Appeal No. UKEAT/0286/03/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 October 2003
Judgment delivered on 30 January 2004

Before
THE HONOURABLE MR JUSTICE KEITH
SIR ALISTAIR GRAHAM KBE
MR P R A JACQUES CBE

1) DIAL-A-PHONE 2) MR A BROWN	APPELLANT

MRS BUTT	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR SEAN JONES
(Of Counsel)
Instructed by:
Messrs Addleshaw Goddard
100 Barbirolli Square
Manchester
M2 3AD	
For the Respondent	MR MATTHEW RUDD
(Of Counsel)
Instructed by:
Messrs Taylor Walton
28-44 Alma Street
Luton
Beds
LU1 2PL	

THE HONOURABLE MR JUSTICE KEITH

Introduction

1.   The Respondent, Mrs Kathleen Butt, was employed by the First Appellant, Dial-a-Phone Ltd. (“the Company”).   She was dismissed from her employment on 15 February 2002.   She presented an originating application to the employment tribunal claiming that her dismissal had been unfair, that she had been unlawfully discriminated against on the ground of her sex, and that she had been subjected to a detriment because of her pregnancy.   The last of these complaints was not pursued.   An employment tribunal at London Central found that Mrs Butt had been unfairly dismissed by the Company, and that she had been unlawfully discriminated against by both the Company and the Second Appellant, Mr Andrew Brown, its Managing Director, on the ground of her sex.   The Company and Mr Brown now appeal against those findings.   

The facts found by the tribunal

2.   The Company markets and sells mobile 'phones.   It had become the largest mail order mobile 'phone retailer in the country.   Mrs Butt joined the Company on 3 April 2000.   She had considerable experience in the industry, having worked in the operation and management of call centres.   She worked in the Company’s Customer Services Department, becoming Head of Customer Services in June 2000.   By the time of her dismissal, her salary and bonuses amounted to £73,500.00 a year.   

3.   Mrs Butt’s deputy was Mr Matthew Kemp, who was appointed the Customer Services Call Centre Manager in February 2001.   Mr Kemp’s career up to then had been in banking, and this was his first experience of call centre management.   The difference between their salaries by the time Mrs Butt’s employment ended was £23,500.00 a year after taking their bonus provisions into account.   

4.   Although the tribunal did not say so in terms, it clearly thought that Mrs Butt had been highly regarded by the Company’s senior management.   The tribunal referred in its reasons to the new structures and systems which she had introduced, the various problem areas within the Department which she had addressed, the significant reduction in the number of complaints which the Department received, and the substantial increase in its levels of performance.   The tribunal also referred to the integration into her Department of the Special Services Department, which resulted in a dramatic increase in levels of service and a reduction in levels of staffing.   The tribunal expressly found that Mr Brown had been satisfied with the Department’s performance under her management, his satisfaction being demonstrated by the bonuses awarded to her.   They averaged 91% of her maximum possible bonus, and included an exceptional payment for the first quarter of 2001 of a 100% bonus.   

5.   The Company’s sales peaked in August 2001.   Thereafter sales declined, and that downturn in turnover had a significant effect on the Company’s profits.   The Company’s board of directors introduced a series of measures designed to increase efficiency and cut costs throughout the Company.   Controls were placed on the Customer Services Department’s expenditure, and there was a freeze on the recruitment of staff.   Mrs Butt was heavily involved in this exercise, and she produced a document detailing various measures (including the elimination of 15 full-time posts) which if implemented were projected to produce savings of £40,000.00 a month.   However, her job security did not appear to be in doubt.   The tribunal found that in the months which followed the downturn of the Company’s turnover, Mrs Butt was informed on a number of occasions that her position and that of Mr Kemp would not be affected by the measures which had been put in place.   

6.   Mrs Butt became pregnant at the end of September 2001.   She told Mr Nicholas Costa-Veiga, the Company’s Human Resources Manager, about it on 28 November 2001, and asked him to pass the news on to Mr Brown.   Mrs Butt sensed that Mr Brown was not pleased with the news, because he did not refer to her pregnancy for a few days, although he congratulated her on it when he eventually mentioned it.   From then on, Mrs Butt noticed a change in the attitude of Mr Brown and one of the joint Chief Executive Officers of the Company, Mr Jonathan Beck, towards her.   The tribunal found (a) that at a managers’ meeting on 10 December 2001, Mr Beck had spoken sharply to her about the functioning of a new telephone system in her Department, implying that she had not been telling the truth about her previous experience of the system, (b) that she had been excluded from a meeting between Mr Brown and Mr Kemp in connection with an internet project, (c) that two of the duty managers in her Department had been seen by Mr Brown in order to update him on issues about which Mrs Butt might have been expected to report to Mr Brown, and (d) that Mrs Butt felt that some information relating to a project involving selling products to businesses under the BT brand was not being copied to her.   

