Chief Constable Of Hampshire Constabulary v Haque (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke) [2011] UKEAT 0483_10_1210

EAT
Chief Constable Of Hampshire Constabulary v Haque (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke)
[2011] UKEAT 0483_10_1210 · 2011-10-13
[1]The function of an Employment Tribunal is to deal with rights, and allegations of their infringement, which except in the case of those rights which derive from contract are entirely statutory. Such a Tribunal needs to focus closely on the requirements of the statute.[2]Secondly, a Tribunal must deal with the claims placed before it by the parties, and where issues have been identified in advance of the hearing or at the hearing, is indeed specifically required by rule 30(6)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to specify which of those issues and what in respect of them is not being determined and say why. The Tribunal, whose Judgment is subject to this appeal, did neither, as will appear from what we go on to describe in this Judgment.[3]The Tribunal which heard claims of discrimination, both direct and indirect, and by way of victimisation between 26 and 28 May 2010, gave a decision on 30 June 2010 by which it appears to have determined the claim in respect of direct discrimination only. The Tribunal held that the Chief Constable of Hampshire, whom we shall call the police, had discriminated against the Claimant, who was a serving police constable, on the ground of her sex. The summary finding did not say whether the discrimination was direct or indirect but it appears, from paragraph 53 of its decision, that the Tribunal had in mind direct discrimination. The facts[4]The Claimant who responds to this appeal was effectively dismissed (“required to resign”) on 12 February 2009 for misconduct in respect of events which had occurred in August 2006. There being no complaint about the quality of that decision in itself, it follows that we must assume that the disciplinary charges were justified and the conclusion not unfair.[5]The Claimant gave birth to a child on 5 April 2008. The period of maternity leave to which she was entitled would have extended to 29 March 2009, beyond the date of her effective dismissal and, by reason of accrued leave entitlement, she would have remained on leave beyond that date to 5 June 2009.[6]Her complaint, which the Employment Tribunal found to be well-founded, was that the disciplinary process against her, which led to the requirement to resign, was pursued at a time when she was on maternity leave. This was to her disadvantage and was discriminatory. She alleged that the institution and continuation of the disciplinary proceeding was compounded by specific incidents and circumstances which were, themselves, acts of discrimination whether direct, indirect or victimisation.[7]The decision made by the police was to commence disciplinary proceedings. That called for a preliminary hearing on 17 July 2008. It was suggested on behalf of the police that the Claimant was not obliged to attend the hearing, as indeed she was not obliged to attend any disciplinary hearing if she so chose. But she did, in fact, attend and complained that the facilities provided for her, or as the Tribunal found, rather not provided, were woefully inadequate for her, as a mother who was breastfeeding her young child.[8]At that hearing an observation was made, she complained, by counsel then appearing for the police, that a suggestion made by her that the disciplinary proceedings as a whole should be deferred until after she had finished her period of maternity leave, because of the difficulties of concentrating on the disciplinary proceedings with the other necessary demands on her time and person as a nursing mother, were “offensive in the extreme, absurd and a try on”. She complained that that was harassment.[9]Although a ground of cross-appeal in these proceedings has been that the Tribunal were wrong to reject that complaint, as the Tribunal did, that ground has not significantly been advanced by Mr Doughty on the Claimant’s behalf. He recognised the force of the submission on paper by Mr Clarke QC who appeared (as did Mr Doughty below) for the police, that observations made by counsel, as part of proceedings before a disciplinary tribunal, are entitled to the immunity which applies to legal proceedings generally, given the authority of Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 493 . He therefore did not pursue that ground before us and, engagingly and modestly, accepted that had he carried out sufficient research in advance, he would have realised that was the position. We do not, for our part, think that any question of blame arises.[10]At the July hearing, counsel then appearing (not counsel before us) agreed, in the light of the disciplinary tribunal decision, that the disciplinary process could not wait for its determination until the end of the period of maternity leave, but that it should be heard in January 2009 on dates between the 6 th . and 23 rd .[11]The Claimant was told that the hearing would take place at Marwell Hotel, Winchester, adjacent to Marwell Zoo. She wrote on 19 November 2008 to object both to the timing of the hearing, which she maintained should be delayed, and to the location of it which she said imposed particular difficulties upon her as a nursing mother. She regarded the facilities available as inadequate.[12]In a letter in response, the police took issue with both of those contentions.[13]In the event, the proceedings continued. They were heard with the result that we have already described.[14]The complaints that arose out of that chapter of events were these. In the first of two claim forms (raised prior to January) it was said, first, that the Claimant’s husband, who was also a serving police officer at the time, was offered support by the Occupational Health Service of the police, but similar support was refused to the Claimant because she was on maternity leave. This showed unlawful discrimination on the grounds of sex.