Market One Europe LLP v Rojas (Unfair Dismissal : Reason for dismissal including substantial other) [2012] UKEAT 0307_11_1405

EAT
Market One Europe LLP v Rojas (Unfair Dismissal : Reason for dismissal including substantial other)
[2012] UKEAT 0307_11_1405 · 2012-05-14
[1]This is an appeal by the Respondent from a decision of the Employment Tribunal at Watford (Employment Judge Heal and lay members) sent to the parties on 28 March 2011 after a five‑day hearing.[2]The Employment Tribunal found that:(a) The Claimant was an employee of the Respondent between May 2007 and 6 April 2009, as well as from October 2009 to 23 November 2009;(b) The Claimant’s claim that she had been unfairly dismissed was established;(c) The Claimant’s claims that she had been subject to discrimination on the grounds of sex (direct, indirect and harassment) was established; and(d) Redundancy was not established as the reason for the Claimant’s dismissal.[3]The Notice of Appeal challenged the findings of the Employment Tribunal. The Respondent asserted that the Claimant was not an employee prior to 6 April 2009, so she lacked qualifying service to bring the claim for unfair dismissal. The Employment Tribunal should have found that there was a redundancy situation, and the findings made by the Employment Tribunal as to the availability of alternative work were challenged, as were the findings of indirect and direct discrimination.[4]On 13 July 2011 the appeal was referred to a full hearing by Keith J. The factual background[5]We take this factual background largely from the decision of the Employment Tribunal. The Respondent deals in “outsourced demand generation and lead management”. This is explained in paragraphs 7 and 8 of the decision:
“7. The respondent is a company that deals in ‘outsourced demand generation and lead management’. Its clients wish to carry out marketing exercises targeted at major companies. In order to do that a client engages the respondent to carry out various types of preparatory work for it. Such work might include the respondent calling the target company to try to find out who within that company is responsible for what. This is called ‘surfing’. Alternatively, a client might come to the respondent with a list of contacts which might need to be, ‘cleaned up’. The respondent then makes contact with the target company in order to verify which individuals on that list are still there within that company. A ‘dive’ is a high-level piece of work carried out for very demanding clients. The client will wants [sic] to break into say the top 20 accounts of a particular industry. It will want to know who has the buying power for those accounts and who has decision‑making power. On behalf of the client the respondent tries to get inside the company and discover who, ‘moves or shakes’ inside that company. 8. ‘Client interfacing’ is a high‑level type of work where the respondent’s analysts are required to have quality interaction with their clients. They are responsible for contracting and dealing with clients directly and they have to be very competent and quite eloquent on the telephone.”
[6]The Respondent used teams of analysts, many of whom, because of the international nature of its business, are multilingual or bilingual.[7]The Claimant is a Spanish national whose mother tongue is Spanish. The Claimant began working for the Respondent in August 2006 through an agency. At that time she was pregnant. She was assigned to Team 2, “Boardwalk Marketing”, which was responsible for lower‑level campaigns and involved less skilled work than Team 1, “high‑level work”. She was working on what was known as the Novell project.[8]Her son was born in March 2007. The Claimant originally worked from home in Spain. She wished to work part‑time, and was told that if she wished to work part‑time, she needed to be employed on what was called a “contractor’s” contract.[9]In September 2007 the Claimant moved to Milton Keynes, where she continued to work from home.[10]The earliest available contract is one dated October 2007, which was for a three‑month term; I shall refer later to its terms.[11]In January 2008 a second contract was entered into for a six‑month term up to 30 June 2008. On 1 July 2008 a third contract was entered into, which expired on 31 December 2008.[12]In January 2009 the Respondent became concerned at its use of self‑employed contractors because it might be in breach of contract with clients because the Respondent had agreed not to outsource. Accordingly, it introduced a change in policy, resulting in its contractors becoming employees on substantially the same terms as heretofore, including working from home, although the salary was reduced to allow for paid public holidays and sick leave.[13]The Claimant’s fourth contract was dated 5 January 2009, terminating on 31 March 2009. On 9 March 2009 the Claimant was offered permanent part‑time employment commencing on 6 April 2009. The Employment Tribunal found there was no practical difference in her work, although she no longer submitted invoices, and tax and National Insurance was paid by the Respondent. Her contract of employment is dated 19 March 2009, and it is common ground she then definitively became an employee under a contract of employment.[14]In July 2009 the Claimant moved from Milton Keynes to Hampton.[15]On 2 September 2009 Mr Fijac, the Respondent’s Programme Manager, and, we believe, the Claimant’s line manager, sent an email to the effect that he had learned she had recently moved closer to London. The email continues:
“As such I was wondering what your plans where [sic] for ‘moving’ back into the office for your working hours. I understand that you have recently had a child and that you may need to look into a child minder etc, but I am open to discuss flexible working hours etc. We are trying to get as many people back into the office as possible as we currently have far too many people who work from home. Please can you let me know what your plans where [sic] regarding this and or if there are going to be any issues with you working from our office?”
