Appeal No. UKEAT/0614/07/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 July 2008
Judgment handed down on 31 July 2008

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
DR B FITZGERALD MBE LLD FRSA
MS B SWITZER

COMMANDER DAWN KENNEY OBE	APPELLANT

MINISTRY OF DEFENCE
	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS ELAINE BANTON
(of Counsel)
Instructed by:
Messrs Davies Arnold Cooper
Solicitors
6-8 Bouverie Street
LONDON
EC4Y 8DD
	
For the Respondent	MR RICHARD COLEMAN
(of Counsel)
Instructed by:
The Treasury Solicitor
(Employment Team)
One Kemble Street
LONDON
WC2B 4TS	

SUMMARY

SEX DISCRIMINATION:  Direct / Inferring discrimination

The Employment Tribunal dismissed a claim for direct sex discrimination brought by a woman in the Royal Navy Reserve who complained that she had been rejected for the post of Captain and Medical Director by reason of her sex.  The claimant appealed, contending that the Tribunal ought to have drawn inferences from the primary facts which shifted the burden of proof in accordance with the well known criteria of Igen v Wong [2005] ICR 931; and that the circumstances disclosed clear discrimination.  
The EAT dismissed the appeal.  Although it would have been desirable for the Tribunal to have dealt more fully with some of the arguments of the claimant, this was not a case like Anya v University of Oxford [2001] IRLR 377, where material primary facts had not been found or incidents of alleged discrimination not dealt with.  The EAT was satisfied that even had the arguments been addressed specifically by the Tribunal the result would have been the same.  The Employment Tribunal’s finding that there was no discrimination did not disclose any material error of law so as to undermine its conclusions.

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This is an appeal against the unanimous judgment of the Tribunal that claims pursuant to the Sex Discrimination Act for discrimination on grounds of sex and victimisation discrimination should be dismissed. During the course of the hearing, the claimant conceded that in the light of the evidence adduced before the Tribunal - not least the claimant’s own evidence - the victimisation appeal was doomed to fail.  Accordingly we say no more about it.

The background.
2.	The Tribunal heard this case over eight days in March 2007 and in June 2007 (there were 6 days of evidence in March and a day of submissions and a day for deliberation in June), they found the following material facts. The claimant is a senior Royal Naval officer serving in the Royal Naval Reserves. She has the rank of Commander. She was a full time naval officer for several years and became a member of the Naval Reserve on her retirement. Her background is nursing. In civilian life she manages a Care Home. 

3.	In 2004 she was promoted to the rank of Commander and put in charge of HMS Wildfire, a land-based facility. It was anticipated that she would remain in post for three years but in fact she relinquished her command after barely a year. This was a great surprise to her line manager, Captain Timms, because command posts are much sought after.

4.	The claimant was concerned that her action might jeopardise her future career, but she says she was assured by Captain Timms that it would not. He disputes this conversation and says that he made his disappointment very clear to the claimant at the time when she relinquished her command.  There seems little doubt that she did have that impression however, and certainly none of the correspondence at the time alerted her to the possibility that this action might in any way prejudice her future career.  The reasons she gave for relinquishing the post were that she had moved house and was nervous at having to cross London. She subsequently, however, gave additional reasons, saying that the pressures of her civilian job made it difficult for her to keep the command. 

5.	After relinquishing command of HMS Wildfire, the claimant sought promotion to the rank of Captain. She needed that rank in order to secure the post of Medical Director. She was short listed and went before the final promotion board. That board considers appointments principally on the basis of relevant information on the candidates provided in various reports. It does not carry out interviews.

6.	The final promotion board met in June 2005. They considered that there were two excellent candidates for promotion, the claimant and another candidate who in civilian life was a neurosurgeon and had attained the rank of Surgeon Commander. Captain Timms was on the final promotion board, together with three other persons, Commodore Reynolds, Captain Pipkin and Rear Admiral Borley, who chaired the board. 

