Rajaratnan v Care UK Clinical Services Ltd (Sex Discrimination: Indirect) [2015] UKEAT 0076_15_0207

EAT
Rajaratnan v Care UK Clinical Services Ltd (Sex Discrimination: Indirect)
[2015] UKEAT 0076_15_0207 · 2015-07-02
[59]“ 59. … it is conceptually impossible to prove a group disadvantage for the purpose of section 19(2)(b) without also showing why the claimed disadvantage is said to arise. Group disadvantage cannot be proved in the abstract. Its proof necessarily requires a demonstration of why the comparative exercise inherent in the section 19(2)(b) inquiry results in the claimed disadvantage. In the present case, the claimants say they have answered the ‘why’ question: its answer is that the statistics show the group to be disadvantaged because its members are disproportionately more likely to fail the CSA than are the comparators who do not share the protected characteristics. The difficulty in the present case is as to whether and how each claimant can also discharge the section 19(2)(c) burden. There is no doubt that one way or another they must do so if they are to succeed. The present case is no different in principle from other types of indirect discrimination claim. 60. Thus the woman employee asserting that a full-time work PCP disadvantages women employees as a group must assert and prove why that is so (perhaps because of child care responsibilities) and that the same disadvantage applies to her, namely that she too is disadvantaged by her childcare responsibilities …” 25. As for justification - that is, whether the employer can show the PCP in question is a proportionate means of achieving a legitimate aim (see section 19(2)(d) EqA 2010 ) - the Supreme Court has considered this issue, albeit in the context of age discrimination, in the cases of Seldon v Clarkson Wright & Jakes [2012] IRLR 590 and Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601 . Specifically, when considering whether the justification required is of the PCP or its application to the individual Claimant, the Supreme Court has ruled as follows, in Seldon (at paragraph 66):
“There is therefore a distinction between justifying the application of the rule to a particular individual, which in many cases would negate the purpose of having a rule, and justifying the rule in the particular circumstances of the business. All businesses will now have to give careful consideration to what, if any, mandatory retirement rules can be justified.”
And in Homer (at paragraphs 25 and 34 to 35): “25. To some extent the answer depends upon whether there were non-discriminatory alternatives available. It is not clear whether the ET were suggesting that an exception should have been made for Mr Homer (who was on any view an exceptional case) or whether they were suggesting that the criterion should have been modified to include qualifications other than law degrees. As the EAT said, an ad hominem exception may be the right answer in personnel management terms but it is not the answer to a discrimination claim. Any exception has to be made for everyone who is adversely affected by the rule. ‘Grandfather clauses’ preserving the existing status and seniority, with attendant benefits, of existing employees are not at all uncommon when salary structures are revised. So it is relevant to ask whether such a clause could have represented a more proportionate means of achieving the legitimate aims of the organisation. On the other hand, what is in issue here is not preserving existing benefits but affording entry to a newly created higher grade. …[34]In relation to that issue, I have difficulty about any suggestion that the Chief Constable should have made a personal exception for Mr Homer quite outside his age discrimination claim (Lady Hale, paragraph 26) or make ‘a modification of the provision, criterion or practice [requiring a law degree] for the appellant’s age group’ (Maurice Kay LJ’s phrase in the Court of Appeal, paragraph 38).[35]The problem about such suggestions was identified by Elias J in the Employment Appeal Tribunal, paragraph 49, when he held that the tribunal was not ‘correct to say - if indeed it was intending to say - that the discrimination should have been avoided by making a personal exception of the claimant’. He explained: ‘If the imposition of the criterion of a law degree resulted in unjustified indirect discrimination, because the discriminatory effect was disproportionate to the aim, then all adversely affected by the rule must be treated equally. That may well have had the consequence that only the claimant might qualify, but it is not the same as creating an “ad hominem” exception for him.’ ” 26. As for the claims under the PTWR 2000 the relevant Regulations are at 5 and 7, which relevantly provide as follows: “5. Less favourable treatment of part-time workers(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker - (a) as regards the terms of his contract; or (b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.(2) The right conferred by paragraph (1) applies only if - (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds.