one third of partners being female in 2002, without considering the massive death or dissipation rate among male partners that would be necessary to achieve that) – which, he submits, creates a false picture of a culture of discrimination in SRT, which infected the Tribunal's decision. Whatever may be the strength of many of his points, his case on lack or insufficiency of reasoning on that basis inevitably blends into an argument based upon perversity, which, together with the concomitant consideration by the Employment Appeal Tribunal of alleged lack of evidence or reasoning on the part of the Tribunal, is now so heavily deprecated by the Court of Appeal in such decisions as Yeboah v Crofton [2001] IRLR 634 . See also the earlier words of Lord Phillips MR in Wheeler and Newton v Durham County Council [2001] EWCA Civ 844 .[9]However on the basis upon which this appeal has in the event rested, by reference to the two planks of referrals and part-time working , it became utterly clear that it was not the general issue of the giving of reasons, but rather the cases which deal with how tribunals should approach the issue of discrimination, which were central to our considerations.[10]The general structure required for a discrimination finding by an employment tribunal is now clear from the decisions of Barton v Investec Henderson Crossthwaite Securities Ltd [2003] ICR 1205 , as supplemented by the decisions in University of Huddersfield v Wolff [2004] IRLR 534 EAT/0596/02 , and Chamberlin Solicitors v Emokpae EAT/0989/03 (at paragraphs 32 to 40). The tribunal must set out the relevant facts, draw its inferences if appropriate and then conclude that there is a prima facie case of unfavourable treatment by reference to those facts (identifying it), and then look to the respondent for an explanation to rebut the prima facie case. The employment tribunal must plainly make quite clear what the unfavourable treatment is which is prima facie discriminatory, so that the respondent can understand what it is that it has to explain. It then explains, if it can. Such explanations, if any, must be fully considered and:(i) It may be, either obviously or after analysis, that there is no explanation.(ii) There may be an explanation which only confirms the existence of discrimination.(iii) There may be a non-discriminatory explanation which redounds to its discredit – e.g. it always behaves this badly to everyone.(iv) There may be a non-discriminatory explanation which is wholly admirable. But the employment tribunal must address the respondent's response.[11]The nature of such addressing of the explanations is set in the context of the words of Peter Gibson LJ in Chapman v Simon [1994] IRLR 124 at paragraph 41, namely that in discrimination cases it is " appropriate that … [Employment] Tribunals should perform their duties with meticulous care ". In the EAT case of Port v Royal Mail and Others EAT/0045/99 Holland J required " an analytical recitation of such explanations as are advanced by the Respondents for those [arguable] instances [of sexual discrimination]". The nature of the requirement is made clear by the Court of Appeal in Anya v University of Oxford [2001] ICR 847 . At 851F (paragraph 7) Sedley LJ cites Neill LJ in King v Great Britain China Centre [1992] ICR 516 at 528-529:
"In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds."
[12]He continued in his own words at 853B:
"Were racial grounds an effective cause of the difference in treatment? What explanation of the less favourable treatment is given by the Respondent? In answer to each of those questions the tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence. "
[13]And at 853H " The respondent has to respond to the introduction of those items. He may dispute some of them as factually incorrect. He may seek to introduce other evidence to negative any possible inferences of racial grounds e.g. non-racial explanations for his acts and decisions ".[14]In Wolff , I said as follows:
"26. [The tribunal] 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 satisfies them, the burden being on the respondent to show that the less favourable treatment was not on the grounds of sex. … 31. …The reasons ... 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 it transferred the burden under s63A [of the 1975 Act] … 34. … 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 s63A, which was necessary even before the onus passed, and, even assuming it did correctly apply s63A, to the consideration of the Respondent's explanations after the passage of the onus."
[15]Elias J sets out the position in The Law Society v Bahl [2003] IRLR 640 :
"100. … Where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn … 116. … The failure [to construct a hypothetical comparator] … may raise doubts as to whether the tribunal has properly considered all potentially relevant explanations when identifying whether or not unlawful discrimination exists. It may raise a concern that the tribunal has failed properly to consider the possible lawful non-discriminatory reasons for the conduct in issue."
[16]It is apparent that, particularly given the reversal of the burden of proof, it is essential that, if the tribunal satisfies itself that there has been on the face of it unfavourable treatment, it has effectively only reached halfway; it must set out clearly its conclusions as to the nature and extent of such unfavourable treatment, and it must then fully and carefully consider, having thus identified the conduct which requires explaining, what the explanations of the employer were, and why, if such be the case, such explanations provide no answer. Against that background we turn to consider whether this Tribunal has complied with its legal obligations in regard to the two questions of referrals and part-time working . Referrals[17]SF became a salaried partner in May 1995 and SH in May 1997. Both became JEPs in May 1999 (as did TAJ and five others, while WLC, together with two others, became SEPs). As to referrals, there were figures for 1990 to 1992, set out in paragraph 49 of the Decision, which emphasised the relative rarity, so far as the opening of new files was concerned, of "new" clients, as opposed to "established" or "internally referred" clients. In paragraph 50 of the Decision, the Employment Tribunal relates that the partnership introduced a system of partner assessments in 1999. And the assessment documentation, to which the Tribunal was referred, contained figures relating to referrals: "The assessments for 1999 demonstrate that for the years from April 1997 to April 1999, Ms Heard collected costs amounting to £22,105 on 'matters introduced by other partners'. Ms Fellows collected £7,569. Mr Cawley collected £368,456 and Mr Addis-Jones £473,179 … on the same basis. This lack of internal referrals to the Applicant is acknowledged in the comment in the assessment that the Applicants should do more 'to market themselves internally'".[18]There was then considerable evidence about the referrals position between 2000 and 2002, dealt with by a series of schedules and counter-schedules, produced in respect of those years primarily with regard to SF, but also SH, and cross-examination based on them, as described by the Tribunal in paragraph 51:
"In his supplementary statement, Michael Stockwood identified a number of clients in his schedule who had been referred to Siân Fellows, in support of the Respondents' contention that the Applicants did have a large number of cases referred to them. Ms Fellows (second statement …) attacked the accuracy of Mr Stockwood's schedule and, having been taken through all of the references, we accept that the schedule does not accurately record how referrals were made. In particular, the Respondents treated clients differently depending upon whether they were clients of the Applicants or, for instance, Mr Addis-Jones. It is notable that before these proceedings no attempt was made by the Respondent to identify the source of individual clients by reference to the partners who did that work. At this late stage, this is an almost impossible exercise. Had the Respondents done this sort of analysis at the time, it would have been a relatively simple matter to check the Applicants' assertions that work was not being apportioned fairly. It is not now possible to carry out any accurate analysis of where work came from. This is illustrated by the Respondents' submissions at paragraph 7.7.12."
[19]This is a reference to part of a lengthy passage in Mr Gatt QC's submissions, which we shall quote more fully below, but the central passage, to which the Tribunal is clearly referring in that subparagraph, is to " the futility and impossibility of the Tribunal trying to evaluate whether there was less favourable treatment on the issue of referrals, let alone whether it was on the grounds of gender ".[20]The Employment Tribunal continued:
"The best we can do is to reach a view on the evidence from witnesses, backed up by rather crude contemporary statistical analysis."