7.	Each member assessed a score to a scale of 1-9.  This was not the way assessment is usually done - the scale usually adopted is 1 to 4 - but reflected the approach Rear Admiral Borley has always adopted.  Using that system, both the claimant and her comparator scored 25. 

8.	Rear Admiral Borley had a casting vote as chairman. He had given a higher score to the claimant than to the Surgeon Commander. Instead of treating this as a tie with the chairman exercising his casting vote, the members decided to continue their discussions to try to reach a clear decision. 

9.	In the course of those discussions, Captain Timms reported that the claimant had relinquished her command of HMS Wildfire.  There was some discussion about that, and it plainly had some influence on the outcome.  After this further discussion the board swung in favour of the Surgeon Commander. 

10.	As we have said, initially, both candidates had received 25 marks.  Borley was in favour of the claimant by 8 marks to 5 and Reynolds was in favour by 7 to 6.  Pipkin was in favour of the comparator by 7 to 6; and Timms by 7 to 4.  After the discussion, Borley reduced his mark for the claimant by 2 but she was still his preferred candidate; and Timms increased his by 1.  The marks of the other two remained the same.  Accordingly the board was split as to the preferential candidate but because the claimant’s overall mark was reduced by one, this put her below the comparator.

11.	The claimant was devastated when informed that she had not been promoted. She had, found the Tribunal, expected the selection board to be a mere formality. She lodged a grievance against her rejection but unfortunately it was mislaid and was not processed immediately. Subsequently it was considered by the Deputy Assistant Chief of Staff (Personnel Operations) to the Commander in Chief, Fleet. This was Captain Jameson, who was a barrister. He rejected the grievance because it had been lodged out of time. 

12.	The claimant then appealed to the Admiralty Board. They reversed the decision and allowed the grievance to proceed. There was what the Tribunal said was a full investigation by the equal opportunities investigation department. They considered her allegation that she was discriminated against because she was a woman. A large number of witnesses were interviewed by the investigation department. 

13.	The Admiralty Board considered the report and rejected the grievance.  They did, however, express the view that there had been a breach of procedure in a failure to raise with the claimant an OJAR report (officer joint assessment report) at the time she relinquished Wildfire.  This is a report that is produced if it is thought that someone’s action might be prejudicial to their future career.  They have the opportunity to explain the circumstances of their action.

14.	 In the meantime - indeed, we understand before the investigation began - the claimant had presented complaints to the Employment Tribunal of sex discrimination and victimisation.  (The victimisation claims, no longer being pursued, were directed at the handling of the grievance and did not involve any conduct by the board itself.)

The Tribunal Hearing.
15.	The claimant’s case before the Tribunal was essentially that she was plainly the better candidate and that there was no proper and legitimate explanation for her rejection, other than her sex. 

16.	The Tribunal set out the facts in fuller detail than we have recounted them.  They then summarised in some detail the submissions of the parties.  They directed themselves as to the burden of proof, referring to the principles set out in the well known cases of Igen v Wong [2005] ICR 931 and also Madarassy v Nomura International plc [2007] IRLR 246 which followed Igen.  These envisage a two stage process for cases of direct discrimination.  First, if the claimant proves facts from which the tribunal could properly conclude that the employer has treated the claimant less favourably on the grounds of sex, then the burden of proof moves to the employer.  At this second stage it is for the employer to satisfy the tribunal that the treatment was in no sense whatsoever on the grounds of sex.  The Tribunal also specifically reminded themselves that it is unusual to find evidence of direct sex discrimination, and that such discrimination is frequently unconscious. 

17.	The Tribunal then set out its conclusions. It rejected the suggestion, which lay at the core of the claimant’s case, that she was “head and shoulders” better than her male comparator, accepting the evidence of the respondent that they were both outstanding candidates. They both had successful careers and were eminently qualified for the promotion to Captain and to the post of Medical Director. The claimant had relied on the fact that she had had active service in Iraq and had held a command post, which her comparator had not. The Tribunal were satisfied, however, that her comparator also had an eminent civilian life as a neurosurgeon and enjoyed a very successful career as a Royal Navy Reservist.

