MRS E RICE v MR T AND MRS S WALKER T/A KITCHEN SHOP [2005] UKEAT 0498_05_1711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0498_05_1711Case No Appeal No. UKEAT/0498/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS E RICEAPPELLANTMR T AND MRS S WALKER T/A KITCHEN SHOPRESPONDENT
Before
His Honour Judge Richardson Mr D JenkinsDate 17 November 2005
[1]APPEARANCES For the Appellant MRS G PORTER (Counsel) Citizens Advice Bureau Specialist Support The Development Centre Coxwell Avenue Wolverhampton Science Park Wolverhampton WV10 9RT For the Respondent MISS D GRENNAN (Counsel) Instructed by: Messrs Kitson Hutchings Solicitors Vaughan Parade Torquay Devon TQ2 5JG SUMMARY Redundancy: Constructive Dismissal & Sex Discrimination: Indirect The Tribunal did not err in law in finding that the second offer satisfied s.141(1) and was suitable in relation to the claimant and was unreasonably refused. The Tribunal did not err in law is rejecting the claim of unfair dismissal. The Tribunal gave no proper reasons for rejecting the claim of indirect sex discrimination HIS HONOUR JUDGE RICHARDSON This is an appeal by Mrs Elaine Rice against a judgment of the Employment Tribunal sitting in Exeter dated 29 June 2005. Mrs Rice had brought a claim against her former employers, Mr and Mrs Walker, alleging that she was entitled to a redundancy payment, that she had been unfairly dismissed and that she had been subject to indirect discrimination on the grounds of her sex. By its judgment, the Tribunal dismissed all her claims and ordered her to pay costs in the sum of £1,000. The Facts[2]Mr and Mrs Walker own a business trading under the name "The Kitchen Shop". Until October 2004, they had two shops in Torquay, one in Union Square and one in the Strand. They also have a shop in Painton. Mrs Rice was employed by Mr and Mrs Walker as shop assistant. She had worked for them for many years and continuously since March 1998. They were extremely pleased with all aspects of her work. Until August 2003 she worked varying shifts but then she asked to work two fixed days per week. She had a seven year old son who suffered from major medical problems and she was finding varying shifts stressful. Mr and Mrs Walker agreed. So from then on, she worked 15 hours per week on Tuesdays and Thursdays. She was in the shop in Union Square.[3]In September 2004, Mr and Mrs Walker gave up the lease of the shop in Union Square. They had intended to acquire other premises but the deal for those premises fell through so they had to downsize from two shops to one. In the two shops, they had eight members of staff. For redundancy purposes they treated the two shops together and made four members of staff redundant. The other four, including Mrs Rice, were offered work at the Strand shop.[4]In a letter dated 18 September, Mr and Mrs Walker wrote to the four employees. They said they wanted to employ four members of staff, one to work 30 hours on four days, three to work part days with a minimum of 18 hours per week. Mrs Rice replied that she could not accept any of these proposals, but could work 15 hours per week and could be flexible because of family arrangements. On 24 September, Mr and Mrs Walker wrote to her, offering her a minimum of 13½ hours per week over three days in 4½ hour shifts. This, we will call "the first offer". Mrs Rice accepted that arrangement. They thanked her and told her that she had a four week statutory trial period starting on 4 October after which, if she left, she would not be entitled to a redundancy payment.[5]In the first of those four weeks, Mrs Rice was on holiday. She worked the second and third weeks doing three shifts per week as agreed, but on 23 October she told Mr Walker that she was not coping with the hours and was going to leave. She was asked to put that in writing. On 23 October she wrote saying that after two weeks, she had found the job very stressful and had found it hard to keep everything together because of family commitments so she had decided to accept redundancy. She did not actually specify a date of leaving. On 25 October, a Monday, Mr and Mrs Walker received that letter. The first opportunity they had to speak to Mrs Rice was 28 October, partly because they had been away, partly because Mrs Rice had herself been ill earlier in the week.[6]By 28 October, it was known that another employee was leaving. On that day, the Tribunal found, Mr Walker told Mrs Rice that she could return to fixed hours. The following day Mr and Mrs Walker confirmed the offer in writing. We will call the offer of work on fixed hours "the second offer". But Mrs Rice replied to their letter rejecting the offer. In her letter, which was dated 1 November, she said that 28 October was her last day with them and she expected to receive redundancy pay and holiday pay. She said she was astonished to receive a further offer when she had already left and was not interested. It was a surprise to Mr and Mrs Walker that Mrs Rice left in this way. Mrs Rice had agreed, as a favour to Mr and Mrs Walker, to work three shifts in the week commencing 1 November. She did not come.