Appeal No. EAT/67/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 22 March 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MISS C HOLROYD

	MR R TODD

MRS S A SERGEANT	APPELLANT

BLMS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS I OMAMBALA
(OF COUNSEL)
Messrs Robin Thompson 
    & Partners
Solicitors
Wentworth House
Eastern Avenue
Gants Hill
Ilford
Essex IG2 6NH

For the Respondents	MR R HUTCHINSON
(SOLICITOR)
Messrs Berryman & Co
Solicitors
Park House
Friar Lane
Nottingham NG1 6DN

	MR JUSTICE MUMMERY (PRESIDENT):   This is an appeal by Mrs Sergeant against the majority decision of the Industrial Tribunal held at London North as long ago as the 11 October 1991.  Through no fault of parties there has been a long delay between the decision in the case, notified to the parties on 2 December 1991, and the hearing of this appeal on the 22 March 1994.  This is a regrettable situation caused by the enormous number of appeals waiting to be heard.

	The question before the Industrial Tribunal is whether there had been sex discrimination suffered by Mrs Sergeant, as a result of her treatment by her employers, BLMS.  The majority of the Tribunal decided that the sex discrimination complaint should be dismissed.  In order to understand the decision and the grounds of appeal, it is necessary to look at the question raised for the decision of the Tribunal, and the factual background.
  
	In her notice of application presented on the 21 May 1991, Mrs Sergeant complained of sex discrimination, contrary to Section 1 of the 1975 Act.  She stated that she was a cash collector employed by BLMS since March 1986.  Her complaint of sex discrimination arose out of the fact that she was suspended from her employment by her employers.  By letter of the 25 February 1991 her area manager had requested her to attend upon a medical with her general practitioner confirming her pregnancy and making a request for lighter duties.

	Mrs Sergeant attended on the medical.  As a consequence, by letter of the 28 March, she was suspended from employment.  Reference was made in that letter to her pregnancy and to the doctor's recommendation of light duties.  In those circumstances she complained of discrimination on the grounds of sex.  The claim was contested by BLMS.  Their Solicitors contended in a letter of the 15 July 1991 that it was admitted that Mrs Sergeant's contract had been suspended by BLMS (Bass Leisure Machine Services).  That this was not in connection with her pregnancy.  It was through her inability to perform her duties and the unavailability of other duties for her to perform.  The letter clarified the position by stating that she was no longer suspended.  Her absence was deemed to be due to ill health.  She was therefore in receipt of sick pay and retained all her rights to maternity pay.	In those circumstances discrimination was denied.  

	In the reasons for the decision rejecting Mrs Sergeant's claim, the Tribunal noted the two alleged acts of discrimination:  first, the suspension of the contract of employment and secondly the requirement to go further than producing a medical certificate in respect of absence by producing or assisting in producing a medical report.

	The Tribunal found the following facts.  There was no dispute that there had been suspension and a request for a medical report.  The case of BLMS was that this was not discriminatory, because it was not in connection with pregnancy, but was solely due to Mrs Sergeant's inability, or unwillingness, to perform her duties and the fact that there were no alternative jobs to which she could be transferred.

	The Tribunal noted that she had received payments on the grounds of absence due to ill health and received sick pay, and that her right to maternity pay was preserved.  She had the baby and it was open to her to resume her employment, in accordance with her statutory right.

	The Tribunal referred to the evidence and set out the circumstances in which Mrs Sergeant went to see her doctor after she discovered she was pregnant.  She was required to produce a certificate to show to BLMS in order to secure her statutory rights.  At that time she was over forty.  The Tribunal took notice of the fact that greater risks exist in such a pregnancy than in the case of a mother below forty.  She had a certain amount of sickness.  The doctor advised her of the risks and added that she was not to do any heavy work.  Certificates confirmed the pregnancy and suggested light duties, or at least the avoidance of heavy jobs.  That was confirmed in a letter sent to BLMS in response to their request on the 8 March for a report.  The letter stated as follows:

"I confirm that I gave Mrs Sergeant a Medical Certificate stressing that she should only be given light duties and that she should avoid any heavy lifting.  As you are possibly aware Mrs Serjeant is over 40 years of age and is pregnant.  All patients of this age must be classified as being "at risk" and as she is particularly anxious to have this baby I felt justified in advising her in everyway as to how best to avoid a miscarriage".

