Bethnal Green and Shoreditch Education Trust v Dippenaar (Unfair Dismissal) [2015] UKEAT 0064_15_2110

EAT
Bethnal Green and Shoreditch Education Trust v Dippenaar (Unfair Dismissal)
[2015] UKEAT 0064_15_2110 · 2015-10-21
[1]In a reserved judgment of 4 th November 2014, an Employment Tribunal at East London (Employment Judge Tobin, Mrs Owen and Mr Kendall) upheld complaints by the Claimant that she had been dismissed unfairly, and in breach of contract, and indirectly discriminated against in respect of her age. The employer – known at the time as the Bethnal Green Academy - appeals. In a subsequent decision, the Tribunal awarded the Claimant £108,107.83, which included an uplift of 25% on the compensatory awards for monetary loss and injury to feelings, but which took no account under the “grossing-up” principles of the impact of taxation upon the awards when paid into the hands of the Claimant. The Facts[2]The essential case for the Claimant was that she was managed out of her post because she had reached the top of her salary range, through age progression, and was too expensive. Reliance for this was placed on the otherwise inexplicable behaviour of the Respondent in what it said of its observations of the Claimant’s teaching, of its conclusions, and its behaviour once the Claimant offered to leave.[3]The Claimant, who had 13 years’ experience as a teacher and was aged 39 at the time, resigned her post as a teacher of P.E. at the Academy on 13 th May 2013. She had been employed there since 1 st September 2006, had acted up as head of the P.E. Department in 2006, and had been Assistant Head of Year 9 in 2008 and the Head of Year 9 for two years beginning 2009. The Tribunal found that until 2012 her teaching had consistently been highly rated. Then, immediately following the appointment of a Miss Constable as Head of Faculty/Director of Learning, her teaching observations drew negative assessments. Miss Constable could not explain why this was and was vague when attempting to do so before the Tribunal. Her assessments stood in stark contrast to the assessments which the Claimant had previously consistently had, which had been reflected in an Ofsted inspection of the school, and were supported objectively by the fact that students were assessed every six weeks, and throughout the academic year 2012/13 there was nothing adverse in the performance of her students. When the Claimant offered to leave, feeling pushed out, this was agreed upon terms which included a fair reference. The Tribunal concluded that the Head Teacher reneged on the agreement. She was offered only a sub-standard one.[4]The Tribunal was not complimentary about the evidence given to it by Miss Constable (see paragraph 30) and the Head Teacher Mr Keary, which it thought hostile, dismissive, verging on the vindictive, and (at paragraph 77) in part “dishonest”. This last description arose because on the one hand he had refused to agree to provide the Claimant with a reference of the type she had proposed, on the basis that he would not sign up to anything he did not believe, but on the other hand sought to persuade the Tribunal that he had not made up his mind about the quality of the Claimant’s performance. As to the latter, the Tribunal thought that he plainly had.[5]The Claimant had 12 years’ service and was on the highest grade for a teacher of her status. A newly qualified teacher in P.E. would earn around half the Claimant’s salary, and a Teach First trainee even less. The Claimant said that she could think of no other reason for the way she was treated than the expense of her salary as a long service teacher (paragraph 55). This finding of fact was reflected in the Tribunal’s conclusions. At paragraph 79 it rejected any contention that she would have been fairly dismissed because of inadequate teaching skills. She had not contributed to her dismissal. She had been subjected to an unjustified capability process with a view to securing her resignation or dismissal. At paragraph 82 the Tribunal said:
“We sought to ascertain if there would be any other credible explanation as to why the Claimant had been treated in this manner. According to her colleagues she appeared to be hardworking and well liked by students and staff. There is no evidence of previous difficulties with Mr Keary or suggestion that she slighted Miss Constable when she took up her appointment. Yet Miss Constable very quickly assessed the Claimant very negatively and embarked upon a process outside the designated procedure to categorise the Claimant as a poor performer.”
The Tribunal concluded she had therefore been entitled to resign, and had been unfairly constructively dismissed.[6]As to her claim that she had been discriminated against, the Tribunal’s analysis was that the discrimination which the Claimant alleged was indirect, arising under section 19 of the Equality Act 2010 which provides, so far as relevant:
“(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a protected characteristic of B’s (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic if – (a) A applies, or would apply it to persons with whom B does not share the characteristic (b) it puts or would put persons with whom B shares the characteristic of at a particular disadvantage when compared with persons with whom B does not share it (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”
[7]At paragraph 18 the Tribunal identified the PCP: the “practice… of replacing more experienced teachers with less experienced teachers.” What it then had to do was to find that the Academy applied the PCP to persons with whom the Claimant did not share the characteristic (here, her age being over 36), to show that the PCP put persons with whom she shared that characteristic (i.e. other teachers at the school over 36) at a disadvantage compared to those with whom she did not share it, and that it put her at that disadvantage. The Tribunal in addition needed to be satisfied that the Claimant had shown why she suffered the disadvantage ( Home Office (UK Border Agency) v Essop [2015] EWCA Civ 609 , CA). The answers it gave to those questions, if it answered them at all, were set out from paragraphs 80-91 of its judgment, the relevant parts of which are as follows: “The Claimant was confused with her claims of “direct” and “indirect” discrimination. The Employment Judge attempted to clarify these claims at the outset of the hearing and during the course of the hearing. The Tribunal took the view that a direct discrimination claim could not be made out because, on the Claimant’s case, Miss Dippenaar was not dismissed because of her age but as a consequence to working her way to the top of the teachers’ scale which meant that she was an expensive staff cost to the Respondent such that she could be readily replaced with a cheaper teacher. Consequently the Claimant’s case on alleged age discriminatory dismissal was more appropriately assessed in her alternative claim of indirect discrimination, as one resting on the consequence of the Claimant’s age, rather than directly because of the Claimant’s age. 81. We are satisfied that the Claimant has established the detrimental action relied upon… (managing her out of the organisation). 