[15]Secondly, she complained that she had been compelled to attend the preliminary hearing on 17 July whilst on maternity leave, and that that was contrary to the maternity policy of the Respondent; that no appropriate facilities were provided at that hearing for herself and her young baby; that the remarks had been made by counsel to which we have already referred and, in that claim form, anticipated that it would be a complaint that she was being required to attend a hearing in January.[16]In a second claim form, she objected to the police’s behaviour in not postponing the disciplinary hearing from January 2009 until after her maternity leave was over, and in not transferring the hearing closer to her home in Portsmouth, and that those failures were both acts of less favourable treatment and on the ground of sex.[17]At a Pre-Hearing Review on 15 May 2009, an Employment Judge in the Hampshire Tribunal set out the issues, which had been agreed by counsel who were to attend the Tribunal hearing. They had set out issues under the headings “Direct Sex Discrimination”, “Indirect Sex Discrimination” and “Sexual Harassment”, broadly covering the issue which we have identified. Tribunal Decision[18]The Tribunal gave directions to itself in law. They are as follows, and in full:
“The Law 32. It is not proposed in these reasons to rehearse the extensive written and oral legal submissions made by Counsel for the parties, nor to recount all of the judicial authorities to which the Tribunal’s attention was drawn. Suffice it to say that the Tribunal had very careful regard to all the matters advanced by Counsel. 33. Equally, it is not felt necessary to recite in full the relevant statutory provisions upon which the claimant relies. They were set out in full in the skeleton argument presented by Mr Doughty on behalf of the claimant and comprise Sections 1, 4A, 5, 6 and 17 of the Sex Discrimination Act 1975. 34. Mr Doughty also relied heavily on the contents of the lengthy Judgment of Messrs Justice Cox in the Employment Appeal Tribunal case of Fletcher and Others v NHS Pensions Agency and Another [2005] ICR, which Mr Doughty described as a “thorough review of the case in statute law in relation to sex discrimination relating to pregnancy and maternity leave.”
The Tribunal did, in fact, read and have careful regard to that authority and, of course, to other authorities and legislative provisions referred to by Counsel for the parties, for whose efforts and assistance the Tribunal is most grateful.”[19]That is all that the Tribunal said about the applicable law under its self-direction. But in its conclusions, the Tribunal appears to have given further self-directions of law. It began (paragraph 35) by stating that it was necessary, as in most cases that came before courts and tribunals, to “seek to arrive at a balance between what are often conflicting respective rights and obligations of the parties before them”.[20]We observe that whereas a balanced Judgment is always to be hoped for, the Judgment must be on the issues and in relation to the statutory questions which arise for determination. A Tribunal is not engaged in mediation.[21]In the paragraph which followed, the Tribunal set out what it regarded as considerations which went to the reasonableness of the behaviour of the police and set out, on the other hand, the difficulties which attach to anyone who is on maternity leave.[22]At paragraph 40, it summed up in this way:
“40. As was said in the Fletcher case, pregnant women workers or women on maternity leave are going through a “protected period” in which they are entitled to be treated in a different and more “privileged” manner than those who are not pregnant or on maternity leave.”
[23]It observed that:
“40. Discrimination on the ground of sex can take place if they are disadvantaged by the application of different rules to comparable situations or the application of the same rule to different situations.”
We note the word “can”.[24]At paragraph 41 the Tribunal said:
“41. Having considered the possible conflicting considerations with regard to the above general principles, however, the Tribunal must also have regard, without in anyway derogating from those general principles, to the general concept of proportionality.”
[25]This, we observe, is troubling in a case in which what is in issue is whether there has been direct sex discrimination. It is trite law that direct discrimination on the ground of sex cannot be justified. If there is such discrimination then proportionality, in the sense of balancing whether there was a “good” reason for the act (which is said to be discriminatory, in the light of the general circumstances), has no part to play. Discrimination is unlawful. Proportionality may have a role to play, arguably, depending on the facts, where a question of indirect discrimination arises because justification then comes into question and proportionality has a role to play there, depending upon the circumstances: but here the Tribunal had begun without making any distinction between whether it was looking at direct or indirect discrimination or harassment.[26]The Tribunal rejected a general and overriding argument advanced by Mr Doughty, on behalf of the Claimant, that the Respondent was not entitled to institute or progress disciplinary proceedings against the Claimant during the period of maternity leave (paragraph 43), concluded that (paragraph 49) the police were obliged to consider the particular circumstances of the Claimant’s position, however, and that the representations made by the Claimant (seeking to postpone the hearing) should have been very carefully considered (paragraph 50), as should subsequent representations in the letter of November 2008 (again, paragraph 50), leading to a view expressed (at paragraph 52) that the Tribunal could see no valid, overriding reason to deny the Claimant’s request to postpone the hearing of the disciplinary process until after the conclusion of the maternity leave and then, at paragraph 53, this:
“53. The respondent’s refusal to comply with the claimant’s request amounted, in the Tribunal’s Judgment, to an unnecessary interference with the claimant’s rights whilst on maternity leave and therefore amounted to direct discrimination on the ground of sex. Furthermore, the rejection of the claimant’s objection to the location of the substantive hearing was not properly considered.”