(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate. … 7. Unfair dismissal and the right not to be subjected to detriment … (2) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on a ground specified in paragraph (3). (3) The reasons or, as the case may be, grounds are - (a) that the worker has - (i) brought proceedings against the employer under these Regulations; (ii) requested from his employer a written statement of reasons under regulation 6; (iii) given evidence or information in connection with such proceedings brought by any worker; (iv) otherwise done anything under these Regulations in relation to the employer or any other person; (v) alleged that the employer had infringed these Regulations; or (vi) refused (or proposed to refuse) to forgo a right conferred on him by these Regulations, or (b) that the employer believes or suspects that the worker has done or intends to do any of the things mentioned in sub-paragraph (a).(4) Where the reason or principal reason for dismissal or, as the case may be, ground for subjection to any act or deliberate failure to act, is that mentioned in paragraph (3)(a)(v), or (b) so far as it relates thereto, neither paragraph (1) nor paragraph (2) applies if the allegation made by the worker is false and not made in good faith.” 27. As for the costs appeal the relevant rule is that set out at Rule 76(1)(a) and (b) of the ET Rules 2013 . Both parties agree that the approach is that laid down by the Court of Appeal in Yerrakalva (see paragraph 41 of that authority): (1) to look at the whole picture of what has happened in the case, (2) to identify the conduct alleged to be unreasonable, (3) to identify what if anything was unreasonable about the conduct, and (4) to identify what effect the conduct had. Submissions The Claimant’s Case 28. There being agreement that the ET had erred on the question of the pool, Mr Brown first looked at the question of disadvantage. Accepting Essop required not just showing that the group suffered the disadvantage in question, but also that the individual Claimant suffered that particular disadvantage herself, he contended that the ET’s findings of fact demonstrated that here (see in particular sub-paragraphs 8.11.6 and 8.11.7). It was for the ET to make that decision, see paragraph 28 of the EAT sitting in Scotland in Hacking and Paterson v Wilson UKEATS/0054/09, albeit that that case wrongly spoke of choice rather than necessity, whereas the only question was whether the employee had suffered a particular disadvantage; it was not necessary for her to show she had no other options in order to make good her case of individual disadvantage (it might be open to the employee to use childcare, for example, but that was not to say that she was still not placed at a disadvantage). 29. As for justification, whilst legitimate aim had not been in dispute, proportionality plainly was, and the ET failed to carry out the necessary balancing exercise in this regard. Paragraph 8.12 was inadequate to the task; it simply repeated the nature of the legitimate aim. Even if the ET had engaged with the point, its reasoning was not sufficient. 30. On the costs appeal if the court was with the Claimant on the indirect sex discrimination claim, then the costs appeal must also be allowed. Even if it were not, the fact that the Claimant had lost the claim was insufficient to justify an award of costs, and indeed the Respondent had not put its application on that basis. At a more basic level the ET failed to apply the correct test. It failed to consider how, if at all, the matters in respect of which the ET was critical of the Claimant actually impacted upon the case (see Yerrakalva and also see Daleside Nursing Home Ltd v Mathew UKEAT/0519/08 at paragraph 10 and Arrowsmith v Nottingham Trent University [2012] ICR 159 CA at paragraph 32). The crucial aspects of the Claimant’s indirect sex discrimination claim were not in any way tainted by the matters on which her evidence had been found to be less than credible. In respect of the other claims, the ET needed - but failed - to consider the matter from the Claimant’s perspective. The ET also gave insufficient explanation as to why it considered the Claimant was unreasonable from the outset. As to the references to the Respondent’s offers, the highest offer made was of £20,000; the ET needed to consider whether rejecting that was unreasonable given the nature of the claims made and the Claimant’s level of earnings. It was hard to see why it was. As for the Claimant’s position, apart from taking a tough line in negotiations, it was unclear what the ET was referring to. 31. Turning to the cross-appeal, the Claimant had not sought to suggest that her case was put on the basis of Regulation 5 below but given that both parties agreed the cross-appeal was to be allowed it was open to this court to consider whether sufficient was found by the ET to decide that case now. It could be seen that the Employment Judge had put this point to the