[16]On 14 September 2009 the Claimant met another manager, Ms McFadden, who told her that the Respondent wanted to get people back into the office. The Claimant was keen to go back but needed time to make arrangements.[17]On 21 September 2009 she met Mr Fijac, who told her that there were too many people working from home and she was wanted in the office. There was pressure from the United States in relation to staff working from home. The Claimant said she was considering her position but would not be able to return to the office before February 2010 because of childcare considerations.[18]On 28 September 2009 the Claimant met Mr Fijac. She explained to him the expense of childcare, and he asked a number of questions about how she managed her working life around her child’s routine. Mr Fijac asked the Claimant to attend a further meeting on 7 October 2009. On this occasion he raised issues as to the Claimant’s performance and said that in order to improve her performance she needed to be in the office. There is a minute of this meeting taken by Carly Jenner of the Respondent’s human resources department.[19]The Claimant explained that her plan was always to work in the office but she could not afford to pay for childcare, which cost £7 per hour in London but had been cheaper in Milton Keynes. Mr Fijac asked her a number of questions about her childcare arrangements and expressed concern as to what happened when her child could not sleep during the afternoon when he was at home and the Claimant was working.[20]There is an email dated 9 October 2009 in our papers from Heather McFadden to Carly Jenner enclosing an email from Charlotte Noren, “Subject: Sonia”. Ms Noren was the Associate Programme Manager. She was critical of the Claimant’s work. Ms Noren suggested that Ms McFadden might ask her “‘day to day’ managers for feed back as well”. No such feedback has been disclosed.[21]The Employment Tribunal noted that one Christian van Biezen was doing comparable work to the Claimant, but in Dutch, working from home in the Netherlands. He was not being put under any pressure to come and work in the office. He was at the time in what were described as “difficult circumstances” because his father had died, his mother was ill and his sister was unable to cope, and he had asked if he could be a contractor and go home to help his sister.[22]On 12 October 2009 Ms McFadden sent an email to the Claimant (copied to Carly Jenner) in which she repeated, “to reiterate what has already been discussed with you on several occasions, your work recently has fallen below standard […]”.[23]The email continued:
“As Bradley explained, a major subject for consideration at the moment centres around the fact that the company’s requirements have changed and we need our staff to be working from the office for a wide variety of reasons (I believe these have been explained to you, but do let me know if you need more clarification). In addition to this your workload is primarily made up of hours for the Novell contract and this 3 year contract finishes at the end of October. We have received no information yet which will lead us to believe that this contract will be extended [sic] or renewed which also has an impact and we need to have you present in the office to ensure that you can be trained to work on other campaigns.”
[24]There is a further email to the same effect on 14 October 2009 from one Ashley Dyson, but he had not worked very much with the Claimant. The email chain is missing, and there is no explanation as to how the email came to be written; we note what the Employment Tribunal had to say at paragraph 42:
“It appears to us that the respondent wanted the claimant to come back to work in the office because of pressure that was coming from senior management in the United States. When she was not prepared to come back to work in the office immediately the respondent has looked around for performance issues which it could use to pressurise her into coming back to work in the office and fixed on her childcare situation as a reason for her underperformance. We think that if there were any substantive concerns about the claimant’s performance there would be evidence of complaints and earlier complaints from her day‑to‑day managers. We note that elsewhere in her evidence Ms McFadden told us that the claimant was working very well at home.”
[25]On 21 October 2009 all members of the Novell team were called to meet Mr Fijac to discuss the impending end of the Novell contract. All members of the team, except the Claimant, were told that work would be found, but Mr Fijac suggested that the Claimant should take unpaid leave until February, when she could sort out her childcare; free nursery care became available when her son was age three.[26]On 2 November 2009 a further meeting took place between the Claimant and Mr Fijac. He informed her there would be no Spanish work until December, and the Claimant could take a holiday or come into the office and do administrative work. The Claimant was unable to agree as she could not make childcare arrangements to enable her to come into the office. She could not work on the Tandberg campaign because she did not have the skills; this was a Team 1 campaign, and the Claimant was Team 2.[27]On 5 November 2009 Mr Fijac sent to certain members of the staff a document, “Learn to Speak Womanese”. I shall give the flavour of the document:
“Dictionary for Women’s Personal Ads 40‑ish 49 adventurous slept with everyone Women’s English Yes No No Yes Maybe No You are very attentive tonight Is sex all you ever think about?”
[28]On the other hand, the document contains a section called “Men’s English”, with similar banalities:
“Nice dress! Nice cleavage! I am bored Do you want to have sex? Can I take you out to dinner? I’d like to have sex with you”
[29]This document may be thought of as a clumsy attempt at humour at the expense of both men and women. It goes nowhere near, in our opinion, showing a possible motivation on the part of Mr Fijac to dismiss the Claimant by reason of her sex, or to treat her less favourably.[30]On 9 November 2009 a final consultation meeting took place between the Claimant and Ms McFadden. Ms McFadden informed the Claimant that she had constantly received bad reports about her. The Claimant was again told she could not be used on the Tandberg campaign because she did not have the skills. The Employment Tribunal found as a fact that Ms McFadden had not been given “constantly bad reports” on the Claimant’s work. The Respondent also maintained that there was insufficient Spanish‑speaking work for the Claimant to do.[31]On 18 November 2009 a letter was sent to the Claimant to inform her that her position would be redundant on 21 November because of the level of work available and there were no suitable alternative posts. The Respondent took the view that the Claimant had less than two years’ service, so she was not entitled to statutory redundancy pay. She was given four weeks’ pay in lieu of notice. The Claimant appealed against the dismissal, but her appeal was dismissed.[32]The Claimant drew attention to a current advertisement placed by the Respondent for a Spanish‑speaking analyst. The Respondent had not informed her about the advertisement. The Employment Tribunal considered that the advertisement was for work that the Claimant was suited for, by reason of her experience, but the Respondent told her at the appeal hearing that the advertisement was for a Team 1 vacancy. At the appeal the Respondent told the Claimant that it was really looking for a Spanish caller with either fluent Italian, Portuguese or both, and this was not appropriate for the Claimant as she did not have the languages needed. The same argument was presented in evidence before the Employment Tribunal, but it was rejected. The Employment Tribunal was “wholly unconvinced by the Respondent’s explanation […]”.[33]We now turn to the terms of the agreement for the supply of consultancy services. At page 1 of our supplemental bundle we have an agreement dated 19 March 2009. We assume that the other agreements were in common form. The agreement is described as an “agreement for the supply of consultancy services”:
“1. This Contract for the provision of services will commence on 5 th January 2009 and will terminate without notice on 31 st March 2009, unless otherwise agreed. 2. The purpose of this Contract is: Sales & Marketing Analyst services. The Consultant staff would be responsible for work carried out on selected projects and agrees to provide the tools, materials and equipment at their own expense. Some limited Company resources may be made available if this avoids the future billing of expenses back to the Company (see below). Weekly progress reports should be made to the Program Manager(s), although the Consultant would also be expected to liaise with their Line Manager, Emmanuel Jones on day to day issues. […] 5. The Consultant would be responsible for monitoring their own time and workflow as appropriate to complete the project. 6. Although not considered an employee of the Company, the Consultant would be expected to follow all Health and Safety rules and all Company procedures and code of conduct whilst on site. 7. The Consultant confirms that they are providing services on a self‑employed basis. This Contract does not constitute a Contract of Employment or Partnership agreement. […] 10. No additional fees will be payable in respect of holiday pay or benefits to the Consultant staff. The Consultant accepts all liability for and agrees to pay to the appropriate body all Income Tax and National Insurance due on payments to its staff. Consultants are not entitled to any benefits offered to the Company’s staff. […] 11. During the term of the Contract it may be terminated by either side giving 1 week’s written notice. If, however, the required standards are not attained in technical ability or personal conduct this Contract can be terminated immediately by the Company.”