[21]This is, as Mr Bean QC accepts, a reference to the evidence given by the respective witnesses by reference to examination or cross-examination upon the schedules, as to which the Tribunal has already expressed its view, by reference to Mr Gatt QC's submissions. Ms Eady did not put forward any differing submission, i.e. that any conclusion could, in fact, be reached (see footnote 36 to page 27 of her closing submissions). On the face of it therefore, the Tribunal is unable to reach any conclusions, at least in relation to SF (we shall return below to SH). Yet the Tribunal's conclusion is set out at paragraph 114:
"We are satisfied that both Applicants would have found it easier to progress through the hierarchy at SRT had they been male rather than female. Although they were initially highly successful performers in terms of billings, their performance dropped off after a while because they were not given the same level of referrals at work as their named comparators. Accordingly they were not able to achieve such high billing levels and were impeded from progressing to the higher partnership level. Consequently, their performance suffered and they also received less favourable treatment when the firm started to experience financial difficulties from the year 2001. This led to their being earmarked for 'reclassification' in any merged firm . "
[22]This is an obvious problem. Mr Bean QC seeks to meet it by submitting that the Employment Tribunal's conclusion, in paragraph 114, can be justified without reference to its ambiguous or, indeed, absent conclusions in paragraph 51 of the Decision, by virtue of what he called the 'gross disparity' in billings evidenced in paragraph 50 of the Decision. Paragraph 50 is not further referred to in the Employment Tribunal Decision, but, he submits, there are three ways in which it was relevant, and indeed formed the basis of the conclusion in paragraph 114. I characterised these three ways as Bean 1, Bean 2 and Bean 3:(i) Bean 1 : the figures for comparative referrals in 1997 to 1999 contained in paragraph 50 of the Decision are sufficient of themselves to found and justify the conclusion.(ii) Bean 2 : from the existence of the figures from 1997 to 1999 it can be inferred that, leaving aside and ignoring the evidence and counter-evidence as to figures and schedules in 2000 to 2002, this gross disparity continued.(iii) Bean 3 : once the gross disparity and referrals had occurred in 1997 to 1999, whatever the position may have in fact been in 2000 to 2002, the Applicants would never have been able to recover in terms of billings, because without referrals in year 1 or 2, years 3 and 4 are less likely to be fruitful.[23]There are difficulties standing in the way of these three submissions, quite apart from the general reluctance of an appeal tribunal to reconstruct the reasoning of the first instance tribunal. Thus Lord Phillips MR in English at paragraph 18 said:
"A judge cannot be said to have done his duty if it is only after permission to appeal has been given and the appeal has run its course that the court is able to conclude that the reasons for the decision are sufficiently apparent to enable the appeal court to uphold the judgment."
In Anya Sedley LJ described it as not being " acceptable to comb through a patently deficient decision for signs of the missing elements, and to try to amplify these by argument into an adequate set of reasons ". In Wolff I referred, at paragraph 46, to the tribunal not being willing " as we are in any event encouraged not to do, [to] pick up pieces of a jigsaw and put them back together again ". Bean 1[24]This submission was, albeit superficially attractive, a real difficulty for the Applicants. It is not simply the fact that the Tribunal did not address again, in its Decision, the contents of paragraph 50 and the suggested " gross disparity ". Nor, notwithstanding his 97 pages, did Mr Gatt QC. Nor, significantly, did Ms Eady in her 67. We have already commented that, given the pressure which Counsel were under, either of them could be forgiven for omitting matters from their closing submissions, and, in particular, Ms Eady, if it was for her to have made the primary point which, if Bean 1 is to be accepted, should have been her bull point. But the fact remains that it had no mention in either set of submissions. Perhaps if the course had been taken, which, we have indicated in paragraph 2 above, should have been taken, then the point would have emerged in more informed oral submissions, and, in particular if it had been in the mind of the Tribunal, would then have been canvassed. Whether or not it was in the mind of the Tribunal is a matter to which we shall return in a moment, but, if it had been, then on any basis it would and should have been fully addressed in submissions. The primary effect of such a case not having been so addressed is not simply in respect of the appropriateness of reliance on it for the purpose of establishing a prima facie case of unfavourable treatment, but equally, or in fact more, important, in respect of the need for it to be set out clearly so that there can be proper consideration of the Respondents' explanations for it: 1 So far as SF is concerned, such explanations may or may not have been capable of being drawn out of the lengthy passage in Mr Gatt QC's submissions, of which one subparagraph was referred to in paragraph 51 of the Decision, as appears in paragraphs 19 and 20 above, and from which we will quote more fully below. In particular there are passages in SF's own statement at paragraphs 95-96 and 129 in which reference is made by SF herself to the very substantial difference between herself and both TAJ and WC arising out of the fact that in both of the latter cases their more senior partners in their departments had left or retired, in circumstances in which they were no longer practising in the relevant field, such that their clients were " up for grabs ", whereas she herself had no such advantage. 2 There was a similar position in relation to SH. The Tribunal sets out the following at paragraph 52 of its Decision:
"The Respondents did not dispute that Siân Heard enjoyed a significantly lower level of existing and referred clients than her peers. She raised the problem in January 2000 in an email to Jeff Morgan, managing partner …, pointing out that: "
SEP status will be more easily attainable for JEPs who work for clients they have inherited from other SEPs or from previous partners of the firm who have now retired or left. The vast majority of my work is, however, entirely self-generated … Similarly, I am not fed work by any SEP, and I do not have the meaningful support of any SEP in the building of my practice"". The reference (set out in bold by the Tribunal, but not so appearing in the original email) to the lack of inherited clients, is in fact to one of the very points which the Respondents were making, or would have made had paragraph 50 been in the spotlight, and it is noteworthy that in the next paragraph of the same email from SH, not quoted by the Tribunal, SH herself appears to confirm the point that Mr Robertson had given in evidence (see paragraph 6 of his witness statement); namely that, unlike the cases of TAJ and WC, the relevant more senior partner in her case, Mr Fitzpatrick, had left the firm but, because he was competing for business in the same field with his new firm, there was not a situation in which there were or were likely to be clients for her to inherit:
"Far from having the support of my former principal, [Fitzpatrick] actively competes with me for work."
[25]But the most significant matter that stands in the way of Bean 1, and thus of paragraph 50, or even paragraph 52 - i.e. unfavourable treatment consisting of the alleged gross disparity in referrals (alleged to be on grounds of gender) in 1997 to 1999 - being sufficient to establish the Applicants' cases, is the Tribunal's own findings at paragraph 126; in which it was addressing the question of limitation, and the date from which there was actionable discrimination by the Respondents:
"126. We find that from January 2000 … SRT was responsible for an ongoing situation or a continuing state of affairs, in which female salaried partners were treated less favourably with regard to opportunities for promotion to Senior Equity Partners than male salaried partners were. This was, we find, an act extending over a period which continued until each Applicant presented her complaint to this Tribunal. We are not able to identify a precise point when this started to impact the Applicants' situation. It was generally agreed that there was [a] period of around three to four years from promotion to salaried partner, before a candidate might expect further promotion. In Ms Fellows' case, she would not have expected promotion to the equity before 1998, and in Ms Heard's case this would have been 2000. Having considered the matter carefully, we find that the Respondents' treatment of the Applicants amounted to a continuing act which commenced in January 2000. To some extent this is an arbitrary starting point. Insofar as there are complaints of sex discrimination which precede this date, we are not prepared to extend time for the consideration of these acts. This would not be just or equitable, in view of the passage of time and because partners who had left the firm some time before these proceedings began might be liable. Where these incidents could amount to acts of sex discrimination against the Applicants or other women, we have taken them into consideration as background."