[27]This paragraph suggests that the Tribunal took the view that, once it had been shown that disadvantage had been demonstrated by a Claimant who was on maternity leave, which related to the fact that she was a nursing mother, then if that disadvantage was caused to her by the conduct of the Respondent it was inevitably sex discrimination.[28]As to the other matters which were in issue, the Tribunal concluded that the arrangements provided on 17 July 2008 were not adequate and the Claimant was thereby disadvantaged, that amounting to direct discrimination on the ground of sex. It might appear that the Tribunal were applying the same approach as they demonstrated in paragraph 53. They did that, having rejected the Respondent’s contention that it should not have anticipated the attendance of the Claimant at that hearing.[29]The words the Tribunal used are of some importance in this appeal, on this point, and we shall set them out in full:
“48. Although the claimant was not “compelled” to attend the Preliminary Hearing on 17 July 2008…” - we interpose to say that the Tribunal therefore rejected a principal ground of complaint by the Claimant - “…..it was understandable and proper for her to be there. The respondent should have anticipated that she would be likely to attend, have made the appropriate risk assessment well in advance thereof, have enquired as to whether the claimant’s child would be present and, once confirmed, to have made suitable arrangements.”
[30]As Mr Clarke QC points out, in our view correctly, that is a finding that the police did not anticipate the presence of the Claimant at the hearing. They should have done so but, implicitly, they did not.[31]The Tribunal rejected the complaint in respect of access to the Occupational Health Service. It did so upon the basis that the provision of support for an officer on maternity leave came via the Employee Support Line rather than Occupational Health, and that that was no more than an allocation of responsibilities to different elements of the Respondent’s support services, considered appropriate, and said that this was (see paragraph 47):
“47. not, and should not reasonably have been perceived by the claimant as, any form of disadvantage or discrimination by reason of the fact that she was on maternity leave.”
Submissions[32]The Appellant police complain, in respect of those reasons, that the decision of the Tribunal falls short of that which is reasonably to be expected. It does not, argues Mr Clarke QC, comply with the basic minimum standards which derive from the case of Meek v City of Birmingham District Council [1987] IRLR 250 .[33]These principles, summarised since there is no dispute on the applicable law, are that it is an error of law for a Tribunal to fail to say sufficient to allow a party to know why he has lost. The error arises because first, as a matter of justice, a party is entitled to know those reasons; secondly because, without them, a court, such as this, reviewing the decision simply does not know why a decision was reached as it was, and therefore whether there may, or may not, have been an error of law in so reaching that decision and, thirdly, setting out reasons acts as an aide-mémoire to assist the decision-maker, to ensure that the relevant issues are addressed and answered. We shall turn to those considerations toward the end of our decision.[34]A cross-appeal was raised by Mr Doughty, on behalf of the Claimant, which we invited him to deal with first. Central to the issues in the case was his contention that the Tribunal had erred in law by rejecting, as it did at one part, what was described as the Claimant’s overriding argument that the Respondent was not entitled to institute or progress disciplinary proceedings against the Claimant, during the period of her maternity leave. Although that is the way that the matter is expressed in the cross appeal, implicit in this is the submission by Mr Doughty that to institute or progress such proceedings would, automatically in these circumstances, be an act of sex discrimination.[35]The submission is that where a woman is on maternity leave, any disadvantage caused to her by Respondent employer, or someone in the position of employer, is necessarily sex-discrimination. The vulnerability of a woman on maternity leave requires special protection. That is recognised by the Pregnant Workers Directive and is explicit in the recitals to that directive. Only a woman can be on maternity leave. If she suffers disadvantage relating to maternity leave then that disadvantage must, necessarily, be related to her sex.[36]Mr Doughty drew comfort from the decision of Fletcher as, it would appear, did the Employment Tribunal. He expressed the basis for that as deriving from paragraph 64 of Fletcher , because treating pregnant women workers or women on maternity leave in the same way as other employees, during the protected period of maternity leave, in circumstances in which they are disadvantaged because of their pregnancy or maternity, is to apply the same treatment to different situations and is, therefore, discrimination.[37]He argued that the Claimant here had been disadvantaged because she was not at work, had no access to Occupational Health, was breastfeeding on 17 July 2008, caring for her baby during maternity leave, unable properly thereby to prepare her case, having to leave the hearing (when it took place) to attend her child and having to travel to and from the misconduct hearing, disrupting her young child’s routine. She was female, entitled to take up to 15 months’ maternity leave, the maternity policy applied only to women, and she could have no lesser rights than those provided by a statute, the Equal Treatment Directive , and the Respondent’s own procedures. Being on leave by reason of maternity, it was interference to require her to attend any process: the word “leave” speaks for itself, and such a requirement would necessarily negate the general permission to be absent which such leave involved.