7.   By 18 January 2002, Mr Brown had decided that Mrs Butt’s post of Head of Customer Services could no longer be afforded and that it would have to go.   He saw her on 25 January 2002 with Mr Costa-Veiga to tell her that.   She was provided with a letter which told her that over the next three months the Company would be consulting with her with a view to avoiding her dismissal by reason of redundancy.   The letter included the following passage:

“There will be a consultation meeting on 28 January 2002 to discuss the contents of this letter as part of the consultation process.   During the consultation process the company will explore what alternatives are available to you including any alternative positions within the company.   Details of any vacancies will be notified to you should they arise.   Accordingly, in advance of your meeting on 28 January 2002 and throughout the consultation period you may wish to give some thought to any alternative roles within the company that you believe you are suited to and which you may like to apply for, assuming that a vacancy exists or becomes available…..”

8.   Mrs Butt met Mr Brown and Mr Costa-Veiga again on 28 January 2002.   The tribunal’s findings as to what was said at that meeting appear at para. 4(ee) of its reasons.   The tribunal said:

“[Mrs Butt] asked whether there was any suitable alternative vacancy.   She was told there were only part-time Customer Services Agent positions.   She said this was insulting and asked whether there was a suitable alternative role in the Service Provision Department.   Mr Veiga agreed to look into it during the consultation period.   She asked whether other heads of departments were being made redundant and was told that the information could not be disclosed.   She asked for the criteria used for selection of her for redundancy and as to whether the Call Centre Manager’s position was considered as well and why only the Head of Customer Services was being considered, stating that she was competent to fill the Call Centre Manager’s role.   Mr Veiga agreed to provide the written criteria which was used to select the Head of Customer Services position as redundant, by 1 February 2002.   [Mr Brown] and Mr Veiga agreed to look at putting other roles into the consultative procedure as an alternative solution.   They also agreed to look at the timing of the redundancy in the light of [Mrs Butt’s] forthcoming maternity leave.”

9.   Following that meeting, Mr Costa-Veiga wrote to Mrs Butt on 4 February 2002 in response to her request for the criteria which had been used in deciding that it was her post which had to go.   The letter read:

“As requested I am able to further clarify that due to external economic factors and the need to remain competitive within an increasingly challenging marketplace the directors have proposed that the company could remove the position of senior customer services manager (head of customer services) from the organisation in order to cut costs.   As you know, since the summer our volumes have declined dramatically by over 40% and our margins have been squeezed by the networks and service providers.   Whilst the proposal is very regrettable, the directors have no choice but to continue cutting costs throughout the company.”

We make two comments about that letter.   First, it did not give any reasons for why Mrs Butt’s post, as opposed to that of others, had to go.   It merely restated the need to eliminate her post in order to reduce the Company’s expenditure.   Secondly, the tribunal described the letter as setting out the criteria which were used to select Mrs Butt for redundancy.   That is not an accurate description of the letter.   It merely asserted that her post was going, and even then it did not explain why.   

10.   Mrs Butt met Mr Brown and Mr Costa-Veiga on 6 February 2002.   The tribunal’s findings as to what was said at that meeting appear at para. 4(gg) of its reasons.   The tribunal said:

“Mr Veiga stated that there was only one vacancy available which was for a part-time Customer Services Agent, which [Mrs Butt] again said was an insult.   She said she was flabbergasted for it to have been brought up again.   [Mrs Butt] stated that the letter of 4 February 2002 did not provide the criteria as to why she had been specifically selected for redundancy.   [Mr Brown] and Mr Veiga confirmed that they were going to hold by the decision.   [Mrs Butt] stated that she had the most call centre and operational experience of all managers in Customer Services, particularly as compared with Mr Kemp.   She stated that, if proper selection criteria were used, this would clearly have become apparent.   [Mr Brown] said that [Mrs Butt] had been selected due to cost-cutting requirements in the structure, not due to her performance.   There was discussion of other departments where the heads of departments had been left in post whilst lower levels of management had been affected, and [Mrs Butt] asked why the same did not apply in her case.”

