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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Haxforth v. Hampshire Training and Enterprise Council [2001] UKEAT 1288_00_1603 (16 March 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1288_00_1603.html Cite as: [2001] UKEAT 1288_00_1603, [2001] UKEAT 1288__1603

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APPEARANCES

 

For the Appellant	MR J WRIGHT Representative Holly Chambers 2 Holly Lane New Milton Hampshire BH25 5RF


 


MR RECORDER LANGSTAFF QC

1. We have before us, two Appeals brought in respect of the way in which the Employment Tribunal sitting at Southampton dealt with the case of Mrs Haxforth.
2. In a decision promulgated on 30 August 2000 the Tribunal dismissed her claim that she had been discriminated against contrary to Section 6(2)(a) of the Sex Discrimination Act 1975 in circumstances to which we shall come.
3. Subsequent to that, Mr Wright who has appeared on her behalf today wrote to the Tribunal seeking a review of that decision. The basis for that review was that new evidence had become available, since the conclusion of the hearing to which the decision related, which was not reasonably known of at the time of the hearing and that the interests of justice required such a review. The Chairman, on his own, without having a hearing decided that that application had no reasonable prospect of success.

The First Appeal

4. So far as the first appeal is concerned it is against the decision of the Employment Tribunal rather than the decision on review. The basis of the Appeal is essentially a single and simple one and was indeed so described by Mr Wright in the course of his sustained submissions before us this morning. That is, that the Employment Tribunal addressed the wrong question. They regarded the case as being one in which the discrimination consisted of the selection of a rival candidate for a post. In truth, submitted Mr Wright that was not her claim at all. Her claim was that she had been denied the opportunity of an interview which might have led to appointment to that particular post. He reminds us of the words of Section 6(2)(a) of the 1975 Act that it is unlawful to discriminate against a woman "in the way he (that is the employer) affords her access to opportunities for promotion". It was the denial of access to the opportunity for promotion rather than the denial of the promotion itself which says Mr Wright the Tribunal should have considered.
5. It is unnecessary to set out the facts in detail. In summarising those facts we are conscious that we may omit some detail of importance or perhaps over simplify others. But for the purposes of this judgment a summary is all that is required despite those faults. Mrs Haxforth worked as she continues to do, we were told, for Southampton Business Link. She was in 1999 a lead personal business adviser. There were two lead personal business advisers, herself and a Mr Warnock and a third lead business adviser whose job title was general business adviser, one Will Helmsley.
6. The Government proposed that Business Link would cease after spring 2001. It would be replaced by the Small Business Service. In paragraph 5(h) of the Tribunal's findings of fact the consequence is described in this way:

"The DTI had not given any details as to what was to be expected of prospective contractors. Proposals had to be submitted by February 2000. Mrs Stevens, (I interpose to say that she was the chief executive) in discussion with her senior board colleagues concluded that it would be inappropriate to recruit for a simple replacement for Mr Pullen (he was an advisory service manager who had just left the Respondent's employment) given the future uncertainty. In August it was decided that an interim manager should be appointed for the remainder of the financial year 1999/2000 until a clear picture was obtained from the DTI as to what would be expected of someone filling that position on a full-time basis."

7. The position which Mr Pullen had occupied was senior to that of the Appellant. The Tribunal found at paragraph 5(i) that Mrs Stevens felt that it was "crucial" that performance and fee generation should be improved. The process of the selection of someone to fill an interim post in the absence of Mr Pullen is described in these terms at paragraph 5(j):

"Mrs Stevens therefore looked at the three lead Business Advisers to see whether any one of them could be appointed to the interim post of Business Adviser Manager. She concluded that Mr Helmsley though a full-time manager unlike Mr Warnock and the Applicant who worked contractually only three days a week (albeit latterly working 4 days a week), did not have the necessary experience nor did he achieve his performance targets. Mrs Stevens therefore looked to the Applicant and Mr Warnock. By reason of her objective to improve performance of the team, she considered that Mr Warnock's performance far exceeded that of the Applicant who, spent more of her time monitoring and supporting her team than going out and obtaining fresh fee income. Mrs Stevens, after considering their CVs and appraisals determined that she wished to appoint Mr Warnock, principally because of his ability to meet performance targets."