[38]However, in the course of his submissions orally to us he drew back from maintaining that there was, as it were, a circle to be drawn around any woman on maternity leave which would render discriminatory any interference to her disadvantage with her employment position or with maternity leave during that period. It was pointed out to him that Article 10 of the Pregnant Workers Directive itself contemplates that there may be situations in which a woman on maternity leave might be dismissed, despite the inevitable disadvantage that that would give her as a nursing mother in particular. It is well-established that where there is a genuine redundancy, the fact that a person (whose post may be made redundant) is on maternity leave is no bar to the process being concluded in respect of that woman. He was prepared to accept that if a woman on maternity leave acted in such a way as to bring her employer into disrepute, that an action in the courts, commenced by her employer to restrain those activities, was entirely acceptable and was not discriminatory, but he maintained that it would not be open to the employer in such circumstances to bring disciplinary proceedings, albeit for the selfsame actions.[39]In answer to a question from Mr Gibbs, he maintained that a disciplinary process could not, and should not, involve a pregnant woman even to the extent of the investigation of a complaint by the employer. He accepted that a complaint might have to be investigated rapidly, but did not seem to us clearly to identify whether his submission was that that investigation could not, without the consent of the woman on maternity leave, involve her directly. In either case it would be bound to be disturbing, to a woman at a vulnerable time in her life and her child’s life, if there were any such allegation to be investigated.[40]From this it appeared, therefore, that he accepted that some qualification had to be adopted to the generality of the principle that he was espousing. Indeed it appears, from his written and oral argument, that he was contending that it would be open to a woman, if she wished to see the back of disciplinary proceedings, to engage with them during maternity leave, but that she could not and should not be required to do so without that consent, thus giving her a choice at a time of vulnerability in her life. Discussion[41]We cannot accept the submissions made by Mr Doughty for these reasons. First, his submissions confuse unfairness to a woman on maternity leave with discrimination on the ground of sex against her. Secondly, in our view, he misunderstands the reasoning of Fletcher . Thirdly, his submissions do not address the “reason why” question and crucially, therefore, do not engage with, and apply, the statutory provisions under which a claim such as this must be brought.[42]The law applicable at the relevant time was that in the Sex Discrimination Act 1975 .

(a) provides:

“1 (1) In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if- (a) on the ground of her sex he treats her less favourably than he treats or would treat a man.”
[43]Focus on the statute shows that it requires two things in particular to be established: first, that there is less favourable treatment and, second, that that less favourable treatment is on the ground of her sex. They are distinct requirements.[44]Where a woman is not pregnant or on maternity leave, less favourable treatment necessarily involves a comparison with an actual, or hypothetical, comparator who is not of her sex. Where she is on maternity leave and a disadvantage of which she complains is related to that maternity leave, then by definition no comparator is possible. Thus, less favourable treatment in such circumstances becomes a question as to whether there has been unfavourable treatment. It is, inevitably, less favourable treatment.[45]Unfairness in this context will no doubt be construed broadly by a Tribunal, mindful of the need to ensure true equality between the sexes by ensuring that the disadvantages inherent in being a pregnant or nursing mother are rectified. Hence, the emphasis, as was put by Cox J in Fletcher and in a number of cases to which it is unnecessary to refer, to the effect that it would not necessarily be discrimination against a man to ensure that what might be seen as favourable treatment was given to a woman who was either pregnant or on maternity leave. Properly understood, the treatment is not more favourable, but merely remedial of existing disadvantage.[46]But it still needs to be understood that the less-favourable or unfavourable treatment must be on the ground of sex.[47]The Fletcher case was not concerned with the reason why, or “the ground of” question. The case was one in which trainee midwives complained that they ceased to be paid bursary instalments when they were absent from midwifery training by reason of pregnancy and childbirth. The argument for the employer was that they were not treated any less favourably in those circumstances than would have been a man who had been absent.[48]The decision, boiled down to its essentials, was that there was an error in comparing the position of the midwives with that of men who were absent. As is said (paragraph 65) the decisions of the European Court of Justice had established that no male comparator was required in order to demonstrate sex discrimination:
“65. If the reason for the treatment is pregnancy then the detriment resulting, whatever it is, is unlawful sex discrimination even though other employees in the same circumstances are or would be treated in the same way. The same rule is being applied to different situations and is therefore discriminatory.”