[7]At the hearing, Mrs Rice's case was that she left Mr and Mrs Walker's employment because she felt that all trust and confidence between them had been destroyed. She said that Mr Walker's failure to respond immediately to the request she had made on 23 October to return to fixed days destroyed all trust and she felt she could no longer continue to work for him. As we will see, in due course, the Tribunal did not accept this case. It is convenient to take the four heads of this appeal in turn. The head relating to redundancy will require the closest examination. Redundancy[8]The first question for the Tribunal was to determine whether Mrs Rice was dismissed for the purposes of redundancy. Mrs Rice was not dismissed at the end of September, when the Union Square shop closed, because she accepted the offer set out in Mr and Mrs Walker's letter dated 24 September. The Tribunal therefore had to consider those provisions of the Employment Rights Act 1996 which concerned renewal, re-engagement and trial periods. The Statutory Provisions[9]Generally speaking, entitlement to a redundancy payment arises where an employee's contract of employment is terminated by reason of redundancy (see s136 of the 1996 Act) but it is not uncommon for an employee to be offered alternative work even if the current contract must be terminated for redundancy. The policy of the legislation is to encourage employer and employee to consider alternative offers of employment and try them out; so the employee's right to a redundancy payment is preserved for a trial period if he accepts an offer of renewal or re-engagement. The employer's duty to pay a redundancy payment is excluded if the employer makes a timely offer of alternative employment which is suitable for the employee and which the employee ought reasonably to accept. The principal provisions are Sections 138 and 141. There are consequential provisions relating to the time for commencing a claim (see s145(40) "138 No dismissal in cases of renewal of contract or re-engagement(1) Where- (a) an employee's contract of employment is renewed, or he is re-engaged under a new contract of employment in pursuance of an offer (whether in writing or not) made before the end of his employment under the previous contract, and (b) the renewal or re-engagement takes effect either immediately on, or after an interval of not more than four weeks after, the end of that employment, the employee shall not be regarded for the purposes of this Part as dismissed by his employer by reason of the ending of his employment under the previous contract.(2) Subsection (1) does not apply if— (a) the provisions of the contract as renewed, or of the new contract, as to— (i) the capacity and place in which the employee is employed, and (ii) the other terms and conditions of his employment, differ (wholly or in part) from the corresponding provisions of the previous contract, and (b) during the period specified in subsection (3)— (i) the employee (for whatever reason) terminates the renewed or new contract, or gives notice to terminate it and it is in consequence terminated, or (ii) the employer, for a reason connected with or arising out of any difference between the renewed or new contract and the previous contract, terminates the renewed or new contract, or gives notice to terminate it and it is in consequence terminated.(3) The period referred to in subsection (2)(b) is the period- (a) beginning at the end of the employee's employment under the previous contract, and (b) ending with- (i) the period of four weeks beginning with the date on which the employee starts work under the renewed or new contract, or (ii) such longer period as may be agreed in accordance with subsection (6) for the purpose of retraining the employee for employment under that contract; and is in this Part referred to as the "trial period".(4) Where subsection (2) applies, for the purposes of this Part— (a) the employee shall be regarded as dismissed on the date on which his employment under the previous contract (or, if there has been more than one trial period, the original contract) ended, and (b) the reason for the dismissal shall be taken to be the reason for which the employee was then dismissed, or would have been dismissed had the offer (or original offer) of renewed or new employment not been made, or the reason which resulted in that offer being made.(5) Subsection (2) does not apply if the employee's contract of employment is again renewed, or he is again re-engaged under a new contract of employment, in circumstances such that subsection (1) again applies.(6) For the purposes of subsection (3)(b)(ii) a period of retraining is agreed in accordance with this subsection only if the agreement- (a) is made between the employer and the employee or his representative before the employee starts work under the contract as renewed, or the new contract, (b) is in writing, (c) specifies the date on which the period of retraining ends, and (d) specifies the terms and conditions of employment which will apply in the employee's case after the end of that period. 