Quick orient — first passages from judgment

EMPLOYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON, EC4Y 0DS At the Tribunal On 1 November 2006 Judgment delivered on 9 January 2007 Before

Thus, there may be no need for an actual or hypothetical comparator but there must, to accord with the statutory requirements be an appropriate comparison.

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The approach of this Tribunal in the case of Martin is also instructive. That case also concerned there having been an intimate relationship between a male and a female in the workplace, which broke down and resulted in dismissal of the female. The following passage at paragraph 12 is in point:-

"It seemed to us that the critical issue posed by Section 1(1)(a) was whether Mr�Lovering dismissed Mrs�Martin 'on the ground of her sex' an issue requiring a consideration of why he dismissed her. As we have said, we interpret the Tribunal as having found that the dismissal was because of the breakdown of the relationship. That, therefore, was the reason for her dismissal, not because she was a woman. We accept that, but for her sex, there would have been no affair in the first place. It could, however equally be said that there would have been no such affair 'but for' the facts (for example) that she was her parents' daughter or that she had taken up employment with Lancehawk. But it did not appear to us to follow that reasons such as those could fairly be regarded as providing the reason for her dismissal."

As to the matter of the use of a comparator, we are mindful of the caveat sounded in Bahl at paragraph 128 to the effect that it is not an error of law to fail to construct a hypothetical comparator in a sex discrimination case provided all potentially non-discriminatory reasons which might sensibly account for the treatment have been properly been taken into consideration. However, it seems to us that that is but another way of saying, as was commented in Shamoon, that it is vital that a proper comparison is made, given that the advancement of a non-discriminatory reason will almost inevitably involve the assertion that others without the characteristic in question, would have been treated the same way. At paragraph 108, Lord Scott of Foscotte said:

"� the statutory definition of what constitutes discrimination involves a comparison �. between the treatment of the victim on the one hand and of a comparator on the other hand. The comparator may be actual � or hypothetical �. but �. if there is any material difference of the comparator, the statutory definition is not being applied."

Put more shortly, as in MacDonald v Advocate General for Scotland [2003] IRLR 512:

" � there is no escape � from the need to resort to a comparison." (per Lord Hope at paragraph 94).

Thus, there may be no need for an actual or hypothetical comparator but there must, to accord with the statutory requirements be an appropriate comparison.

Respondent's Case on Appeal

In a clear and able submission, Mr Purchase sought to persuade us that the Tribunal had erred in law. They had, he said, erroneously applied a "but for" test rather than asking whether the dismissal of the Claimant was "by reason of" her sex. In support of his submission that they were in error in doing so, he referred to Nagarajan v London Regional Transport [1999] IRLR 572, Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 and Chamberlin & Anr v Emokpae [2005] ICR 931 and Martin v Lancehawk Ltd UKEAT/0525/03/ILB, 22 March 2004. He also referred to the case of Shamoon v Chief Constable of the RUC [2003] IRLR 285. Further, the Tribunal had not even attempted to construct an appropriate comparator as, in the circumstances, they should have done and they had given inadequate reasons for their decision.

It was plain, it was said, that the Tribunal required to focus on the question of what was the reason for the dismissal. They had found the reason. It was jealousy and the discovery of the Claimant's relationship with Mustafa. It was nothing to do with her gender. That being so, it was not open to them to find that the dismissal was on account of the Claimant's sex.

Mr Purchase submitted that that really was as far as he required to go. However, lest it was felt necessary to do so, he also addressed the comparator question. Whilst Tribunals may not be obliged be to create a hypothetical comparator (Law Society & Ors v Bahl [2003] IRLR 641), the Tribunal's failure to do so in this case may have led them into the error that they made. Had they constructed a comparator, they would have had to postulate a homosexual male employer and a homosexual male employee (Emokpae). If that was done, it was not possible to find that the Claimant was treated less favourably than a man would have been in her position. The SDA was not designed to protect employees from bad behaviour or spurned relationships. It was to do with the protection of women from being treated less favourably because they are women and men being treated less favourably because they are men. That was not what had happened in this case.