82. (Quoted above) 83. We applied the Barton and Igen guidance. We have made our primary findings of facts above and we have drawn conclusions. The burden of proving that unlawful discrimination was not committed or was not to be treated as committed has transferred to the Respondent. The Respondent has not discharged this burden… ……85. Prior to the EqA the usual approach for determining indirect discrimination was to construct a pool for comparison comprising all those potentially affected by the requirement or condition (now widened to be the PCP) at issue. The Tribunal would then compare how the requirement or condition affected two discrete groups within that pool – one group of persons who shared the relative characteristic with the Claimant and another group of persons who did not share that protected characteristic. Looking at the proportion of each group that could and could not comply with the requirement or condition, the Tribunal could then come to a decision as to whether a considerably larger proportion of X was disadvantaged more than Y. The European Union Equal Treatment Framework Directive (Number 2000/78) and the EHRC Employment Code signalled a movement away from the statistically driven comparative exercise which had generated considerable case law addressing the tricky issue of how to establish disproportionate impact – i.e. what amounts to a considerably larger or a considerably smaller proportion. However, the EHRC Employment Code makes it clear that statistical analysis is not the only method of establishing disparate impact.86. Statistics are a useful tool in establishing whether there is indirect discrimination under the EqA…87. …Excluding temporary teachers which we are satisfied would distort the analyses, from 31 August 2011 to 31 December 2012 there were in 14 leavers (sic) over the age of 36 years replaced by 4 starters aged 37 or over. For a period from 1 September 2010 to 1 November 2012 there were 23 starters under 37 years of age and 4 starters over 36 years of age. On the face of it these statistics look persuasive. However, we have not been given an explanation by either party as to the reasons being such departures (sic). This limits the persuasiveness of the figures but we have reminded ourselves that the figures were initially provided by the respondent and if further explanations or qualifications were required then they should have been raised.88. Although statistics can provide an insight into the link between the PCP and the disadvantage that it causes, it is not the only method. Particularly, in a small pool the percentage differences could be open to fluctuation for a variety of reasons. This demonstrates the importance for the Tribunal to look behind the statistical analysis to determine the true story. In doing so, it is permissible for Tribunal’s (sic) to use its experience and common sense in assessing the credibility of the arguments raised. The Claimant’s (sic) struggled to understand why she had been singled out as a poor performing teacher. All the objective information lead (sic) to the conclusion that the Claimant’s performance was satisfactory to good and excellence (sic) on occasions. This did not accord with Miss Constable’s appraisals and Mr Keary’s pre-ordained conclusion… 90. It follows from the above that we assess the PCP put the Claimant at a disadvantage… 91. Notwithstanding that the claimant has established facts, that in the absence of an adequate explanation, could lead us to the conclusion that the respondent has committed unlawful discrimination; the respondent has not at all proved that unlawful discrimination was not committed or should not be treated as committed. Indeed, we would say the claimant’s age and experience and thereby her expense seem to us the only credible explanation as to why she was subject to less favourable treatment throughout the sequence of events” ( punctuation as it was ).[8]These paragraphs show that the Tribunal purported to apply guidance derived from Igen v Wong [2005] ICR 931 . Even though it did not clearly identify the facts it had in mind, it must therefore have thought that the Claimant had proved facts from which, in the absence of an adequate explanation, it could conclude that the Respondent had committed unlawful discrimination. The burden therefore shifted to the Respondent under Section 136 of the Equality Act 2010 to satisfy the Tribunal that it had not behaved in a discriminatory manner toward the Claimant. It did not discharge the burden. Indeed, the Tribunal went further: although it had expressly discounted a finding of direct discrimination, it expressed itself as satisfied that the Claimant had suffered disadvantage on account of the age group to which she belonged. Grounds of Appeal[9]The first ground is that in determining the discrimination claim the Tribunal should have applied the approach identified in Project Management Institute v Latif [2007] IRLR 579 when deciding whether the burden of proof had passed. The burden of proving the existence of a PCP and disparate impact lies on the Claimant: the reversal of the burden of proof is as to the reason why the PCP has that effect. The Employment Tribunal here at paragraph 91 of its judgment appeared to infer the existence of the PCP from an application of the burden of proof, whereas it was properly a matter of primary fact.[10]Secondly, the Tribunal wrongly failed to analyse the impact of the PCP on the two pools which it identified as appropriate for comparison – teachers aged 22–36 on the one hand, and those aged 37-65 on the other. It failed, therefore, to show as it was required to do by Section 19 of the Equality Act 2010 what the disadvantage was to which the group of teachers aged 37-65 were subject. Yet this was a necessary step in deciding that the fact the Claimant was subject to that disadvantage constituted indirect discrimination against her on the ground of age. Thirdly, it was simply perverse to find that there was a policy of replacing experienced teachers with inexperienced teachers.[11]As for the conclusion that the Claimant had been constructively dismissed, the Tribunal in effect found a covert conspiracy between Miss Constable and Mr Keary. This was not one of the issues on the issues list, and to reach such a conclusion was therefore procedurally unfair. Moreover, it was perverse.[12]Next, in determining whether there had been a breach of the implied term of trust and confidence, the Tribunal did not first decide if there had been conduct calculated or likely to destroy or damage the relationship of trust and confidence and then, and only then, go onto consider whether there was reasonable and proper cause for that conduct. Instead, it directed itself at paragraph 73 that what had happened was a breach of trust and confidence because there was no reasonable ground for acting as the employer did. Moreover, it adopted a test (see paragraph 78) first propounded by Browne-Wilkinson J in Woods vWM Car Services (Peterborough) Ltd [1981] ICR 666 that a repudiatory breach of the term of trust and confidence arose if the employer’s conduct was such “…that the employee cannot be expected to put up with it”. This test did not incorporate what is now expected to be a two stage legal test.[13]The seventh ground was that the Tribunal failed to consider whether, objectively viewed, there had been a breach of contract: rather it focussed upon the motivation of Miss Constable and Mr Keary, which was subjective, and/or treated the Claimant’s subjective belief that she was being managed out as a sufficient basis to find a breach of the implied term. It should have asked whether, objectively considered, the Respondent Trust had committed a breach of contract which evinced an intention no longer to be bound by contract.