[34]The agreement also contains a confidentiality clause, and entered into restrictive covenants providing for non‑solicitation and protection of intellectual property rights.[35]The Employment Tribunal found that the Claimant’s working conditions up until 6 April 2009 included the following. She worked from home making telephone calls on behalf of clients, working three days per week; initially she had the choice as to how she should work. The conditions under which she worked were decided upon by the Respondent. When an agreement for the supply of consultancy services expired a new contract would be sent to her, which she would sign and return. The Claimant paid her own tax and National Insurance, and used her own telephone, PC and internet but was reimbursed for the cost by the Respondent.[36]The Claimant used a standard form of invoice provided by the Respondent, which directed her how to deal with invoices, including the time for lodging them and who should approve them.[37]The Claimant had to attend regular training, and she was invited to company events including Christmas parties.[38]There were no negotiations in relation to pay increases. The Respondent simply decided to increase remuneration from £10 per hour to £12 per hour in September 2008.[39]Contractors had to submit holiday requests for time off in the same way as regular staff, although there was some difference in the nature of the application for contractors and that used by employees. The Claimant had to seek permission to take leave. The Claimant had a line manager who was responsible for reviewing and evaluating her work performance, and dealt with such matters as approving time off work, dealing with absenteeism and understanding the Claimant’s developmental needs. The Respondent monitored the Claimant’s calls to monitor her performance, to set core objectives and monitor the number of calls made. A performance review was carried out at the Claimant’s request.[40]The Claimant was not permitted to ask another person to do her work because of the confidentiality clause. While the Claimant might have been free to do additional work for other employers, she did not do so, because of her childcare commitments. The Employment Tribunal concluded that the Respondent exercised real, tight control of her work.[41]The Claimant appears to have accepted in evidence that there was no obligation on the part of the Respondent to provide her with work.[42]The contract of employment of 19 March 2009 (see supplementary bundle, page 7) has substantial similarities to the agreement for consultancy services. We note that the Claimant’s place of work was at her home, 9 Blatherwick Court, Shenley Church End, Milton Keynes. Her hours of work were specified as three days per week (Monday, Tuesday and Wednesday) from 8.00am to 5.00pm, but the actual days and hours might be varied with the consent of the Claimant’s manager.[43]The Claimant was expected to keep her starting and finishing times flexible to a reasonable extent depending on the needs of the business, and at times the needs of the business might require those hours to be modified, and the Claimant would be expected to vary her hours of work accordingly. The position of Mr van Biezen[44]We have previously referred to Mr van Biezen. At the relevant time he worked from Amsterdam, his home, doing comparable work, although the language in which he worked was Dutch. He was in difficult circumstances because his father had died, his mother was ill and his sister was unable to cope. The Employment Tribunal found that he was allowed to work from home; there was no pressure on him to return to the office, and the Respondent found him work. He was neither made redundant nor pressured to return to the office. The decision of the Employment Tribunal[45]The Employment Tribunal identified the issues and the facts as we have set them out. It referred to the parties’ submissions.[46]We note that the Employment Tribunal identified issues to be determined as to whether the Claimant had been treated less favourably than a hypothetical or actual comparator (Mr van Biezen). The following were regarded as being instances of less favourable treatment:(a) She had been dismissed;(b) She had been selected for redundancy;(c) She was requested to do short‑term lay‑off work;(d) She was requested to come into work in the human resources department cutting paper and filing;(e) She was requested to return to the office and work from there;(f) The Respondent failed to provide her with training to allow her to work on other projects during the period of her selection for redundancy; and(g) The Respondent failed to offer work to the Claimant that she was able to do.[47]The Employment Tribunal then went on to consider the relevant law. It understood that the parties did not differ on the law but differed on its application to the facts. Paragraphs 71‑76 set out an analysis of the law as to employment status:
“71. We do not understand the parties to differ on the law. Where they differ is on its application to these facts. It is difficult to define an employee. The question for us is, ‘what is the true legal relationship between the parties?’ Ordinarily we will find the answer to that question in the written contract. That is the usual starting point. However, if, as here, a party asserts that the contract does not describe the true relationship, we have to decide what the true relationship is. 72. One of the critical features of an employment relationship is that the individual agrees to serve the employer personally. She cannot send anyone else along to do her work instead of her. On its own, however, that is not conclusive. 73. Is the irreducible, ‘mutuality of obligations’ present? We accept Mr Trory’s [for the Respondent] submission that if this is not present, then the contract will not be one of service. 74. However we also have to look at the totality of the evidence set out in our findings of fact above. Is there sufficient control exercised over the individual for her to be an employee? Was the individual part and parcel of the organisation: was she integrated into it, not merely accessory to it. What is the economic reality: is the claimant really her own boss? Was she really in business on her own account? What were the opportunities for profit and loss? How much was the individual required to invest in tools and equipment? 75. If we apply the ‘mixed test’, we ask three questions. Did Ms Rojas undertake to provide her own work and skill in return for pay? Was there sufficient degree of control to enable her fairly to be called an employee? Were there any other factors inconsistent with the existence of a contract of employment? 76. It will also be relevant to ask whether there was a regular salary: how was Ms Rojas paid? Was she free to work for others? Who paid her tax and National Insurance? How did the parties see the relationship? Was there a right of discipline or dismissal?”