[49]What was in issue in Fletcher was whether there had, in the circumstances, been less or unfavourable treatment or, as Cox J called it, detriment resulting. It was inevitable, on the facts of Fletcher , that if there was a detriment in comparison with a man, then it would be on the ground of sex because the absence from training, which led to the withdrawal of the bursary, was solely because the midwives were on maternity leave. It was thus not in issue, in Fletcher , as to what the ground for the less favourable treatment was.[50]It may be that Tribunals need to understand Fletcher in that light. Certainly this Tribunal, in our view, did not. It is emphasised in the cases of Nagarajan v London Regional Transport [1999] IRLR 572 , The Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 and Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 , all decisions of the House of Lords, that the crucial and first question that requires to be asked, in all cases in which there is an alleged breach of s.1 of the Sex Discrimination Act , is why it was that the Claimant received the less favourable treatment in question. Was it on the ground of sex, or was it for some other reason?[51]We have quoted here, virtually word for word, what was said by Lady Smith in the case of B v A [2007] IRLR 576 . We accept the law as she pointed it out in that case. She drew attention to the well-known passage (paragraph 29 of Khan ) in which Lord Nicholls of Birkenhead said, so far as relevant:
“29. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”
[52]Those principles are further exemplified by decisions of the Court of Appeal. In Emokpae v Chamberlin Solicitors [2005] ICR 931 , the Claimant sought to argue that her dismissal, which had resulted from there being rumours in the workplace about a relationship with one of the principals in the office where she worked, was on the grounds of sex. The Court of Appeal observed:
“It is not enough that there would have been no rumours but for Ms Emokpae being a woman. The Employment Tribunal had to be able to infer that the reason in the mind of [the employee concerned] was her sex, but the Tribunal’s acceptance of the rumours as the reason for dismissal shows that she was not dismissed on the ground of her sex.”
[53]The critical question as we see it therefore arises directly from the words of the statute. It is to answer only half the case to show that because a woman is on maternity leave and is a nursing mother she may have a disadvantage, which others would not have, in being called to disciplinary proceedings. The second limb of the question has also to be addressed: why is it that the disciplinary proceedings are to be progressed? Is it on the ground of her sex? Is it because the woman concerned is on maternity leave? Is it because she is a nursing mother? Is it because she is a woman?[54]The Tribunal here, in paragraph 53, appeared there to have accepted the proposition that it was sufficient to answer the “reason why” question to show that there had been unnecessary interference with the Claimant’s rights whilst on maternity leave. It uses the word “therefore” in reaching the conclusion that that amounted to direct discrimination on the ground of sex. There was no actual examination by the Tribunal of the motivation, conscious or unconscious, as Lord Nicholls described it.[55]It is well-established that unreasonable behaviour is not, by virtue of its lack of reason, necessarily discriminatory. The lack of reason may give rise to questions about the reasons why the behaviour is adopted but it does not answer those questions.[56]We therefore reject the general and overriding argument advanced by Mr Doughty on the cross-appeal, as indeed the Tribunal appeared to do (see paragraph 43, though this was arguably inconsistent with its approach in paragraph 53), and we accept the complaint made by Mr Clarke QC about the decision-making in paragraph 53 on the principal ground in the case.[57]We turn then to the other matters on the cross appeal which, as we say, we heard first. The Tribunal reached a conclusion as to Occupational Health which was that it was not, and should not, reasonably have been perceived by the Claimant as any form of disadvantage. Even if we had accepted Mr Doughty’s argument, described as the overriding argument, he would have to have shown that there was some disadvantage to the Claimant, arising out of the fact that she was on maternity leave, about which she could legitimately complain.[58]The finding at paragraph 47 is a finding of fact. We conclude that there is no good reason, here, why that finding of fact was impermissible. It was not perverse. Although Mr Doughty sought to argue that it was, he recognised that that is a high hurdle: he would have to show that the finding was wholly impermissible. Though there are plainly differences between the Occupational Health Service and support via the Employee Support Line, the conclusion is an evaluative one, to the effect that there was no disadvantage. This was open to the Tribunal. Given the number of issues that this Tribunal had to deal with, and the number of facts before it, we do not consider in this case that the Tribunal was necessarily required to be more expansive in its reasoning.[59]There is no other ground in the cross-appeal since grounds 1 and 2 go together. It follows that we reject the cross-appeal and now turn back to the appeal. Here we are reminded, not just of the principle in Meek, but also of the requirement of rule 36 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 . They specify that written Reasons for a judgment should include the issues, then (b), which we have already set out, (c) findings of fact relevant to the issues which have been determined (d) a concise statement of the applicable law (e) how the relevant findings of fact and applicable law have been applied in order to determine the issues, and (f) is not relevant.[60]Those provisions emphasise the obligations in fairness and in law which derive from the common law, in a case which the Tribunal is expressing its judgment. Here it is in our view simply not sufficient for a Tribunal to say that it has “had regard” to the law and the authorities. The Tribunal effectively says no more than that. It is completely opaque as to what in particular the Tribunal made of the authorities.