MS A PROWSE-PIPER v ANGLIAN WINDOWS LTD & OTHERS [2009] UKEAT 0017_09_1506

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2009] UKEAT 0017_09_1506

Case No Appeal No. UKEAT/0017/09

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS A PROWSE-PIPERAPPELLANT

ANGLIAN WINDOWS LTD & OTHERSRESPONDENT

Before

His Honour Judge Reid

Date 15 June 2009

[1]APPEARANCES For the Appellant MISS JUDE SHEPHERD (of Counsel) Instructed by: Messrs Solicitors Salt Quay House 4 North East Quay Sutton Harbour Plymouth Devon PL4 OBN For the Respondents MS JENNIFER EADY (One of Her Majesty's Counsel) Instructed by: Messrs Harvey Ingram LLP Solicitors 20 New Walk Leicester LE1 6TX SUMMARY SEX DISCRIMINATION: Pregnancy and discrimination The Appellant was discriminated against on the grounds of her pregnancies. She was then made redundant in a way which constituted unfair dismissal. The Employment Tribunal held that the employer had paid only lip service to the possibility of finding her an alternative role. It failed to deal with the question whether this failure of the employer was itself a further act of discrimination. Remitted to the same Employment Tribunal to make findings on this point. HIS HONOUR JUDGE REID QC This is an appeal from the decision of an Employment Tribunal held at Exeter on 30 June, 1, 2, 3 and 4 July of last year. The decision was signed on 3 September and sent to the parties on 4 September. By its decision the Tribunal held that the Claimant had been unfairly dismissed, that she had suffered harassment and direct sex discrimination and that all parts of her claims for sex discrimination were brought in time. It dismissed on withdrawal claims for breach of contract and equal pay.

[2]The appeal is by the Claimant arising out of one issue of the decision. The Tribunal, having held that she had been unfairly dismissed, by reason that although there was a genuine redundancy situation the Respondents had not taken reasonable steps to explore a suitable role that existed as an alternative to redundancy with the Claimant, did not go on to find that that was a matter of sex discrimination. It is against that failure to make a finding that the Claimant appeals.

[3]The background is that the Claimant was for many years, from September 1988 until 12 October 2007 when her dismissal by reason of redundancy took effect, an employee of the Respondents. She was latterly the National Telecan Manager, i.e. manager in relation to telephone canvassing. After she returned from the birth of her second child there were problems. The child was born in July 2005. There were a number of acts of harassment and discrimination committed against her.

[4]However, Telecan sales were also falling dramatically. Largely, it seems, as a result of TPS (Telephone Preference Service) which enables people to opt out of having cold calls made to them. A large part, it appears, of the Telecan work was cold calling. This is what resulted in the redundancy situation. On 31 July 2007, Mr Troughton and Mr Wilson of the Respondents decided, in effect, that they intended to make the Claimant redundant.

[5]There was a meeting on 7 August 2007 at which Mr Wilson told her that, putting it in broad terms, she was going to be made redundant and suggested as a theoretical possibility that she might be offered an alternative post as the South West Divisional Telecan Manager, a lesser role. She was given until 10 August to decide, but in fact she was never given any details of what that job would entail, how it was going to be remunerated or other essential characteristics. The Tribunal's view was that Mr Wilson had failed to explain these matters and that if the Respondent were serious about her considering that role as an alternative it needed to give her all appropriate information to enable her to properly assess whether or not it was a suitable alternative.

[6]The Tribunal's determination in relation to that was as follows, at paragraph 260 of the decision:

"260. We are satisfied that in the meeting on 7 August Mr Wilson paid lip service only to the principles of informing the Claimant of the existence of that role. Importantly however, he gave her no information regarding what that role would entail, what salary it would attract and what hours of work the Claimant would be required to undertake. These were all important issues for the Claimant. We are satisfied that the Claimant did not decline that role and was never put in the position of fully understanding what the role was. The Claimant only expressed her concern regarding what level of salary it might pay. However, the Respondent never addressed those concerns by informing her what the salary would be. 261. The lack of any true intent on the part of Mr Wilson or Mr Troughton to find alternatives to redundancy for the Claimant is illustrated not only by their failure to give her the proper details in relation to the South West DTM role but also Mr Wilson's failure to follow through with his promise to the Claimant at the reconvened redundancy meeting on 1 October, to consider the possibility of a consultancy role that had been discussed at that meeting. He states at the end of that meeting, "

We'll consider everything including consultancy role again before reaching a decision" and yet when he confirms to the Claimant in his letter of 10 October that he is "now writing to confirm your redundancy", he makes no reference to what conclusion he reaches in relation to the possibility of her conducting some consultancy work."

