Appeal No. UKEAT/0325/07/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 February 2008
Judgment handed down on 23 June 2008

Before
HIS HONOUR JUDGE BURKE QC
MR I EZEKIEL
MS B SWITZER

MISS T AGU	APPELLANT

ROC UK LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS S WILKINSON
(of Counsel)
Instructed by: 
6 Pencarrow Place
Fishermead
Central Milton Keynes
MK6 2BB	
For the Respondent	MR J-P VAN ZYL
(Solicitor)
Messrs Short Richardson & Forth Solicitors
4 Mosley Street
Newcastle upon Tyne
NE1 1DE	

SUMMARY
Sex Discrimination – Direct / Comparison
Practice and Procedure - Perversity
The Appellant claimed that she had been the victim of sex discrimination in that two named male comparators were allocated more extra work hours than she.  The rotas showed that that was so.  The Tribunal rejected the claim in one short paragraph, finding that there was no evidence of preferential treatment.

Held that (1) the Tribunal’s reasoning was wholly insufficient
		   (2) the conclusion that there was no evidence of preferential treatment was perverse.
Appeal allowed; remission to a fresh Tribunal.

HIS HONOUR JUDGE BURKE QC

The appeal
1.	This is an appeal by Miss Agu against the judgment of the Employment Tribunal, sitting at Bedford and chaired by EJ Bowen and sent with reasons to the parties on 23 March 2007.  By that judgment the Tribunal dismissed Miss Agu’s claims that she had been the victim of sex discrimination by her employers, ROC UK Ltd (“ROC”), had been underpaid in respect of holidays and had been subject to an unauthorised deduction from her wages.  

2.	She now appeals against the Tribunal’s judgment against her on her sex discrimination claims only.  Miss Agu who is a student at the University of Buckingham represented herself at the Tribunal hearing.  She originally put in a Notice of Appeal on 1 May 2007 which focused on an issue no longer before us.  At the preliminary hearing of her appeal before the EAT, presided over by HHJ Clark, she was represented under the ELAA Scheme by Miss Simler QC who, with permission, lodged an amended Notice of Appeal; and Miss Agu’s appeal has proceeded on the grounds in that amended notice.  She has been represented before us by Miss Sarah Wilkinson of Counsel; ROC have been represented by Mr Van Zyl of their solicitors.  We are grateful to both for their helpful submissions and to Miss Wilkinson for acting Pro Bono under the aegis of the Bar Pro Bono Unit.

The sex discrimination claim
3.	As a result of Tribunal decisions at a pre-hearing review, the nature of Miss Agu’s sex discrimination claim had been clearly identified and was set out at paragraph 1.1 of the Tribunal’s judgment.  She was employed on a part-time basis as a sales advisor at ROC’s service station in Buckingham.  Under the terms and conditions of her employment, which were treated as setting out her contractual terms, she had a contractual core of 20 hours work per week; she was obliged to work further hours at ROC’s request.  It was, although the Tribunal’s judgment does not say so, common ground that a number of other employees were also students from the nearby university and were employed on the same basis; see paragraph 8 of the witness statement of the service station’s manager, Mr Sinigra (known as Mr Kash);  in university vacations Miss Agu and other student employees were available to work extra hours which they could not work (or at least Miss Agu could not work) during the university terms; and it was part of ROC’s case that such employees often worked more – or less – hours than the contractual core, although, so far as less hours were concerned, it seems to us that that could only be by agreement;  for the terms and conditions document did not give downwards flexibility.

4.	The essence of Miss Agu’s sex discrimination claim on which the Tribunal had to adjudicate was that, during three periods of university vacation, between 18 September and 2 October 2005, 12 December to 25 December 2005 and 27 March to April 2006, despite her repeated requests to Mr Kash, she was given less by way of extra hours work than were the two male student employees whom she identified as her comparators, Charles and Baba.  In October 2005 Miss Agu raised this matter, together with others, as a grievance which was progressed through ROC’s procedure;  and in March 2006 the area manager, at the appeal stage of that procedure, said that he would investigate further.  What happened thereafter is not clear; Miss Agu’s claim form was presented to the Tribunal on 20 March 2006; and no issue of any failure on Miss Agu’s part to comply with the statutory procedural requirements arose for the Tribunal’s decision.

