Farrar v North Yorkshire Police (Sex Discrimination) [2012] UKEAT 0528_11_0810

EAT
Farrar v North Yorkshire Police (Sex Discrimination)
[2012] UKEAT 0528_11_0810 · 2012-10-08
[1]By their Judgment sent to the parties on 15 June 2011 the Employment Tribunal, sitting at Leeds and presided over by Employment Judge Shore, dismissed Mrs Louise Farrar’s claim against her employer, the Chief Constable of North Yorkshire Police, that she had been the victim of direct sex discrimination, indirect sex discrimination and had suffered detriment for making protected disclosures. We will refer, as did the Employment Tribunal, to Mrs Farrar as the Claimant and to the Chief Constable as the Respondent.[2]The Claimant’s appeal is put in the Notice of Appeal under a number of grounds; but for present purposes we can divide those grounds into two distinct thrusts of attack upon the Employment Tribunal’s Judgment. By the first thrust the Claimant submits that, in relation to each of rejected heads of her claim, the Employment Tribunal made substantive errors of law; by the second thrust she submits that, in relation to each of those rejected heads of claim, the Employment Tribunal failed to provide reasons which satisfy the requirements in respect of reasons provided by the relevant Employment Tribunal Rules and by authority; and on that basis on its own the Claimant submits that her claims should be remitted to a fresh Tribunal for reconsideration.[3]At the outset of the hearing of the appeal we invited Mr Skelt, on behalf of the Claimant, and Mr Thomas, on behalf of the Respondent, to consider whether it would be wise for us to hear and make a decision first on the reasons arguments; for, if we were to conclude the Claimant’s argument succeeded and to decide that there should be a remission to a differently constituted Tribunal, it would be better and wiser for us to say nothing about any substantive issues; anything we did say would be unnecessary and might be unhelpful if the hearing of the Claimant’s claims had to start again. Mr Skelt was in favour of our proposal; Mr Thomas, while accepting that, in the case of the Tribunal’s decision as to indirect discrimination, the Employment Tribunal’s reasons were “leaner” than might be expected, submitted that, in relation to the other two claims, there were clear findings of fact which supported and explained the Tribunal’s decision, which findings were also relevant to the Claimant’s substantive grounds of appeal.[4]Having considered the parties’ submissions, we decided that we should hear the reasons arguments first. In our judgment, it could not be said – and Mr Thomas did not say – that on the face of the Employment Tribunal’s Judgment there was nothing in the Claimant’s case that the Tribunal’s reasons were defective. If we heard both sides on all aspects of the appeal, the arguments, which were clearly going to be extensive, might well not finish in the time allotted; and it would not be a sensible use of the parties’ time or of our time to hear the arguments on the substantive grounds of appeal, potentially unnecessarily. We therefore heard the parties’ submissions on the reasons ground of appeal; and, having done so, we informed the parties, who agreed with our proposal, that although we did not intend, when our deliberations were concluded, to give a reasoned Judgment there and then, we would, if possible, inform them of our conclusions. After deliberation, we informed the parties of our decision that the Employment Tribunal’s Judgment was, in terms of the reasons given for their decision on all three heads of claim, defective and in error of law, and that the claim would be remitted to a differently constituted Tribunal. We reserved our reasons, which we now give. The history[5]The Claimant became a police officer in 1991; she transferred from the Metropolitan Police force to the Respondent’s force in 1997 and was promoted to the rank of sergeant in 2001. From 2006, in the rank of detective sergeant, she worked in the Respondent’s central area child abuse investigation team (“CAIT”) in York. That unit was intended to consist of four detective constables in addition to the Claimant. The Claimant was regarded as a diligent, effective and popular officer. She is married to a police sergeant in the same force; they have three young children; she, the Tribunal found, was the primary carer of the children.[6]In early 2009, when the Claimant returned to work after maternity leave following the birth of her third child, she found that only one of the four detective constables in her team was working full‑time. One was working 80 per cent; the third was pregnant and on restricted duties; the fourth was on long‑term sickness absence. She reported this problem to her inspector, who was not based at the same location. The Tribunal found that this was a protected disclosure regarding the Respondent’s potential breach of a legal obligation and the endangerment of the health and safety of the public and officers (paragraph 74).[7]The Claimant’s team’s weekend work was generally covered by officers with no childcare responsibilities; in any event, it was rare for members of the team to be called upon over the weekend, because other agencies with whom they worked in partnership had few or no staff who worked at weekends.