The tribunal did not record whether she was given an answer to that question.   Following that meeting, Mrs Butt met Mr Costa-Veiga again on 15 February 2002.   He confirmed that she was to be made redundant.   She said that she thought that the real reason why she had been selected for redundancy was because she was pregnant.   

The Company’s case

11.   The Company’s case in the tribunal was that it had decided to eliminate Mrs Butt’s post because it could no longer afford to have a management position in the Customer Services Department which was costing the Company £73,500.00 a year.   The post’s strategic responsibilities could be assumed by Mr Brown, and the post’s day-to-day responsibilities could be transferred to Mr Kemp.   However, when Mrs Butt raised the possibility on 28 January 2002 of the Company eliminating Mr Kemp’s post instead, the Company considered whether that was a feasible alternative.   The Company concluded that it was not.   Greater savings could be achieved by the elimination of Mrs Butt’s post.   Moreover, the consequences of eliminating Mr Kemp’s post would be that the responsibilities of his post would have had to be transferred elsewhere, those responsibilities could only have been transferred to Mrs Butt, and that would not have fitted in well with her existing responsibilities, which were mainly strategic (whereas Mr Kemp’s were operational).   The Company had then sought to identify a vacant post which could be offered to Mrs Butt.   No such post was available.   It had not considered offering Mrs Butt the post occupied by Mr Kemp, and making Mr Kemp redundant instead.   It had not considered that possibility because Mrs Butt had never said that she wished to be considered for Mr Kemp’s post, or that she would have been prepared to take it on had it been offered to her, and because she had merely suggested eliminating Mr Kemp’s post instead.   

The tribunal’s analysis

12.	The reasoning by which the tribunal concluded that Mrs Butt’s dismissal had been unfair and that she had been unlawfully discriminated against on the ground of her sex appears in paras. 6(e)-(j) of its reasons.   The tribunal said:

“(e)  The sudden decision to delete the role of Head of Customer Services as being immediately necessary was not satisfactorily explained to us by the Respondents, who claimed it to be a reasonable reaction to the financial problems facing the Customer Services Department.   As between losing [Mrs Butt] and losing her Junior Manager, Mr Kemp, there was a difference of £23,500 on the full year’s salary, after taking account of bonus provisions.   However, this was not a realistic figure, given that [Mrs Butt] would in the near future be on maternity leave for a period of 18 weeks and therefore would be unpaid for this period.   Furthermore, it was a modest figure as compared to the figures which, at the request of [Mr Brown], [Mrs Butt] had been able to propose through cost-cutting measures in her department, resulting [in] her projections in savings of £40,000 per month.   These projections had been accepted by [Mr Brown] and had been reported to the Board of Directors at the meeting of 15 January 2002.   

(f)  Upon being told of her proposed redundancy, there was an immediate request made by [Mrs Butt] to have other management positions considered alongside her own in a pool for selection.   At the same time she asked to be told of suitable alternative vacancies which might be available.   

(g)  Any reasonable management/human resources team would have recognised that, for there to be a fair selection for redundancy, there should be a selection process considered as between [Mrs Butt] and her junior manager in the Customer Services Department (Matthew Kemp).   [Mrs Butt] had stated that she could perform all the tasks within the role held by Mr Kemp and this was not disputed by the Respondents.   By contrast, he could not perform her strategic roles.   She might have been required to accept a cut in salary and some compromise might have been proposed and negotiated.   She might have been willing to accept a salary cut as an alternative to redundancy.   She ought to have been given the opportunity of being considered in a selection process for the departmental managership role that remained.   

(h)  The Respondents claim that such a selection process was unnecessary, since it was [Mrs Butt’s] role that had been selected and therefore she had to be selected in consequence.   We find that explanation to be so unreasonable as to lead us to reject it as a genuine and non-discriminatory reason for the dismissal.   We bear in mind, in relation to the complaint of sex discrimination, the effect of Section 63A of the Sex Discrimination Act 1975 (as amended) whereby, [Mrs Butt] having proved facts from which we could conclude there had been an act of sex discrimination, in the absence of an adequate explanation from the Respondents, then it is for the Respondents to prove that they did not commit the act of discrimination, or the complaint must be upheld.   

(i)  We infer, therefore, that following the request by [Mrs Butt], [Mr Brown] did consider whether Mr Kemp should be selected for redundancy instead of [Mrs Butt], but came to the conclusion that he should not because [Mrs Butt] was due to go on maternity leave in the near future and, therefore, would not be available as a manager for that period.   We draw the inference that [Mr Brown] decided that it would be more convenient for the business to simply remove [Mrs Butt’s] role from the departmental structure and her with it, rather than carry out a fair selection process as between the two managers in the Customer Services Department.   [Mr Brown’s] decision was ratified by his fellow directors at the meeting of the 18 January 2002.