Respondent’s witness, Ms Graham, and the Respondent had had the opportunity to re-examine and make submissions on it. There was no prejudice to the Respondent in the EAT now making the finding that the Regulation 5 case was indeed made out. Meanwhile, the Regulation 7 case needed to be remitted to the ET to deal with, and that should be to a differently constituted ET. Applying Sinclair Roche & Temperley v Heard and Anor [2004] IRLR 763 EAT, that would be the appropriate course in respect of any remission in this case: this was a wholly flawed decision on both indirect sex discrimination and the PTWR claim. The ET had made very strong findings against the Claimant, and it was difficult for her to have confidence in the same ET, particularly when it had been given full guidance in written submissions below. Moreover, given the potential value of the case, it would be proportionate for this to be heard by a differently constituted ET afresh, albeit there would be a shorter hearing given the more limited claims that would then be in issue. Lastly, given the amount of time that had passed, there was no reason to think this ET would have the matter fresh in its mind. The Respondent’s Case 32. On the question of disadvantage the Respondent observed that the Claimant had never actually worked a night shift. Although she had been scheduled to work two nights, she had left before that took place (see paragraph 5.80). This was a hypothetical disadvantage: a “would put”, not a “did put”. The ET needed to engage with the assessment of disadvantage both on a group level (it was wrong to simply assume women falling within the pool were disadvantaged; see the EAT in Heard at paragraph 44 and Ministry of Defence (Royal Navy) v Macmillan UKEATS/0003/04) and for the Claimant (see Essop , paragraph 60). The ET had taken judicial notice of the general disadvantage to women, but it did not ask that question (1) in relation to women in the group, or (2) in relation to the Claimant herself. 33. It was open to the EAT to determine this question because (see Macmillan ) it was axiomatic that detriment could not be self-inflicted. The Claimant had applied for a job involving anti-social working when she had very young children; she entered into a contract requiring her to work nights, as contrasted with the subsequent appointee, who negotiated out of such a contract at the interview stage. Moreover, the fact that there was an enhancement to pay for working anti-social hours in these circumstances was a relevant factor. There was sufficient evidence for the EAT to be able to conclude there was no disadvantage for female members of the relevant group, including the Claimant, as compared to male members of that group. 34. That said, Ms Richmond accepted it was difficult to say (following Essop ) that there had been sufficient engagement with this point by the ET and the appropriate course might be to remit this matter to the ET for the assessment to be carried out. That supported, however, the Respondent’s contention it would need to be remitted to the same ET. 35. On justification, the ET had properly set out the legal questions (see paragraph 3.5). The requirement - per Seldon and Homer - was to ask whether the rule was justified not its application to a specific individual. Regardless of the approach to the question of the pool the ET’s conclusion on justification was plainly the correct result. Although the ET’s reasoning was brief, it was sufficient to let the parties know why they had won or lost. 36. On the cross-appeal, to suggest that the Regulation 5 claim could be upheld would be a clear breach of natural justice. The Claimant having confirmed below that she was only pursuing a Regulation 7 claim, the Respondent had not dealt with the Regulation 5 issues; it was not before the ET. On the Regulation 7 claim the Respondent invited the EAT to decide the issue of detriment. The first detriment relied on was being required to work two weekend shifts every four weeks rather than every eight weeks in October and November 2012. That, however, resulted from the Claimant’s request to work weekends only (as the ET found at paragraph 5.31); that was not a requirement. The second detriment relied on was that, shortly after 16 January 2013, the Claimant was being required to work weekend shifts greater than two weekend shifts every eight weeks (see paragraph 3.12), but there was no detriment as on 16 January 2013 the Claimant had been told that the Respondent was content that she worked one weekend a month; there could be no detriment to her. 37. As for the appeal on costs the ET had followed the four-step guidance of Yerrakalva . It had looked at the whole picture, identified the unreasonable conduct, which included the Claimant’s lies about what had been agreed; those lies infected all elements of her claim. 