[8]While the Claimant had been away from work on maternity leave, plans were made to merge CAIT into one unit together with three other specialist teams: the community protection unit, the vulnerable persons unit and the public protection unit. The Claimant learnt of this proposal soon after her return to work; she and the other members of her team were very much against this proposal; but it went ahead with effect from 1 April 2009.[9]Thereafter the Respondent decided to reassess the flexible working arrangements which applied to the officers in the new combined unit, the “PVPU”. During the summer everyone on flexible arrangements was required to fill in an application form for flexible working, and did so. Early in September one of the Claimant’s team was informed that a new shift pattern was to be implemented across the PVPU; in fact, the new pattern was, at that time, only a proposal; but in October relevant officers were invited to choose by ballot between two rotas; and what emerged was a new flexible working system which would require the Claimant, although she was the primary carer of three young children, to work three weekends out of every five. Whether her hours of working as opposed to her days of working would also have changed is not clear from the Tribunal’s findings and does not matter for present purposes; the new system, manifestly, constituted a significant change for the Claimant. She had the right to reapply for flexible working; but how that would or might have assisted her is also not clear.[10]In November 2009 the Claimant became ill with anxiety and depression and had not returned to work by the time of the Tribunal’s hearing in May 2011. Despite that, on 4 January 2010, accompanied by a Police Federation representative, she met Detective Chief Inspector Smith to discuss the problem. The Tribunal found that, at this meeting, the Claimant raised issues about staff levels and stress among her staff and that she thus made a second protected disclosure. Thereafter she heard no more until, on 12 March 2010, she was told that she was being removed from the PVPU. There had been a review of all sergeant roles in the force, which started on 15 January and was completed on 2 March. It was believed by Chief Inspector Mann, who was in charge of the review, that, because the Claimant attributed her illness to the stress of her working environment and because of something she had said at the January meeting, she did not want to return to the PVPU; but no one consulted her about this, sought any medical evidence about her or sought to see whether the difficulties that she had faced in PVPU could be removed or alleviated. She was simply contacted at home and told that she was being removed from the PVPU and allocated to a uniform sergeant’s role in the response unit. The claims[11]On the basis of these facts, which we have for present purposes needed to set out in outline only, the Claimant put forward the following claims:(1) Direct discrimination: the Respondent, it was claimed, had treated the Claimant less favourably on the grounds of her sex than an individual male detective sergeant (DS Peat) or a hypothetical male comparator by offering to him but not to her a 9.00am to 5.00pm shift, by removing her from the PVPU and by transferring her as we have described.(2) Indirect discrimination: the Claimant’s case was that the Respondent, by imposing a new shift pattern upon her that included weekend working, had imposed on her a provision, criterion or practice (“PCP”) which was to her detriment and fell within section 1(1)(b) of the Sex Discrimination Act 1975 (SDA) (which then applied).(3) Protected disclosure: we have identified the two protected disclosures on which the Claimant relied; she claimed that her removal from the PVPU and her transfer to the response unit constituted a detriment on the grounds of those disclosures. Reasons – the law[12]There is no dispute, so far as we could discern, about the nature of the requirements and of the law for reasons provided by an Employment Tribunal for their Judgments.[13]Rule 30(6) of the first Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 provides as follows:
“(6) Written reasons for a judgment shall include the following information— (a) the issues which the tribunal or chairman has identified as being relevant to the claim; (b) if some identified issues were not determined, what those issues were and why they were not determined; (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) where the judgment includes an award of compensation or a determination that one party make a payment to the other, a table showing how the amount or sum has been calculated or a description of the manner in which it has been calculated. ”
[14]In the well‑known and oft‑cited decision of the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250 , Bingham LJ, with whom Sir John Donaldson MR and Ralph Gibson LJ agreed, said this at paragraphs 8 and 9:
“8. It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted. 9. Nothing that I have said is, as I believe, in any way inconsistent with previous authority of this subject. In UCATT v Brain [1981] IRLR 225, Lord Justice Donaldson (as he then was) said at p.227: ‘Industrial Tribunals reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law… The reasons are then recorded and no doubt tidied up for differences between spoken English and written English. But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.’”