[48]The Employment Tribunal then directed itself by reference to section 98 of the Employment Rights Act and reminded itself that the burden of proof lay upon the Respondent to prove the reason for the dismissal and that it was a genuine reason. As far as redundancy was concerned, the Employment Tribunal had this to say:
“79. If the respondent proves that the reason for the dismissal is redundancy then, without any stage substituting our own view for that of the employer, we have to ask whether the employer has given the employee fair warning of the risk of redundancy and we have to ask whether there is a reasonable pool for selection for redundancy. If a selection exercise has been necessary we have to ask whether there was a fair selection exercise, and whether it has been fairly carried out. We look to see whether there has been fair and proper consultation while the decision to dismiss was at a formative stage and we look to see whether that consultation has been carried out with an open mind. We ask to whether the employer has taken reasonable steps to look for alternative employment for the claimant.”
[49]We note, however, that the Employment Tribunal did not remind itself as to the definition of “redundancy”.[50]The Employment Tribunal then went on to remind itself, so far as discrimination on the grounds of sex was concerned, of section 1 (discrimination and less favourable treatment) and section 4A (harassment). The Employment Tribunal went on to remind itself of the provisions of section 63(a)(ii) in relation to the reversal of the burden of proof. It also bore in mind the guidance set out in Igen v Wong [2005] IRLR 258 .[51]The Employment Tribunal then went on to consider whether the Claimant was an employee between May 2007 and 6 April 2009, when at least nominally she was a self‑employed “consultant”, and at paragraph 84 stated:
“We have looked at all the factors that indicate that the claimant is, or is not an employee. We have asked whether there was mutuality of obligation. Without that irreducible minimum, there cannot be an employment contract. We note that the claimant agreed in evidence that the respondent was not obliged to offer work. We do not think this takes us far (the claimant is not a lawyer yet she was really being asked to speculate on a legal issue: more importantly the situation of work not being offered did not in fact arise, so her answer is entirely hypothetical); we consider that looking at the evidence of the day‑to‑day reality tells us more.”
[52]The Tribunal went on to note that the Claimant was required to work continuously; there was no distinction between her position and that of employees in relation to the need to submit requests for holidays. The Claimant had an obligation to the Respondent to do the work, and the Respondent had a corresponding obligation to her to provide her with work. The Employment Tribunal also took account of certain factors that pointed away from there having been an employment relationship, including the following:(a) the Claimant was responsible for payment of her own tax and National Insurance; and(b) the Claimant sent the Respondent invoices. The Employment Tribunal considered that this was a factor that pointed against her being an employee, but it might be something that an employer requires so the appearance that a person is not an employee was maintained. The Employment Tribunal did not think it was decisive. The Respondent gave the Claimant instructions about how she was to submit her invoices. Such tight control over invoicing suggests that the Claimant was not in fact in business on her own account, submitting bills to be paid. She was submitting something more like a timesheet and was being paid on a regular basis like an employee.[53]At paragraph 90 the Employment Tribunal recognised that the contract stated specifically that the Claimant was not an employee. This was regarded as being a “very strong matter to be considered”. The Employment Tribunal noted that the Claimant was sent the contract to sign and did not negotiate the terms:
“[…] if the reality is that the relationship is one of employment and the contract does not reflect that reality, we are not bound by what the contract says. This is not a question of implying a term that conflicts with an express term; it is a question of asking what the parties had in fact, by their conduct, agreed. Does the written contract reflect the true intentions and expectations of the parties at the inception of the contract and as time went by? We look therefore at the reality of the relationship.”
[54]The Employment Tribunal went on to note that the Claimant was free to work for another organisation, although there were confidentiality clauses that would have made it rather difficult for her to work for a competitor. The Employment Tribunal did not consider this to be a very significant factor. The Claimant provided her own PC and internet connection, but as the Respondent paid the running costs this showed the Claimant was not in business on her own account. The appraisal, at the Respondent’s discretion, suggested employment. The Employment Tribunal considered there was “very significant evidence of real, tight control of the claimant. She could not substitute anyone else to do her work”. There were other strong indicators of control (paragraph 94):
“The claimant was being treated as if she was an employee: and without the respondent making a distinction between admitted employees and ‘contractors’.”
[55]The Employment Tribunal noted that the Claimant was turned into an employee with ease when the Respondent appreciated it might be in breach of contract with its own clients if it was outsourcing work. There was no practical difference to the amount of control exercised, and she admittedly became an employee.[56]At paragraph 97 the Employment Tribunal concluded:
“If there was no obligation to or from contractors to provide or accept work, one would expect to see a reduction in staff numbers when contractors became employees. There was none.”
[57]The Employment Tribunal concluded, having regard to the factors we have set out and the totality of the evidence, that the Claimant was an employee between May 2007 and April 2009.[58]The Employment Tribunal noted that the requirement or practice that an employee should work from the office applied to both genders. The Employment Tribunal, in our opinion correctly, had not taken this as a further allegation of direct discrimination but considered that it might be relevant to indirect sex discrimination.[59]The Employment Tribunal concluded that the Respondent as a matter of fact failed to offer the Claimant work that was available and that she could do, so although Spanish‑speaking work had gone down and the end of the Novell contract had reduced Spanish‑speaking work, at about the time of the dismissal, there was nevertheless Spanish‑speaking work available. The Employment Tribunal considered that the advertisement to which we have referred at paragraph 32 provided evidence that Spanish‑speaking work was available that the Claimant was able to do.[60]At paragraph 102 the Employment Tribunal stated, “we find that the respondent failed to offer the claimant work that she was able to do and which was available”.[61]The Employment Tribunal went on to hold that Mr van Biezen was an appropriate comparator to some but not all of the treatments. He was neither dismissed nor selected for redundancy and, unlike the Claimant, was offered work he was able to do.[62]He was not asked to accept a lay‑off, nor to work in the office, but in those respects the Employment Tribunal considered his personal circumstances were such that he was not a true comparator to the Claimant; he was physically in the Netherlands, and thus could not be asked to come into the office with little notice. At paragraph 106 the Employment Tribunal concluded:
“Where he is not a true comparator, his different treatment does however shed light on how a hypothetical comparator would have been treated. Like the claimant he had caring duties for others that made him want to remain at home. The respondent respected those duties for him, but did not for the claimant. We think a hypothetical man in the claimant’s shoes would have been treated more favourably in the respects claimed.”