[61]We cannot think that the Tribunal had in mind the provisions of s.1 of the Sex Discrimination Act , for otherwise it could not have omitted to consider the “reason why” question, which is clear from the wording of s.1. It did not say what it made of the case of Fletcher , which plainly was contentious below. In short the legal directions are completely inadequate and, insofar as they were supplemented in the conclusions section to which we have referred, wrong.[62]Next, it is not clear to us why, in a case which involved allegations of direct/indirect discrimination and harassment, that the Tribunal should not at least have recognised that fact, and said why it was not making any finding on indirect discrimination, if indeed it was not, or harassment and what, if any facts, it may have found which were relevant to those conclusions.[63]However, the matter does not end there. In similar style to the way in which this Tribunal dealt with the law, it dealt with some of the arguments. In paragraph 29, it dealt with the issue between the parties as to the adequacy of facilities at Marwell Hotel in Winchester. It said that the letter, written by the Claimant, should be read in full as should the response from Chief Superintendant Wakefield. Just that. It does not go on to highlight any particular part of the letter, either by way of complaint or response, which the Tribunal accepted or rejected. It is doing no more than identifying a dispute by reference, but saying nothing which assists us to know what its resolution of that dispute was.[64]When the Tribunal came to deal with the arrangements for the hearing on 17 July 2008, it accepted that those that were provided were not adequate. It did not say why. Mr Clarke objected that there no reason was given. He is right, but we do bear in mind that a Tribunal is not, in its judgment, necessarily required to dot every ‘i’ or cross every ‘t’, but it is sufficient, or may be sufficient, for parties to know that the Tribunal has accepted the argument that facilities were inadequate and, given the apparent argument for the Respondent that the Respondent simply did not know that the Claimant would have attended, it would appear that the Respondent was at least implicitly accepting that there might have been shortcomings with the accommodation.[65]Had this matter stood on its own, we would therefore have thought that that was not necessarily such an incomplete finding as to amount to an error of law. However, since we are dealing with the issue of 17 July 2008 at the moment, we note that there the Tribunal did deal with the reason why the inadequate facilities were provided. Given that the words “should have anticipated she would be likely to attend” mean, as we accept, that the police did not so anticipate.[66]Thus the reason for the poor arrangements which the Tribunal identified appears to be that the police had simply not appreciated that the Claimant would be there. Questions of whether they should have done are irrelevant. The reason was that they did not do so. Thus, there could be here no direct discrimination on the ground of sex because there is no material to show, given that finding of fact, that the reason for the treatment was related to her maternity leave, pregnancy or being a woman.[67]The same lack of specificity, however, is true of other findings of fact by the Tribunal. At paragraph 50, the opening words are:
“50. The representations made by Counsel at the hearing on 17 July 2008 should have been very carefully considered, as should have been the subsequent representations made by or on behalf of the claimant, including the letter sent on 19 November 2008.”
[68]There is a finding there that the representations were not “very carefully considered”. Although we must be careful of reading too much into the words, there is simply nothing to show whether there was any consideration, whether it was careful but not very careful, or why it was said to be not very careful, if indeed the Tribunal intended to say anything beyond stating a conclusion that the police simply got the result wrong and should have acceded to the submissions.[69]It may be that there is a link between a lack of very careful consideration and the finding at paragraph 52 that “the Tribunal could see no valid overriding reason to deny the Claimant’s request to postpone the Hearing” but the link, if it exists, is not made clear.[70]We conclude that there has here been no such explanation and examination of the facts, as could satisfy a party as to the reasons why its contentions upon central issues were rejected, and why factually that the Tribunal came to the conclusion, even on the test of balance and proportionality which it adopted, that the Claimant’s request to postpone the hearing should have been granted and that it was unlawful sex discrimination not to do so. We have therefore come to the conclusion that the appeal must be allowed. Amendment[71]In the course of his reply to the representations and submissions of Mr Doughty on the appeal, and therefore speaking at the very conclusion of the proceedings, Mr Clarke argued that if we should consider that the case of direct discrimination should be remitted to the Tribunal for their consideration, there would be no room for that Tribunal to consider any of the allegations of the indirect discrimination or harassment, because there had been no cross-appeal in respect of the Tribunal’s complete failure to deal with those matters.[72]The absence of a cross-appeal on this became obvious for the first time. Mr Doughty was invited by us to consider whether, in the light of those remarks even at that late stage, he wished to make an application to amend the Notice of Appeal. He considered the question and sought to amend the Notice of Appeal as follows, by adding two further grounds, 5 and 6:
“G5. The Tribunal erred in law by failing to make a decision on issues A6-A12, identified in the order dated 15 May 2009. G6. The Tribunal erred in law by failing to make a decision on issues A14-A16, identified in the order dated 15 May 2009.”