[15]Although it was not cited to us – for there was no argument of substance about the requirements as to reasons as opposed to whether the Tribunal’s Judgment in this case meets those requirements – it is right to refer (although we accept that it was not cited to us; it is too well known and established to need citation) to the principle stated by Sedley LJ in Tran v Greenwich Vietnam Community Project [2002] ICR 1101 that a Judgment must comply with the legal obligation to explain how the Tribunal has got from its findings of fact to its conclusions.[16]In cases of indirect discrimination, where it is established that a condition or, in more modern terminology, a PCP, has a discriminatory effect but the Respondent contends that the condition is justifiable, there are further obligations upon an Employment Tribunal in respect of their reasons, which have been set out in a number of decisions of the Court of Appeal. In Allonby v Accrington and Rossendale College and Ors [2001] ICR 1189 Sedley LJ, referring to the Employment Tribunal’s examination of the employer’s case as to justification, said this at paragraph 29:[29]“ In this situation it is not enough that the Tribunal should have posed, as they did, the statutory question ‘whether the decision taken by the College was justifiable irrespective of the sex of the person or persons to whom it applied’. In what are extended reasons running to 15 closely typed pages, there has to be some evidence that the Tribunal understood the process by which a now formidable body of authority requires the task of answering the question to be carried out, and some evidence that it has in fact carried it out. Once a finding of a condition having a disparate and adverse impact on women had been made, what was required was at the minimum a critical evaluation of whether the College's reasons demonstrated a real need to dismiss the applicant; if there was such a need, consideration of the seriousness of the disparate impact of the dismissal on women including the applicant; and an evaluation of whether the former were sufficient to outweigh the latter. There is no sign of this process in the Tribunal's extended reasons. In particular there is no recognition that if the aim of dismissal was itself discriminatory (as the applicant contended it was, since it was to deny part-time workers, a predominantly female group, benefits which Parliament had legislated to give them) it could never afford justification. ” And Ward LJ, at paragraphs 84 and 85, said:[84]“ 84. Secondly, was the application of that requirement or condition justifiable? I confess that I have wavered considerably over deciding whether this court could interfere with the Tribunal's decision that the steps taken by the College were objectively justifiable. My hesitation sprang from my chastened reticence to assume that a specialist Tribunal like this, having been referred to the relevant authorities, did not know how to perform its function and which matters it should and should not take into account in reaching its conclusion. To subject a decision of the court or Tribunal below to too narrow a textual analysis is a besetting sin for the appellate court. Sedley LJ has, however, subjected it to more penetrating analysis than that. He has raised a number of very pertinent questions which the Industrial Tribunal properly addressing the problem ought to have posed and ought to have answered in the extended reasons which it is their duty to give. That is an important duty as is explained by Henry LJ in Flannery v Halifax Estate Agencies Ltd (t/a Colleys Professional Services) [2000] 1 WLR 377 . He made these general comments, as apposite to Tribunals as to the judges to whom they were there addressed:- ‘We make the following general comments on the duty to give reasons. (1) The duty is a function of due process, and therefore of justice. Its rationale has principally two aspects. The first is that fairness surely requires that the parties - especially the losing party - should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know ... whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not. (2) The first of these aspects implies that want of reasons may be good self-standing ground of appeal. […] (3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. […] (4) […] the judge must explain why he has reached his decision. […]. Transparency should be the watchword.’