[14]As an eighth ground, it was argued that the Tribunal erred by applying a test of unfairness which equated to one of unreasonableness rather than amounting to a breach of contract. The Tribunal had made endless criticisms of the conduct of Miss Constable and Mr Keary to whom it had almost universally attributed a reason of bad faith rather than focussing upon whether the breaches in the list of issues were breaches of contract, and if they were, whether they were repudiatory. As a ninth ground, the Respondent Trust submitted that the Claimant could not have known of a conspiracy as implicitly found, so could not have resigned in response to it. Tenth, the Tribunal erred in finding that the fact that a personal relationship (that between the Claimant and the Head teacher) had broken down was a breach of contract – and had failed to take account of the fact that there was no contractual obligation to provide a reference. Eleventh, it was perverse to find that Ms Constable’s assessment of the Claimant was a fundamental breach of contract: it was a matter of professional judgment upon which the Tribunal was ineligible to comment. Twelfth, since the capability procedure had never been applied to the Claimant, the Tribunal was in error in finding that the Respondent Trust had committed a fundamental breach of contract by breaching it. Nor did the Tribunal explain what the breach was: the Claimant could hardly have been supposed to have resigned in response to a breach that never happened. Ground 13 was a generalised complaint that the Tribunal behaved in such a way as to demonstrate bias in favour of the Claimant. The evidence for this was the stridency of the findings in her favour, the length of time it permitted Ms Constable to be cross-examined, in ways which were in part irrelevant, to the extent that on the first day of cross-examination Ms Constable started to cry in response to questions from the Tribunal because of their confrontational and aggressive style. One of the Lay Members, Mrs Owen, became so aggressive towards Ms Constable on the second day of questioning that she started to shout at her: Ms Constable fled the room and was so upset that she was unable to return to the Tribunal. Yet the Tribunal did not apologise to her, nor enquire after her welfare nor seek any reason why she might be upset, tearful or distressed.[15]As Mr Solomon and Ms Berry, who appeared for the Claimant, observed in their skeleton argument, these grounds fall under three heads: indirect age discrimination; constructive dismissal; and bias.[16]As to indirect age discrimination, they submitted that Latif concerned the question of reasonable adjustments in a case of alleged disability discrimination, and turned on the wording of what was then the applicable code. It was not of direct general application to indirect discrimination, as recognised in Jennings v Barts and London NHS Trust UKEAT/0056/12 [2013] All ER (D)184 (Mar) at paragraph 65. The Claimant clearly had discharged the burden of proof resting upon her.[17]The Tribunal’s directions in respect of disparate adverse impact were correct. There was evidence to that effect from the Claimant and two witnesses whose statements were accepted without cross-examination. This evidence and the statistics coincided in establishing that teachers aged below 36 were replacing those within the age band which the Claimant argued to be relevant. The figures were neither explained nor qualified by the Respondent. The conclusion was plainly not perverse.[18]As to constructive unfair dismissal, the Claimant maintained that the test was to look at the conduct of the employer as a whole and determine whether it was such that its effect, judged reasonably and sensibly, was that the Claimant should not have been expected to have to put up with it (relying on Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84). The Claimant had made out the central allegations from the pleadings and her witness evidence, to the effect that the capability process was conducted in order to hound her out of the Respondent because of her seniority and consequent expense, in order to replace her with a cheaper option, and that Mr Keary had acted in pursuance of a strategy to dislodge her in instructing her to return to work in May 2013 after he refused to give her a fair reference. The Trust knew clearly that those allegations were to be made, and they were substantiated by a considerable body of evidence. The Tribunal did not use the words “conspiracy” or “conspired clandestinely”: and it was wrong to make the suggestion that that is what the Tribunal found, emphasise it, and then attempt to demonstrate that it had not done so or that it was unfair to do so. The conclusion was not perverse.[19]As to bias, the reality was that the allegation was used as a cloak to attack a decision which the Trust did not like. On analysis, there were three strands to the argument that this was how the Tribunal had behaved – first that it had effectively pursued its own “case of conspiracy”, second that the Tribunal found that the Claimant was a credible witness and third that the questioning of Ms Constable by Ms Owen was simply wrong. The first was a forensic construct, and did not fairly reflect the Tribunal’s reasoning. The second strand was a complaint not so much that the Tribunal had failed, but that it had actually exercised its function of assessing witnesses. It was fully entitled to do so: the assessment demonstrated a view of the witnesses but no bias. The third, the questioning of Miss Constable by Ms Owen, had led to a specific accusation at the time that she should be recused, which was refused for reasons then given, and had not then or since been appealed. It was not now open to the Academy to do so. In any event, affidavit evidence showed that all three members of the Tribunal previously had asked Miss Constable to slow down on more than one occasion so that notes could be taken (she spoke very quickly). Ms Owen asked her twice to do so. She did become upset, but that was when on a third occasion Ms Owen told her sharply that she needed to take a note of what Miss Constable was saying in evidence. The Tribunal did permit her to continue giving evidence some two months later despite the fact that it ruled that her evidence was complete before it adjourned on 16 th July 2014. The relevance of some of the cross-examination was raised during the hearing, but the Tribunal judged appropriately that the questioning was not oppressive and was entitled to reach that conclusion. None of this could give rise to a fair-minded informed and impartial observer, having knowledge of the relevant facts, concluding that there was any real possibility that Ms Owen was biased. Discussion[20]Although the issues relating to age discrimination were argued first before me, a Tribunal judgment must be read as a whole. The findings of fact which were analysed as amounting to a breach of contract which justified the Claimant in resigning and claiming that she had been constructively dismissed provided much of the factual detail of the claim, and though analysed principally in respect of the constructive dismissal claim bear on the conclusions in respect of age discrimination. It is sensible to take them first in this judgment.[21]First, I do not accept that there is any difference in effect between the application of the approach expressly adopted by the Tribunal, and more recent formulations of the test appropriate to determining whether a breach of contract is repudiatory. In Courtaulds Northern Textiles Ltd v Andrew , the Appeal Tribunal considered the case of a sensible man with a long record of satisfactory work in a supervisory capacity whose manager said to him “you can’t do the bloody job”. In those circumstances the Appeal Tribunal thought this was conduct which was likely to destroy the relationship of trust and confidence which in the circumstances was a necessary element in the relationship between the supervisory employee and his employers. Accordingly, applying the principle laid down by the Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 , that conduct was in breach of contract – it was conduct which showed that the employer no longer intended to be bound by one or more of the essential terms of the contract. The citation from Woods v Peterborough Car Services which the Tribunal mentioned is to the same effect.