[73]Those issues are as follows. Ground 5 relates to indirect sex discrimination; ground 6 to matters of sexual harassment:
“A6 In respect of the matters complained of at paragraph 3.2, the provision criterion or practice (PCP) is the arrangements for provision of Occupational Health Services to police officers. A7 The PCP in paragraph 3.3, 3.4, 3.5 and 3.6 is the requirement to attend a Preliminary Hearing and arrangements for that hearing. A8 The PCP for paragraph 3.8 is the setting down of a disciplinary hearing. A9 For paragraph 3.9 the PCP is the respondent’s policy of compelling attendance at the Disciplinary Hearing. A10 The claimant complains of Indirect Sex Discrimination because more women than men have child caring responsibilities for children under twelve months old. A11 In respect of paragraph 5, the PCP alleged is attendance at a hearing at Marwell Zoo. A12 In respect of paragraphs 7 and 10 the PCP is attendance at the hearing.”
[74]It is plain that A6-A10 deal with the hearing on 17 July 2008, A11-A12 with the hearing in January 2009. Mr Clarke QC objects to the amendment. He does so on the basis, first, that it is very late in the day but, principally upon the fact, as he submits, that the PCP identified, albeit in a schedule of issues drawn up by counsel, is without sensible meaning and we should not give permission to amend for such arguments to be made. Mr Doughty, for his part, confesses engagingly that he should have put in a cross-appeal on these two aspects and paid closer attention to what the Appellant had been criticising. Discussion[75]We have a discretion to permit an amendment, either in whole or in part. That discretion must, as all judicial discretions, be exercised fairly, judicially and with regards to the interests of justice, and bearing in the mind the extent of any prejudice to either party.[76]Where an amendment is sought to be made to a Notice of Appeal, albeit cross-appeal at a very late stage, we have to bear in mind that, in general, a court will not entertain arguments on appeal which were not made below. It is far from clear to what extent the indirect discrimination and harassment issues, though before the Tribunal, were advanced below. We have been told by counsel who were there that the matters were “thinly” argued. We therefore consider that there was some argument before the Tribunal, and the Tribunal should have addressed those issues.[77]We have to bear in mind, however, that if we come to the conclusion, in the light of our findings on the appeal, that the matter of direct discrimination should be remitted to the Tribunal for rehearing, that we should take no step which unreasonably and unfairly would extend the time unnecessarily, would increase the costs unnecessarily and would be disproportionate to the claims as a whole. We have, in short, to take into account the arguability of the matters which had been raised which here includes the precision with which they are raised.[78]One of the problems for us is this: if we are to accept the amendment, Mr Clarke would find it difficult to resist the appeal, and it would follow that the matters would have to be determined by the Tribunal, but that could be on no wider a basis, if remitted, than the basis identified by the issues. The arguments would have to be restricted to those particular issues upon the basis of a pool, as identified at A10. The basis of the claim would be that more women than men have child-caring responsibilities for children under 12 months old.[79]We have come to the conclusion that, as to A6, the Tribunal reached a finding that the provision of Occupational Health Services to police officers, and that provision not extending to those on maternity leave, created no disadvantage to the Claimant. Therefore, as it seems to us, A6 is, on the findings of fact, unarguable. We cannot accept it as an amendment. As to A7, that relates to the preliminary hearing, as does A8. A9 talks of compelling attendance of the disciplinary hearing, contrary to the facts found by the Tribunal which held it was not compulsory. A10 is general, not specific to this case, and leads to no conclusion between the parties here.[80]We have concluded that we should not, given those PCPs, permit the amendment of the Notice of Appeal to argue those matters. As to A11 and A12, however, it seems to us that the central issue which the Tribunal here determined against the police, on a basis of law which was flawed and with no adequate explanation of the reason, is such that we have to allow the appeal, and is such that we have come to the conclusion that the approach of the Tribunal was so flawed that we cannot be satisfied that if the Tribunal, in respect of that, had had in mind the correct legal test, it would inevitably have come to a conclusion in favour of the police.[81]We note that no suggestion was made, so it appears, prior to the hearing, that the claim was unarguable on any basis. It is plain that the central thrust of it was the conduct of the police in requiring the Claimant to attend a disciplinary hearing or, at least, holding a disciplinary hearing in respect of her at a time when she was on maternity leave.[82]The Tribunal made no findings, that we can see, as to the reason why the police did that, although it appeared to think that it was unreasonable of the police at the time to do so. It seems to us, therefore, that it may be that a Tribunal addressing the right questions could reach conclusions which are not necessarily going to be dismissive of the claim as to the reasons why the police behaved as they did,. That being so, in our view, the allegations at A11 and A12 dealing with, effectively, the timing and location of the disciplinary hearing in January, may be argued as indirect discrimination.[83]We have reservations, it has to be said, about the specificity of the PCP in A11, which ties in attendance at Marwell Zoo. We are unaware of any policy, condition or practice which required a hearing to be at Marwell Zoo, although that is where the hearing in this particular case occurred, but we consider that that is a matter for the Tribunal ultimately to have regard to.