5.	There was before the Tribunal a series of staff rotas covering the three periods which we have identified.  They were analysed by Miss Wilkinson and reduced into schedule form.  As a result of discussions between Miss Wilkinson and Mr Van Zyl, agreed calculations were put before us which showed that, if all the relevant weeks were included in the calculations, Miss Agu in those weeks worked an average of 21.86 hours per week, Charles worked an average of 31.1 hours per week and Baba worked an average of 34 hours per week.  Alternative figures, excluding the last of those three periods, produced averages of 19.6 hours in the case of Miss Agu, 29.3 hours in the case of Charles and 30.6 hours in the case of Baba.  On the basis that all three employees began from the same position of 20 contractual core hours per week - which was ROC’s case - Miss Wilkinson submits that this evidence, plainly and unequivocally, demonstrated differential treatment between Miss Agu on the one hand and her comparators on the other.  

The Tribunal’s decision
6.	The Tribunal hearing took place over 2 days.  The Tribunal heard evidence from Miss Agu, Mr Kash and two other witnesses.  Charles and Baba did not give evidence.  

7.	The Tribunal’s decision identified the issues at paragraph 1.  In addition to the sex discrimination claim there were three other issues, whether ROC had given Miss Agu less than 20 hours work per week i.e. below her contractual entitlement, whether she had been granted less holiday than was her due and whether she was contractually entitled to extra hours of work beyond 20.  The Tribunal dealt with those three issues and found against Miss Agu in paragraphs 2, 4 and 5 of their judgment in somewhat summary form; but no complaint is made about that; for those claims involved, so far as two of them were concerned, a simple and obvious construction of the relevant terms of Miss Agu’s contract of employment and, as to the third, a simple answer on the facts to the claimed reduction of work below 20 hours, namely that overall those hours were given.

8.	As to the sex discrimination claim the Tribunal’s entire decision is to be found in one short paragraph, paragraph 3 of the judgment, which reads as follows:
“3.	Extra hours were allocated according to need by Mr Kash whose primary function was to ensure that the appropriate numbers of part-time staff were variously present at the petrol filing station 24 hours a day.  The Tribunal accepted his evidence that this required manipulation and depended on each day if a problem arose on the availability each day of such staff.  No evidence was presented of preferential treatment for Charles and Baba.  On the contrary evidence showed that women, including the Claimant, were frequently given extra hours, and that some male employees were not given any such hours on occasions.”

9.	Rule 30(6) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 Schedule 1 is as follows: 
“30 (6) Written reasons for a judgment shall include the following information-
(a) the issues which the tribunal or chairman has identified as being relevant to the claim;
(b) if some identified issues were not determined, what those issues were and why they were not determined;
(c) findings of fact relevant to the issues which have been determined;
(d) a concise statement of the applicable law;
(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues; and
(f) where the judgment includes an award of compensation or a determination that one party make a payment to the other, a table sowing how the amount or sum has been calculated or a description of the manner in which it has been calculated.”

10.	It should be noted that the judgment contains no concise statement of the applicable law or anything which explains how the relevant findings of fact and the applicable law have been applied so as to determine the sex discrimination claim. 

Submissions
11.	It is helpful to start with Miss Wilkinson’s widest submission which is that the Tribunal, having not set out what were the principles of law upon which they directed themselves, cannot be seen to have directed themselves to apply the guiding principles laid down by the Court of Appeal when a question of direct sex or race discrimination arises, in Igen v Wong [2005] IRLR 258, as subsequently explained in Madarassy v Nomura [2007] IRLR 296.  It was, Miss Wilkinson submitted, incumbent upon the Tribunal expressly to consider and decide first whether Miss Agu had proved facts from which it would be reasonable to draw the conclusion that she had been treated less favourably on the grounds of her sex.  If they so found, then the burden of proof fell on ROC pursuant to section 63A of the Sex Discrimination Act 1975 to prove that the treatment was in no sense whatsoever on the grounds of sex by providing cogent evidence and an acceptable explanation inconsistent with the treatment being on the grounds of sex.  

12.	In this case, however, submitted Miss Wilkinson, the Tribunal had not proceeded by those steps or followed the guidelines at all.  There is no reference in paragraph 3 to whether the Tribunal took the view that there were or were not facts from which the Tribunal could reasonably have concluded, in the absence of an adequate explanation, that there had been differential treatment, to whether the burden of proof was regarded as having passed to ROC or, if it did, what test the Tribunal applied and whether there was or was not an adequate explanation.  