[22]This emphasis on conduct which, objectively viewed, displays an intention no longer to be bound by the contract thus lies at the heart of what was said in Courtaulds Northern Textiles v Andrew. The more recent formulation in Tullett Prebon Plc & Ors v BGC Brokers LP & Ors [2011] EWCA Civ 131 – whether the employer has “clearly shown an intention to abandon and altogether refuse to perform the contact” - has the advantage of being yet more emphatic in its expression, and demands that the evidence meets a high standard, but the essential point it makes is exactly the same, and the judgment gives no sense that by adopting those words the Court was departing from its own earlier statement of principle, even if it could properly do so.[23]The Tribunal here applied an appropriate test, therefore, in deciding whether or not the Academy was in repudiatory breach towards her.[24]There was evidence from which the Tribunal was entitled to conclude that the conduct of the Respondent toward her met the test it applied. Though the tone of the judgment was highly critical of Mr Keary and Miss Constable, and this criticism was sometimes colourfully expressed, the Tribunal had sufficient facts on which to found its conclusion: they are summarised at paragraphs 3, 4 and 5 above. The views of Miss Constable were unexplained, stood in stark contrast to the previous record of the Claimant and to the views of an Ofsted inspector, and were not borne out by objective assessment of her pupils’ progress. The example was given by the Tribunal of an occasion, described at paragraphs 50-51, when the Claimant, no doubt concerned that her lesson planning might be criticised, discussed it with her Head of Department on the day before Miss Constable was to observe her lesson. Though he had approved it as adequate, she thought it was “not satisfactory”.[25]To subject an employee to an unjustified capability process, on an inadequate basis, as described by the Tribunal, is easily capable of being a repudiatory breach of contract. There was on its findings no reasonable or proper cause for it. It could seriously damage the relationship of trust and confidence between the Claimant and her employers, on whose behalf Miss Constable and Mr Keary were acting. This was the operative finding by the Tribunal. To reach it was not to adopt a subjective approach, but to ask what happened, and whether that (objectively viewed) was a breach. It was unnecessary for a Tribunal to reach this conclusion for it first to have to decide there was a “conspiracy” between Constable and Keary: and hence it is not relevant to the decision on this appeal to decide if such a finding would have been perverse if made: the essential facts which led to the conclusion that the Respondent was in repudiatory breach of contract had been established without the need for such a further finding. However, I do not consider that any question of perversity actually arises – Mr Solomon is right to say that the Tribunal never used the word “conspiracy”, or “conspired clandestinely”, and to suggest it did is to adopt the impermissible though familiar forensic tactic of setting up a case that has not been made, in exaggerated form, to demonstrate that such a case could not be correct and thereby to argue that the decision must be wrong, or that it was unfair to reach it. His argument, as summarised at paragraph 18 above, is well-founded in all respects and succeeds.[26]I do not consider it necessary in order to reach this conclusion that I should separately review and determine each of the several grounds of appeal which address the claim of constructive dismissal, since many are repetitive of others and address the same overall case, which is dealt with by focussing on the basics of the case as set out in the foregoing paragraph. At the risk nonetheless of over-lengthening the judgment on this point, the answers in short to the points I have not already dealt with specifically and generically are that the Tribunal did focus objectively upon what was done, rather than subjectively upon the private intentions of Miss Constable and Mr Keary. Further and separately, whether someone has a particular intention is a matter of fact. Acts done by that person, with what is established as fact to be that intention, may legitimately be seen by an impartial observer to be a breach of contract where without the proof of that intention they could not be. This is not to take a subjective view as to what constitutes a breach, but to ask in the light of all the known facts whether, objectively viewed, the act was a breach. Take an example, drawn from a recent appeal: to send an email to a subordinate asking if he needs help with a particular procedure will on the face of it, objectively, appear to be no breach of the implied term of trust and confidence. It shows no harassment nor belittling of the recipient. To the contrary, it seems helpful. But if it is known that the recipient had performed the procedure many times before without criticism, is well able to do it, that it is a simple one to perform, and that the intention of the author of the email was to be sarcastic, the email may take on a different character. It now looks like a snide attempt to indicate its author’s lack of respect for the recipient, and all the worse because its apparent helpfulness is deliberately designed to mask the fact that both author and recipient will know that the former is having a dig at the latter. The evaluation of what has happened is just as objective in this latter case, even if it involves determining as fact that which the author intended.[27]The eighth ground takes matters no further: to argue that actions were merely unreasonable rather than amounting to a breach is to query a factually based assessment which is to be made at first instance before the Tribunal. Once it has evaluated what took place as amounting to a breach, by applying an appropriate test to the facts found by it, that decision must be respected subject only to perversity. To make out a charge of perversity requires a high hurdle to be jumped: it has not been.[28]As to the ninth ground, on the facts the Claimant resigned because of the way she had been treated. At least part of that treatment was found to be repudiatory. So long as she resigned at least in part because of a repudiatory breach, she makes out her case of constructive dismissal (unless first affirming the contract as continuing): see Wright v North Ayrshire Council [2014] ICR 77 .[29]As to the tenth, this appears again to be an attempt to restate the facts in a way that forensically suits the argument rather than take them as they were established. The way in which Mr. Keary – who was her boss - treated the Claimant was to renege on an agreement reached between the Claimant and the school. An employee ought in general terms to be able to trust that what a senior manager says he will do is what he will do, and where what he promises to do is specifically of importance to the employee herself, this principle is all the stronger. Besides, insofar as the ground is based on the idea that relationship must have broken down for there to be a breach, it is in error: the implied term of trust and confidence is broken if the conduct complained of is “calculated or likely” to cause a break down. It is not necessary to show that it has in the event actually done so.