[26]This is a clear finding that the Tribunal was plainly not basing its conclusion solely, or even partly, on discrimination in 1997-1999, as per the findings in paragraph 50 of the Decision. Mr Bean QC, of course, by way of his cross-appeal (Ground 2) challenges the Tribunal's determination in paragraph 126, in particular submitting that the Tribunal ought to have found that there was an " ongoing situation or continuing state of affairs " for which the Respondents were liable prior to January 2000. If Ground 2 were correct, then that might lead to a different result; but given that it is at the moment simply a challenge to the present findings of the Tribunal, it appears to us clear that, on the basis of the present Decision, the determination of unfavourable treatment by reference to referrals cannot be justified by reference to events prior to January 2000 (other than by way of background). Bean 2[27]The starting point here is the very conclusion of the Tribunal in paragraph 51, to which we have referred in paragraph 18 above. Subparagraph 7.7.2, to which the Tribunal made reference, is part of a longer submission by Mr Gatt QC as follows (we omit the cross-references and footnotes):
" 7.7 Suggested Findings of Fact and Reasons 7.7.1 There was no evidence that SCF (or SEH) was not given the same level of internal referrals as comparable male peers. 7.7.2 Indeed, SCF's claim in this respect lacks any logic. It is not suggested that as an assistant either she, SEH (or indeed any female assistant) was not given the same level of internal referrals as any male solicitors. On the contrary, the evidence suggested that female assistants were treated in this respect as well as male solicitors: e.g. Siân Morris was provided with work by MDS; Cristina Martinez and Maria Mateo were involved in substantial work by TAJ. 7.7.3 However, it appears to be the Applicants' case that once they became partners, the Respondents' attitude in this respect changed. 7.7.4 It is not the Respondents' attitude which changed. Rather, as [Beadnall] suggested, it was the Applicants' status which changed and, with that change of status came a different way of working. Partners are not "fed" work. They become part of the business and are expected to grow and develop the business and provide work for assistants. 7.7.5 The Tribunal is entitled to ask itself: is it really the case that the Respondents' attitude to referrals of work changed when the Applicants became partners? Why should a partnership which is not alleged to discriminate in the distribution of work to assistants, discriminate in the distribution of work to partners. 7.7.6 What logic could there be in such a change in approach? As Julie Clegg observed: "
Being a partner is very different to being a director of a company. A partner has a financial interest in his or her firm. Success (and thereby good financial returns) will not be brought about by a client's work being handled by a partner who does not have the appropriate skills, sufficient capacity or the right chemistry with the client. Any partner that does not refer work to the right person is therefore jeopardising his own financial return as well of that of his partners and I therefore do not think that this would consciously happen". 7.7.7 Furthermore, it is important to note that SCF did not complain in her appraisals of a lack of referrals at any material time prior to the end of 2001. At best her complaints (only in 2001) were of a "lack of support". 7.7.8 On the contrary, in her 2000 appraisal completed on 11 August 2000 she said "Introductions from within the firm have been v[ery] helpful …" 7.7.9 She accepted that after her appraisal in March 2000 she was referred work by SR and received support from him, JPM and ASB. 7.7.10 SB exposed her to Oil Swap work with the Hong Kong office … 7.7.11 No detailed analysis was undertaken on SCF's behalf comparing her level of referrals with those of any alleged male peer. There was a belated and somewhat desultory attempt with MDS to compare the level of referrals of some male partners with SCF and SEH, using the schedules attached to [Stockwood's] first witness statement and those annotated and attached to SCF's (and SEH's) supplementary statements. 7.7.12 That limited exercise illustrated the futility and impossibility of the Tribunal trying to evaluate whether there was less favourable treatment on the issue of referrals, let alone whether it was on the grounds of gender. Short of examining the merits of each individual referral of a client or a case, how is the Tribunal to consider this issue? That would involve considering for each case/client a number of factors: (i) The historical connection between the client and the solicitor, e.g. whether they had been exposed to each other when the partner was an assistant. (ii) The level of expertise and experience of the partner. (iii) The type of work undertaken by the partner. [Stockwood] indicated, e.g., that Andrew Johnstone was in the company/commercial department. That was a department which had specifically been set up as a "service department" – to service the needs of the firm's clients. It was therefore to be expected that partners in that department would receive a significantly higher level of referrals since, he said, 50% of the department's work came from referrals. (iv) The partner's availability/workload at the time the referral arose. 7.7.13 The referral of Astilleros to TAJ was one client which was considered. However, it cannot sensibly have been suggested that either Applicant should have been referred that client or any of its shipbuilding matters. It seems clear beyond argument that TAJ had significantly more shipbuilding experience and expertise than either Applicant. Moreover, neither Applicant had expressed any contemporaneous desire to undertake shipbuilding work. 7.7.14 The evidence in the case established that SCF received a significant number of referrals. 7.7.15 She accepted in cross-examination that she received a significant number of referrals. Numerous clients/ cases were identified. SCF accepted in cross-examination a long list of clients referred to her including Svenska, Aquila, Huntsman Tioxide, Daewoo Electronics, Daewoo International, work from the Hong Kong office, Soc Gen Energie, Murco. The existence of such a substantial number is strong evidence of an absence of a discriminatory policy or practice. 7.7.16 As [Stockwood] said in evidence, if one looks at SCF's most significant clients they were principally referrals of work: Daewoo International (SR), Nordisk, Enron (SB), Huntsman/ICI (Rod Cowper/Harvey Williams). This represented 4 out of SCF's top 5 clients. 7.7.17 In any event, any differential in the level of referrals between SCF/SEH and any other (male) employee was not by reason of her gender. Referrals were made in good faith on the basis of the Law Society guidelines to the solicitor who it was believed was the most appropriate to satisfy the clients' needs. 7.7.18 Higher caseloads of some male solicitors were explicable by factors unrelated to gender/marital/family status: (i) Some solicitors, e.g., TAJ and WLC, benefited form the departure of the partners for whom they had worked as assistants. (ii) In TAJ's case, Robert Gaisford left in 1996/1997 to become an arbitrator. (iii) In WLC's case Jonathan Hunt became a consultant in 1996. (iv) In each case, TAJ/WLC had an opportunity to consolidate their practices and take over their former partners' caseload. 7.7.19 In SCF's case, her caseload was effected by a number of important factors: (i) The partner with whom she had worked as an assistant, [Leach] , did not leave SRT. On the contrary, he remained with the firm undertaking the same type of work as she did and, in effect, with greater experience in some areas, competing with her for work. SCF did not, therefore, benefit from his departure. (ii) Despite Ms Fellows' denials in cross-examination, the areas of work in which they practice suffered a decline. Her 2000 appraisal (dated August 2000) reported a "general downturn in available work from existing clients". She also stated "Insufficient work coming into me and the litigation department in general in this area".[28]There is a similar, but shorter, passage relating specifically to SH in Mr Gatt QC's closing submissions at pages 79 to 81.[29]The reference to the referral of Astilleros, dealt with by Mr Gatt QC in 7.7.13 of his submissions relating to SF appears in paragraph 55 of the Decision under the heading "Siân Heard's First Complaint". However the specific place in the Decision in which " the Respondents' explanations " in relation to referrals are dealt with, is in paragraph 94 of the Decision, which is prefaced by the words " We therefore needed to look at the explanations [given] for any different treatment ". The last five lines of the paragraph relate to another aspect of the case, and it is the following passage alone which is set out as a summary of the Respondents' explanations in respect of referrals:
"94. The Respondents say work was allocated regardless of gender/family status, 'in good faith on the basis of the Law Society guidelines to the solicitor who it was believed was the most appropriate to satisfy the clients' needs.' This is not convincing, as there was no system for any fair apportionment of work to allow an individual to develop in his or her practice. Nor is it always borne out by the evidence. There was a number of instances where Ms Fellows might have expected to receive a referral from Stuart Beadnall because of her expertise, but it was referred instead to Ben Leach. Similar examples were given of work which was not referred by Stuart Robertson to Siân Heard. Had Ms Heard been treated in the same way as Mr Addis-Jones, she could have expected to receive support from the partners and to have inherited work from Mr Fitzpatrick. This did not arise."