[7]That satisfied the Tribunal. There was no serious effort made to find her an alternative role by properly exploring what, on its face, appeared to be a suitable alternative. They note that when she raised her grievance of sex discrimination on 7 August the role was then simply offered elsewhere, it appears, probably, to one of her subordinates.

[8]The primary issue that was argued before us was whether the question of whether the dismissal by reason of redundancy was an act of discrimination was ever an issue raised before the Tribunal. The documentation through which we were taken began with the ET1, in which at paragraph 1 of the particulars of claim attached to it, the Claimant said, third sentence:

"The Claimant was dismissed as part of a chain of discriminatory treatment following the announcement of her pregnancy in February 2005."

Then at paragraph 15 under the heading "unfair dismissal":

"The Claimant considers her dismissal was unfair in that: (a) The Claimant contends that a genuine redundancy situation did not exist."

[9]That was the Claimant's primary case before the Tribunal, in which she failed. Then a little lower down:

"(b) The Claimant further contends the First Respondent failed to offer her suitable alternative employment. The only position offered to the Claimant was on a lower salary and a reduction in status which was later offered to the Claimant's subordinate. The Claimant contends that the First Respondent offered this unsuitable position in the knowledge she would be unable to accept it. (c) The Claimant put forward suggestions for alternative employment but these were dismissed by the Respondent."

[10]Then under the heading "Sex Discrimination" in paragraph 17 of the particulars, she said:

"The Claimant contends she was unlawfully discriminated against on the grounds of her sex by the Respondents. In particular:- (i) the Claimant contends that her dismissal was one of a series of acts of sex discrimination which commenced following the announcement of her pregnancy in February 2005 and culminated in her dismissal in August 2007."

[11]There is no further reference to the redundancy situation beyond at sub-paragraph 6 a point about the meeting to which she was summoned and at which she was told of her redundancy.

[12]ET3 in answer, at paragraphs 13 - 15 denied paragraphs 11 and 12 of the claim, said she was invited to a meeting in August 2007 in Norwich, says she was not informed that her role was redundant and a proper consultation process was initiated. Then it goes on: "The Claimant's employment was terminated on 12 October 2007 following a redundancy consultation process lasting over two months.

[13]Then the answer refers to her unsuccessful appeal:

"15. During the redundancy and grievance procedures every effort, where possible, was made to accommodate meetings to take into account the Claimant's place of residence in relation to that of the first Respondent's head office."

It asserts the issue was addressed at the grievance hearing.

[14]Then, in relation to sex discrimination, having pleaded that the dismissal by way of redundancy was fair, the heading "Sex Discrimination" is followed by paragraphs 4 to 26, which deny the acts of discrimination and say, amongst other things, the Claimant's dismissal was by reason of redundancy and paragraph 17 of the Particulars of Claim, is denied in its entirety.

[15]That being the extent of the pleading, so to speak, there was then a Statement of Issues, which was prepared by the parties and agreed. The first issue set out under the heading "Sex Discrimination" was whether in relation to all or any of the Respondents the Claimant was unlawfully discriminated against and subjected to any detriment by reason of her maternity leaves and/or maternity related illness, by reason of the following specific examples and similar allegations detailed in the replies, the occurrence of which was not admitted by the Respondents. Overleaf, there is a bullet point which identifies eventual dismissal ostensibly by reason of redundancy. That is separate from the heading under "Unfair Dismissal" where the first bullet point is whether the Claimant's dismissal was for reason of redundancy.