[30]As to the eleventh, Miss Constable’s assessment was indeed a matter of her professional judgment. Many, even most, such judgments may not be justiciable: but that assumes that the quality of the judgment is that it is honestly and fairly reached. Here there was some evidence, which the Tribunal set out, that that was not the case. The Tribunal was entitled to take that into account. If it were otherwise, the courts would be placing a ring fence around any qualitative assessment, however extreme it might be, and however much the evidence may suggest it was maliciously inspired. Though the proper judgment of any professional must be given considerable respect, and courts must always be aware that they are not (for example) themselves Ofsted inspectors, they cannot for those reasons abandon entirely any evaluative role. There was sufficient material here for the Tribunal to be entitled to decide as it did.[31]Ground 12 again relates to a finding which as I read it the Tribunal did not make. It did not find that the employer had wrongly applied its capability procedure to the Claimant, but that it was part and parcel of its conduct towards her that it failed to do so – in circumstances in which, if it had genuine concerns about her teaching, it should have addressed those under an established policy, it chose to address the concerns it said it had by ignoring the requirements of the policy (see paragraph 74). Though I read this more as evidential material providing further support for a conclusion that the Respondent did not actually have a genuine belief in the inadequacy of the Claimant, and was hoping to manage her out of her post, than I do as a discrete breach of contract, this is an immaterial distinction once taken in context.[32]So, too, the case made in respect of bias must be rejected. It is a matter of concern that any witness should be driven to tears during the course of her evidence, and such an unusual event demands close scrutiny of what may have brought it about. On this occasion, bearing in mind the context of the case – it was one in which Miss Constable was being asked to give an explanation for evaluations she had made which seemed surprising in the light of other evidence, much of which was objective, and was failing to do so – any witness would have felt considerable pressure. Ms Owen did speak sharply to her, but that too has to be placed in the context of a witness to whom perfectly reasonable requests were being made (to slow down) who had failed to comply with them. The tone of her request had a regrettable effect, but her desire to make sure that Miss Constable appreciated and acted on the request to slow down was fully understandable. Her request did not come anywhere near indicating an irrational hostility to Miss Constable or the case of the party calling her to give evidence; it did not indicate any predisposition to find in favour of the Claimant; it did not show any partiality as between the rival cases. I accept the argument of Mr Solomon as I have summarised it at paragraph 19 above. Indirect Discrimination[33]I take a different view, however, when considering Ground 1.[34]The burden of proof was shifted by the Tribunal from the shoulders of the Claimant to those of the Respondent. For this to happen in accordance with Section 136 of the Equality Act 2010 facts must first be proved from which:
“The Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned.”
For the purposes of a claim of indirect discrimination as defined by Section 19, the first fact of which a Tribunal must be satisfied is that a provision criterion or practice was adopted by the Respondent. It must identify it. This will often be uncontentious: but where it is in dispute, as it was here [1] , it is a necessary finding of primary fact. Only then can it be considered whether to apply the provision criterion or practice is discriminatory in relation to a protected characteristic.[35]The Tribunal here relied not upon provision, nor upon criterion, nor upon PCP as a whole, but solely upon practice: this is how the PCP (if it existed) was put on behalf of the Claimant. “Practices”, as distinct from “provisions” and “criteria” involve repetition of conduct, or at least the anticipation of repetition (for example, if the practice is a new one, just adopted). If “provision” or “criterion” were relied on, it might be acceptable to find this established even if there had been an isolated incident, but that was not what the Tribunal found here: it was not invited to consider either, and did not do so: and although the composite phrase “provision, criterion or practice” might have been relied on, it was not.[36]The primary evidence to establish that there was a practice was limited. The Tribunal findings revealed one person only (the Claimant) of whom there was any actual evidence that they had been treated as they were because of their seniority and hence the expense of continuing to employ them. There was a rumour, amongst staff, that more senior teachers were likely to be replaced by less senior, and hence cheaper, ones, of which there was evidence from two witness statements submitted by the Claimant which were taken as read. That is insufficient proof, on any showing, of that to which the practice was said to amount. It did not demonstrate repetition, or the anticipation of it. The Claimant sought to fill the evidential gap by producing statistical evidence. However, at paragraph 87, the Tribunal appeared to think that the statistics were not particularly persuasive. (It must be right in this – one of the difficulties of a claim of age discrimination is that no-one remains the same age from one day to the next. It is inevitable that on average those who are recruited to fill posts will be younger – often considerably so – than those who have left those posts (for instance, by retirement), since employers will usually wish to appoint those who can provide a reasonable length of service. Since the essential argument was that teachers were being managed out of their posts, it would be necessary to know the reasons for the teachers leaving. The statistics as set out by the Tribunal could prove very little). Moreover, the opening words of paragraph 88, and the last sentence of paragraph 85, show that the use of the statistical material was not with a view to showing that the claimed practice existed in fact: it was aimed at establishing disparate impact.[37]The Tribunal did not say why it had found the practice to exist. Thought it is unclear what, if anything, it made of the statistical evidence, a fair reading of its judgment was that it did not think that this was sufficiently reliable to satisfy it that it existed. It concluded there had been discrimination only after applying the burden of proof. Yet, at paragraph 83, in which the Tribunal purported to apply guidance from relevant cases as to the application of Section 136 relating to this burden, it did not identify the primary findings of fact which led to the conclusion it drew. The burden of proof could only shift, under Section 136, if facts had already been established from which a contravention of Section 19 could be determined – and, as Mummery LJ pointed out in paragraph 56 of Madarassy v Nomura if they gave rise only to a possibility that there has been discrimination this would be insufficient.