141 Renewal of contract or re-engagement (1) This section applies where an offer (whether in writing or not) is made to an employee before the end of his employment— (a) to renew his contract of employment, or (b) to re-engage him under a new contract of employment, with renewal or re-engagement to take effect either immediately on, or after an interval of not more than four weeks after, the end of his employment. (2) Where subsection (3) is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer. (3) This subsection is satisfied where— (a) the provisions of the contract as renewed, or of the new contract, as to— (i) the capacity and place in which the employee would be employed, and (ii) the other terms and conditions of his employment, would not differ from the corresponding provisions of the previous contract, or (b) those provisions of the contract as renewed, or of the new contract, would differ from the corresponding provisions of the previous contract but the offer constitutes an offer of suitable employment in relation to the employee. (4) The employee is not entitled to a redundancy payment if— (a) his contract of employment is renewed, or he is re-engaged under a new contract of employment, in pursuance of the offer, (b) the provisions of the contract as renewed or new contract as to the capacity or place in which he is employed or the other terms and conditions of his employment differ (wholly or in part) from the corresponding provisions of the previous contract, (c) the employment is suitable in relation to him, and (d) during the trial period he unreasonably terminates the contract, or unreasonably gives notice to terminate it and it is in consequence terminated" The Tribunal's Reasons[10]The Tribunal set out its findings of primary fact in some detail in paragraphs 3 to 17 of its reasons. There is and can be no challenge to these findings of primary fact. The parties' submissions were summarised by the Tribunal in paragraph 18 and 19 of the reasons. They do not deal with the operation of the redundancy legislation in any detail, no doubt because the facts were the primary focus of the argument.[11]The Tribunal's findings on the redundancy question are succinct. We set them out in full. "20. In considering the issue of a redundancy payment we have had to have regard to the provisions of s136, 138, 139 and 141 Employment Rights Act 1996. The Claimant failed to attend for work on 1 November. We are satisfied that by so doing her action amounted to a dismissal for the purposes of s.138(1) & (2)(b)(i). We are satisfied that in September there had been a redundancy situation although the claimant had never been expressly at risk of redundancy . Nevertheless by virtue of s.139 we are satisfied that she was dismissed by reason of redundancy in that the needs of the business for employees at Union Square had ceased. Turning to s.141, we are satisfied that the claimant was made an offer of alternative employment to commence within 4 weeks of the termination of the contract of employment mamely to commence working on 2 fixed days per week. We disregard the temporary arrangement to which the claimant agreed for the week commencing the 1 November, it was a special arrangement to cover the respondent's daughter's graduation and but for that the claimant would have been working 2 fixed days. The offer was made within the trial period. We consider that the trial period did not commence until the claimant returned from her week's holiday and actually started working…s.138(3)(b)(ii). We are satisfied that that amounted to an offer of suitable employment. We have considered the claimant's reason for rejecting that. She stated that the respondent's failure immediately to accede to her request for fixed day shift working destroyed trust and confidence. We disagree. The claimant had agreed to accept a flexible working arrangement, albeit on a trial basis. She only worked a very few shifts under that arrangement and as soon as Tara McAreavey gave in her notice she was told that she could return to a fixed day basis. We find that her refusal of that employment was unreasonable and accordingly she is not entitled to a redundancy payment". Submissions[12]Upon behalf of Mrs Rice, Mrs Porter critics the way in which the Tribunal had reached its conclusions. She says that the Tribunal has made no findings on important matters. There are no findings as to the dates when the first trial period began and ended; as to whether the second trial period was terminated, she puts it, by Mrs Rice's resignation; and whether the offer made orally on 28 October was sufficient to amount to a certain offer for the purposes of s141. She submits that Mrs Rice must have terminated her employment at latest on 28 October but there is no sufficient finding by the Tribunal either that the offer was made before the moment of termination or that the offer was sufficiently clear and unambiguous in its terms to meet the requirements which are implicit in s141.[13]Mrs Porter also argued that the Tribunal's conclusions on the question of unreasonable refusal was wrong. She accepted that the work which was offered on 28 October involved the same fixed hours as the work which Mrs Rice had done at Union Square. She said, however, that the Tribunal failed to take into account the intervening three weeks and the impact upon Mrs Rice at her being asked, yet again, to work varying shifts when she was caring for a vulnerable child.[14]On behalf of Mr and Mrs Walker, Miss Grennan submits that the Tribunal reached the right conclusion and made all necessary findings of fact to do so. She says that the Tribunal found 1 November to be the date of termination and was entitled to do so. She says the Tribunal made all necessary findings about the terms of the offer and was fully entitled to conclude that Mrs Rice unreasonably refused that offer, bearing, in particular, in mind its similarity to the work she had been doing at Union Square. Conclusions[15]In our judgment, it is helpful to keep distinct the two offers and their consequences.