In anticipation of the argument against him, Mr Purchase submitted that the case presented on appeal was not a new point of law being raised on appeal. It was integral because the Claimant's claim was one for sex discrimination and thus whilst the points argued may not have been put before the Tribunal, it was not contrary to principle that they be considered at this stage.

Submissions for the Claimant on Appeal

Firstly, Mr McLeish submitted that the Respondent was seeking, impermissibly, to present a new point of law; the submissions now presented were not argued before the Tribunal. He referred to Jones v Governing Body of Burdett Coutts School [1998] IRLR 521, Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719, Hendricks v Police Commissioner [2003] IRLR 96 and Kumchyk v Derby County Council [1978] ICR 1116. In respect that the case for the Respondent on appeal was directed specifically at the applicable law in the context of it having been found that the act of dismissal was discriminatory, we asked Mr McLeish whether it had been argued for the Claimant before the Tribunal that her dismissal was a "stand alone" incident of sex discrimination. He said it had not.

Secondly, he submitted that the Respondent had completely misconstrued the Tribunal's decision. It was not the case that the key issue was the parties' relationship nor, he said, had the Tribunal made it clear that jealously was the cause of the dismissal.

In development of that submission, he drew attention to the fact that the Tribunal's finding was not that the cause was jealousy but that it had been driven by jealousy. He then submitted that it was implicitly clear from the whole of the Tribunal's findings, including those regarding the earlier stages of the parties' relationship, that the Claimant was dismissed on account of the Respondent having used threats to extort sex from her. That submission was, however, ultimately withdrawn. He then focussed on the Tribunal's findings about the earlier difficulties in the parties' relationship and submitted that it could have been that the Tribunal had them in mind when they were drawing conclusions as to whether the dismissal was discriminatory. He did not explain, though, how, even if that was so, it would have amounted to a finding that the reason for the Claimant's dismissal was her sex. The submissions on this matter were not entirely clear but it seemed to be that Mr McLeish's approach was to look at the difficulties that there were in the early part of the relationship, thereby brand the relationship as being one in which the Respondent was exploiting the Claimant throughout in a domineering fashion and to regard dismissal against that background as being discriminatory on grounds of sex on the basis that the sex discrimination legislation had as its purpose the protection of persons from being, as he put it "disproportionately subject to threats."

Thirdly, he said that a Tribunal's judgment can properly be brief and succinct, as this one was, but that that is only acceptable if they are addressing the right questions. The use by the Tribunal of the "but for" formula was a necessary but not sufficient part of the correct test. It showed that the Tribunal had taken account of there being a need for a comparator. Whilst they had not described the characteristics of the comparator they had in mind, it was not necessary to have an elaborate discussion about the comparator. If there was a "right" comparator to use, it would not be a homosexual man but a heterosexual man with whom the Respondent (as a woman) was having a relationship.

Discussion and Conclusions

We are readily satisfied that this appeal is well founded.

Firstly, we reject the argument that the Respondent now presents a new case and should not be allowed to do so. It is not a new case. The considerations to which Mr Purchase invited us to have regard arise from the nature of the Claimant's claim, namely a claim that she was discriminated against on grounds of sex. Whilst the application of the law to the particular factual matrix of the dismissal standing alone as a single act of discrimination may be new, the Claimant can hardly complain since, as Mr McLeish himself advised, that had not been her position before the Tribunal. It is thus not at all surprising that the Respondent did not specifically address the matter. Further, the Respondent could not have anticipated that the Tribunal would fall into the error which we are satisfied they did and it would be quite wrong to prevent the argument being advanced now on the basis that that error was not anticipated and guarded against at the earlier stage.

The Tribunal provide the answer to the necessary question: "why was the Claimant dismissed?" in paragraph 30:-