18.	 The Tribunal rejected criticism of the fact that the scale of 1-9 had been employed. This was Rear Admiral Borley’s standard practice, and in any event it did not display any discrimination as between the two candidates.  They also rejected an argument that the board should have appointed the claimant in order to give effect to a policy of positive action in addressing equal opportunities.

19.	The Tribunal concluded that the promotion panel had not been influenced by unlawful sex considerations (para 62): 
“We are satisfied that the promotion panel used their best endeavours to select the best candidate for promotion to Captain and the post of DMed(R) regardless of gender. In their view, Surgeon Commander H was the better candidate and there is ample evidence to support the view that their decision was well reasoned, justified and gender neutral. It is not possible to detect a discriminatory motive tainted by gender. From the outset and without knowing anything about the process of selection, the Claimant decided that she had been unfairly rejected for a promotion. From that starting position, she has attempted to build a case to support her view.”

Then the Tribunal said this (paras 64-65):

“…The burden of proof does not shift to the employer simply on the Claimant establishing a difference in sex and a difference in treatment. Having considered all the evidence in this case, we are not satisfied that the Claimant has established a prima facie case or that the burden shifts to the Respondent.
We have also asked ourselves whether, if the burden has shifted, we could conclude that the difference in treatment between the Claimant and her comparator enables us to draw an inference of discrimination on the grounds of sex. We do not find it possible to draw such an inference. The claim of sex discrimination also fails.”

20.	We note here that the final paragraph is not a satisfactory statement of the relevant legal principle.  Once the burden has shifted, the onus is on the employer to satisfy the Tribunal that the decision to appoint had nothing to do with the sex of the claimant.  The Tribunal is not at that stage seeking to find evidence from which an inference of discrimination can be drawn; it is determining whether the employer has adduced evidence sufficient to rebut such an inference.  However, we think that the Tribunal’s finding in paragraph 62 demonstrates that they were satisfied that any inference that might otherwise have been drawn had been rebutted.

The grounds of appeal.
21.	The details of the grounds are very extensive, but they fall into two main categories. First, whilst it is conceded that the Tribunal did not misdirect itself as to the burden of proof, it is said that they incorrectly applied those principles to the facts of this case.  It is submitted that there was cogent evidence establishing a prima facie case of discrimination which should have shifted the burden of proof to the respondent. In particular, the claimant complains about various breaches of procedure: she suggests that she was subject to a higher and more rigorous standard than the male comparator regarding her assessment for promotion; and that she had suffered from sexist language and hostility and that there was evidence of actual discrimination. Had the claimant been a man there could be no doubt that she would have been given the post. Her superior qualifications were plain. On the application of the ‘but for’ test, as set down in James v Eastleigh Borough Council [1990] ICR 554, the only proper conclusion was that there was sex discrimination.

22.	Second, it is submitted that the Employment Tribunal failed to identify these factors which, had they been properly considered, would have shifted the burden of proof. Few of these points relied upon by the claimant, it is said, figured in the Tribunal’s reasons.

23.	These are inter-related grounds.  In essence it is being said that the Tribunal did not make findings with respect to matters it ought to have considered and that if it had, its conclusion on the question whether the burden of proof had shifted would inevitably have been different.   

24.	The claimant’s case drew strongly on the judgment of the Court of Appeal in Anya v University of Oxford [2001] IRLR 377.  That Court emphasised that where a claimant alleges that he was discriminated against with respect to various incidents, it is incumbent on the employment tribunal to analyse those incidents and determine whether they might have displayed racial bias.  In that case the claimant was denied promotion to a particular post, as in this case.  He alleged that there were a series of prior events which demonstrated that he had been the subject of preconceived hostility and racial bias.  The Tribunal reached their decision that the claimant had not been racially discriminated against without reaching conclusions on these matters.  