8. It goes on to describe how there was no invitation for interview but simply the appointment of Mr Warnock. It was submitted to them on behalf of the Appellant that the process, which short circuited any form of application, short listing or interview procedure and which assumed that the Appellant would maintain the view which she had expressed orally to senior management staff on earlier occasions that she did not wish to work full-time, was discriminatory and, indeed, discriminatory on the ground of her sex.
9. The Employment Tribunal summarised its conclusions in paragraph 11 of the decision in these terms:

"In the light of our findings we asked ourselves has the applicant been less favourably treated than another? To this we say yes in the sense that she was not offered the post which was given to Mr Warnock a colleague of equal seniority. A case such as this where there is a difference in sex between the Applicant and her comparator, may be indicative of such unfavourable treatment being on the grounds of the applicants sex. We therefore looked to the respondent for the explanation of the treatment of the applicant. In essence we find that in the interim until a clear picture is known of the requirements of the DTI, the respondent wished a person to lead the advisors who had a proven track record in fee earning, which was considered crucial in securing any future contract. We are satisfied having heard the respondents' evidence that the choice was based upon fee earning ability. The applicant's strength in administration, and the care of her team were not considered relevant for the new interim role. The papers disclosed in the agreed bundle, support the view that in this regard Mr Warnock surpassed the applicants efforts individually, and in respect of their teams. We observe that in reaching its decision to appoint Mr Warnock Mr Helmsley suffered a fate similar to that of the applicant."

10. It continued in paragraph 12 to point out that there had been a number of shortcomings, it might be thought, in the procedures which the respondent employer had adopted and expressed sympathy with the Appellant not least because she might have been told in advance of the reasoning behind the appointment of Mr Warnock. It continued however, in these words:

"Notwithstanding these failings on the respondents part we are satisfied that the action of the respondent towards the applicant regarding the appointment was based on commercial consideration of performance, and not on the grounds of the applicant's sex."

11. It will be noted that important in this conclusion was the Tribunal's acceptance of the view that the Respondent's witnesses were genuine in telling the Tribunal that what had influenced them was the importance (expressed as crucial) of increasing future fee income. That was, as Mr Wright has pointed out, said to be the distinguishing feature between the Appellant and Mr Warnock. Without it, Mrs Haxforth was perhaps the better qualified of the two. He submits against this background that the question which should have been asked was, 'Was the Appellant denied access to an opportunity for promotion?' The answer would plainly be 'yes' because he would suggest she was not subject to any form of interview and did not have the chance therefore to put forward herself for consideration for this particular job.
12. If the Tribunal had examined the facts in that light they would have regard to the answer given in a questionnaire administered under the Act in which in answer to the question 'Why did you deny me the opportunity to apply or be interviewed for that position?' came back the response 'The post was for a full-time temporary person.' The Applicant had previously stated to several members of the management team at different times that she did not wish to work full-time.
13. Mr Wright has said that it is explicable only on the basis that the employer had here a stereo type of a woman working at home wishing to put child care and home care ahead of career, adopting the traditional woman's role in society: a stereo type upon which, he rightly observes, so much discrimination may either overtly or implicitly be based.
14. We consider that it was open to a Tribunal to make that inference in this case but it could only do so having heard and listened to and evaluated the employer's evidence. We consider by the same token that it was open to the Tribunal not to draw that inference. The mere fact that the Appellant was not asked to go to an interview coupled with the fact that she had earlier indicated on more than one occasion that she did not wish to work full-time is, we think, insufficient on its own to compel that inference to such an extent as to persuade us that the Employment Tribunal were necessarily perverse in not so finding.
15. The short answer to the submissions which Mr Wright made, is that it addresses the events which took place from an unnecessarily legalistic and unrealistic perspective. It ignores what is said in the passage which we have already cited from paragraph 5(j) of the Extended Reasons. If the Tribunal had asked themselves, in black and white, the question "was Mrs Haxforth denied the access to an opportunity for promotion?" they would have been bound to answer it, given the finding of fact there contained, to say that she had not. True, she had not been interviewed but there was nothing in the Sex Discrimination Act which in terms requires that there be an interview before there is an appointment.
16. Paragraph 5(j) makes it plain that there had been a process of consideration on an equal basis. For instance, one might compare the position of the Applicant with that of Mr Helmsley who would be entitled, just as she was, to ask the question why he had not been asked to go to an interview and in respect of whom the answer would be, one suspects, the same as in the case of the Appellant. This was looked at in the round a case in which the employer was looking to provide for a temporary appointment had taken the decision to look within its own staff and appeared to have been of the view that an interview was unnecessary and that a sufficient selection process could be done by the chief executive herself examining CVs and looking at appraisals.
17. So the answer to his submission would be that indeed she was afforded access to an opportunity for promotion.
18. Accordingly, thus far, we think there is no arguable point of law, which justifies a hearing at which both parties would be represented. We cannot however leave this point without reflecting much of what Mr Wright has so eloquently said to us. He has emphasised that discrimination is endemic and that it is all too easy for discrimination either on the grounds of race or sex to occur where formalised processes, intended to ensure equality of opportunity, are not pursued.
19. In essence, his plea was a plea that employers should use an interview process in situations such as these and should make appointments on a transparent and obvious basis, so that at the least other staff are not dissatisfied and at best the discrimination which is so apparent in the comparative failure of women in society to earn that which men earn is eliminated. One would have hoped this might have occurred long before now given that the Sex Discrimination Legislation has been in force for over twenty-five years.
20. All those comments are ones which we feel able and indeed happy to endorse. There is nothing in our rejection of the Appeal which should give any comfort to an employer who thinks that thereby he can short circuit the usual and proper interview process. Every case must be judged on its own merits. Any employer who does not go through a transparent process of appointment by whatever means is liable to find that an Employment Tribunal will look sceptically and critically at the appointment then made, and will be inclined to give credence at least initially to any complaint made to it of discrimination by a disadvantaged potential candidate. But that is not to say that the question can be resolved simply by asking 'Was there an interview?'