38. On disposal, if the EAT was minded to remit any matter to the ET, it should be to the same ET on every element. This was plainly proportionate, and an enormous amount of time would be saved by enabling the ET to rely on the evidence already given. On anybody’s case the decision was not wholly flawed. There was a misapplication of the correct approach as a matter of law, but that was not an example of a wholly flawed decision for Heard purposes. On costs, moreover, there were strong reasons for the case to be remitted to the same ET; only this ET could form a fair assessment. The Claimant in Reply 39. On the question of disadvantage it was not for the ET to micro-manage the lives of employees. All it had to do was to assess whether there was a disadvantage; it did not have to go into the detail of the Claimant’s domestic arrangements, and it is equally not a good point to say there was no discrimination if the Claimant had accepted a contractual requirement that gave rise to the disadvantage. 40. As for justification, in Seldon the EAT had left it open (paragraph 64) whether there may be cases where the application of the rule has to be justified, albeit such cases would be “extremely rare”. 41. On the Regulation 7 claim, it was accepted that the detriments relied on were as had been identified by the Respondent. Although it was right to say that the Claimant had initially expressed a wish to work weekends and the rota had been arranged to accommodate her wish, thereafter she had changed her mind (see paragraph 5.31). The detriment arose from not revisiting that rota. On the second detriment, the letter from the Respondent of 16 January still made the requirement that the Claimant was to work the two weekends. Discussion and Conclusions 42. I start with the indirect sex discrimination claim. As was common ground, the ET erred in the identification of the pool for comparison. To that extent, therefore, the appeal must be allowed. What, however, was the effect of that? Could the EAT, as the Respondent urges, uphold the ET’s conclusion in any event because (1) the result on disadvantage is obvious (there was none) and/or (2) the ET’s alternative finding on justification still stands? 43. Turning to the first of those questions, the Claimant says that the ET made a finding of fact on the question of disadvantage that this court cannot go behind (see sub-paragraphs 8.11.6 and 8.11.7, as set out above). Is that sufficient? I cannot see that it is. I cannot see that those passages sufficiently engage with the assessment required of both group and individual disadvantage that has been identified as a requirement in Essop . The ET did not have the advantage of that case before it, and so it may not have appreciated quite the nature of the assessment it was required to undertake. Whatever the reason, however, I am satisfied that there are not the required findings of fact to make good the reasoning on disadvantage. 44. Does that question then need to be remitted, or can I, as the Respondent urges, decide the point myself? The Respondent contends the evidence was to the effect that all those working to the rota (male or female) suffered disadvantage. Further, this Claimant, on the ET’s findings, had gone into this arrangement with her eyes open; her circumstances had not changed. If there was any disadvantage, it was self-inflicted, and she benefited from the enhanced pay given for working those hours. 45. I do not, however, consider that the issue is as easy to resolve as the Respondent would contend. Showing disadvantage does not mean showing that particular working arrangements are impossible for a particular individual; merely that they put that individual at a disadvantage. As for the impact upon a group or the impact upon an individual, that required a proper assessment of the evidence by the ET at first instance. That was not done here. There were not, therefore, the requisite findings of fact and it was not for the EAT to try to make good that deficiency by picking through the evidence on an appeal. 46. The question then arises as to whether, in any event, the indirect sex discrimination claim is answered by the ET’s alternative finding that the PCP was justified (see paragraph 8.12 set out above). The Claimant urges not: the ET had no had regard to the possibility of an exception being made for the Claimant, as the Respondent was able to do for the other female GP taken on after her and as it was ultimately prepared to offer the Claimant. As the EAT recognised in Seldon , in exceptional cases it was right to look at the question of an exception to the rule. More generally, the ET had failed to carry out the requisite balancing exercise. 47. The Claimant’s argument, however, seeks to avoid the force of the rulings in Seldon and Homer by the Supreme Court, which make clear that it is the rule that needs to be justified not its application, even if the application of the rule in an individual case might give rise to questions of personnel management on a broader level. Assuming that the Claimant had made good the prima facie discriminatory nature of the rule, this ET was satisfied that it was justified because of the need to provide urgent health services on a 24/7 basis, which - it was common ground - had to be provided by salaried GPs and could not be covered by locums. There was no general rule of allowing exceptions. To the extent one had been allowed, that individual fell outside the pool. Looking at the rule as it was applied to those in the pool, I am satisfied the ET made a clear finding that was open to it on the evidence. 