25.	We do not think that case is directly applicable here, however.  It is not alleged that the Tribunal failed to make relevant findings of primary fact which, had they been determined in the claimant’s favour, would have supported an inference of sex discrimination. Ms Kenney has not suggested that there were a series of earlier incidents of sex discrimination by the board, nor indeed by anyone.  Had that been the argument, and had the Tribunal simply failed to deal with her claims, then a remission would have been necessary.  We could not ourselves engage in resolving such factual disputes.  But that is not this case; there is, in fact, little dispute as to the primary facts.  

26.	The issue is what inferences could properly be drawn from the material facts.  In particular, the principal argument is that in connection with the very decision which is the subject of the complaint i.e. the failure to promote, the board in various ways acted in breach of procedure which, in the circumstances, ought to have caused the Tribunal to infer discrimination.  These are matters with which we can properly engage in this appeal, and the claimant has not suggested otherwise.  Indeed, we have been encouraged to find that the only proper inference is that there was sex discrimination.

The prima facie evidence of discrimination.   
27.	The Tribunal found that there was only different treatment and a difference of sex and that this was not enough to shift the burden of proof.  The claimant says that this is grossly misleading.  It is submitted that in the light of the pattern of unexplained procedural failings, and other less favourable treatment, as well as evidence of actual discrimination, the burden of proof plainly shifted. It is also suggested that taken in the round, the claimant was so obviously the better candidate that the Tribunal’s finding was erroneous or perverse.

28.	We are not prepared, and are not in a position, to accept that she was obviously the better candidate.  The Tribunal found that this was not so, or at least that the board genuinely believed on reasonable grounds that it was not so. A challenge to that finding is really a perversity challenge.  That is a very high hurdle to cross, and in any event, we do not have the evidence to deal with it.  We have been taken to various witness statements, but we do not know what evidence emerged in cross-examination.  There is no agreed note of evidence, nor do we have the employment judge’s notes.

29.	 We appreciate that this lies at the heart of the claimant’s real grievance and was the thrust of her case before the Tribunal below, but it is not something that can properly be advanced before us now without the relevant evidence having been agreed or the notes of the hearing obtained.  Accordingly, we focus only on the other issues which are said to provide evidence of prima facie discrimination.

Less favourable treatment.
30.	The principal focus of this part of the case is that the Wildfire incident ought never to have been discussed by the board at all. It was a breach of the appointment criteria, which require that the appointment should be made solely on merit and in the light of the reports; it breached the obligation for decisions to be determined “objectively” under the equal opportunities policy; and it involved unfairness – as the Admiralty Board recognised – because it allowed the board members to hold against the claimant the relinquishment of her command without giving her the opportunity to give her account of the incident. Had the OJAR report been produced, this would at least have ensured that fairness would have been achieved. 

31.	There is some force in the submissions, but only up to a point. In our view, the Tribunal was entitled to find, as it implicitly did, that the board was entitled to discuss the Wildfire incident.  As Mr Coleman, counsel for the respondent, pointed out, the instructions given to the board state in terms that although merit was the primary criterion to take into account, it was not the exclusive consideration.  

32.	There was also the question whether a candidate was suitable for a particular post, and that could legitimately involve consideration of the candidate’s ability to find the time to commit herself to the job.

33.	The definition of merit in the relevant rules is as follows: 
“Merit. For the purposes of the Promotion Boards, “merit” is to be defined as suitability for service in the next higher rank and the reach or potential for promotion beyond. Merit should not be construed in terms which suggest that promotion is a reward for a good performance in the current or previous ranks.
Therefore, promotion for an officer is most likely to be his/her last. Consequently, there is no reason to allow higher age or seniority to count against an officer in assigning a promotion category.” 