[85]When the disparate impact on men and women of the College's action is as serious as it is for Mrs Allonby, there must, in my judgment, be a cogent explanation of what the objective justification is for implementing that action. No sufficiently cogent explanation appears in the decision as enables me now to be sure that the Tribunal can be assumed to have directed themselves properly along the lines Sedley LJ has set out and properly taken the appropriate factors into account in striking their balance. I am now left in doubt why Mrs Allonby lost and, for that reason alone, I would allow her appeal. Mrs Allonby and the many other women in her position are entitled to know exactly why the business reasons were so appropriate and so necessary as to amount to a proportionate justification for subjecting them to detriment. So I agree with my Lords that the matter must be remitted to the Tribunal for their more explicit reconsideration.”[17]These passages have been followed in subsequent cases, such as Hardys and Hansons PLC v Lax [2005] ICR 1565 (see per Pill LJ) and Health and Safety Executive v Cadman [2005] ICR 1546 . In Lax at paragraphs 33 and 34 Pill LJ said:[33]“ 33. The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from job sharing in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer's freedom of action. The effect of the judgment of the employment tribunal may be profound both for the business and for the employees involved. This is an appraisal requiring considerable skill and insight. As this court has recognised in Allonby and in Cadman, a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind, as did this court in Allonby and in Cadman , the respect due to the conclusions of the fact finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation. Equally, the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer's attempts at justification.[34]The power and duty of the employment tribunal to pass judgment on the employer's attempt at justification must be accompanied by a power and duty in the appellate courts to scrutinise carefully the manner in which its decision has been reached. The risk of superficiality is revealed in the cases cited and, in this field, a broader understanding of the needs of business will be required than in most other situations in which tribunals are called upon to make decisions. ” Indirect discrimination[18]Mr Skelt, on behalf of the Claimant, put his submissions as to reasons forward, first in relation to indirect discrimination, then direct discrimination, and finally protected disclosures. Mr Thomas responded in the same order; we adopt that order.[19]It was admitted that, by imposing on the Claimant the new shift pattern in the PVPU, the Respondent was applying to her a PCP that was to her detriment because she could not comply with it and which was such that the proportion of women who could comply with it was considerably smaller than the proportion of men who could comply with it; in other words, section 1(1)(b)(i) and (iii) of the 1975 SDA were fulfilled. The issue between the parties on this part of the claim was whether, pursuant to section 1(1)(b)(ii), the Respondent could show that the application to the Claimant of the PCP was justifiable irrespective of the sex of the person to whom it was applied, i.e. the Claimant.[20]There was disagreement about the precise nature of the PCP; it is not necessary to go into the details for present purposes. The Tribunal resolved that difficulty by describing the PCP in these terms at paragraph 166:
“166. The Respondent operated a PCP which we find to be a hybrid of those proposed by the parties:– 166.1 Working three weekends in five. 166.2 Shifts starting at 8am or 10am. 166.3 Shifts finishing at either 4pm, 5pm or 6pm. 166.4 Workers had the provision to apply for flexible working.”
[21]Nothing turns on the details of that finding for present purposes.[22]There was also disagreement as to the correct test which the Tribunal should apply in deciding whether justification had been proved. Mr Thomas, in reliance on the decision of the Court of Appeal in Lax , submitted that the test was whether the PCP was proportional, i.e. was reasonably necessary, taking into account the reasonable needs of the Respondent’s operation. Counsel for the Claimant, basing himself on the decision of the Court of Appeal in R (Elias) v Secretary of State for Defence [2006] IRLR 934 , put forward a three‑stage test, namely(1) is the objective sufficiently important to justify limiting a fundamental right,(2) is the measure rationally connected to the objective, and(3) are the means chosen no more than is necessary to accomplish this objective?[23]Whichever of these two approaches is preferable, there can be no doubt that, in considering justification as an answer to what otherwise would constitute discrimination, the Tribunal must scrutinise the relevant facts with care. As Pill LJ said in Lax at paragraph 32:
“[The Tribunal] has to make its own judgement, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary.”