[63]The Employment Tribunal then went on to ask whether there was evidence from which it could properly conclude that the treatment of the Claimant was on grounds of sex; the Employment Tribunal considered that there was:
“110. In that evidence we include the e‑mail, ‘how to speak womanese’. We understand the temptation to forward entertaining jokes within an office environment, however the fact that Mr Fijac gave in to that temptation at work told us that he was able to allow his prejudices to overcome his professionalism. That suggests that he could allow his prejudices about women with children working at home to overcome his professionalism when dealing with the practical problems that such women create.”
[64]The Employment Tribunal was also concerned at the lack of full disclosure. The Employment Tribunal seems to have found that the Respondent had deliberately failed to disclose documents that were “highly relevant” to the dispute; see paragraphs 111 and 112. From the chronology the Employment Tribunal concluded that after the Claimant made clear she could not return to the office until February 2010 the Respondent began to raise performance issues with her and then dismissed her for redundancy although there was work available that she could do. At paragraph 114 the Employment Tribunal said:
“114. All of that is evidence from which we could conclude properly that the treatment of the claimant was on grounds of her sex. We do not conclude that at this stage, but the result is that the burden of proof passes to the respondent. 115. We ask then what is the respondent’s explanation of the treatment? Has the respondent proved, on the balance of probabilities, no discrimination whatsoever? We remind ourselves that since the evidence was likely to be in the respondent’s possession, we can expect cogent evidence of that explanation.”
[65]They therefore concluded that the treatment meted out to the Claimant was on the grounds of her sex.[66]The Employment Tribunal then went on to consider the question of indirect discrimination. It determined that the Respondent did apply a provision, criterion or practice (“PCP”) in that it required the Claimant to move into the office to do her work (paragraph 118):
“The evidence points to the claimant having been dismissed as a result of her refusal, therefore as a question of fact and as a result of analysis in the indirect discrimination claim, there was a requirement that she work in the office. She was dismissed because she would not comply with it immediately. In any event the correspondence with its repeated emphasis on the respondent’s need for employees to work in the office shows that there was a provision, criterion or practice of requiring staff to work in the office.”
[67]Although the PCP applied equally to both genders, it put women at a particular disadvantage. The legitimate aims relied upon by the Respondent did not justify the request that the Claimant work entirely in the office; that requirement was not proportionate to the end.[68]The Employment Tribunal then went on to consider the issue of harassment:
“126. Although we do not think that harassment will add greatly to any remedy we do consider it because it has been raised by the claimant. We consider that she was subjected to unwanted conduct by the respondent in its repeated meetings pressing her to return to work. This was not conduct of a sexual nature. Was it on ground of her sex? There are facts (set out already in our analysis above) from which we could conclude that it was. The respondent has not (for the reasons set out above) proved that it was not on that ground. 127. Has the claimant proved facts from which we could conclude that the conduct was for the purpose of violating her dignity or of creating an intimidating, hostile, degrading or offensive environment for the claimant? We think not. Just because there is evidence from which we could conclude that treatment was on the grounds of sex does not mean there is the stronger evidence needed to prove this purpose. We see no such evidence. 128. Having regard to all the circumstances, including in particular the claimant’s perception, should the unwanted conduct be reasonably considered as having the effect of violating the claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?”
Grounds of appeal and submissions in support: ground 1[69]It is asserted that it was perverse for the Employment Tribunal to find that the Claimant was an employee at the time she was nominally a self‑employed consultant. The Employment Tribunal wrongly ignored her evidence that the Respondent was not obliged to give her work; that was consistent with the written terms of the contract.[70]The Respondent relied upon a number of emails that suggested that the Claimant felt able to say that she would not work or take work on particular days.[71]The Claimant’s submissions in relation to ground 1 were as follows. The Employment Tribunal was entitled to discount the Claimant’s answer in cross‑examination that the Respondent was not obliged to provide her with work; she was not qualified to answer that question. The Respondent’s case came nowhere the high standard of a perversity appeal as set out in Yeboah v Crofton [2002] IRLR 634 . The task for the Employment Tribunal was to discern objectively the parties’ legal obligations whatever either party may have intended; reliance in this regard was placed upon the decision of the House of Lords in Autoclenz v Belcher and Ors [2010] IRLR 70 at paragraph 91. The Respondent weighed up all relevant matters and was entitled to conclude on the evidence as it did. So far as the Claimant’s evidence as to what the parties’ obligations were, they were all consistent with her being an employee able to work flexible hours so long as she did the work assigned to her within the timescale laid down by the Respondent. Ground 2[72]It is said that the Employment Tribunal was wrong to find that there was not a redundancy situation because the Claimant was solely employed on Spanish work and there had been a significant reduction in that work. At paragraph 100 the Employment Tribunal appeared to accept there had been a reduction in work based upon worksheets at the end of the Novell contract. The Employment Tribunal, it is said, failed to attach sufficient weight to those factors.[73]The Claimant in response submitted that the issue was not solely whether there was a reduction in available work but why the Claimant was dismissed. The Employment Tribunal found she was not dismissed by reason of redundancy but because the Respondent did not want her to continue working from home. The fact that the Respondent advertised for another Spanish speaker suggested that they had Spanish work available.