34.	We also see force in the observation of Mr Coleman that the phrase “suitability for service” in the definition of merit includes the ability to be able in practice to give the commitment to the job which it requires.  Moreover, one of the witnesses called by the claimant herself, namely Commodore Muriel Hocking, who had experience of participating onboards of this nature, accepted that the ability to balance home life with the work was a factor to be taken into account over and above merit, as was the personality of the candidate to cope with the added pressure and responsibility of a higher rank.

35.	Ms Banton suggests that if this was a reason for rejecting the claimant then the respondent should not have stated in the equal opportunities questionnaire that the candidate did not display any weaknesses or failings.  We do not accept that.  It is not a weakness or failing to find that the demands of home and business life may pose difficulties for performance in the post.  The board was not suggesting that the claimant was not suitable for the office.  On the contrary, she was a very strong candidate without any obvious weaknesses or failings, and the reply to the questionnaire was entirely consistent with that.

36.	Nor do we accept that the discussion of the Wildfire incident involved any breach of the obligation under the equal opportunities policy that a decision should be taken objectively. The members of the board had to exercise a judgment in the light of the relevant facts. This is not a mechanical exercise: there would have been no purpose in having a board make the decision if it were. It is a common misconception to assume that because a decision may involve weighing competing considerations, then it is subjective and in some sense unfair. Most decisions about suitability for any post involve the exercise of judgment of this nature.  Objectivity does not exclude judgment.

37.	The real grievance, it seems to us, and we well understand the basis for it,  is that the Wildfire factor was taken into consideration without the benefit of the claimant being able to counter any adverse impression the members of the board may have had about the circumstances in which she relinquished the post. It was clearly her understanding that she was not going to be prejudiced as a result of her action, and yet she was. 

38.	It is true that Captain Timms knew the explanation she had given for relinquishing command, but that is not the same as her having the opportunity to address the issue directly. Had the OJAR been provided then the claimant could not, in our view, have raised any legitimate complaint about this matter being raised for discussion. It is part of her history and is obviously potentially material, as one of many considerations, to the decision which the board had to take. But it was not provided, and in our view leaves her with an understandable sense of injustice.

39.	We turn to consider the other matters which it is said together give rise to a prima facie case of discrimination. 

40.	First, it is alleged that the board misapplied the merit test.  The claimant submits that the respondent’s own evidence, as recorded by the Tribunal in paragraph 32 of its decision, demonstrated this fact:
“It is submitted that the Respondent has provided a credible and rational explanation unrelated to the Claimant’s sex to explain why Surgeon Commander H was promoted and the Claimant was not. The factors that counted against the Claimant, it is submitted, were her earlier relinquishment of her command of HMS Wildfire and the fact that Surgeon Commander H was four years senior to the Claimant.” [Emphasis added]. 

41.	The claimant says that the effect of the definition of merit is that it was wrong for the board to have allowed the comparator’s age - he was one year older - or years in rank to count in his favour and against her.

42.	We do not accept that submission.  In our view, the definition of merit - admittedly somewhat cryptic - is not saying that age and seniority are not relevant.  Rather it is saying that someone who is older, or has greater seniority, should not have that fact held against him.  In short, it is cautioning against age discrimination directed at the older officer rather than saying that age or experience is immaterial.

43.	The second procedural breach relied upon is the departure from the usual scoring system. Again, it is said that this was a factor which contributed to establishing a prima facie case. We agree with the Employment Tribunal that it does not.  It does not begin to demonstrate or suggest any sex bias since the Tribunal accepted that it is the system which Rear Admiral Borley always uses.  There is nothing intrinsically discriminatory about this system and it was adopted equally for both candidates.