[24]The Tribunal’s decision as to indirect discrimination is set out at paragraphs 166‑172 of their Judgment. As has already been seen, paragraph 166 sets out the relevant PCP. Paragraphs 167 and 168 refer to the effect of the PCP. At paragraphs 169‑172 the Tribunal said:
“169. The PCP was a proportionate means of achieving a legitimate aim. The legitimate aim was the provision of a seven days a week PVPU service. 170. The Respondent showed that it had considered the problem of staff wellbeing in 2008 and that this was a catalyst for the formation of the PVPU. 171. DCI Smith’s Impact Assessment was a genuine document that showed that the Respondent wished to keep its flexible working staff. 172. The Respondent recruited other female staff with childcare responsibilities to the PVPU.”
[25]At paragraph 115 the Tribunal described the nature of the justification put forward by the Respondent in these terms:
“The purpose of the change of shift pattern was to ensure staffing matched the demands upon the PVPU and to maximise the amount of staff on duty to provide the cover required by the Force and to its partners. The requirement to provide seven‑day a week cover is the legitimate aim put forward by the Respondent as the reason behind the change in policy.”
[26]It is, however, clear that there was substantial dispute as to whether the Respondent had changed the shift pattern for that reason, whether there was a need for seven‑day cover and whether it was necessary to change the shift pattern as proposed to provide such seven‑day cover if any as was needed. It was the Claimant’s case that there was little call for weekend working (a case supported by the finding at paragraph 83, to which we have referred earlier) and that such requirement for weekend working as there was did not need or reasonably need to be met by the changes which the Respondent made that had a detrimental effect on her. There was a substantial body of evidence from other witnesses which supported the Claimant’s case.[27]Mr Skelt submitted that, in these circumstances, the Tribunal’s reasons were insufficient in law because (in summary):(1) they do not reveal which test the Tribunal applied to the issue of justification, in a situation in which the parties proposed different tests;(2) they contain nothing that explains how or by what reasoning the Tribunal reached the conclusion set out at paragraph 169;(3) they do not disclose any scrutiny of the contentious proposition set out in paragraph 115; and(4) paragraphs 170‑172 contain nothing that explains the bald statement at paragraph 169.[28]Mr Thomas submitted (again, in summary):(1) There was no conflict or inconsistency between the two authorities to which the Tribunal had been referred; counsel for the Claimant had also relied on Lax ; and the Tribunal should be taken to have regarded both as establishing one test, of reasonable necessity;(2) The Tribunal found as fact that Detective Inspector Brooksbank did not have a negative attitude to flexible working but was supportive of it and the Claimant (paragraphs 93‑99) and that the Respondent had understood and embraced the principle of flexible working (paragraph 100). These findings of fact should be read as explaining how the Tribunal came to the conclusion set out in paragraph 169.(3) Paragraph 170 supported paragraph 169. It incorporated the Tribunal’s findings of fact as to the need to create the PVPU and to arrange for appropriate staffing.(4) Paragraph 172 went to the issue of proportionality.[29]We accept the importance of reading a Tribunal’s Judgment as a whole and of avoiding an over‑textual approach to a Tribunal’s Judgment; and we acknowledge Mr Thomas’ valiant attempts to derive from the Tribunal’s findings of fact at least a plausible basis for the conclusion at paragraph 169; however, in our judgment the Tribunal’s reasons for their conclusion as to justification in that paragraph do not meet the basic requirements for reasons which we have earlier set out. It is not possible, as we see it, to draw from the fact that, in part, counsel for the Claimant relied on Lax (for a slightly different purpose – see paragraph 40) to conclude that there was no difference between the test for justification that he put forward and that put forward by Mr Thomas. The Tribunal, at paragraphs 37 and 38, plainly recorded that each side relied on a different test; but their conclusions do not tell the reader what test they adopted or whether, as is possible and perhaps correct (we do not have to decide), they concluded that the two authorities were reconcilable. Accordingly, an important and potentially crucial issue between the parties, which was capable of directly affecting the outcome, was not resolved, if at all, in a manner which was imparted to the parties.