[74]On the findings of the Employment Tribunal the dismissal of the Claimant was not wholly or mainly attributable to a diminution in requirements for Spanish speakers. It was clear from the findings at paragraphs 41 and 118 that the clear reason for the Claimant’s dismissal was her unwillingness to work in the office. Ground 3[75]There was no evidence to justify the finding there was Team 2 work available for the Claimant. The worksheets were only a snapshot. To this the Claimant retorts that if the worksheets were only a snapshot, why did the Respondent not produce other documents to make out their case? Ground 4[76]The Respondent challenged the finding of the Employment Tribunal. The advertisement relating to the Oracle contract was for Team 1. The finding that the Claimant was suitable for the work was not justified on the evidence; had she been offered work on Oracle, this would have been a significant promotion with a salary increase of £5,000. There was no explanation for the views of the Employment Tribunal.[77]The Claimant submitted that the findings of fact by the Employment Tribunal could not properly be characterised as perverse, and that in any event she had not been dismissed by reason of redundancy on the findings of the Employment Tribunal. Ground 5[78]The Employment Tribunal, it was said, had substituted its views for those of the Claimant as to the Claimant’s suitability for the advertised post. The Claimant submitted that this was not a question of substituting its own views but that Employment Tribunal, as it was entitled to do, rejected the Respondent’s evidence that the Claimant was unsuitable for the post. Ground 6[79]The Respondent submitted that the PCP, if to be actionable, must have had effect as of the date it was applied to the Claimant. It was never applied to the Claimant, in the sense that no attempt was made to vary her contract, which required home working. The Claimant submits the Employment Tribunal was correct in its identification of the PCP, which was applied to the Claimant both before and then at the time of her dismissal. Ground 7 - direct discrimination[80]The Respondent submitted that there was no direct discrimination, because the Claimant had been dismissed by reason of redundancy and there was no alternative work for her. The Respondent relied upon such authorities as Madarassy v Nomura International [2007] ICR 867 and Igen as to the burden placed on a Claimant to adduce evidence from which discrimination could be inferred without a satisfactory explanation from the employer. Here, it was said there was none. The email relied upon proved nothing and could not support the case that the dismissal was on the grounds of the Claimant’s gender; neither could issues in relation to disclosure. There was no evidence from which an Employment Tribunal could properly have concluded that a man with childcare responsibilities would have been treated any differently. While the Employment Tribunal may have been entitled to find that the Respondent’s treatment of the Claimant was unreasonable and to reject the Respondent’s explanation that she had been dismissed by reason of redundancy, it had in fact found that the true reason for her dismissal was non‑discriminatory, so the Employment Tribunal appears to have conflated the issues of direct and indirect discrimination. The Claimant’s case was that the Employment Tribunal was entitled on the evidence before it, including the chronology, to draw the appropriate inference. Ground 8[81]The Respondent submitted that the decision of the Employment Tribunal was not compliant with Meek v City of Birmingham District Council [1987] IRLR 250 . There was no explanation why the Employment Tribunal concluded there was not a redundancy situation, nor did the Employment Tribunal adequately explain the basis upon which it concluded there was alternative Spanish‑speaking work for the Claimant at the time of the dismissal. It was not clear whether the Employment Tribunal was satisfied that the advertisement was evidence either that there was Team 2 work available or contrary to the Respondent’s opinion that the Claimant was suitable for the higher‑level Team 1 work on the Oracle project. In either case no adequate explanation has been given by the Employment Tribunal.[82]We note there is no appeal against the finding of harassment. The law[83]Section 1 of the Sex Discrimination Act 1975 provides as follows:
“ (2) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if— (a) on the ground of her sex, he treats her less favourably than he treats or would treat a man, or (b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but— (i) which puts or would put women at a particular disadvantage when compared with men, (ii) which puts her at that disadvantage, and (iii) which he cannot show to be a proportionate means of achieving a legitimate aim.”
[84]It is not necessary to set out section 4A in relation to harassment, because there is no appeal in relation to that.[85]Section 63A of the Act, which provides for a reverse burden of proof, plays a significant part in this appeal:
“(1) This section applies to any complaint presented under section 63 to an employment tribunal. (2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent— (a) has committed an act of discrimination or harassment against the complainant which is unlawful […] the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act.”
[86]It is of great importance to recognise that the Claimant must establish evidence from which an Employment Tribunal can properly conclude in the absence of an adequate explanation that the less favourable treatment complained of was discriminatory before the reverse burden applies. We have considered at length the Judgment of Elias J in Law Society v Bahl [2003] IRLR 640 . At paragraph 84 he quoted Lord Nicholls in Nagarajan v London Regional Transport [2001] AC 501 at 513 ( Nagarajan was a case that applied to discrimination on the grounds of race as opposed to gender):
“Section 2 should be read in the context of section 1. Section 1(1)(a) is concerned with direct discrimination, to use the accepted terminology. To be within section 1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in the obvious cases, answering the crucial question will call for some consideration of the mental process of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.”
[87]At paragraph 93 Elias J warns of the “ Zafar trap” (see Glasgow City Council v Zafar [1998] ICR 120 ). A Tribunal is not entitled to draw an inference of discrimination from the mere fact that the employer has treated the employee unreasonably. At paragraph 93 he quoted Lord Browne‑Wilkinson in Zafar :
“The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee ‘less favourably’ for the purposes of the Act of 1976.”