[30]The Respondents complain of the lack of particularity of even that which is here set out: and in any event it is difficult to understand what is meant by the suggestion that SH " could have expected … to have inherited work from Mr Fitzpatrick ", in the light of what we have set out in paragraph 24 above. But, irrespective of this, this is an exiguous passage if it is intended to fulfil the role of the Tribunal in relation to consideration of the Respondent's attempt at non-discriminatory explanation, either on the basis of " meticulous care " or " analytical recitation " or simply on the basis of setting out " 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 ". It is plainly not necessary for the Tribunal to deal in detail with each and every one of the submissions of Counsel, such as those set out at length by Mr Gatt QC. But this case exemplifies why what we said in Wolff is so important, namely in that it is necessary for the Tribunal to set out first what the unfavourable treatment was, and why it was concluded to be unfavourable, and then the Respondents' non-discriminatory explanations, and why, if such be the case, they are rejected.[31]On the basis of Bean 2, if such is indeed the proper construction of this Tribunal's decision: 1 There were no satisfactory findings of what the unfavourable treatment was. If indeed it related to unfavourable apportionment of referrals between 2000 and 2002, the Tribunal made no such adequate findings in relation to SF or SH by reference to paragraph 51, and so far as paragraph 52 falls to be dealt with separately, that paragraph only relates to events prior to January 2000. Bean 2 involves the implicit incorporation into paragraph 51 of a conclusion that what had occurred in 1997 to 1999, according to paragraph 50, was, in the absence of rebutting evidence to the contrary, to be deemed to continue. This was not stated anywhere in the Decision, nor was it the subject matter of either parties' submissions. 2 Not only were the Respondents' explanations or justifications not properly addressed in paragraph 94 at all, but certainly not if they were intended to be looked for in answer to Bean 2, if that was indeed in the mind of the Tribunal. Bean 3[32]This is subject to all the difficulties addressed both as to Bean 1 and Bean 2. It requires the acts of discrimination in 1997 to 1999, if such they were, to have had ongoing consequences: and therefore requires them to have been actionable, contrary to paragraph 126 of the Decision. It requires that it was somewhere considered by the parties, or, in particular, expressed by the Tribunal, in order for it to become the basis for justifying the Tribunal's conclusions. It was not ever made the subject matter of explanation by the Respondent, so that any such explanation could be fairly considered.[33]We are satisfied that had there been a summary of issues, which would then have required reconsideration prior to closing submissions, the way in which the Tribunal was to approach, or was considering approaching, the question of referrals (and its centrality to the case, only now conceded) would have become apparent. Similarly, had there been exchange of written submissions, followed, after a sensible period for assimilation, with informed oral submission, then what the Respondents were expected to explain, and whether they did satisfactorily explain it, would have been clear. In the event it has only become clear in the course of this appeal. Part-time Working[34]As explained in paragraph 7, this issue only relates to SF. It is quite apparent to us, and is not really in issue, that the nature of the case in this regard changed.[35]In the Originating Application at paragraph 6, the case was put on the basis of indirect sex discrimination by reference to " the failure to permit the Applicant to work part-time or to properly deal with her request to do so ". The detailed case was made in paragraph 41:
" In about November 2001, the Applicant had decided that she wished to explore the opportunity of working part-time. The First Respondent's partnership deed did not appear to allow for part-time working and the Applicant did not consider this would be something that would be acceded to at partner level. By this stage, the Applicant did not feel she could push for part-time work as a partner and considered that she should come out of the equity and become a salaried or contract partner. She duly raised this with the Second Respondent [Mr Morgan] who indicated that he could not see any reason in principle why the Applicant should not become a salaried partner working on a part-time basis. A draft contract was drawn up, but the position was not finalised and it was left to the Second Respondent to investigate whether this was something which would need the approval of the other partners or whether he could proceed to implement it himself. Thereafter the Second Respondent has effectively delayed coming back to the Applicant with any decision, and matters appear to have been overtaken by possible merger discussions with other firms. "
[36]The case was similarly dealt with, i.e. by an allegation of unsatisfactory dealing with her complaint, in her questionnaire:
"2.7. M y request to work part-time in 2000 was not dealt with promptly and has not as yet been resolved despite reminders that I have sent to Jeff Morgan ": in her first statement: " 3 … My request to work part-time was never resolved. " (See also paragraphs 146, 180): and in her second statement: " 127. The reality is that, at no time, was there any agreement to my request to work part-time, whether as a JEP or as a contract partner. [Morgan] continually referred to the financial situation and the fact that … the approval of [all] partners would be required for a change in status. "
[37]In the aborted draft note of issues prepared by Ms Eady at paragraph 1(4), relating to SF, the issue was described as:
" Whether her request to work part-time in 2000 was dealt with promptly and/or was properly resolved, and whether she was, by reason of the manner with which her request was dealt with, thereby treated less favourably than she would have been had she been male/had no family. "
The Respondents' draft summary of issues at paragraph 1.3.4 reflected the same issue.[38]There were certainly signs, in parallel with this seemingly primary case, of a complaint about the provision of the partnership deed, reference to which was being made in the context of the discussions between Mr Morgan and SF. This provision read:
" 13. DEVOTION OF TIME AND ATTENTION. 13.01. No Partner shall without the consent of the other Partners engage directly or indirectly in any business other than the partnership business and every Partner shall during the subsistence of the partnership devote his whole time and attention to the partnership business except during any holidays to which he is entitled or during any incapacity due to illness injury or other proper cause. "
[39]Ms Eady's suggested list of issues included at 2(8) " whether (if established) the following matters constitute [indirect discrimination] … (8) the requirement that the Applicant, as an equity partner, work full time ". This was also in Mr Gatt QC's list at 2.1.2.[40]The Tribunal appears however to have dealt with the issue of part-time working upon a rather different basis:
" 67. While drafting a clause on maternity rights for the partnership in April 1999, Siân Fellows asked Harvey Williams, then Managing Partner, whether the provisions of the partnership deed allowed for any flexibility in working hours to work part-time … She said she "would be interested to know for future reference"