13.	Miss Wilkinson submitted that although, in a relatively minor case such as this, a lengthy exposition of facts and law is not required, as a minimum in a direct discrimination case the Tribunal must expressly pose to itself the three issues which we have just set out and respond to them.  The judgment is defective in that it did not set out or address those issues, or is not compliant with Rule 30(6) and does not show as is required how the Tribunal reasoned to their conclusion.  

14.	Secondly Miss Wilkinson submits that the Tribunal, in saying in the third or the fourth sentences in which they address the sex discrimination claim, “no evidence was presented of preferential treatment for Charles and Baba” misunderstood the evidence and/or came to a perverse conclusion; there was such evidence in the form of the rotas to which we have referred.  However high the bar is set for success of a perversity argument, Miss Wilkinson submitted that in this case, it was successfully cleared.  She submitted that this sentence in the Tribunal’s judgment cannot be explained on the basis that the Tribunal were saying that they regarded the rota as showing differential but not preferential treatment because the Tribunal made no findings as to what the rotas showed or as to the basis on which, if they did, they regarded the evidence as not indicating a difference in treatment which could reasonably be regarded as due to sex.

15.	Thirdly Miss Wilkinson submitted that the last sentence at paragraph 3 cannot be regarded as satisfactorily explaining the decision that Miss Agu has failed to prove facts from which a reasonable conclusion of differential treatment could be drawn – if the Tribunal did so find – because the Tribunal had, at the first stage, in considering whether the burden of proof shifted, to consider only the comparison on which Miss Agu relied, that between herself on the one hand and Charles and Baba on the other.

16.	Fourthly attention to a number of issues of fact arising on the evidence which the Tribunal had not resolved.  If the Tribunal, on those issues, preferred the evidence of Mr Kash, they were bound to say so and explain, albeit briefly, why; but they did not do so.  

17.	In response to Miss Wilkinson’s first submission, Mr Van Zyl accepted that the Tribunal’s reasons were unusually brief and presented no argument to counter Miss Wilkinson’s points as to Rule 30(6), save that the provisions of that rule are not mandatory.  He submitted that this was a straightforward case, with no or no substantial conflict of evidence and in which there was no evidence of differential treatment of Miss Agu.  Therefore, he submitted, the Tribunal were entitled to state their reasons concisely and had done so adequately.  Mr Kash had given evidence about the way in which the rosters were arranged and the work was distributed to those who were available to do it.  In paragraph 3 the Tribunal had accepted that evidence.  

18.	As to the second point Mr Van Zyl’s argument was that the calculations which formed the basis of Miss Wilkinson’s criticism of the Tribunal’s approach were only relevant if Miss Agu was available to be given the same number of hours as those received by the comparators; but she was not.  He referred us to various documents which, it was said, indicated that she was not making herself sufficiently available to receive the hours which she now complained she had not been given.  He agreed that, if there was evidence to suggest that either comparator had been preferred to Miss Agu, then the judgment and the reasons of the Tribunal could fairly be criticised; but there was no such evidence.  The last sentence at paragraph 3, Mr Van Zyl submitted, demonstrated that the Tribunal had considered the matter generally and concluded that there was no preferential treatment.  

19.	Finally Mr Van Zyl submitted that there were no outstanding conflicts which were unresolved; Mr Kash’s detailed evidence about the allocation of available work had simply been accepted.  

Discussion
20.	We propose to take first the wider submission as to the shortcomings of the judgment.

21.	There can be no doubt that the judgment does not comply with Rule 30(6)(d) and (e); it does not refer at all to the law which the Tribunal directed themselves to apply; nor, save in the most summary form, does it inform the parties how the relevant findings of fact and applicable law have been applied in order to determine the relevant issues.  However (although we were not referred to it) we bear in mind what was said by the Court of Appeal in Balfour Beatty Power Network Limited v Wilcox [2007] IRLR 63 at paragraph 25 of the judgment of Buxton LJ, namely:
“I do not doubt that in future Employment Tribunals will be well advised to recite the terms of rule 30(6) and to indicate serially how their determination fulfilled its requirements, if only to avoid unmeritorious appeals.  But the rule is surely intended to be a guide and not a straight jacket.  Provided it can be reasonably spelt out in the determination of the Employment Tribunal of what rule 30(6) requires have been provided by that Tribunal, then no error of law would have been committed.”

22.	Consistently with that authority Miss Wilkinson did not suggest that the judgment was insufficient simply because it did not comply with rule 30(6).