[88]He went on to say at paragraph 94:
“The reason for this principle is easy to understand. Employers often act unreasonably, as the volume of unfair dismissal cases demonstrates. Indeed, it is the human condition that we all at times act foolishly, inconsiderately, unsympathetically and selfishly and in other ways which we regret with hindsight. It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman then it is legitimate to infer that our unreasonable treatment was because the person was black or a woman. All unlawful discriminatory treatment is unreasonable, but not all unreasonable treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour. In order to establish unlawful discrimination, it is necessary to show that the particular employer's reason for acting was one of the proscribed grounds. Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way. The fact that the victim is black or a woman does no more than raise the possibility that the employer could have been influenced by unlawful discriminatory considerations. Absent some independent evidence supporting the conclusion that this was indeed the reason, no finding of discrimination can possibly be made. However, demonstrating the similar treatment of others of a different race or sex is clearly not the only way in which an employer who has acted unreasonably can rebut the finding of discrimination. Were it so, the employer could never do so where the situation he was dealing with was a novel one, as in this case. The inference may also be rebutted – and indeed this will, we suspect, be far more common – by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified, albeit genuine, reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made. Even if they are not accepted, the tribunal's own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason. […]”
[89]Elias J went on to consider the significance of the fact that treatment was unreasonable at paragraph 101:
“The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given than it would if the treatment were reasonable. In short, it goes to credibility. If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination. But it will depend upon why it has rejected the reason that he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not in fact discriminated on the proscribed grounds may nonetheless sometimes give a false reason for the behaviour. They may rightly consider, for example, that the true reason casts them in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest that there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support a finding of unlawful discrimination itself.”
[90]At paragraph 113 Elias J made clear that an Employment Tribunal is under an obligation to ensure it has taken all potentially relevant non‑discriminatory factors into account:
“[…] there is an obligation on the tribunal to ensure that it has taken into consideration all potentially relevant non-discriminatory factors which might realistically explain the conduct of the alleged discriminator. As Lord Nicholls put it, if prima facie there is a factor which distinguishes the two situations, then that may well be the non-discriminatory reason for the treatment, unless the evidence indicates otherwise. If the tribunal do not recognise the potential significance of such a factor, then their decision will be flawed because they will have failed to take into account a potentially material characteristic or characteristics which could conclusively explain, on non-discriminatory grounds, the difference in treatment between the applicant and the hypothetical comparator. A tribunal cannot properly reject such potentially relevant explanations without considering them and having a proper evidential basis for rejecting them.”
[91]Elias J also stressed the importance of an Employment Tribunal in discrimination cases where it draws inferences from primary facts to set out its principal findings of primary fact and the basis on which it is has drawn any such inference:
“However, in discrimination cases, where inferences from primary facts play such an important role, it is necessary for the tribunal to set out its principal findings of primary fact and also the basis on which it has made any inference from those facts. In addition the tribunal should consider all relevant issues which may cast light on the question of whether or not discrimination has occurred. Two Court of Appeal decisions consider the nature and extent of the reasons, which tribunals should provide in discrimination cases. In Chapman v Simon [1994] IRLR 124 Peter Gibson LJ in the course of his judgment said this: ‘More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion.’ He added later in his judgment (paragraph 47) that: ‘[…] in my judgment it is not fair to those found guilty of racial discrimination that. . .an inference should stand in the absence of primary facts that would support it.’”
[92]We draw attention to what he said at paragraphs 126 and 127 as to the crucial need for the Tribunal to consider all explanations that in the light of its findings might explain the decision of the Respondent:
“126. What is crucial is that the tribunal considers all the explanations which, in the light of its findings, may realistically explain the decision. These explanations may be the reasons for the treatment relied upon by the alleged discriminator which the tribunal accepts as genuine, or they may naturally suggest themselves in the light of the tribunal's primary findings of fact. Provided these potential explanations are considered, the tribunal will in fact have taken account of all the characteristics that could be material to the make up the hypothetical comparator, however the comparator is defined. 127. If these possible explanations are going to be rejected in favour of a discriminatory reason, or if the tribunal finds that in addition proscribed reasons have contributed to the decision, then the tribunal ought to say why, and there must be a proper evidential basis for that conclusion. It is not legitimate to infer discrimination simply on the grounds that the reasons are unjustified; that would be to fall into the Zafar trap.”
[93]Further guidance to how an Employment Tribunal should explain its conclusion where it has drawn inferences of discriminatory conduct are to be found in paragraph 166:
“Less favourable treatment may be inferred from the fact of unlawful discrimination. However, as cases such as Chapman […] and Governors of Warwick Park School v Hazlehurst [ [2001] EWCA Civ 2056 ] demonstrate, it is a matter of real importance in cases of this kind that the primary facts and inferences drawn from them should be properly identified. Where there is an obvious explanation for treatment, then the tribunal ought to indicate in its reasoning that it has recognised that fact, and it should set out those considerations which have led it to the conclusion either that other discriminatory considerations have wholly displaced the obvious explanation, or at least have justified the conclusion that the obvious explanation is not the only explanation and that race or sex considerations have also played a part in the decision.”
[94]At paragraph 220 Elias J made clear, “An inadequate or unjustified explanation does not of itself amount to a discriminatory one”.[95]Finally, we draw attention to the definition of redundancy in section 139 of the Employment Rights Act 1996 :
“ Redundancy (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.”