48. The Claimant objects that the explanation at paragraph 8.12 is insufficient; it merely restates the legitimate aim. I think that is an unfair criticism. The legitimate aim here was obvious and clear; stating it makes only too plain the justification. Even allowing for the discriminatory impact, the ET was entitled to conclude there was nothing to be put in the balance against it. Indeed, it is notable that on this appeal the only matter that has been suggested should be put in the balance against it is the suggestion that an individual exception could be made in the Claimant’s case, but that, as was made clear in Seldon and Homer (see the passages cited above) is to miss the point: it is the rule that needs to be justified not its individual application. Here the obvious nature of the case on justification meant that no further explanation was required other than that given by the ET at paragraph 8.12. That being so, although the ET may have erred on its route to getting to its conclusion, the conclusion it reached is obviously right and should be upheld as the only answer to this case. 49. I turn then to the cross-appeal. Both parties are agreed that the ET erred in respect of the claim under the PTWR . The Claimant says I can uphold the ET’s conclusion under Regulation 5 as it was obvious that this claim had been made out. Doing so, however, would effectively necessitate allowing the Claimant to now apply to amend her claim to include a complaint under Regulation 5, something she did not choose to do below. The Claimant says there is no prejudice for the Respondent - the point was put to its witnesses by the Employment Judge, and it had the opportunity to re-examine or make submissions. That rather misses the point: the Respondent did not have to do either because no such claim was before the ET. Had it been put on notice of such a claim, the Respondent might have made further points relevant to Regulation 5. It is not possible for the Claimant to run her case on that basis now; that would be to deny the Respondent a fair hearing on the point. 50. As for the outstanding Regulation 7 claim, ultimately the detriments relied on by the Claimant were: (1) first the requirement to work two weekend shifts every four weeks rather than every eight weeks in October and November 2012; and (2) that shortly after 16 January 2013 she was required (in the letter sent out to her that day) to work weekend shifts greater than two weekend shifts every eight weeks. 51. On the first, it is plain from the ET’s finding (paragraph 5.31) that situation resulted from the Claimant’s request to work weekends only. I agree with the Respondent; that was not a requirement. The Claimant observes that she then changed her mind but the roster was not then altered to take account of that change. That is a different way of putting the detriment, but it still runs into the same difficulty. The rostering of the weekend shifts of which the Claimant complains (which obviously had to be done in advance), resulted not from any requirement made by the Respondent but from her request; the Respondent was accommodating her. There is no real-world possibility of that being found to be a detriment for Regulation 7 purposes. 52. Turning then to the second detriment, on the ET’s findings the Claimant had been told (at the meeting on 16 January 2013) that the Respondent was content for her to work one weekend a month; so, there would be no detriment (see paragraph 5.84). The point that seems then to be left arises from the fact that this was not made apparent from the letter then sent out to the Claimant that day (see paragraph 5.85). The Claimant never actually worked those shifts (she left before) so the detriment can only relate to the sending of the letter of 16 January 2013, containing the requirement, which was other than what the Claimant had been told. 53. Whether that amounts to a breach of Regulation 7 is a matter that I cannot resolve on the ET’s findings but have to remit. I am satisfied, however, that should be to the same ET. It is one relatively small point and has to be seen in the context of all the findings of fact. This ET is therefore best placed to decide it. Although there have been criticisms of some parts of the decision-making of the ET, the Liability Decision was not wholly flawed. Some errors in a case involving a number of different claims. I have no reason to doubt the professionalism of the ET in approaching the Regulation 7 case that it obviously overlooked. 