The Second Appeal

21. In this case the Tribunal asked the appropriate jury questions and back came the jury answers and we cannot that there is any error of law in their having done so. That then leaves the question of the Appeal in respect of the review. There was a letter which came into the hands of Mr Wright dated 26 June 2000. It came from Patricia Hewitt, a Minister in the Department of Trade and Industry. It said in the second paragraph:

"The main purpose of Business Links is to deliver high quality advice and support to small businesses. The generation of fee income is not their primary function."

22. Mr Wright focussed on those words and had in mind that they appeared to contradict the emphasis given at the Tribunal a few days previously by the Respondent witnesses to the crucial importance as they said, they saw it, of the need to earn fee income. Accordingly, he sought a review.
23. The Chairman responded with summary reasons and refused the application for a review. He said at paragraph 3 of those reasons:

"I now turn to consider whether it can be said that such new evidence would have had an important influence on the result of the case. The letter relied upon from the Minister merely indicates what the function of Business Links was to deliver high quality advice in support to small businesses, and that fee generation, though a function; was not a primary function. It is to be observed that the respondent at the time of the deliberations, and as expressed in the Tribunal's decision was unaware of what specifically was expected of prospective contractors. In the light of that uncertainty, Mrs Stevens as we found took the view that increasing fee generation and performance was likely to make the respondent a more attractive proposition for the purposes of being awarded a contract as a business link. Whether that view was accurate or not appears to be irrelevant, it was however the basis upon which decisions were taken. Based upon the explanation given by the respondent, we had to determine whether it could properly be said that the applicant had by the respondent's action, been unlawfully discriminated against on account of her sex. I am not satisfied that this letter is relevant, or alters the Tribunal's decision, which is based solely upon what was in the mind of the respondent at the time the decision was taken to promote Miss Warner at the expense of the applicant."

The reference to Miss Warner is, as it appears, in the decision. It should of course be Mr Warnock.

24. What Mr Wright says is that there was a failure of process. There should have been, as he understood the normal practice to be an oral hearing and discussion as a consequence of which the Tribunal might have decided to dismiss the application for a review or to proceed with it. But full reasons for a review having been given he urged that that practice should have been followed and that that it was an error of law for that not to have been done.
25. We have approached the Appeal therefore on these two bases. One, whether there was a failure of process and secondly, irrespective of that whether this was a case in which given the nature of the additional evidence a review was necessary so that (for instance) Mrs Stevens could be shown the letter and it be suggested to her that her evidence was either false or over stated when it indicated the importance of fee earning.
26. However, in the course of argument we have been persuaded that the letter from Patricia Hewitt is directed towards the overall purpose and function of the Business Link. We do not think it is addressing the same question as the evidence which is reported by the Employment Tribunal as having come from Mrs Stevens. When she was speaking of the crucial importance of fee earning she was doing so not in answering any question as to what was the purpose in the grand scheme of things of Business Link but rather what about the operation of Business Link, in order to achieve that purpose, was at the time seen to be of importance. Given that Business Link was likely to be in competition for providing business advice and given that the cost of any contract for the provision of that advice was likely to be influenced by the balance sheet of Business Link, we can see that there is much to support the Chairman's view that increasing the fee generation and performance was likely to make the Respondent a more attractive proposition for the purposes of being awarded a contract.
27. Accordingly, we do not think that that letter would make any material difference to the decision of the Tribunal and indeed we have to observe that the person who would best know what influence it would have would be the Chairman himself who had participated in the deliberations and drafted the decision.
28. We think therefore he was entitled, though not bound, to take the view that there was no reasonable prospect of success on that basis and if so we consider that there is no practice which requires him as a matter of law to conduct a full hearing as to whether there should be a review or not.
29. It would be a sad day if a case which was obviously hopeless had to be heard by a full hearing on review simply because what were on the face of it full reasons to support such a review had been delivered to the Chairman. For those reasons we see no arguable point of law in the second Appeal. The consequence of our decision on both Appeals is that we refuse permission for a hearing at which the Respondents would be represented and the Appeals must therefore be dismissed.