[16]The first offer was made before Mrs Rice's employment at the Union Square shop ended. Mrs Rice accepted it. She was employed at the Strand shop either immediately or within four weeks. Therefore, s138(1) was engaged. It does not matter for the purpose of this case whether Mrs Rice was employed at the Strand shop under a renewed contract of employment or re-engaged under a new contract of employment. The effect of s138(1) is to disentitle Mrs Rice to a redundancy payment at the end of her employment at the Union Square shop because she will not be regarded for the purposes of redundancy as dismissed.[17]However, s138(1) is subject to s138(2) & (4) which are the provisions relating to what the Act terms "the trial period". Under these provisions, the first question is whether the provisions of the contract, as renewed, or the new contract differ wholly or in part from the corresponding provisions of the previous contract. In Mrs Rice's case, they did.[18]The next question is whether she terminated the new or renewed contract or gave notice to terminate it and it was, in consequence, terminated within the trial period. The Tribunal found that it was terminated and there is no cross appeal from that decision. Therefore by virtue of s138(4) Mrs Rice is taken to be dismissed on the date when her employment at Union Square would have ended and for the reason which resulted in the first offer being made. This was redundancy, as the Tribunal found.[19]It is important to appreciate that the Tribunal did not find that the employment at the Strand shop, pursuant to this first offer, was suitable in relation to her or that she unreasonably terminated that contract. If she had unreasonably terminated that contract, and it constituted employment which was suitable in relation to her, then s141(4) would have disentitled her to a redundancy payment. But this is not what the Tribunal found. The Tribunal did not deal with the issue. Pursuant to the first offer, she was employed on varied terms and she would have been able to argue that this offer was not suitable in relation to her and that she was reasonable in terminating it. In conclusion, therefore, if it was not the second offer, Mrs Rice would have been entitled, on the Tribunal's findings, to a redundancy payment.[20]We turn, then, to the second offer to see whether anything in relation to the second offer changes the position. We first observe that it is clear that the redundancy legislation envisages that there may be more than one trial period. Thus, s138(5) envisages that there may be a further renewal or re-engagement and that subsection (1) may "again" apply. S138(4) then draws, for the purpose of finding a date and reasons for dismissal if the trial period is unsuccessful, a distinction between "the previous contract" and the "the original contract" and between "the offer" and "the original offer". Section 138(5) which, as we have seen, is the provision allowing for successive renewals or re-engagements, applies only if the renewal or re-engagement is "in circumstances such that subsection (1) again applies". Section 138(1) applies to a re-engagement under a new contract of employment if, and only if, it is pursuant to an offer made before the end of the employee's employment "under the previous contract".[21]Before us today, Mrs Porter and Miss Grennan were agreed that s138(1) means, in the context of a second offer, that the offer which leads to the second re-engagement must be made before the end of the first re-engagement. In our judgment, that is correct and, as we shall see, it ties in with s141(1).[22]Summarising so far, then, the Act allows for successive trial periods, each with the same potential outcomes and consequences as the one before. A successive re-engagement will still fall within the statutory scheme so long as the offer which led to it was made prior to the end of the employment under the previous trial period.[23]In Mrs Rice's case, there was no second re-engagement or renewal, for she refused the offer. So nothing within s138 itself takes away her entitlement to a redundancy payment which, as we have seen, she had by virtue of the termination of her employment during the currency of the trial period resulting from the first offer. It is therefore s141(1) to (3) that we must turn to see what is the consequence of refusing the second offer. Section 141(1) applies where an offer of renewal or re-engagement, whether in writing or not, is made to the employee "before the end of his employment", so long as renewal or re-engagement takes place either immediately on or after an interval of not more than four weeks after "the end of his employment".[24]Again, Mrs Porter and Miss Grennan were agreed that this means, in the context of a second offer, the end of the re-engagement or renewed contract pursuant to the first offer. Again, in our judgment, they were correct to approach s141 on that basis. Section 141 will apply to a second offer of renewal or engagement so long as that offer was made prior to the termination of the first renewal or re-engagement and is to take effect either immediately on or not more than four weeks after the end of the first renewal or re-engagement. In the case of Mrs Rice, therefore, the offer of renewal or re-engagement was in time, so long as it was made before she terminated her employment at the Strand and so long as it was to take effect not more than four weeks after that time.