44.	A third procedural defect said to be potentially indicative of sex discrimination was the fact that the record relating to service in Iraq was missing from the claimant’s service file. The fact that the Iraq reports were missing was unfortunate. However, as noted by the Tribunal, that papers were also missing from the comparator’s file precludes any inference of discrimination being drawn.  It suggests that there was indiscriminately poor administration in putting the file together, but it is not alleged that the board members were responsible for that task.  Absent some conspiracy theory, which is not relied upon, it is impossible to see how the administrative failings of others can possibly be relevant to establishing sex discrimination by this board.  

45.	Moreover, the claimant’s Iraq experience was in fact known to the board. It was an important feather in her cap.  (In our judgment, the fact that the Tribunal was wrong in saying it was Captain Timms who presented her with the MBE when, in fact, it was the Queen who gave her an OBE, whilst sloppy, is no more than that.  The important point is that the board knew of her Iraq experience.)  

46.	Finally, it is submitted that the Navy could have employed an element of positive action because the higher ranks of the Royal Naval Reserve are so male-dominated. There is what is termed an Equal Opportunities Action Plan which amongst other things states as one of its objectives: 
“Removal of unfair employment and progression barriers and develop positive action policies to better support retention of ethnic minorities and women.”

The claimant came close to asserting that the board could and should have taken advantage of this provision to choose the claimant in the event of a tie break, and that it was a breach of the Action Plan to fail to do so.  

47.	We think this is misconceived, as did the Employment Tribunal.  First, we do not think that this provision envisages positive discrimination on an ad hoc basis; rather it envisages removing structural barriers.  Second, and in any event, the fact that in certain very exceptional circumstances it is open to an employer to give preference to one gender rather than to another does not demonstrate that it is even prima facie unlawful discrimination if that opportunity is not taken and all candidates are treated equally.  It is not discriminating against a woman to fail to treat her more favourably than a man.

48.	A related argument relying on the Action Plan is that the claimant alleges that there were barriers to women being promoted until these barriers were removed in 1998, although we understand that this was not accepted by the respondent.  It is submitted that in comparing the two candidates, allowance ought to have been made for the more extensive senior management experience which the claimant had before 1998.  We do not in fact know whether any allowance was made for this, or what the evidence, if any, was about it.  But even if no allowance were made, we doubt whether this was a breach of the Action Plan.  As we have said, that appears to envisage structural changes rather than ad hoc allowances made by particular appointment boards.

49.	It is said that the claimant was subjected to a higher standard than her comparator. She had been told that she had to demonstrate her suitability for promotion by taking command and senior posts whereas it was said that her male comparator was not told that.  That is not made good on the evidence before us.  We do not know what the comparator was told or what the evidence was before the Tribunal about this.  It may have been plain that there was nothing in the point.  Indeed Mr Coleman suggested that the evidence demonstrated precisely that, although we are not able to establish that either.  We would observe, however, that it is not obvious how the observations of some other officer would assist to demonstrate discrimination by this body in the course of this appointment. 

50.	Finally, with respect to this aspect of the case there was a somewhat curious complaint that there was further discussion when the claimant was assessed to be equal with her male comparator but no further discussion when he went ahead. There cannot be permanent discussion of these matters.  The point of further discussion was to seek to reach an agreed preference.  Once that was done, it is absurd to suggest that the principles of equality somehow required the board to reopen the issue yet again.

Evidence of discrimination.
51.	The claimant also submits there was evidence of actual discrimination, in particular by Captain Timms. This is apparently based on the claimant’s perception that he did not like her, and this observation that she was “full of herself”. By contrast it is said that the comparator was said to be “correctly ambitious”.  Those, however, were not the words of Captain Timms, but of Commodore Reynolds.

52.	In our judgment, this argument is singularly weak. We do not accept that it is sexist language to say of a woman that she is “full of herself.”  We see no basis at all for saying that a male would not have been so described; indeed, in our experience they are frequently so described. We do accept that there may be circumstances where the contrast in the language used to describe the qualities of a man and of a woman could suggest discrimination.  However, since here it was different officers at different times, there is no basis for inferring discrimination at all.