. She received no response. 68. In October 2000, Ms Fellows raised the possibility of working part-time with Mr Morgan … His initial response was encouraging … By this stage, Ms Fellows had already attempted to find part-time work outside the firm without success. She was feeling unsupported and her billings were not as high as they had been. She did not feel in a sufficiently strong position to negotiate an agreement whereby she would be permitted to remain as an Equity Partner while working part-time. Her approach to Mr Morgan was on the basis that she would accept something less than equity partnership and it was on this basis that the negotiations moved forward, with Mr Morgan encouraging her to consider contract or salary partnership. His view, he explained to the Tribunal, was that the partnership deed did not allow, without a change, for Equity Partner to work part-time. However, no advice was sought on this point … although this would have been appropriate. This was not an area in which Mr Morgan had any expertise, and, subsequently, the Royal Bank of Scotland insisted that he take partnership advice from an expert, because of the precarious financial position on another matter. 69. From November 2000 onwards, there was an assumption that if Ms Fellows went part-time, she would have to leave the equity. It was this assumption that led Mr Morgan to conclude later in 2001, that Ms Fellows would not object to the proposed 'reclassification'. Mr Morgan told the Tribunal that these negotiations were overtaken by the deteriorating financial situation, which meant that they were not resolved prior to the merger discussions. We conclude these tentative enquiries by Ms Fellows influenced the Senior Equity Partners in late 2000, when they considered candidates for senior equity partnership … Her expression of interest in working part-time, without her knowledge or consent, excluded her from consideration. … 98. The Respondents deny any discriminatory treatment with regard to Ms Fellows' application for part-time working. They rely on the fact that there are provisions in the staff handbook for part-time working, and say that Mr Morgan responded positively to her request. In reality, his response was to express the belief that the partnership deed would not permit part-time working. This was unsupported by any authoritative opinion and there was no willingness to take a proposal to the Strategic Committee or the partnership as a whole to change that position. We find that there was a requirement for a Junior Equity Partner to work full-time in order to become a Senior Equity Partner. In reply to a question from the Tribunal, Mr Morgan said, "I assumed because Siân Fellows discussed part-time work she did not object to the loss of partnership status [I thought she would be …] more receptive than Siân Heard or Ben Leach". Given this view, we find it would not be possible for someone working part-time to become a Senior Equity Partner. Mr Morgan's evidence, which was echoed by other Strategic Committee members, repeatedly asserted that it required "100% commitment" to become a Senior Equity Partner. Although the Respondents had a policy on part-time working and said that Beatrice Russ, a solicitor, had been permitted to work part-time on return from maternity leave, Siân Morris's evidence, which was not challenged, was that she worked 90% of the hours worked by a full-time employer, and her supervising partner, George Hodgkinson, had said that it was "difficult working with her" because of the part-time arrangement. … 117. We find that, although the Respondents were, only recently, willing to allow women to progress to the position of salaried partner … there was a requirement or condition, or subsequently criterion ,that anyone in the partnership had to work full-time. It is not disputed by and large women have the greater responsibility for childcare in our society and that as a consequence a considerably larger proportion of women than men are unable to commit themselves to full-time working. The Respondents have denied there was such a criterion, and consequently have not attempted to justify it, except to the extent that through anecdotal evidence it was necessary for a partner to commit themselves "100%" to the partnership. In the circumstances, we cannot accept that any such criterion is justifiable irrespective of the sex of the person to whom it is applied, and we conclude from the evidence that the application of such criterion – the requirement to be able to work full-time, was to the detriment [of] Siân Fellows. She was disregarded for promotion to Senior Equity because she had expressed an interest in part-time working, and was subsequently earmarked for "reclassification" in the belief that, having asked for part-time working, she would not oppose it. "[41]This illustrates a shift, in our judgment, from either of the two ways in which the case was being put at the outset of the hearing, on to a discriminatory assumption that because SF was asking for part-time working (and, perhaps it may be inferred, receiving favourable consideration of such request - if so, then contrary to her originally pleaded case) then she was not interested, or sufficiently interested, in, or qualified, or worthy of consideration, for SEP. There was certainly no finding by the Tribunal in relation to either of the two original cases i.e. there was no finding that SF's request was inadequately dealt with, discriminatorily or otherwise, nor that the provision in the partnership deed itself (said, at any rate anecdotally, not to be an uncommon one in the City, at any rate at the time, whether or not it might offend against the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which are not relevant to these proceedings) was itself discriminatory.[42]It was a case which was included in Ms Eady's closing submissions (paragraph 72), but subject to SF's case (paragraph 71) that such assumption was unfounded.[43]However, insofar as the topic is addressed in Mr Gatt QC's closing submissions, it is not addressed in terms, and in particular is addressed in a way which is not accurately recorded either in paragraph 98 of the Decision (if that is intended to be the place in which the Respondents' explanations are set out) or, certainly, in paragraph 117. Those submissions addressed, despite the absence of a formal list of issues, the way that both Counsel had, at the outset of the hearing, summarised their understanding of the way that the indirect discrimination case in this regard was being put; namely by reference to (para 8.1.4 of his closing submissions) " the requirement that she work full-time ". Mr Gatt QC expressly submitted (paragraph 8.3.2(ii)) that " there is no evidence to suggest that the proportion of female/married partners with children who were able to comply with such a requirement was substantially less than the proportion of male/single/childless partners ". Reference is made (8.3.2(iv)) to the need to " motivate all partners regardless of gender or marital or family status ", and that (8.3.2(v)) to allow " a female partner (whether married or with or without children) or a married male partner, or a male partner with children … to meet a lower standard of performance by reason of their sex or domestic commitments … would be discriminatory to male partners (whether married and with or without children) or unmarried, childless female partners (e.g. Julie Clegg), who would have to meet different standards of performance ". It was denied (8.3.3(i)) that there was a " requirement that [SF] work full time ", and an assertion (8.3.3(ii)) that SF's expressed wish to work on a part-time basis was " responded to favourably by [Morgan]. Further discussions ensued but no agreement was reached before the partnership ran into financial difficulties ". The submission concluded that:
" (iii) If, which is denied, there was a requirement etc, it operated in a way which did not permit SF to step down from the partnership at a time when the partnership was in serious financial difficulties. To have allowed her to do so would have left the remaining partners (male and female, married and single etc) with increased liabilities and, as such, any requirement was imposed for reasons unconnected with gender or marital or family status and was justified by the need equitably to share the partnership's liabilities. "