[38]Mr Davies is right to submit that the Tribunal did not address the first step in determining a breach of section 19, that of finding a practice. Instead, there are only two possible routes to its conclusion: either it simply assumed that this primary question had been answered positively to the Claimant, or alternatively, applied the burden of proof not upon the basis of facts which had been established to its satisfaction but to fill in a gap in the evidence which it would be necessary to establish if it were to do so – to prove that there was a PCP in the first place. His complaint that this is putting the cart before the horse is justified.[39]Secondly, assuming that the provision, criterion or practice were established in evidence, the next step in the analysis called for by section 19 needed to be taken. The Tribunal had to decide whether the PCP applied to persons who were not in the Claimant’s particular age group. That would not be difficult to establish here. But as a third step, it had to be satisfied that persons of the Claimant’s age group were put at a particular disadvantage compared with those in a younger age group. This, by contrast, was problematic on the evidence. Any decision as to that was not soundly based on statistical evidence, because the Tribunal doubted the extent to which it could rely upon that (that is the force of paragraph 87): the only other material considered by the Tribunal was that specifically relating to the Claimant’s case. The problem with this is that it is circular. The treatment of the Claimant in her individual circumstances cannot be used to show that others in identical circumstances were or would be subject to a similar and particular disadvantage. The fact that the Claimant had a disadvantage, on the findings of the Tribunal, because of her experience could only have the consequence that she was indirectly discriminated against within Section 19 if it could be shown that there were others in her age group who were similarly affected – that she was part of a group which was disproportionately disadvantaged by application of the assumed PCP. Once the statistics were inadequate to show this, it is difficult to understand how the burden of proof could shift – for facts had not been established from which a court could decide that there had been discrimination. Matters had not yet reached that stage.[40]In Project Management Institute v Latif , Elias J as President said (paragraph 45):- “…we very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice, or demonstrating the substantial disadvantage. These are simply questions of fact for the Tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the Claimant. These are not issues where the employer has information or beliefs within his own knowledge which the Claimant cannot be expected to prove. To talk of the burden shifting in such cases is in our view confusing and inaccurate.”[41]He was speaking of a claim in respect of reasonable adjustments, in which it is also necessary to find that there has been a PCP, productive of disadvantage. As Mr Solomon pointed out, the EAT in Jennings v Barts and the London NHS Trust UKEAT/0056/12 (5 th. February 2013) might be read as suggesting that it would wrong to read Latif as casting an evidential burden on the Claimant. He relies on paragraph 65 of the judgment for this. However, I do not accept that this paragraph throws doubt on the principles in the passage from Latif cited above: Jennings was a case in which an Employment Tribunal had held that Latif imposed a duty on a Claimant to specify the reasonable adjustments contended for, and that he had to raise at least a prima facie case as to how the respondent had failed to comply with some identified reasonable adjustment. That was held by the EAT (paragraph 63) to be an overstatement of that which Latif required: if a potentially reasonable adjustment was identified, the burden would be reversed. When dealing with these issues, HHJ Hand QC said (at paragraph 65):
“ Ms Palmer submits that paragraphs 53 to 55 of the judgment in Latif do not support the proposition which the Employment Tribunal has distilled from it at paragraph 180 of the judgment. Latif only shows that a Respondent does not have to raise and negative all possible adjustments but only to respond to a case put forward by the Claimant. It is true that at paragraph 45 of the judgment the EAT says: [ He then quoted the passage from Elias J’s judgment, as above] No doubt the burden is on the Claimant but that is not the same thing as saying that there is a specific burden on the Claimant to do more than raise an adjustment for consideration. Once raised for consideration the Claimant does not need to prove anything as to “how the respondent has failed to comply”
. Moreover, paragraph 181 is also presents an incorrect analysis. There is no true approximation between justification on the one hand and reasonableness on the other.”[42]I do not see this as questioning the validity of Elias J’s words. Though obiter, Elias J’s observations are compelling. Though expressed in a claim relating to whether a duty to make reasonable adjustments had been broken, they have persuasive effect more generally in respect of that which is needed to establish a PCP. In my view, they support a conclusion that before a Tribunal can properly reverse the burden of proof in a claim of indirect discrimination, it must be satisfied of the primary facts which would enable it to do so, and that these are for the Claimant to prove. As I read the Tribunal judgment in the present case, these matters had not been established before it held the burden to have shifted. Indeed, it would not otherwise have been necessary for the burden to shift at all.[43]I reject Mr. Solomon’s argument that the written evidence of two teaching colleagues of the Claimant, Kirsty Harrison and Elaine Aird-Shariff was capable in itself of establishing that there was either a practice, as claimed, or (assuming there to be one) that it had disparate impact. In my view, though this evidence is supportive of a conclusion justified on other evidence that there was a PCP as alleged, and raised the index of suspicion that there might be such a practice as alleged in this case, it fell far short of establishing that it actually did exist. It did not identify a single person who had left the service of the Academy because of it. Moreover, it was not in terms relied upon by the Tribunal in its analysis. The Tribunal’s decision has to be considered upon the basis on which it was expressed to be made.[44]Issue number 9 asked whether the Academy had a practice of replacing more experienced teachers with less experienced teachers. It never answered that question directly. It thought that the statistics which favoured it were of limited persuasiveness, made a reference to the fact that the Academy might have been able to produce further information but had not done so, and then turned to “look behind the statistical analysis to determine the true story” but failed to say what the true story was, unless it had in mind the facts relating to the way the Claimant herself was treated: and by this stage (at paragraph 88) it had in its opening words assumed the PCP to have been established, and had turned to examine if it had caused disadvantage. This was an erroneous approach.