(j)  [Mrs Butt’s] dismissal was therefore unfair by reason of the fact that her selection for redundancy was not carried out after a proper and fair consideration of the pool of employees from whom the selection should have been made followed by a fair selection process.   Furthermore, the consideration that was given to selection was tainted by the fact that [Mrs  Butt’s] pregnancy was weighed in the balance against her.”

13.	The decision as to whether it was Mrs Butt’s post or Mr Kemp’s post which had to go in order to effect the savings which the Company’s management had wished to achieve was for the Company to decide.   But it did not follow that, because it was her post which had to go, it was she who had to be made redundant.   Even if there were no vacancies in the Company which were suitable for her, it may have been appropriate for her to be considered for one of the posts in the Company for which there was not then a vacancy (for example, Mr Kemp’s), and for the occupant of that post to be made redundant instead.   That possibility was clearly recognised by the tribunal in para. 6(g) of its reasons.   

14.	There was some debate before us as to what the tribunal went on to decide.   Our initial view was that in para. 6(h) of its reasons the tribunal rejected the Company’s claim that it had not considered offering Mrs Butt the post occupied by Mr Kemp and making Mr Kemp redundant instead.   What the tribunal went on to find in para. 6(i) was that the Company had considered that possibility, but had decided to reject it.   However, both Mr Sean Jones for the Company and Mr Brown and Mr Matthew Rudd for Mrs Butt contended that that was not what the tribunal should be regarded as having found.   They said that the tribunal should be regarded as having found that the Company did not consider offering Mrs Butt the post occupied by Mr Kemp and making Mr Kemp redundant instead.   In the light of the second sentence in para. 6(i), we have been persuaded that that is the correct reading of the tribunal’s reasons.   

15.	That does not affect what the tribunal must undoubtedly be regarded as having found.   First, the tribunal found in paras. 6(i) and 6(j) that the decision to eliminate Mrs Butt’s post (as opposed to that of Mr Kemp), and to make her redundant because there was no other vacant position which could be offered to her, was influenced by the fact that she was pregnant.   Her pregnancy meant that she would be going on maternity leave in the near future, and it would be more convenient for the effective operation of the Company’s business for her post to be eliminated, with her being made redundant, since she would not be around for some time, rather than for Mr Kemp’s post to be eliminated, and for someone to be found to stand in for Mrs Butt while she was on maternity leave.   Her selection for redundancy was therefore unfair and amounted to unlawful discrimination on the ground of her sex because her pregnancy was taken into account.   Secondly, in paras. 6(g) and 6(j) the tribunal made findings about what the Company should have done, even if it was Mrs Butt’s post which was to be eliminated.   The Company should have considered offering Mrs Butt the post occupied by Mr Kemp and making Mr Kemp redundant instead.   As the tribunal said in para. 6(g):

“She might have been willing to accept the salary cut as an alternative to redundancy.   She ought to have been given the opportunity of being considered in a selection process for the Departmental Managership role that remained.”

It was the Company’s failure to give Mrs Butt that opportunity which made her selection for redundancy unfair.   

The Company’s first ground of appeal

16.	The Company’s first ground of appeal focuses on the second of these findings.   Its case is that it was not open to the tribunal to find that the Company should have considered offering Mrs Butt the post occupied by Mr Kemp and making Mr Kemp redundant instead.   That was because that had not been argued in the tribunal and Mrs Butt had never said that she wished to be considered for Mr Kemp’s post or that she would have been prepared to take it on if it had been offered to her.   It is said that the only suggestion which she made about Mr Kemp’s post was not that she should be offered it, but that it should be eliminated rather than hers.   In these circumstances, there was no need for the Company to consider offering her Mr Kemp’s post, because as the Employment Appeal Tribunal said in Barratt Construction Ltd. v Dalrymple [1984] IRLR 385 at para. 5:

“Without laying down any hard and fast rule we are inclined to think that where an employee at senior management level who is being made redundant is prepared to accept a subordinate position he ought, in fairness, to make this clear at an early stage so as to give his employer an opportunity to see if this is a feasible solution.”