[16]We have been shown the parties' respective written final submissions to the Employment Tribunal. The Claimant dealt with these matters at paragraphs 36, 37 and 39 of those submissions. At paragraph 36 the first sentence reads:

"It is submitted the Respondents have failed to show that the Claimant's dismissal was wholly or mainly attributable to a cessation or diminution in the requirements of the Respondent's business for work of the kind the Claimant was carrying out." (i.e. raising the issue of whether there was a genuine redundancy situation.) "37. It was clear from the evidence that it was Mr Troughton who initially proposed deleting the Claimant's role at the meeting on 31 July 2007. This was not prompted by a genuine redundancy situation, but by the fact that Mr Troughton had formed a negative view of the Claimant from the start."

Then at paragraph 39 "Suitable Alternative Employment":

"It is submitted the Respondents were never serious about finding suitable alternative employment for the Claimant."

[17]It is fair to say that the written submissions do not break down the various claims into claims in law and that they are dealing with the question of what findings of fact that should be made.

[18]The Respondent's closing submissions for that hearing at page 17, paragraph 102, under the heading "Unfair Dismissal Reason for Dismissal" assert there was a genuine redundancy situation. Then at paragraph 115, still within the same chapter of submissions, the Respondent submits that it dismissed the Claimant fairly. It sets out the facts that it asserted including considering possibilities of alternative employment. It states that there was, however, a lack of suitable alternative employment and the Claimant was not interested in those suggested made by it.

[19]At earlier stages the issue of sex discrimination had been addressed in paragraph 29 through to 101. In particular the issue of dismissal was dealt with at paragraph 89 through 98. It appears, for example at paragraph 96, that there is an express denial that the Claimant was not considered to be a serious contender. Reference cross-examination of Mr Wilson:

"Although deleting a national role means there is a risk of loss of opportunity in creating leads, the same consideration was applied to other national managers."

[20]In the cross-examination of Mr Wilson, Mr Wilson repeated several times in his evidence, the Claimant's role was deleted for costs reasons and confirmed the decision bore no relation to her return from maternity leave.

[21]Against that background the Tribunal then dealt with matters, first of all at paragraph 209 of its decision:

"We are amply satisfied that the claimant has proved facts from which we could conclude that all of the events that she complains about could be on the basis of the two pregnancies and periods of maternity leave that she experienced in 2005, 2006 and 2007."

[22]Then at paragraph 233 and 234 it said:

"233. Therefore, with the exception of the renegotiated pay in 2006 and the Liverpool trial incident, for which we do accept the Respondents' explanations as being entirely unrelated to pregnancy or maternity leave, we find that all of the events complained of by the Claimant up to her dismissal amount to sex discrimination on the grounds of her pregnancy and periods of maternity leave. 234. We will return to address the dismissal itself."

[23]The Tribunal did then return to address the dismissal itself. From paragraph 257 onwards it dealt with the dismissal itself. Having at paragraph 246 started to deal with dismissal where it found that it was by reason of redundancy, at paragraph 249 it found the redundancy was not a sham to disguise a discriminatory dismissal. At paragraph 251 the Tribunal said:

"Although we are satisfied that by 31 July Mr Troughton had developed a difficult working relationship with the Claimant due to his discrimination of her since her return from maternity leave - on the basis of the evidence we accept that it was a business decision to restructure in a broad sense that prompted the redundancy of the Claimant and that the decision to dismiss her for redundancy was not a sham to disguise a discriminatory decision to dismiss. We are therefore satisfied the dismissal does not amount to sex discrimination."

[24]So far so good, but when we come on to unfair dismissal generally, beginning at paragraph 257, the Tribunal goes through its findings in relation to the offering of alternative jobs. At paragraph 257 it said:

"Although we are satisfied there was a genuine redundancy process underway and that the requirements of the statutory discipline procedure are complied with, we are also satisfied that - on the basis of Mr Troughton's discriminatory treatment of the claimant since her return from maternity leave and his dismissive and disrespectful approach to her as National Telecan Manager - that he had no particular desire to maintain her within the business in the light of the redundancy process. In particular we do not accept his evidence, nor that of Mr Wilson, that they were keen to find ways of keeping the claimant within the business."