23.	We bear in mind too that in Laing v Manchester City Council [2006] ICR 1519, in which it was argued on appeal that the Tribunal had confused the first and second stages of the Igen v Wong guidance, the EAT, presided over by Elias P, said at paragraphs 73-77 that, while in most cases it would be sensible for a Tribunal formally to analyse a case by reference to those two stages, it was not obliged to do so; in particular, as pointed out by the House of Lords in Shamoon v Royal Ulster Constabulary [2003] IRLR 285, in the case of a hypothetical comparator it is not inappropriate for a Tribunal to go straight to the second stage; and it is not necessarily an error of law to fail to go through the two stages.  In Madarassy, at paragraph 10, Mummery LJ said:

“Secondly Igen Ltd v Wong did not decide that the Tribunal commits an error of law by omitting to repeat the judicial guidance in its decision or by failing to work through the guidance paragraph by paragraph.  The Court of Appeal expressly warned against this possible misuse of the guidance; see paragraph 16.  Omitting to refer to guidance or to apply it may increase the risk of errors of law in a decision, but such an omission is not in itself an error of law on which to found a successful appeal.”

24.	However, both in Madarassy and in Laing the Tribunal did set out what their self-direction was.  In the present case the Tribunal have provided no guidance at all as to what principles of law they were applying.  It might have been said that such principles might be culled by way of implication from paragraph 3 of their judgment; but Mr Van Zyl, who was engagingly frank as to the difficulties which he faced, did not seek to suggest that any such culling exercise was possible.  His response to Miss Wilkinson’s argument was, in short, that the case was a very simple one and did not need more elaborate reasoning; but we do not accept that as correct.  In particular, for reasons to which we will come, this was, contrary to Mr Van Zyl’s submission, not a case in which the evidence was all one way and needed no evidential or legal analysis.  It is not possible to tell from paragraph 3 whether the Tribunal applied the two stage test set out in the Igen v Wong guidance or regarded the case as one in which they could properly ask themselves whether, overall, they were satisfied that ROC had given an explanation of what occurred which demonstrated that the treatment of Miss Agu in relation to extra hours was in no sense whatsoever on the ground of sex.  Indeed it is not possible to tell whether they directed themselves that, if there was a difference in treatment, from which an inference of discrimination could be drawn, ROC would have to show, if there was to be a finding in their favour, that such treatment was in no sense whatsoever on the grounds of sex.  While the third sentence at paragraph 3 appears to be a finding of no potentially discriminatory treatment, the Tribunal in the remaining sentences appear to have considered, at least in part, ROC’s explanation; for the last sentence appears to go to an explanation that, whatever the position was between Miss Agu and Charles and Baba, her comparators, a wider look at the allocation of hours explained what had happened.  

25.	Further, insofar as the Tribunal considered that there was no difference between the treatment in relation to extra hours between Miss Agu on the one hand and Charles and Baba on the other, so that the burden of proof never shifted to ROC under section 63(a)(2) of the Sex Discrimination Act 1975, there are no reasons given for that conclusion.  The fact that extra hours were allocated by Mr Kash according to need did not or did not necessarily negate the existence of a difference in treatment between Miss Agu and her male comparators; nor did the fact that other women were frequently given extra hours and some males were not negate that difference in treatment.  How the Tribunal reasoned from the evidence to their conclusion and why Miss Agu lost on the sex discrimination issue is simply not demonstrated by the Tribunal’s judgment.

26.	Brevity is, of course, a virtue in absolute terms; a Tribunal’s judgment should not be criticised for brevity alone; and we do not make any such criticism.  However we have no doubt that, for the reasons we have set out, this is not a case from which it can be spelled out that the requirements of rule 30(6) have been complied with; and also, for the reasons we have set out, the judgment is in any event so deficient that it cannot stand.  

27.	We turn therefore, to Miss Wilkinson’s second point; and here too we prefer her submissions.  Miss Agu had expressly identified Charles and Baba as comparators.  The rotas for the relevant periods were in evidence before the Tribunal.  They showed that, in those periods, in a context in which each of the three employees had the same contractual core minimum 20 hours per week and Miss Agu – and no doubt Charles and Baba too - was seeking extra hours, Charles and Baba received a substantially greater allocation of extra hours then did Miss Agu.  The finding that “no evidence was presented of preferential treatment for Charles and Baba” appears to have been quite simply wrong or, if it is necessary to use the much criticised word, “perverse” by reason of the omission of relevant material before them or as a conclusion to which no reasonable Tribunal could have come.