[30]We agree with Mr Skelt that the Tribunal’s reasons do not disclose how they proceeded from the statement of the Respondent’s case at paragraph 115 to the conclusion at paragraph 169. There were very real factual issues as to necessity, reasonableness and proportionality. The Tribunal were required, in our judgment, to set out how they resolved those issues and how they reasoned to the conclusion at paragraph 169, but did not do so. The need to establish the PVPU and to provide some seven‑day cover, if it existed, did not of itself necessarily justify the change in shift patterns of which the Claimant complained. Paragraphs 170‑172, we accept, do not provide the reasoning which supports the case that the steps that the Respondent took and of which the Claimant complained were justified.[31]For these reasons, we have concluded that the reasons given by the Tribunal on this part of the Claimant’s claim were not only, to use Mr Thomas’ words, “leaner than might be expected” but were seriously deficient in law. They were insufficient to inform the parties why they had respectively won or lost and to explain to the parties how the Tribunal had reasoned from their findings of fact to their conclusions. An analysis of the nature required in cases of discrimination by the authorities, to which we have referred, is wholly lacking. Direct discrimination[32]Mr Skelt did not criticise that part of the Tribunal’s conclusion on this issue, at paragraphs 152/153, in which they accept the Respondent’s explanation as to the difference in treatment between the Claimant and DS Peat. However, the Claimant did not rely wholly on a comparison with DS Peat but also upon a hypothetical male comparator. As to that comparison, the Tribunal said, at paragraph 155:
“The Tribunal accepts and agrees that the Claimant was an experienced officer in a specialist field and that it was in the best operational interests of the Respondent to retain her skills. This much is acknowledged in the Impact Assessment undertaken by DCI Smith and the e‑mail circulated by Nigel Day containing a message from DCI Smith to members of the PVPU.”
[33]At paragraphs 156‑159 they were critical of the Respondent for failing to undertake a formal assessment of the Claimant’s health before removing her from the PVPU, for moving her without consultation, for failing to address the concerns that she had expressed at the meeting of 4 January 2010, and for taking no steps to see whether barriers to the Claimant’s return to that unit after that meeting could be removed. As can be seen from paragraph 154, these were points made by counsel on behalf of the Claimant in support of her case that an inference of discrimination, in the absence of adequate explanation, could be drawn. In paragraphs 160‑163 the Tribunal rejected other criticisms made on behalf of the Claimant. At paragraph 164 the Tribunal identified the nature of the hypothetical comparator. Then, at paragraph 165, the Tribunal said:
“So, although the Claimant has shown facts from which we could draw an inference of less favourable treatment, we find that the Respondent has shown that the potentially less favourable treatment was not on the grounds of the Claimant’s sex.”
[34]There is no further explanation for the Tribunal’s conclusion that the Respondent had so shown.[35]In this case too we have reached the conclusion that the Tribunal’s reasons fall short of what is required by law. There is no indication in paragraph 165 of the reasons for the Tribunal’s conclusions, beyond the use of the word “So”. That word would seek to refer back to and to incorporate the earlier paragraphs, paragraphs 154‑164, to which we have referred. But although paragraphs 155‑163 go through the primary facts from which counsel for the Claimant invited the Tribunal to draw an inference of unfavourable treatment and accepts some of the points but rejects others, these paragraphs do not, as it appears to us, explain why, having concluded in the Claimant’s favour that there either had been or could have been less favourable treatment, the Tribunal then found that that treatment was not on the grounds of sex.[36]Mr Thomas submitted that paragraph 165 must be taken to have incorporated the Tribunal’s earlier findings of fact, in particular that the Claimant had said at the meeting on 4 January 2010 that she did not think that she could stay in the PVPU (see paragraph 136); but(1) the use of the word “So” points away from any such interpretation, and(2) the Tribunal’s findings at paragraphs 156‑159 could not necessarily be regarded as unspoken support for the Tribunal’s conclusion and indeed could be said to point clearly in the opposite direction. In our judgment, the conclusion in paragraph 165 is, unfortunately, not explained so as to inform the parties on this issue why they had respectively lost or won and how the Tribunal had reasoned its findings of fact to that conclusion. Public interest disclosure detriment[37]At paragraphs 173 and 175 the Tribunal found that the Claimant had made the two disclosures to which we have earlier referred, had made them reasonably believing them to be true and had made them in good faith. These disclosures were, therefore, found to be protected disclosures; and the issue for the Tribunal was whether the Claimant had been subjected to detriment on the ground that she had made those disclosures or either of them; see section 47(b) of the 1996 Act.