[25]In reaching these conclusions as to the law, we are conscious that this may not have been the way the Tribunal reasoned. The Tribunal's reasoning is spare. We are not sure that we have followed it. However, although the Tribunal's reasoning is spare, its findings of fact are detailed and clear. We take the view that the Tribunal plainly found that there was a sufficient offer for the purposes of s141. Further, in our judgment, it is plain that that offer was before 1 November. The Tribunal found that the employment terminated on 1 November. The Tribunal's reasons for that, again, are brief, but they are supplemented by its findings of fact. On the Tribunal's findings of fact, there had been no resignation by 28 October, there had been an agreement for Mrs Rice to work varying shifts in the first week in November, and Mr and Mrs Walker were expecting her to come back that week; and there was, in our judgment, ample evidence on which the Tribunal could reach the conclusion that the employment did not terminate until 1 November.[26]In those circumstances, in our judgment, there can be no doubt that a sufficient and suitable offer of re-engagement was made during the currency of the existing employment. Mrs Porter also submitted that the terms of the offer were insufficiently clear. By 1 November, of course, Mrs Rice had received the letter dated 29 October. The letter dated 29 October, in our judgment, is certainly sufficient for these purposes. But, in any event, when an offer was made by Mr Walker verbally that she could return to fixed hours on 28 October, she knew sufficient, in our judgment, to understand what the offer being made was. Essentially, it was a return to what she had had before. Nor do we see any error of law in the Tribunal's conclusion that Mrs Rice unreasonably refused the second offer. The second offer was of employment which was suitable to her. It was on the same terms as at Union Square and at a shop not far away. It is submitted that the Tribunal did not take into account that there had been an offer in between which was, or might have been, indirectly discriminatory. We see no error of law in the Tribunal's judgment on this point. There is no suggestion that the second offer was discriminatory. It is the second offer with which we are concerned and the Tribunal considered in the latter part of paragraph 20 of its reasons, the stated reason of Mrs Rice for refusing the offer and the Tribunal rejected it.[27]For these reasons we dismiss the appeal in so far as it concerns the redundancy payment. Constructive Dismissal[28]We can take this much more briefly. The Tribunal set its conclusion out succinctly. "We can see no foundation for any suggestion that the Respondent breached the Claimant's contract of employment and accordingly we dismiss both the claim of unfair dismissal and wrongful dismissal". Succinct, though this is, it follows from the findings that the Tribunal had already made. Her case before the Tribunal was that the breach of trust and confidence was the failure to respond promptly to the request on 23 October. The Tribunal dealt with this in paragraph 20. There is no error of law in its reasoning.[29]Mrs Porter submits that the Tribunal ought also to have considered whether there was a breach by reason of the indirectly discriminatory conduct. This does not seem to have been how the case as put below but, in any event, we do not think there is any substance in this point for two reasons. Firstly, the label of indirectly discriminatory conduct was not one known to or considered by the parties at the time. What was considered by the parties at the time and known to them were the arrangements which were made and Mrs Rice's complaint about those arrangements. It was upon those arrangements and the complaint that she founded her case which the Tribunal rejected. Secondly, even if there were indirect discrimination, it would not follow that there was a breach of contract, still less a breach of a fundamental nature. We are not sure that the point was directly taken below that there was a breach by reason of indirectly discriminatory conduct but if there was, the Tribunal was entitled to reject it. Indirect Discrimination[30]The Tribunal, somewhat curiously, failed to deal with the complaint of indirect discrimination except as part of its reasoning for the costs application, so we will now set out that reason. "23. By virtue of Rule 40 we may make an order for costs if we consider It appropriate to do so, provided we are first of all satisfied that the claimant has acted unreasonably in bringing or conducting the proceedings or that the proceedings have been misconceived. We accept, and the contrary, has not been argued, that the burden of childcare, particularly in the case of a disabled child, falls to a greater extent on the female partner in the family unit rather than the male. If the requirement to work flexible shifts amounted to a provision, criterion or practice imposed by the Respondent it was one to which the claimant assented, if only on a trial basis. When the claimant's resigned the respondents immediately notified her that she could return to fixed day working. This was exactly what she had wanted and what had been satisfactory before. On that footing we have no hesitation in saying that the claim for sex discrimination has been brought and pursued unreasonably. The claimant is now working earning some £79 per week. We are satisfied' that it would be appropriate to make an order for costs amounting to a contribution towards the additional costs incurred by the respondent. The order is in the sum of £1,000".[31]In our judgment, this is not adequate reasoning for the disposal of an indirect discrimination claim. Assent is not a defence to a discrimination claim. The Tribunal may have thought the claim was weak, but it is incumbent upon the Tribunal to address the elements of the claim in relation to the provisions of the Sex Discrimination Act so that the parties know why they have won and lost. The Tribunal had, indeed, set out in paragraph 2 of its reasons what her case was:
"She complains that the respondent applied to her a provision criterion or practice, namely a requirement to work varying shifts each week, implying she says, this is a provision criterion or practice which would have been applied equally to a man which was such that would be to the detriment of a larger proportion of women than men, which cannot be justified irrespective of the sex of the person to whom this is applied and which his to her detriment"
. The Tribunal, in our judgment, ought to have dealt with those issues and stated what its conclusions were on them. If the assent of Mrs Rice was, in some way, a bar to one or more of the matters that she had to prove, the Tribunal should have said which and why it constituted a bar. In a case of this kind, the reasoning need not necessarily have been lengthy, but it should not have been omitted altogether.[32]Miss Grennan has attempted to persuade us that by implication, the Tribunal must have found that any discriminatory criterion was justified. The Tribunal do not find that and we are not in a position today to reach conclusions of our own as an Appellate Tribunal where there is so little by way of reasoning on an issue.[33]For this reason, the claim of indirect sex discrimination will have to be remitted to the Tribunal. We do not express any view at all as to the result of any remitted claim. The matter is entirely at large. Nothing we say should be taken as expressing a view one way or the other as to the merits of the claim. Costs[34]The order for costs was made by reason of the indirect discrimination claim and it will, therefore, fall away by reason of the conclusion we have already reached. But we were concerned about the order for costs in this case and we will make two particular comments about it.[35]Firstly, it is well established that before ordering costs, the Tribunal must not only find a gateway to an order for costs to be established, but it must exercise a discretion. There is very little sign of the exercise of discretion in the Tribunal's reasoning. It seems to us that, while the Tribunal has undoubtedly found that the claim for sex discrimination has been brought and pursued unreasonably, it has then, apart from a single mention about the earnings of Mrs Rice, gone straight on to make an order for costs without considering whether there were any other matters which should be weighed into the balance. We note, incidentally, that the amendment which introduced the sex discrimination claim also, at the same time, introduced the claim of unfair and wrongful dismissal which depended on the facts and which the Tribunal did not find to have been misconceived or brought and pursued unreasonably. We would expect, at the very least, to have found some weighing of that element when the discretionary stage was considered.[36]The second point that we mention relates to the means of Mrs Rice. The Tribunal found that she was working, earning some £79 per week. The Tribunal was aware that she was caring for a young child with serious medical problems. The Tribunal made an order for costs in the sum of £1,000. Taking into account the means of a claimant does not, in our judgment, simply mean stating them. It is important where there is such an apparent disproportion between the means of the claimant and the order actually made for the Tribunal to give some indication as to how it has taken her means into account. When one considers her apparent commitments and the low level of her means, it is unclear how the Tribunal expected or thought that she would pay an order for costs of £1,000.[37]For these reasons, the appeal will be dismissed so far as unfair dismissal, breach of contract and redundancy payment is concerned. It will be allowed so far as the Sex Discrimination Act claim is concerned and the order for costs.[38]We will give the parties a moment to make submissions if they wish to as to whether the matter should be remitted to the same or a different Tribunal.[39]We have listened to submissions as to whether it should be the same Tribunal or a different Tribunal and we have, of course, the criteria in Sinclair Roche & Temperley v Heard [2004] IRLR 763 very much in mind. On the whole in this case we think that the discrete issue of sex discrimination should go to a fresh Tribunal for two reasons. Firstly, it is a discrete issue; it involves concentrating on an earlier time-frame than the issues on which the Tribunal had to concentrate for the purpose of determining redundancy and unfair dismissal. Secondly, this Tribunal did make an order for costs in the sum of £1,000. We think that the matter should be considered afresh by a Tribunal that has not made such an order. So for those two reasons, it will go to a fresh Tribunal.