54. I then turn to the costs appeal. I do not criticise the ET’s approach in general terms. It seems to me that it had in mind the guidance in Yerrakalva , which can be seen to have informed its decision-making. The decision reached was, however at least in part based on the ET’s view of the Claimant’s indirect sex discrimination claim. Given that the ET had made an error in its approach to that case (at least in the question of the pool), it seems to me right that it is given the opportunity to revisit its decision. 55. Coming to the Costs Judgment entirely afresh I can also see that it might be said that insufficient explanation has been given for why the ET found the Claimant acted unreasonably. I have to bear in mind, however, that this was a Judgment being read by parties who had participated in these proceedings throughout and fully understood the issues as they had developed and were before the ET. That included the impact of the Claimant’s misrepresentations - as the ET found - as to what she had agreed in terms of her working arrangements before and on starting her employment. In that context I am satisfied that the explanation provided is sufficient. Similarly, on the linking of the costs incurred with the unreasonable conduct, given that the ET halved the amount it found to have been reasonably incurred by the Respondent by way of costs to allow that elements of the claims had not been pursued unreasonably, I do not think this criticism ultimately goes anywhere. 56. The only point I am therefore prepared to uphold on the costs appeal is the need for the ET to revisit the award in light of its findings on indirect discrimination and the agreed error made in that regard. 57. As already indicated, in my judgment, it is obviously for the same ET to revisit that question; it is best-placed to do so. Applying the guidance in Heard , I am satisfied that that is the right course, and I remit it to the same ET to the extent that remains practical. 58. Having given Judgment in this matter, the Claimant has applied for permission to appeal to the Court of Appeal on the finding in relation to the indirect sex discrimination claim. The grounds relied on are that there are issues arising from the Judgment in Essop , in relation to the distinction between discrimination and proportionality and, further, that this court fell into error in failing to follow the exceptional-case approach allowed by the EAT in Seldon . 59. I cannot see that any of those grounds provide a proper basis for appeal. I have applied, as I am bound to do, the Court of Appeal’s guidance in Essop , and there is no suggestion that I have erred thereby. As Seldon point, I cannot see that the Claimant’s submission properly represents the Supreme Court’s ruling in Seldon (which must take precedence over the earlier EAT ruling). I note that the extract relied on by the Claimant relates to the EAT’s consideration of the approach to direct-discrimination justification in age discrimination cases. In any event I cannot see that any basis has been put forward to suggest that exceptional circumstances arose in this case. That being so, I cannot see there is any point of law such as to justify granting permission to appeal. The Claimant will need to ask elsewhere. 60. I turn then to the Claimant’s application for a reimbursement of her costs incurred by way of fees, which I understand to relate to each of the fees that she will have incurred in the two appeals. That application is made under Rule 34A(2)(a) of the Employment Appeal Tribunal Rules 1993 as amended , which allows that, where the EAT has allowed an appeal in full or in part, it has a broad discretion to make a costs order reimbursing the applying party for its fees. In this case, to a limited extent the Claimant’s appeals have been allowed, albeit in respect of something the parties agreed amounted to an error of approach on the part of the ET. 61. That being so, the Claimant has, on one view, been put to expense arising from what was obviously an error on the part of the ET. The Respondent observes that the matter could and should have been resolved by an application for a review on the part of the Claimant. For its part, the Respondent had not considered it proportionate to apply for a review on the part-time worker case; it had been prepared to simply meet any sums awarded in that respect. It thereafter found itself facing the appeal to the EAT after the time limit for application for review should have been made. 62. I consider there is some force in the Respondent’s submission. To some extent both parties might be seen to have gained by clarification of the correct approach and making sure an error by the ET was resolved. That, however, might have been done, one suspects, by a joint application for a reconsideration to the ET once it became apparent that these points were not resisted in substance on the appeal. It seems to be that the responsibility for that lay largely with the Claimant, albeit the Respondent did not itself suggest such a course. In the circumstances, I am prepared to make a marginal order for costs. The Respondent will pay £400 towards the Claimant’s fees in relation to the first appeal but no more.