[45]Issue number 9 went on to seek answers to the three questions which arose once a PCP was established –(a) did the Respondent apply, or would it have applied, the PCP to persons not of the Claimant’s age group?;(b) did the PCP, or would it have, put persons of the Claimant’s age and age group at a particular disadvantage when compared with persons not of the Claimant’s age group?; and(c) did it put, or would it have put, the Claimant at that disadvantage? These are the correct questions to ask. Although the Tribunal was grappling with whether there was a particular disadvantage as in (b), it came to no very clear conclusion on it; even if as to (c) it is reasonable to infer that (assuming the practice to have been established) the Tribunal found it to have put the Claimant to a particular disadvantage. In order to reach a conclusion under (b) it needed to compare the two age-groups, in order to decide if one suffered a disadvantage the other did not. It failed to do so. As noted above, on its own findings it lacked the necessary evidence. Accordingly, the appeal succeeds. Conclusion on Liability Appeals and Disposal[46]The appeals against the conclusion that the Claimant was unfairly dismissed, and that the decision was flawed because of the bias of the Tribunal fail. That against the decision that there had been indirect discrimination succeeds.[47]Since the findings of the Tribunal are insufficient to hold that there was a PCP, and if there were, there was no evidence that it caused others in the Claimant’s age group particular disadvantage, and since the burden of proof provisions could not properly be used to establish either the PCP or the disadvantage, since these were necessary primary findings of fact before the burden could be reversed, the consequence is that the decision as to age discrimination is quashed. Appeal in Respect of Remedy[48]On 17 March 2015 the same Tribunal considered the question of compensation. Two issues arise on appeal, and cross-appeal, in respect of its computations.[49]The total award of £108,107.83 included a 25% uplift on damages of £85,736.94, before interest. The uplift was made under Section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 . That provides:- “If, in the case of proceedings to which this section applies, it appears to the Employment Tribunal that –(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies(b) the employer has failed to comply with that Code in relation to that matter, and(c) that failure was unreasonable, the Employment Tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.”[50]At paragraph 42 of the Remedy Judgment, the Tribunal found that the Code of Practice on Disciplinary and Grievance Procedures applied. It concluded that Code related to performance issues. Then it said:
“43. We previously determined that the Respondents’ (sic) chose to circumvent its own formal capability process. Indeed Miss Constable used an informal capability process as a “device” to manage the Claimant out of the organisation because of her expense. The Claimant did not know where she fell short and how she might improve her performance. She sought to enlist the assistance of Miss Constable but her assessor refuse (sic) to engage with her. The Claimants’ friends and colleagues could not see where she fell short. These are very serious breaches of a proper process that lies at the heart of the Code of Practice. The Claimant was threatened with a formal capability procedure as a device to dismiss her. Mr Keary’s attempted explanation of “due diligence” demonstrated he had little understanding about how to implement a fair process, even if he wanted to. We previously commented that a number of HR professionals were involved in this process so we assess that it was deliberate that the Respondent did not follow a fair process in addressing the Claimant’s purported deficient performance. Consequently we award and uplift (sic) of 25% the full amount that we can award.”
[51]The Respondent appealed in ground 15 on the basis that no form of disciplinary proceedings had been commenced against the Claimant and the mere fact that the Respondent was considering commencing such proceedings (or warned that they might be commenced) could not create circumstances in which the ACAS code should be followed; and that (as a prior ground, 14) the Tribunal misapplied the section since an uplift could only be awarded where there was an unreasonable failure on the part of a respondent to comply with the relevant code. The Tribunal had failed to identify any provision of any code of practice which had been breached, and therefore could not apply an uplift. The Respondent relied upon a failure to adopt the structured approach to the questions arising under section 207A as recommended by Lady Smith in Allma Construction Ltd v Laing UKEATS/0041/11 (25 th January 2012, unreported).[52]The Claimant cross-appealed, in response, asserting that the Tribunal should have grossed up the awards of compensation it made, both in respect of monetary compensation and injury to feelings. That was resisted upon the basis that the Claimant had not previously raised the question of grossing up, nor had she sought a review of the Tribunal’s decision. The Tribunal had accordingly made no error of law, and it was only if it had done so that the Appeal Tribunal could assume jurisdiction.[53]The ACAS Code of Practice in respect of Disciplinary and Grievance Procedures was issued under the authority of section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 . The relevant code was that issued in 2009. (It has since been updated). Paragraph 1 of the code said it was said to be designed to help employers, employees and their representatives to deal with disciplinary and grievance situations in the work place. In the first bullet point underneath that statement the Code records that disciplinary situations include those concerning misconduct and/or poor performance. If employers have a separate capability procedure they might prefer to address performance issues under this procedure, but if so “the basic principles of fairness set out in this code should still be followed, albeit that they may need to be adapted.”[54]In its reasoning, the Tribunal considered whether the Code applied, thought it did, and concluded that the employer had failed to comply with the Code. That was because it had failed to provide any fair process (an underlying necessity, the requirement for which infuses the Code throughout, on any reasonable reading of it). The Tribunal identified how the Academy had failed; and considered that the failure was unreasonable. It asked whether the award should consequently be increased, thought it should, and then determined the percentage which was appropriate for the increase. It said why it considered that percentage to be appropriate. In doing so, it addressed each of the considerations to which Lady Smith had referred in her guidance, even if it did not set out each individually by reference to that decision. Since her decision constituted guidance, it did not have to do so.[55]I see no error of law in the decision. The Code applied, as its own wording in paragraph 1 suggested. The failures to follow fair process both merited that description and were identified. The Tribunal was entitled to conclude they were unreasonable, and it cannot be said that the percentage chosen was manifestly too high, nor that it was insufficiently explained. The Cross-Appeal[56]A preliminary question in the cross-appeal is whether or not the Respondent is right to describe this as a point raised for the first time, and if so whether discretion should be exercised to permit it to be raised now.