28.	Mr Van Zyl’s valiant attempt to persuade us that Miss Agu did not make herself available to the extent that her comparators did must, in our judgment fail, if for no other reason because there is no finding of fact as to that in the Tribunal’s judgment.  Miss Agu, we accept, did not admit that that was so; if this was an issue the Tribunal did not determine it.  Mr Van Zyl’s argument that Charles and Baba usually worked more hours then did Miss Agu must also founder, in part for the same reason – there is no such finding – and in part because, if that was so, the Tribunal would have had to have considered whether ROC’s failure to address the imbalance thus produced when Miss Agu was available for more work was or was not discrimination.  Neither of these reconstructions, as to which the Tribunal might have made findings had they appreciated that there was the difference between the extra hours worked by Miss Agu on the one hand and her comparators on the other which the rotas demonstrated, can assist ROC’s position at this stage.  Neither is to be found in the Tribunal’s judgment.

29.	We suspect that the last sentence in paragraph 3 may indicate why the Tribunal went astray.  That sentence, contrasted as it is with the previous sentence, appears to show the Tribunal’s thinking as being that, if both women and men had extra hours and were not restricted to the 20 hours core minimum, there was no difference in treatment; but it has not been disputed that Miss Agu put her case forward, at least in part, on the basis that the extra hours available were discriminatorily distributed and not only on the basis that she got no extra hours while her comparators got some.  The finding that women including the Claimant received some extra hours neither defeated nor addressed that essential aspect of Miss Agu’s case.

30.	Mr Van Zyl accepted that, if there was evidence to suggest that either comparator was preferentially treated, then the Tribunal’s judgment could be fairly criticised; he was right to do so; it is, in our judgment, inescapable that, in the third sentence of paragraph 3, the Tribunal erred and that their error cannot be (nor did Mr Van Zyl suggest that it could be) rescued by any other parts of that paragraph which did not expressly address an explanation of what, on the face of the evidence, appeared to be preferential treatment.

31.	We can address the last of Miss Wilkinson’s points briefly.  Miss Wilkinson drew our attention to parts of Mr Kash’s witness statement, for example paragraph 22, in which he says:

“18 December 2005 was covered by Alloyius and Baba as they were the only staff available.”

and paragraph 23, in which he says:

“Miss Agu had indicated that she was not available to work the shifts.”

In relation to the first example the evidence was that Miss Agu was looking for extra hours; but there was conflict, Ms Wilkinson submitted, between her evidence and Mr Kash’s evidence which (a) the Tribunal did not expressly resolve and (b) if they did implicitly resolve it they did not give reasons for such resolution.  Miss Wilkinson further pointed out that, although in paragraph 22 of his witness statement, Mr Kash says that Miss Agu was on holiday on 23 and 24 December, the rota for those days did not use the abbreviation normally used for holidays “HOL” but used that which applied when an employee was not working – “LFF”.  In the same paragraph Mr Kash said that he gave the Christmas night shift to Baba because “he usually did nights”; but Miss Agu only worked nights.  Here, it was said, were further conflicts of evidence which the Tribunal failed to address.

32.	Mr Van Zyl said, as to the first of these examples, that Miss Agu’s letter of 17 December to Mr Kash, in which she referred only to two dates, showed that she was only available on those dates; but she referred to those two dates in that letter not as being the only two on which she was available but as being two dates on which double pay was available.  

33.	We agree with Ms Wilkinson that these issues, which did involve conflicting evidence, were not resolved.  We do not suggest that the Tribunal had to go through each one of these conflicts – and we have not gone through all those to which our attention was drawn by Miss Wilkinson – and make an express finding on each; but it was incumbent upon them in general terms to set out how such conflicts were resolved;  if they preferred Mr Kash’s evidence to that of Miss Agu or to what the documents showed, they needed to set out their reasons for so doing.  They did not do that.  In failing to do that they were, in our judgment, in this area too, in error of law.

Conclusions
34.	For the reasons we have set out the appeal must be allowed.  Miss Agu’s sex discrimination claim – but not her other claims – must be remitted for reconsideration.  We have considered the guidance as to remission contained in Sinclair Roche & Temperley v Heard [2004] IRLR 763 at paragraph 46.  Having regard to the extent to which the Tribunal’s decision was flawed, in our judgment the remission must be to a fresh Tribunal.