[96]So far as identification of a contract of employment as opposed to a contract for services is concerned, in our opinion the self‑direction of the Employment Tribunal cannot be faulted, and we need say no more about the law in that regard. Conclusions: employee status[97]The Employment Tribunal directed itself impeccably as to the law; it asked itself the correct questions and was entitled to answer them as it did on weighing up the evidence. The Employment Tribunal specifically considered the points in favour of the relationship being that of employer and employee and those going the other way, and was entitled to conclude as it did. The decision was far from perverse, and it was a matter for the Employment Tribunal whether or not it accepted the Claimant’s statement that the Respondent was not obliged to give her work. We agree that the task of the Employment Tribunal was to discern objectively the parties’ legal obligations, regardless of what either party may have subjectively intended; see Autoclenz . The existence of a redundancy situation[98]Although the Employment Tribunal did not specifically direct itself as to the definition of redundancy, it is apparent that the Employment Tribunal had the definition of redundancy, which we have set out above, well in mind. Whether or not there was a redundancy situation, the Employment Tribunal was quite clear that redundancy was not the reason for the Claimant’s dismissal. Her dismissal was not, on the findings of the Employment Tribunal, by reason of a reduction in the need for Spanish analysts but because the Claimant was unwilling to work in the office. The existence of other Spanish‑speaking work[99]The decision was a question of fact for the Employment Tribunal. It is impossible to say that the decision was perverse, and there was a clear finding that the Claimant was not dismissed by reason of any diminution in the requirement for Spanish‑speaking analysts, but because she was unable to work in the office; see paragraphs 42 and 118 of the decision of the Employment Tribunal. The Oracle advertisement and the Claimant’s suitability[100]The Employment Tribunal was entitled to make findings as to the availability of work available for the Claimant and to reject the Respondent’s evidence. Substitution of views by the Employment Tribunal for those of the Respondent as to the Claimant’s suitability for the advertised post[101]This is not a case of the Employment Tribunal substituting its views for those of the Respondent. The Employment Tribunal did not accept the Respondent’s evidence, and it was entitled to reject that evidence, that the advertisement was for a Team 1 vacancy for a Spanish caller with either fluent Italian or Portuguese. It rejected, as again it was entitled to do, the Respondent’s case that the advertisement was made as broad as possible to attract the widest range of responses, which could then be narrowed down upon a sift. Accordingly, the Employment Tribunal was entitled to conclude that it had work available that the Claimant was able to do, and that it did not offer her that work or tell her about it. Indirect sex discrimination[102]The Employment Tribunal correctly found that the PCP requiring staff to work in the office applied to both men and women, but that it put women to a particular disadvantage. The Employment Tribunal was clearly entitled to conclude that there was such a PCP, and indeed this appears from the email of 12 October 2009 from Ms McFadden to the Claimant at page 50 of our bundle. The true reason for the Claimant’s dismissal was not redundancy, as the Respondent had asserted, according to the finding of the Employment Tribunal, but because she would not or could not comply with the PCP that required her to work from the office. In effect, she was being pressured to agree to a variation of her contract, which she was unwilling to do. The PCP was thus applied to her as at the date of her dismissal, and on the evidence by reason of the application of the PCP she suffered indirect discrimination. That finding obviously supports the finding of unfair dismissal. Direct discrimination[103]The policy of requiring staff to work in the office was clearly applied to both men and women, and there is simply no evidence to suggest that a male would have been treated differently, despite the Employment Tribunal’s assertion to the contrary. The Employment Tribunal has failed to set out any facts upon which it had come to the conclusion it did. It was, having regard to the dicta of Elias J, to which we have referred, obliged to carefully set out the primary facts from which it was able to draw that inference. We are quite unable to see any evidence of Mr Fijac having prejudices about women with children working from home that affected his decision to dismiss the Claimant. His concern was the ability of the Claimant to work at home while simultaneously looking after a young child and the effect on her ability to work. His principal concern was found to be her unwillingness to work from the office. If there was some other evidence to show that the dismissal was or may have been tainted by discrimination on the grounds of gender as opposed to the application of the policy that staff should work from home, the failure to make adequate disclosure may well have supported the inference of discriminatory conduct. However in the absence of such evidence the failure to give adequate disclosure cannot provide the basis for or support an allegation of discriminatory conduct of which there is no other evidence.[104]Even though the Respondent put forward a reason for the dismissal of the Claimant (redundancy) that was rejected, the Employment Tribunal went on to find that there was a genuine, but not discriminatory, reason, which was the ground for the Respondent’s conduct. This appears to have been one of those cases where an employer had an unjustified, albeit genuine, but non-discriminatory reason for acting as it did. The Employment Tribunal’s own findings of fact at paragraphs 42 and 118 explicitly found that the true reason for the Claimant’s dismissal was because she refused to work in the office. We repeat the passage from Bahl at paragraph 101:
“If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination. But it will depend upon why it has rejected the reason that he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not in fact discriminated on the proscribed grounds may nonetheless sometimes give a false reason for the behaviour. They may rightly consider, for example, that the true reason casts them in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest that there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support a finding of unlawful discrimination itself.”
[105]The Employment Tribunal does not appear to have considered the significance of the facts that it had found at paragraphs 42 and 118.[106]We are also not satisfied that the Employment Tribunal has given adequate reasons for accepting Mr van Biezen as an appropriate comparator. It is important to bear in mind that the mere difference in treatment of persons of different gender is insufficient in itself to raise an inference of discrimination. The Employment Tribunal may have found that the Respondent’s treatment of the Claimant was unreasonable, but, in the absence of some evidence to raise an inference that that treatment had been meted out on grounds of gender, there was no justification for the finding that the dismissal was tainted by discrimination, all the more so because the Employment Tribunal accepted that the dismissal was for a non‑discriminatory reason, albeit one that might be regarded as unreasonable. The Employment Tribunal does also appear to have conflated indirect and direct discrimination. Ground 8[107]In the light of our decision, we do not consider it necessary to determine whether or not was there was a redundancy situation; as we have said, the Employment Tribunal was clearly aware of the meaning of redundancy set out in section 139 of the Employment Rights Act . Even if the Employment Tribunal did not make explicit findings as to whether the requirements of the Respondent’s business for Spanish‑speaking analysts at the Claimant’s level had ceased or diminished or were expected to cease or diminish, such findings would have been irrelevant, because the dismissal was found not to be for redundancy, and even if the decision to dismiss was by reason of redundancy, it was still unfair, because on the findings of the Employment Tribunal work suitable for the Claimant was available but was not offered to her, and although there was no express finding to this effect it is clear from the Judgment as a whole that there was a complete absence of a fair redundancy procedure in relation to consultation, selection, sufficient warning and failure to construct a pool.[108]There was sufficient evidence to justify the finding of the Employment Tribunal, as we have said more than once, that the Claimant was not dismissed by reason of redundancy. There is no question, in our opinion, of the Judgment not being Meek compliant, as, redundancy situation or not, a redundancy situation was not the reason for dismissal.[109]In the circumstances, we conclude that the appeal be allowed in so far as it concerns direct discrimination; the other grounds of appeal are dismissed.