[44]It appears to us clear that, by virtue of the evolution of SF's case, once again in the absence of an agreed summary of issues, which would require amendment, and/or in the absence of proper consideration in the course of assessment of the written submissions and/or proper supplementary oral submissions, the case, as it was finally found by the Tribunal, was never fairly and squarely considered. However, assuming that it was an available option for the Tribunal notwithstanding, it is clear to us that the issues in respect of indirect discrimination were not properly addressed by the Tribunal in the foreshortened, and, in our judgment, incorrect, way they were, in paragraphs 98 and 117: 1 It appears to be common ground that the Tribunal was not entitled to conclude that it was " not disputed that by and large women have the greater responsibility for childcare in our society and that as a consequence a considerably larger proportion of women than men are unable to commit themselves to full-time working ", certainly if this was intended to be a relevant finding as to the issue with regard to men and women solicitors or men and women working in high-powered and highly paid jobs in the City. There was no addressing by the Tribunal of what was on any basis disputed (paragraph 8.3.2(ii) of the Submissions) namely as to whether a considerably larger or any greater proportion of female than male partners is unable to commit themselves to full time working . There are plain issues which needed to be addressed as to the question of relevant pool, and as to disproportionate impact. 2 It does not appear to us to be the case, as suggested by the Tribunal, that the Respondents, while denying the existence of the requirement or criterion, had " not attempted to justify it ". While it may be right that they had not in terms addressed the case as finally put or at any rate found against them (for the reasons we have already discussed), they do appear to us to have been putting forward a case on justification, both of a general nature relating to City partnerships, and a specific one relating to the particular financial circumstances of this partnership, with which the Tribunal needed, in accordance with the authorities to which we have referred, to deal. Conclusion on Issue 1[45]We are satisfied that the Tribunal's conclusions that there was direct discrimination against SF and SH (the referrals issue ) and indirect discrimination of SF (the part-time working issue) cannot stand. Mr Gatt QC submits that the case should be remitted for hearing before a different Tribunal. Mr Bean QC submits that this would be catastrophic for his clients, and in any event unnecessary. He refers to the somewhat different procedure which we have been adopting at the preliminary hearing, and indeed sift, stages, by reference to English , as explained in Burns v Consignia (No 2) [2004] IRLR 425 , by way of what he referred to as a carefully controlled remission. That however is a practice which is adopted at the interlocutory stage where, inter alia, there is a case alleged of inadequacy of reasoning, or absence of a finding, and the case is sent back to the same tribunal simply to answer specific questions, based on its existing notes of evidence. That is not the case here, where we have concluded that the Tribunal has in fact not done, or at any rate finished, its job. This is not a question of what has been described in Burns as a referral back , but of a straightforward remission. The issue nevertheless remains as to whether it should be remitted back to the same Tribunal, which, subject to our guidance, will be able to make use of its existing knowledge of the case and notes of evidence, or a fresh tribunal to start again.[46]There is no authority which has been cited to us, or of which we ourselves know, which would assist us in such a situation, and we set out what appear to us to be relevant factors: 1 Proportionality must always be a relevant consideration. Here the award was for £900,000, and although we are conscious that ordering a fresh hearing in front of a different Tribunal would add considerably to the cost to parties on both sides who have already invested in solicitors and Counsel, both at the Tribunal and on appeal (in the case of the Applicants, two Counsel for the appeal), sufficient money is at stake that the question of costs would from the one point of view not offend on the grounds of proportionality and from the other not be a decisive, or even an important, factor. Similarly the distress and inconvenience of the parties in reliving a hearing must be weighed up, but(a) are rendered necessary in any event by the decision to set aside the original decision and(b) will not be greatly less by virtue of the extra time taken by a fully, rather than partially remitted, hearing, the main distress and inconvenience being caused by the matter being reopened at all. 2 Passage of Time . The appellate tribunal must be careful not to send a matter back to the same tribunal if there is a real risk that it will have forgotten about the case. Of course, tribunals deal with so many different cases per month that it is impossible for them to carry the facts in their minds, nor would they be expected to do so. But they can normally refresh those minds from the notes of evidence and submissions if the case occurred relatively recently. This case was a relatively long one, and will not on that basis alone have completely evanesced from the minds of the tribunal. It was only just over a year ago. That in itself is quite a long time, though the lengthy reserved decision sent to the parties on 30 July 2003 would have kept the case in the minds of the Tribunal at least until then: but in addition they have held a remedies hearing which began in October 2003, the hearing lasting until 18 December, and then required consideration in chambers' meetings in January and March, and did not result in a promulgated decision until as recently as 19 March 2004. We are satisfied therefore that the question of delay and loss of recollection is not a material factor in this case one way or the other. 3 Bias or Partiality . It would not be appropriate to send the matter back to the same Tribunal where there was a question of bias or the risk of pre-judgment or partiality. This would obviously be so where the basis of the appeal had depended upon bias or misconduct, but is not limited to such a case. 4 Totally flawed Decision . It would not ordinarily be appropriate to send the matter back to a tribunal where, in the conclusion of the appellate tribunal, the first hearing was wholly flawed or there has been a complete mishandling of it. This of course may come about without any personal blame on the part of the tribunal. There could be complexities which had not been appreciated, authorities which had been overlooked or the adoption erroneously of an incorrect approach. The appellate tribunal must have confidence that, with guidance, the tribunal can get it right second time. 5 Second Bite . There must be a very careful consideration of what Lord Phillips in English (at paragraph 24) called " A second bite at the cherry ". If the tribunal has already made up its mind, on the face of it, in relation to all the matters before it, it may well be a difficult if not impossible task to change it: and in any event there must be the very real risk of an appearance of pre-judgment or bias if that is what a tribunal is asked to do. There must be a very real and very human desire to attempt to reach the same result, if only on the basis of the natural wish to say "I told you so". Once again the appellate tribunal would only send the matter back if it had confidence that, with guidance, the tribunal, because there were matters which it had not, or had not yet, considered at the time it apparently reached a conclusion, would be prepared to look fully at such further matters, and thus be willing or enabled to come to a different conclusion, if so advised. 6 Tribunal Professionalism . In the balance with all the above factors, the appellate tribunal will, in our view, ordinarily consider that, in the absence of clear indications to the contrary, it should be assumed that the tribunal below is capable of a professional approach to dealing with the matter on remission. By professionalism, we mean not only the general competence and integrity of the members as they go about their business, but also their experience and ability in doing that business in accordance with the statutory framework and the guidance of the higher courts. Employment law changes; indeed it has been a rapidly developing area of the law. Employment tribunals are therefore all too familiar with the need to apply a different legal approach to a case today from that which they applied last year, or even last week, where the law has changed, although the cases may be on all fours as regards their facts. Some areas of employment law have not been easy, and the approach to be adopted in considering whether there has been race or sex discrimination in a case such as this is just such a matter which has understandably caused problems for tribunals. It follows that where a tribunal is corrected on an honest misunderstanding or misapplication of the legally required approach (not amounting to a "totally flawed" decision described at 46.4), then, unless it appears that the tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set them on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal.[47]We are satisfied that this is a case where we can and should remit the matter to the same Tribunal: 1 Although this will not be in any way analogous to a Burns situation of simply sending back the matter with a question or list of questions, but will be a genuine rehearing with fresh evidence, and certainly fresh submissions, a great deal of time will be saved by leaving the evidence which has already been taken where it is, namely in the Tribunal's notes of evidence and, after sufficient refreshing of recollection, in the minds of the Tribunal and the parties. None of the evidence so far given will be wasted, although in the light of the issues which have now become clear, and the guidance from this Appeal Tribunal, by no means all of it will be relevant. Much of it can simply be taken for granted as the Tribunal and the parties move on. 2 As can be seen from this judgment, we are satisfied that the reality of this case is that there is unfinished business to be done. So far as the indirect discrimination case is concerned, now clarified, the Tribunal has not in our judgment even reached the halfway point. As for the referrals issue, the Tribunal is more or less at halfway, although it needs to set out clearly its conclusions, after hearing further evidence, as to the nature and extent of the unfavourable treatment insofar as it so finds it, but it will in any event need then to move on to consider in detail the Respondents' explanations. In our judgment this will not involve the Tribunal in an exercise either of straining to change its mind or straining not to change its mind (as was canvassed before us), but rather to realise that it was previously making a decision without all the necessary information or ammunition. 3 We are satisfied that this is not a case either where bias or partiality is or was involved, or indeed prejudgment, nor where there was a complete mishandling of the case. We are confident that, like any judge or judicial body, this Tribunal will approach its renewed task, free of preconceptions and with an open mind. In any event the reopening of their conclusions may not go only one way. While the Respondents will be persuading the Tribunal that there was no unfavourable treatment and/or there was a non-discriminatory explanation in respect of events after January 2000, the Applicants will also be seeking to persuade the Tribunal to come to a different conclusion, namely in relation to events prior to January 2000 – with the consequent need, in that event, to look at the Respondents' case in that regard. As we are about to say in respect of Ground 2, all bets will be off and the book will be open. Ground 2[48]We have referred to paragraph 126 of the Decision, which we set out in paragraph 25 above. It is common ground between the parties that if Ground 1 is remitted, then Ground 2 should be also. If the Tribunal is to look again at the nature and existence of the discrimination, it must be free to look again at the date when it is said to have commenced, and as to whether there were continuing acts antedating 1 January 2000 by reference to the line of authorities from Barclays Bank plc v Kapur [1991] ICR 208 through Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 to Derby Specialist Fabrication Ltd v Burton [2001] ICR 833 and Commissioner of Police for the Metropolis v Hendricks [2003] ICR 530 . Result on Grounds 1 and 2[49]The effect therefore will be that the same Tribunal will now need to resolve, by reference to the evidence previously given before it and any further evidence now to be adduced by either party (directions for the production of which will obviously need to be given by the Tribunal), the following issues: 1 Whether there was direct discrimination of SF and/or SH (i.e. unfavourable treatment on grounds of sex, not non-discriminatorily explained by the Respondent), by reference to the issue of referrals . The period in respect of which such unfavourable treatment is to be examined and/or established and/or in respect of which such explanations must be given will be part of the matter to be decided by the Employment Tribunal, including whether such alleged treatment antedated 1 January 2000. 2 Whether there was indirect discrimination of SF, by reference to the part-time working issue. This issue must first be defined by agreement of the parties or by order of the Employment Tribunal prior to the hearing. Ground 3[50]This issue, described in paragraph 3(iii) above, arises directly out of the reluctance of the Tribunal, described in paragraph 2.2, to direct particulars of the Applicants' cases under 42(1) of the SDA . By the time of, and in, closing submissions the role of the individual Respondents had been or was clarified. The Tribunal set out in paragraphs 127 to 131 its conclusions as to the role of each of them, which may be sufficient to justify a finding that they aided the discrimination by the partnership – i.e. by themselves and others. However, as Mr Gatt QC pointed out in paragraph 4.5 of his closing submissions " there is no allegation against any of the [individual Respondents] that they knowingly aided SRT to discriminate against either of the Applicants ". He continued " the IRs do not understand the basis upon which the case against them is put and why they have been singled out as Respondents in an individual capacity rather than in their capacity as partners of SRT ". Mr Gatt QC referred to Hallam v Avery both in the Court of Appeal ([2000] ICR 583) and in the House of Lords ( [2001] ICR 408 ). The Tribunal referred to Hallam in paragraph 129, but only by reference to the "aid" found to have occurred in that case, which the Tribunal concluded to be much less " direct " than in the present case. But after reciting the nature of each individual Respondent's participation, the Tribunal simply recalls in paragraph 132 " we are satisfied that the four individual Respondents did "knowingly" aid the First Respondent to discriminate against the Applicants ".[51]It is wholly apparent, and in the event Mr Bean QC, particularly once it was known that the matter was in any event being remitted back to the Employment Tribunal did not argue to the contrary, that the Tribunal did not adequately or at all address the necessary requirement of knowledge on the part of the individual Respondents. Due to the way in which the issue was dealt with, by way of leaving it to closing submissions, it would appear that the question of knowledge could not be fairly explored in evidence, certainly with any awareness of what the Applicants' case was.[52]Proof of knowledge is of course a matter for the Employment Tribunal. Some, but not a great deal, of guidance is given to the industrial jury, in a decision on the analogous provisions of the Race Relations Act 1976 (s33), by both the Court of Appeal and the House of Lords in Hallam : 1 In the Court of Appeal, Judge LJ, with whom Hale LJ and Lord Woolf MR agreed, emphasised the additional requirement for secondary liability under that section which was imposed by the use of the word knowingly . He said:
" 27. … Liability for the statutory tort [under s33(1)] depends first on an unlawful discriminatory act or acts by someone else. This, together with the statutory consequence of knowingly providing him with aid – the individual is to be treated as if he had himself performed the same unlawful act – underlines that s33(1) is concerned with the state of mind and activities of those described … as 'secondary parties' … liability is not absolute … Knowledge is the essential requirement … the omission in s33(1) of any reference to recklessness, or any similar concept, underlines that in relation to the state of mind of the secondary participant the exclusive test for liability is knowledge. For the purposes of this section, neither recklessness nor carelessness suffice ."