[25]At paragraph 260 it said:

"We are satisfied that in the meeting on 7 August Mr Wilson paid lip service only to the principles of informing the claimant of the existence of that role." i.e. the South West Divisional Telecan Manager role. It then went on to repeat he did not tell her about the terms. Paragraph 261: "

The lack of any true intent on the part of Mr Wilson or Mr Troughton to find alternatives to redundancy for the Claimant is illustrated not only by their failure to give her the proper details in relation to the South West DTM role, but also by Mr Wilson's failure to follow through with his promise to the Claimant at the reconvened redundancy meeting on 1 October."

[26]The judgment then goes on to deal with the question of the consultancy role. The Tribunal concluded at paragraph 263 that it was satisfied that the Respondents had not taken reasonable steps to explore the suitable alternative role that existed and held it did not judge that to be a reasonable way within a redundancy process for an employer of this magnitude to take steps to find alternative employment for such a senior employee. It was therefore satisfied that the failure to properly communicate with the Claimant regarding that potential alternative suitable employment created unfairness to the Claimant, such that the decision to dismiss was unfair.

[27]What the Tribunal do not do is deal with the question of whether that failure was connected with discrimination. In our judgment when one looks at the totality of what was before the Tribunal, although it was not the primary case (because the primary case was that there was no genuine redundancy anyway), the case that the failure to offer alternative work was discriminatory was nonetheless raised in the passages we have looked at in particular from the ET1. It was a secondary case which was there and required to be dealt with.

[28]So far as the Respondents' answers to that are concerned, they appear to be fourfold. First of all, the point was not raised. In our judgment having been through that volume of correspondence and documentation that I have been through, it seems to us that it was properly raised. Then it was said there was no finding that Mr Wilson, who is personally the Fifth Respondent, discriminated against the Claimant prior to the decision to dismiss and it was suggested that Mr Troughton, the Fourth Respondent, had limited involvement in considering suitable alternative employment. Therefore, it was said there were no findings of discrimination which would found a finding even if it were open (the Respondents suggested it was not) that the failure to offer an alternative job was discriminatory.

[29]In our judgment that does not follow. The problem, so far as that submission is concerned, is that there were findings that neither Mr Wilson nor Mr Troughton were making any genuine efforts to offer her any alternative employment. The question that looms, but is not answered, is why that should have been. There were numerous findings of sex discrimination and harassment against in particular Mr Troughton, for which the first Respondent was vicariously liable.

[30]In our judgment it seem to us that it cannot be said that when one looks at the totality of that judgment it is implicit in there that there is a finding that the failure to find alternative employment was not on the ground of sex discrimination. The difficulty that we have is that although there is no finding that it was not, there is no finding that it was. There is simply a lacuna. It surprised us, when first looking at the matter, that in so detailed and extensive a decision there should be a lacuna of this sort. That did seem to us to give rise to the possibility which has occupied the bulk of this judgment that the point was not a point which was in issue before the Employment Tribunal.

[31]However, having taken the view that it was raised, it seems to us that there is a lacuna and it is not a lacuna that we can fill in this Tribunal. We are reinforced in that by the apparent absence of any real meat dealing with the point in the Respondent's submissions below. We take the view, therefore, that the proper course is to remit the matter back to the same Tribunal, so that Tribunal can hear what further submissions it wishes to hear in relation to this fairly limited point, namely whether the failure to make any genuine attempt to offer alternative roles was itself discriminatory and flowing from that the extent, if any, that that impacted on the decision to dismiss. It is of course perfectly possible the Tribunal will say, "We thought about it. Yes, on second thoughts we think that the failure to make serious efforts was discriminatory, but on the evidence it would not have made a hoot of difference. She would have been dismissed anyway, because there would not have been a suitable alternative role." But that is a matter for the Tribunal once it has had whatever further submissions it thinks it appropriate to hear.

[32]We will therefore remit the matter on that limited basis to the same Tribunal for the Tribunal to consider and deal with that matter by such procedure and in such manner as it thinks fit. To that extent the appeal will be allowed.