[84]The identified attendance at the hearing as a PCP is, we are satisfied by Mr Doughty, a reference to the broad heading “Attendance at the Hearing”, which occurs in the Respondent’s disciplinary procedures and should therefore be considered in that light. Despite the inelegance of the wording, we think that it is sufficiently meaningful to enable a Tribunal to come to a proper decision in respect of it.[85]As to the sexual harassment matters in ground 6, however, we decline leave. We do so on this basis: that the same matters, as it seems to us in fact, give rise to the allegations, on the one hand, of direct discrimination, on the other, sexual harassment, and the extent of overlap is such that we consider it adds nothing and only serves to confuse that the sexual harassment allegations should be raised and, once raised, remitted. Accordingly we decline permission to amend, save in respect of the allegations at A11 and A12, with the reservations we have expressed about that at A11. Conclusion[86]For the reasons we have given, the judgment of the Employment Tribunal cannot stand. The cross-appeal is dismissed. The appeal is allowed. The consequence will be that the matter is remitted.[87]An issue arises between the parties as to whether there should be remission to the same or a different Tribunal. Such were failings of this Tribunal that we consider that the matter should go to a fresh Tribunal. We see no disadvantage in terms of time. The original hearing took just three days. The focus of this hearing is entirely upon the “reason why” the police treated the Claimant as they did, in the sense of making arrangements for the timing and location of the disciplinary hearing in January 2009, and whether that constitutes either direct or indirect discrimination.[88]We note, in support of the conclusion that it should be a fresh Tribunal, that HHJ Peter Clark on 4 October 2010 expressed the view on the sift that it was not appropriate to ask the Tribunal to amplify its reasons, because it would give the Employment Judge an opportunity to rewrite the judgment. He had in mind the risk, which Mr Clarke QC relies upon, that the Tribunal might seek to justify the conclusions it had first reached. In all the circumstances, and bearing in mind the much narrower focus that there now must be in the Tribunal’s hearing, we consider it has to be a fresh Tribunal. After further representations, in the absence of one member, following judgment[89]The wisdom of inviting counsel to agree between themselves the extent of the remission on paper, at a time when matters are fresh in their mind, is demonstrated by what unusually has happened in this case. A question arises as to the extent of the remission. It is agreed that the issues are as set out in a handwritten note between counsel, the handwriting in this case being that of Andrew Clarke QC, but it is contended that in addition the Tribunal should consider the question whether the Claimant was disadvantaged by the moving and shifting of dates which had been proposed for the disciplinary hearing, and whether that disadvantage was on the grounds of her sex, that being either direct or indirect discrimination.[90]Though only two of us are present at the moment, it having been thought that the agreement would prove no difficulty, but the parties being content for two of us to determine this issue, we can safely say that none of us anticipated that it was an issue in the case that there had here been a shifting of the goalposts, so far as the dates were concerned, causing difficulties in making childcare arrangements for the Claimant.[91]The application to add that as a remitted issue is refused, for these reasons. First it is settled principle that matters cannot be raised on appeal if they have not been argued below. We see no evidence that the issue of the shifting of the goalposts, as we might call it, was raised before the Tribunal below. We see no evidence of it, either, in the grounds of appeal, or either ET1. Nor does it feature in the list of issues, and nor do we see it in anything which the Tribunal itself said.[92]As to the list of issues, this refers in large part to the way in which the matters are put in the ET1. So far as direct discrimination is concerned, the Claimant relies on the allegations contained in paragraphs which are specified and, which it might appear deliberately, omit paragraph 6.[93]Paragraph 6 says, by letter dated 19 November 2008, that the Claimant asks for the Tribunal to be postponed until her maternity leave had been completed, pointed out the difficulties she had faced due to the travelling distances involved, and promises that the Claimant will refer to this letter in full at the hearing of this matter.[94]Mr Doughty submits that the letter, when looked at, also contains a complaint that the dates set for the hearing kept being changed, making it almost impossible to set up proper childcare arrangements. Certainly it does, but an oblique reference to a letter does not make the contentions in the letter into issues in the case, particularly when the only issues selected are postponement and travelling difficulties. There is nothing there to suggest that the moving of dates should be a matter of forensic concern.[95]It is certainly not flagged up in the issues list nor, does it seem to us, does the reference in the issues list to paragraph 7, as to the refusal of the request, take matters any further. Rather, it supports Mr Clarke’s objection because in that letter, it takes broad issue with the Claimant as to the date, that is the postponement of the date, and as to the question of location - but as to the question of dates, it confirms the dates, i.e. it fixes them so that presumably there would be no misunderstanding thereafter, nor shifting thereafter, of those dates.[96]It does not seem to us that that letter is capable of being read as introducing, as an issue, the shifting around of the dates for a hearing. Accordingly we accept, as the issue to be remitted, that which has been very helpfully drafted between counsel and given to us in Mr Clarke’s handwriting, as being the sole issues to be remitted.