Judge LJ concludes:

" 36. This lengthy analysis leads me to the conclusion that liability under s33(1) is not established unless the secondary party knows that the party from whom his liability is alleged to derive is treating, or is about to treat, or is contemplating treating, someone "less favourably" on racial grounds, and, with that knowledge or knowing that such treatment would be the likely result of doing so, he provides him with aid. " 2 In the House of Lords at paragraph 11 Lord Bingham, with whom the rest of the House agreed, concluded that there had been no aiding , thus rendering it unnecessary to consider the issue of knowingly . He said as follows: "
This conclusion makes it unnecessary to address the issue which most exercised the Court of Appeal and to which most of the argument in the House was directed: the extent of the knowledge which an aider must have so as to be liable under s33(1). It is tempting to offer guidance on that question, and I would not wish to be understood as approving the Court of Appeal's guidance. But it does not appear, from the paucity of decided cases, that the problem is one which often arises in practice and it may be that in most cases … there will be little doubt that aid was given knowingly if it is found to have been given at all. Any observations that the House might make would, in the circumstances, be unauthoritative, and would further have the vulnerability of observations not rooted in the facts of a particular case. "[53]In those circumstances the Court of Appeal decision remains binding on the Employment Appeal Tribunal and the Employment Tribunal, although, as can be seen, it leaves a very wide ambit of fact-finding open to the tribunal. However two matters are clear: 1 The element of knowledge is on any basis additional to the element of aid. Whereas discrimination can be, and very often is, unconscious, aiding cannot be. 2 If there is the conclusion that this additional element exists, it is not satisfactory or sufficient for a tribunal simply to say that it does, without giving its reasons and making the relevant findings, none of which occurred in this case.[54]Accordingly, insofar as the Applicants' wish to proceed against the individual Respondents (and we note that at the Remedies hearing (see paragraph 129 of the Decision) "[counsel for the Applicants] did not submit that any part of the award should be borne by the individual Respondents "), the issue as to whether any of the individual Respondents are liable under s42(1) must be decided ab initio , and it is plainly necessary, before such issue were tried, for particulars to be given of the matters relied upon by the Applicants as indicating that the aid given by the respective individual Respondents was given knowingly . Ground 4[55]We have described this issue in paragraph 3(iv) above. It was dealt with very shortly by the Tribunal in the second sentence of paragraph 132 of its Decision namely:
" Insofar as the First Respondent, the partnership, is liable, the Applicants cannot be said to have discriminated, at any time, against themselves, and insofar as liability attaches to the partnership as a whole, we would specifically exclude both Applicants from any liability ."
By agreement between both parties this matter was re-opened at the Remedies hearing, and, after further argument, the Tribunal delivered a further and fuller decision to the same effect. The Tribunal recorded at paragraph 114 of its Remedies Decision that both parties accepted that an applicant cannot be held liable, as a member of the partnership, for acts of discrimination against herself, but the Tribunal noted the Respondents' submission namely that " it is not open to the ET to exclude Ms Heard from liability for Ms Fellows' claims and vice versa. It has no jurisdiction to do so, and the Applicants have pointed to no such jurisdiction ". Thus the issue was whether A1 could avoid being liable for the partnership's discriminatory conduct towards A2.[56]The Tribunal concluded as follows:
" 122. We are persuaded by the Applicants' submissions. In our view, it would be wholly wrong and would undermine the principle of full and effective compensation if we were to make each Applicant-Partner liable to pay part of the compensation of the other. These cases were combined and heard together. Each Applicant gave evidence in support of the other and they acted in concert, as set out at paragraph 10 of the Applicants' supplemental closing submission. We accept the Applicants' submissions and order that the award of compensation in favour of each applicant against the first Respondent should apply to all partners who were then in the SRT partnership other than both Applicants. "
[57]Further the Tribunal made a recommendation pursuant to s65(1)(c) of the SDA , which allows the Tribunal to make a recommendation where it appears to the Tribunal to be practicable " for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates ", to make an order that each Applicant was excluded from any liability for or indemnified against the costs of defending and/or liability for the complaints of either Applicant.[58]We made it plain at the outset of the hearing that our provisional view was that the Employment Tribunal's decision in this regard could not be supported on either the basis adumbrated at the Liability or Remedies hearings. It is clear that each Applicant has a separate case, and each has a separate claim of loss; and, in particular so far as the claim against the partnership is concerned pursuant to s11 of the SDA , each alleges breach of subparagraph (1) whereby " it is unlawful for a firm … in relation to a position as partner in the firm, to discriminate against a woman … ". Only some, but not all, of the claims, arise out of the same or similar facts. It is a coincidence, but a very sensible course, that the two claims have been heard at the same time, but in respect of each claim it must be asked whether the liability of the partnership to A2 is a consequence of the discrimination against A1, and the answer must be no. The case referred to at the Remedies hearing of Dave v Robinska [2003] ICR 1248 does not create or support any such jurisdiction as is alleged. Equally we expressed our provisional view that absolving A1 of liability to pay for A2's discrimination could not fall within s65(1)(c), since liability to A2 does not arise out of the partnership's discrimination of A1, to which A1's complaint relates, and so could not be an adverse effect on A1 of such act of discrimination.[59]However, in their amended Answer to the Respondents' appeal, the Applicants sought to rely, further or in the alternative, on the provisions of the Civil Liability (Contribution) Act 1978 . This is not a case which was run at either the Liability or the Remedies hearings below, and to allow it to be run, and applied to the facts, for the first time on appeal in order to justify the Tribunal's Decision below on different grounds, would plainly be offensive to the principles of Kumchyk v Derby City Council [1978] ICR 1116 . Assuming that the Act were applicable in the employment tribunal (and Mr Gatt QC heavily contests such proposition) the issue as to what would be just and equitable would involve an analysis of facts, possibly fresh facts, and indeed possibly the joinder of other individual partners.[60]In those circumstances, but for what has occurred by way of remission to the Tribunal, it is most unlikely (although in the event we did not hear the argument) that Mr Bean QC would have been entitled to rely on such new point in reinforcement of or, in our judgment, substitution for the basis upon which he succeeded below. Although we have not heard full argument on those two original bases, which we have summarised above, we have had the opportunity of reading very full submissions, and although, in the light of the agreement between the parties to which we are now referring, such full argument did not in the event take place, we neither heard in response to the announcement of our provisional view, nor have read, anything to dissuade us from this position, and it would in our judgment take some courage for the Applicants to renew, as they would have to do as we are setting aside the present Decision of the Employment Tribunal, either of them.[61]However, so far as concerns the Civil Liability Act point, this remains live, and can on any basis be pursued now that issues are once again at large. But the parties have, after discussion with us, agreed the following course, given that, if the issue the subject matter of Ground 4 is now to be pursued, it will be met by the Civil Liability Act argument, which is by no means a straightforward one, and may well create new law and would certainly require at least consideration of the need for new procedures in the employment tribunals. The course consequently to be adopted is as follows. The inevitable effect of this judgment is to set aside the Liability Decision and, consequentially, to stay the Remedies Decision, with an agreement between the parties that they will agree that the Remedies Decision will be set aside or reviewed if and as appropriate in the light of the eventual result of the rehearing of liability. The presently-pending (and quite separate) appeal (EAT/PA/0633/04/ILB) against the Remedies Decision (the papers in which we have not seen) should however be and remain stayed, with liberty to the parties to restore it, in order to argue before the Employment Appeal Tribunal, if so advised, the Civil Liability Act point; because, for reasons which will be apparent since the issue was, as we have said, reargued at the Remedies hearing, we are told that what is Ground 4 is effectively also repeated in the Remedies appeal. If, therefore, the parties or either of them decide to reactivate the argument, there is a procedure whereby they can have the matter resolved at Employment Appeal Tribunal level if they wish, and if that seems appropriate, and can by agreement be achieved, as a matter of principle, rather than at the employment tribunal level. Consequence[62]The result is that both the appeal and the cross-appeal will be remitted to the same Employment Tribunal for further hearing, with liberty to both parties to call further evidence, in accordance with the guidance in this judgment.[63]So far as Grounds 1 and 2 are concerned, the issues will be those set out in paragraph 49 above. The issue under s42(1) will be at large. We leave it to the parties, in the light of the discussion above, to decide how to approach Ground 4 in the light of paragraph 61 above.

Cited in 3 later judgments