17.	We are sceptical about the premise on which this argument is based.   It may well not be the case that Mrs Butt never said that she wished to be considered for Mr Kemp’s post.   In para. 4(ee) of its reasons, the tribunal found that at the meeting on 28 January 2002 Mrs Butt had said “that she was competent to fill the Call Centre Manager’s role”.   What was she doing suggesting that if she was not asking to be considered for the post?   It is true that there is no reference to that in either the Originating Application or in Mrs Butt’s witness statement which the tribunal had, it being agreed that the relevant paragraph in her witness statement (para. 83) merely dealt with her contention that Mr Kemp’s post should have been eliminated rather than hers.   Instead of saying that she would have worked for less, she suggested that the savings which the Company would have achieved by eliminating her post rather than Mr Kemp’s would have been only £23,500.00 a year.   Indeed, that was the point made by Mr Rudd in para. 24(iv) of his closing submissions.   But the fact remains that the tribunal found that she had told Mr Brown that she was competent to take on Mr Kemp’s role.

18.	It may be that that was a finding of fact which was not supported by the evidence, i.e. that she had not said, even in cross-examination, what the tribunal attributed to her, though we cannot be sure about that because we do not have the Chairman’s notes of the evidence.   It may be that what the tribunal meant to say was that she had told Mr Brown that she was able to combine Mr Kemp’s operational duties with her own, which would have been consistent with what the Company says was her only point, namely that Mr Kemp’s post should have been eliminated rather than hers.   For these reasons, we cannot be sure that the factual premise on which the Company’s argument is based is incorrect.   

19.	But even if it is correct, we have not been persuaded that the tribunal fell into error.   In our view, it was open to the tribunal to conclude that the Company should have considered offering Mr Kemp’s post to Mrs Butt and making Mr Kemp redundant instead, even if Mrs Butt had not suggested that herself.   We have not overlooked Mr Jones’ reliance on the comment in Dalrymple, but we make three points about it.   First, the Employment Appeal Tribunal said that it was not laying down a hard and fast rule.   Secondly, even if a senior employee should inform his employers (if it be the case) that he is prepared to accept a subordinate post, that does not necessarily mean that the employers will act fairly in not considering the employee for that post simply because the employee did not say that he would be willing to accept it.   Thirdly, Mrs Butt was pressing for Mr Kemp’s post to be eliminated instead of hers.   It would have completely undermined that stance if she had in effect been required to say (before the Company had reached a final decision on whether Mr Kemp’s post should go instead of hers) that she would be prepared to take on his post.   In our judgment, it was entirely open to the tribunal to find, to use the language of para. 6(j) of its reasons, that Mrs Butt’s selection for redundancy was not carried out after a proper and fair consideration of “the pool of employees”, i.e. Mr Kemp and her, from whom the selection should have been made following a fair selection process.   A fair consideration of which of them had to go once the decision had been made to eliminate her post would have involved considering which of them should be retained to carry out the duties of Mr Kemp’s post.   The need to consider that was not dependent on Mrs Butt saying that she would be prepared to take his post on.   

20.	Nor have we overlooked two criticisms made by the Company of what the tribunal said in para. 6(g) of its reasons as to why the Company ought to have considered offering Mrs Butt the post occupied by Mr Kemp, namely (a) that Mr Kemp “could not perform [Mrs Butt’s] strategic roles”, and (b) that Mrs Butt “might have been willing to accept a salary cut as an alternative to redundancy”.   The former was said to be irrelevant, because Mr Kemp’s inability to do Mrs Butt’s job had nothing to do with her willingness or suitability to do his job.   The second was said to be speculative, because there was nothing to suggest that she might have been prepared to take on a less remunerative post in order to avoid her redundancy.   We cannot go along with these criticisms.   First, the tribunal referred to Mr Kemp’s inability to perform Mrs Butt’s strategic roles only to contrast the fact that Mrs Butt was able to “perform all the tasks within the role held by Mr Kemp”.   Mr Kemp’s inability to perform her strategic role was not one of the reasons why the tribunal concluded that Mrs Butt should have been considered for his post.   Secondly, the tribunal was not indulging in speculation about what Mrs Butt would be prepared to do.   The tribunal merely said that she might be willing to accept a salary cut as an alternative to redundancy.   Whether she would in fact have been willing to accept a salary cut would have been relevant at the stage when the tribunal would have had to decide whether she had suffered a loss at all by virtue of the Company’s failure to consider her for Mr Kemp’s post.   The real vice was not the tribunal’s recognition of the untested possibility that she might be prepared to accept a salary cut as an alternative to redundancy, but the Company’s assumption that since she had not mentioned that possibility, it could be ignored altogether.   