[57]The central argument is to the effect that it is axiomatic that where a sum is awarded by a tribunal which may attract tax at the marginal rate, it should be grossed up applying the principle in British Transport Commission v Gourley [1956] AC185. The parties here both used net wage figures to calculate the awards. Further, the Tribunal’s award in respect of injury to feelings was not grossed up. There were conflicting authorities as to whether injury to feelings awards should be grossed up: the Employment Appeal Tribunal - in Orthet Ltd v Vince-Cain [2004] IRLR 857 considered that an award for injury to feelings was not taxable, but the first tier tribunal (Tax Chamber) in Moorthy v HMRC [2015] IRLR 4 considered it was not bound by that decision and declined to follow it. The EAT in Timothy James Consulting v Wilton [2015] IRLR 368 subsequently preferred the reasoning in Orthet . None is binding on me.[58]Before considering the effect of these authorities, and adding my own efforts to the learning on the topic, I must first deal with whether in principle the argument may be advanced on appeal as it was not below.[59]As to that, I accept that the point was not raised below. It could have been. There was ample opportunity for it to be taken. Within the bundle for the Appeal hearing, is a document which was before the Employment Tribunal headed “List of Outstanding Issues: Remedy Hearing”. That not only does not include any such issue, but directs the mind of the parties to what the issues actually were, such that the omission of the “grossing-up” point is all the more striking.[60]The principles as to the exercise of discretion to permit a point to be raised for the first time on appeal are now well established by authority binding upon me, principally in the decision of Jones v Governing Body of Burdett Coutts School [1999] ICR 38 , CA, (EAT Familiar Authorities 9) and Glennie v Independent Magazine (UK) Ltd [1999] IRLR 719 , CA, (EAT Familiar Authorities 10). The principle of the latter is summed up in the concurring judgment of Laws LJ at paragraph 18, where he said:- “The Employment Appeal Tribunal possesses a discretion, which must be exercised in accordance with established principles, to allow a new point to be raised before it for the first time. It is the general principle of the law that it is a party’s duty to bring forward the whole of his case at the proper time. The reasoning of Robert Walker LJ in Jones v Governing Body of Burdett Coutts School is… consonant with this. A new point ought only to be permitted to be raised in exceptional circumstances as Robert Walker LJ held at p.44B. If the new issue goes to the jurisdiction of the Employment Appeal Tribunal below that may be an exceptional circumstance, but only, in my judgment, if the issue raised is a discrete one of pure hard-edged law requiring no, or no further factual enquiry.”[61]The effect of the authorities including these central decisions was considered compendiously by HHJ McMullen in Secretary of State for Health v Rance [2007] IRLR 665 (EAT Familiar Authorities 11). At paragraph 50 he drew a number of principles from the decided cases. Amongst them, and relevant to the present case is that at 50(4): that it would be “even more exceptional” to exercise the discretion where fresh issues of fact would have to be investigated. By contrast, it might be exercised to permit the argument if the circumstances fell within one of those identified at paragraph 50(6). Of these the relevant ones for present purposes may be said to be (b) – that the point could be taken if the EAT was in possession of all the material necessary to dispose of the matter fairly without recourse to a further hearing; and (d) that the EAT could see a glaring injustice in refusing to allow an unrepresented party to rely on evidence which could have been adduced at the Tribunal.[62]On the other hand, the discretion was not to be exercised where by way of example “…(b) the issue arises as a result of lack of skill by a represented party, that is not a sufficient reason…”; or “(d) all the material is before the EAT but what is required is an evaluation and assessment of this material and application of the law to it by the specialist first instance Tribunal: Leicestershire County Council v Unison [2006] IRLR 810 , CA.”[63]The law that grossing-up may be appropriate is clear in the present case, insofar as compensation for loss of earnings is concerned, but not in respect of the injury to feelings award. There is no exceptional issue or circumstance which arises. Fresh issues of fact would in my view have to be investigated before an award, applying grossing-up principles, could be determined: the amount of the total award is a calculation which depends upon facts being provided on the basis of which it can be made. Those facts include the particular tax position of the recipient of the award. In an award of the order of magnitude of the present the Tribunal would need to know, whether by direct evidence or the agreement of the parties, where the respective tax bands of the Claimant fell during the tax year in question, and how they impacted upon her liability for tax on the sum paid over. No attempt was made to provide any such evidence, or to seek any such agreement before the Tribunal. Even on appeal, the information was not provided, no doubt upon the basis that it would be for the Employment Tribunal on remission to determine the question. That itself indicates that the decision is not one which can be decided on all the material currently available for the Appeal Tribunal. The circumstances smack of a slow realisation by those advising the Claimant that a point was missed below – here, I should note that Mr Solomon who advances the argument before me did not appear before the Tribunal.[64]Accordingly, applying the discretion I have in the light of the authorities:(a) the situation is not exceptional;(b) the facts would need to be established;(c) the case does not fall within paragraph 50(6)(d) of HHJ McMullen’s list in Rance because the Claimant was represented, and a representative might have been expected to raise the point if it was to be raised at all;(d) the issue is not a discrete one of law requiring no further factual enquiry; but to the contrary, (applying paragraph 50(7)(d) of Rance ) an evaluation and an assessment of the factual material and application of the law is needed by the Employment Tribunal. Nor do I see that any really substantial injustice will be done, since the Claimant will in any event have a substantial award even if not as beneficial to her as it could have been. The simple fact is that the Claimant could have brought forward the whole of her case before the Employment Tribunal, but opportunities to do so went begging, and she did not. She should not now be permitted to do so.[65]Accordingly, I decline to permit the point to be taken. In the light of that decision, it is unnecessary for me to yield to the temptation to add any view I may have on whether awards for injury to feelings are taxable.[66]It follows that insofar as the remedy hearing is concerned, the respective appeal and cross-appeal are both dismissed. The award will have to be adjusted, however, to the extent necessary to take account of the decision I have made in respect of the liability appeal. I invite the parties to agree between themselves the form of order which it is suggested the Appeal Tribunal should make. [1] The parties did not dispute on appeal that it was in contention, yet the Tribunal may have thought it was not – see paragraph 18, in which it said that the parties had identified the PCP, which is the practice of replacing more experienced teachers with less experienced teachers. However, since issue 9 raises whether there was such a PCP , this is no more than an agreement as to the PCP for which the claimant contended.