53.	Certain observations of Rear Admiral Borley that she was “dynamic and pushy” are similarly said to suggest discrimination.  We agree with Mr Coleman that, when read in context, these observations were plainly intended to be complimentary of the claimant, not critical of her.  This is confirmed by the fact that the Rear Admiral at all stages would have preferred the claimant for the post. 

Were the reasons defective?
54.	We recognise that it would have been desirable if the Tribunal had expressly dealt with some of these issues, even if only summarily.  In particular, as we have said, the claimant had a legitimate grievance, recognised by the Admiralty Board, that she should have been given an OJAR with respect to Wildfire.  We think that the Tribunal ought to have indicated why it felt that this was not relevant to her discrimination claim.

55.	However, it must also be said that the principal focus before the Tribunal was the claim that the case was overwhelming and that the claimant was head and shoulders above her comparator.  These other factors were raised but save at least for the Wildfire issue, we suspect not with the vigour with which they have now been advanced before us. 

56.	If we had thought that the failure specifically to deal with these issues could have altered the decision of the Tribunal, then we would have remitted the case.  However, we have sought to deal at some length with the matters advanced on appeal in order to assess whether they were as overwhelming as the claimant suggested.  Having done so, we have concluded that  the points raised are not indicative of even prima facie discrimination and do not cast any real doubt on the reasoning of the Employment Tribunal with respect to the shift in the burden of proof.  

57.	As we have indicated, the one argument with which we have much sympathy is the fairness argument relating to the failure by Captain Timms to provide an OJAR with respect to Wildfire. We doubt whether in fact that would have assisted the claimant, especially since her reason for relinquishing that command was the difficulty of reconciling her business life with the demands of the service.  Nonetheless, she has been prejudiced by an action which she understood would not be held against her.   However, we do not think that the initial failure to issue the OJAR or the subsequent discussion give any support, and certainly no significant support, to an inference of sex discrimination.  Indeed, we suspect that if Captain Timms was minded to show hostility to the claimant it is more likely that he would have raised an OJAR than not.  It was not, after all, a case of the claimant being treated in a procedurally different way to her comparator. Both were the subject of further discussion.

58.	Furthermore, we accept the submission of Mr Coleman that it is fanciful to think that the discussion was a smokescreen for gender-based prejudice since although Rear Admiral Borley reduced his mark by two, perhaps in part as a consequence of the discussion, he still kept her ahead of the comparator; two members did not change their mark, and Timms, in fact, increased his assessment of the claimant. We should emphasise that it was not suggested that Captain Timms altered his mark in the knowledge of the change made by the Rear Admiral.  Of course, the claimant was prejudiced overall by the discussion, but we do not think that the procedural error, relating as it was to the failure to raise an OJAR, could properly have had a material effect on the Tribunal’s decision that the burden of proof did not shift.
  
59.	Even if it had, there is a more fundamental problem.    The Tribunal found in terms that there was no discriminatory motive for the decision: (see paragraph 62 reproduced above at paragraph 19).  On a fair reading of the Tribunal’s decision that is a very clear finding, notwithstanding the misrepresentation of the law in the final paragraph of the Tribunal’s decision, which we have identified above.  This is hardly a surprising conclusion.  It is difficult to see how anyone, save possibly Captain Timms, might have been influenced by discriminatory motives. It has not been suggested that Pipkin was; and the other two were at all times in favour of the claimant taking the post.  There was little evidence to sustain the allegation of sex discrimination against Timms, apart from the low mark which he gave her.  However, having heard extensive evidence the Tribunal was satisfied that the selection was not influenced by the sex of the claimant.  

Conclusions.
60.	Accordingly, notwithstanding that we have genuine sympathy for the claimant, who has such a distinguished record in the Service and feels deeply her rejection for the post, we are not able to identify any material error in the decision of the Tribunal to justify setting aside their decision. There was an element of unfairness in the process, but that does not establish sex discrimination. It follows that the appeal fails.