21.	For all these reasons, we reject the Company’s first ground of appeal.   We have not overlooked Mr Jones’ point that not even in the tribunal was it argued that the Company should have considered offering Mrs Butt the post occupied by Mr Kemp and making Mr Kemp redundant instead.   But if the Company’s decision to eliminate Mrs Butt’s post rather than that of Mr Kemp had been influenced by the fact that Mrs Butt was pregnant, the fact that the Company did not then go on to consider offering Mrs Butt the post occupied by Mr Kemp and making Mr Kemp redundant instead would have been immaterial.   Her selection for redundancy would have been unfair and would have amounted to unlawful discrimination on the ground of her sex.   As it was, the tribunal found in para. 6(e) of its reasons that the decision to eliminate Mrs Butt’s post as opposed to that of Mr Kemp had not been “satisfactorily explained” to the tribunal.   And the tribunal found in para. 6(i) of its reasons that the decision to eliminate Mrs Butt’s post (and therefore to make her redundant) had been influenced by the fact that she was about to go on maternity leave.   

The Company’s second ground of appeal

22.	The Company’s second ground of appeal focuses on the tribunal’s finding that the decision to select Mrs Butt for redundancy was influenced by the fact that she was pregnant.   Three criticisms are made of the tribunal.   The first is that it failed to take into account (a) Mrs Butt’s own evidence that her progress within the Company had in the past been completely unaffected by the fact that she was a woman, or (b) Mr Brown’s uncontested evidence that Mrs Butt’s post had not been recreated or filled after she had left, that all other employees who had taken maternity leave and who had wanted to return to work had done so, and that the Company had been prepared to alter working conditions so that mothers could work flexible hours on their return to work following maternity leave.   The second criticism of the tribunal is that it failed to take into account the unlikelihood of the Company being motivated to select Mrs Butt for redundancy simply because she was about to go on maternity leave.   That temporary inconvenience would have been outweighed by the permanent inconvenience of the Company no longer having the benefit of her services when she wanted to return to work.   The third criticism of the tribunal is that, if the tribunal took these considerations into account, the tribunal did not say why these considerations did not affect its conclusion that the decision to select Mrs Butt for redundancy was influenced by the fact that she was pregnant.

23.	It is true that the tribunal did not refer to these considerations in its reasons, but that does not mean that the tribunal failed to take them into account.   The tribunal’s process of reasoning was that it was very surprising for the Company to have decided not to consider Mrs Butt for Mr Kemp’s post and not making him redundant instead simply because she had never said that she wished to be considered for Mr Kemp’s post.   There must have been another reason for the Company’s decision not to consider her for Mr Kemp’s post.   The inference which the tribunal drew in those circumstances was that it was Mrs Butt’s pregnancy, and the fact that she was to go on maternity leave shortly, which made the Company decide that it was she rather than Mr Kemp who had to be made redundant.   In our view, it was open to the tribunal to draw that inference, despite such evidence as there was about the Company’s positive attitude to gender issues and maternity leave, and despite the fact that the Company would be losing Mrs Butt’s services permanently, especially in the light of its findings about Mr Brown’s initial reaction to her pregnancy and the significant change in attitude towards Mrs Butt after her pregnancy had become known.   The process of reasoning by which the tribunal reached this conclusion is itself a sufficient explanation for why the considerations to which the tribunal did not expressly refer did not weigh heavily with it.   

24.	In para. 6(h) of its reasons, the tribunal referred to section 63A of the Sex Discrimination Act 1975.   The tribunal plainly decided that Mrs Butt had proved facts from which it could conclude that in the absence of an adequate explanation the Company had discriminated against her on the ground of her sex.   Mr Jones did not contend otherwise.   What he argued was that the tribunal did not then go on to identify the evidence on which the Company relied in order to prove that it had not discriminated against her.   In our view, that is simply another way of articulating the criticism of the tribunal’s failure to refer specifically to such evidence as there had been about the Company’s expressed stance on gender issues and maternity leave.   As we have said, we do not regard the tribunal’s failure to make specific reference to these factors as showing that the tribunal did not take them into account.   

Conclusion

25.	For these reasons, therefore, this appeal must be dismissed.   We regret the time which had elapsed between the hearing of the appeal and the handing down of this judgment, but some weeks after the hearing we received a further authority from Mrs Butt’s solicitors, Bax Global Ltd. v French (EAT/0596/03).   Our commitments were such that we could not consider it for some time.   In fact, it added nothing to the arguments at all.