[38]The Tribunal said at paragraph 174 that there was no evidence connecting the protected disclosures to the decision to remove the Claimant from the PVPU and allocate her to the response unit; it is fair to treat the Tribunal as meaning thereby that there was no direct evidence to that effect. The Tribunal had therefore to decide whether an inference establishing such a link should be drawn.[39]At paragraph 176 the Tribunal said that their findings on the points made by counsel on behalf of the Claimant “are the same as the facts alleged in the sex discrimination claim”; the Tribunal were, thereby, incorporating into the section of their Judgment on protected disclosures what they had said in their Judgment on direct sex discrimination at paragraphs 154‑163, no doubt because the same points had been made on the Claimant’s behalf on the issue of a causal link between the protected disclosures and the detriment to which the Claimant had been exposed. The Tribunal then said at paragraph 177:
“The Respondent showed that the alleged detriment was solely as a result of the Sergeant’s review, which was an exercise carried out in good faith and, so far as the Claimant was concerned, undertaken with her best interests at heart.”
[40]We have earlier referred to the fact that, at paragraphs 156‑159, the Tribunal were critical of the way in which the Respondent conducted itself in reaching the decision to transfer the Claimant away from the PVPU as they did. It was open to the Tribunal to conclude – or not to conclude – from those matters that there was a sufficient causal link between the disclosures and the decision to transfer the Claimant. Equally, where in paragraphs 160‑163 they rejected points made by counsel for the Claimant that went to such an inference, those points could not support the inference that was sought to be drawn for the purpose of this head of claim. However, in paragraph 177 the Tribunal have not explained why they did not draw that inference or in what way the sergeant’s review was said to have been shown to have been the sole cause of the Claimant’s transfer or the only principal such cause why the sergeant’s review was not adversely affected by the conduct of the Respondent, of which the Tribunal were critical, which conduct was alleged by the Claimant to have been caused by her disclosures. Paragraph 177 is, we regret to say, in our judgment a further example of the Tribunal stating a conclusion on a central issue without explaining how that conclusion was reached or informing the parties why, on that issue, they have respectively won or lost. Conclusion[41]We are concerned to have had to come to the conclusions we have set out in this Judgment. The Tribunal have taken trouble to identify the issues and to set out the facts in some detail. We are conscious that any form of remission will involve time, expense and inconvenience and that a full remission will do so to a very substantial extent, unless the disputes between the parties can be successfully compromised either directly or through some form of alternative dispute resolution, which we unhesitatingly recommend. Nevertheless, we have felt bound to conclude that the Tribunal expressed their decision on all three heads of claim in a manner that was, regrettably, inadequate in law to a major degree. The appeal must, therefore, be allowed.[42]There was, naturally, argument as to the consequences of that decision. We have considered, of course, the principles set out in the Employment Appeal Tribunal’s decision in Sinclair Roche & Temperley v Heard [2004] IRLR 763 . Arguing from those principles, Mr Thomas submitted that we should remit the case to the same Tribunal to reconsider their decision without any new evidence; Mr Skelt argued that this had not been a very lengthy case before the Tribunal, that the decision was, in terms of reasons, totally flawed, and that there would be a very real danger if the remission was to the same Tribunal that the Tribunal would, even unconsciously, be unable to resist “a second bite at the cherry”. It is perhaps clear from what we have said what our view on this is; it is that this is one of those cases in which(1) the decision should properly be described as totally flawed, the Tribunal in the case of each of the three heads of claim having failed in important respects to provide proper reasons for their conclusions and(2) the risk that the Tribunal would be tempted to reach the same result is real and that, if they did so, there would be a real appearance of injustice. This is a case, despite the other considerations set out in the guidance, all of which we have considered, in which paragraph 46.4 and 46.5 of that guidance applies. The remission must be to a differently constituted Tribunal before which the claim should be reheard.