	The Tribunal found that, on the balance of probabilities, when Mrs Sergeant handed in the certificate she told her then manager, Mr Doyle, what the doctor had told her and what was confirmed in the certificate.  Through Mr Doyle, BLMS needed to know whether they could, or could not, ask her to do those tasks.  They sought clarification from the doctor.  Mrs Sergeant was very concerned not to overdo things.  She was anxious to avoid double collections.  Double collections are collections from machines of money accumulated over a period of two weeks, due to the absence of the collector.  Mrs Sergeant had been away whilst suffering from morning sickness.  There was an accumulation of money to collect.  These had been dealt with in the past by her or others, seeking assistance of those on site, or by telephone.  

	In these circumstances BLMS searched for another job for Mrs Sergeant.  She was put onto a temporary job in the office helping out.  There were no other jobs available that she could do.  Mr Day said that if she wanted to go back to collecting she would have been retained on that job.  Throughout her evidence Mrs Sergeant said that collecting did not call for heavy work.  All she needed to do was to make a simple request to continue doing work.  The Tribunal concluded that it was more likely than not that BLMS would have refused to allow her to continue her job as before, having regard to what the doctor said.

	That was the background to the crucial paragraph of the decision, paragraph 5 in which the Tribunal made critical comments about Mrs Sergeant as a witness;  in particular, in relation to her evidence about her job description, and her terms of employment.  The important part of the paragraph reads as follows:

"The conclusion reached by the Respondents, both as to request for the report and the decision to suspend were, on one view, quite reasonable and a logical sequence of the Applicant drawing attention to her inability to do heavy work (she may well have referred to the "double collections" but that was merely an example of heavy work).  On this basis, it is the view of the majority that the requirement and the suspension were not imposed because the Applicant was pregnant.  Any employer notified of any medical condition and a request by an employee to go on light duties and then faced with a medical report setting out expert advice with regard to restrictions on tasks in a job could not fail to have regard to that advice and to act accordingly.  On the majority view, the Respondents did not treat the Applicant less favourably or to her detriment as a result of her pregnancy.  The claim therefore fails and is dismissed".

	The view of the minority was that the whole tenor of the way in which the Respondents dealt with the Applicant was such that, although there was no intention to discriminate against her, the way they in fact dealt with matters were such that she was suspended in the absence of a clear request to transfer to a lighter job.  They discriminated against her on the grounds of sex and more particularly because she was pregnant.

	There followed a paragraph about the remedies available to Mrs Sergeant, if there had been discrimination on sex grounds, namely compensation for injured feelings, and a claim in relation to other compensation.  

	In her submissions, Miss Omambala, on behalf of Mrs Sergeant, contended that the Tribunal had misunderstood, or misapplied the relevant law in relation to both complaints, as to the requirement of the production of a medical report, and of suspension of her employment, during her pregnancy before she went on maternity leave.  On both matters Mrs Sergeant had been subjected to less favourable treatment on the grounds of sex.  That amounted to a detriment within the meaning of the 1975 Act.

	The submission was that the Tribunal failed to follow the relevant principles and guidelines for determining discrimination.  As noted by Lord Justice Neill in the judgement of the Court of Appeal in King v The Great Britain China Centre [1991] IRLR 513 that it is unusual to find direct evidence of discrimination.  The outcome of the discrimination case, whether racial or sexual, usually depends on inferences to be drawn from primary facts.  Miss Omambala summarised the proper approach to the determination of sex discrimination cases by series of propositions which Mr Hutchinson, who appeared on behalf of the Respondents, agreed correctly stated the legal test.  The test follows these stages.  First the Tribunal must consider whether there is a prima facie a difference in the treatment on the grounds of sex, which points to the possibility of discrimination.  If the Tribunal finds this prima facie such a difference in treatment, it should then look to the Respondent for an explanation.  If no explanation is provided, or if the explanation is considered by the Tribunal to be inadequate or unsatisfactory, it may then be legitimate for the Tribunal to infer that there was discrimination on the grounds of sex.

	The complaint here is that the Tribunal did not follow that approach.  As it did not follow that approach it failed to make relevant findings of primary fact.  Having failed to make relevant findings of primary fact, it was not in a position to draw the appropriate inferences.  The Tribunal failed to embark on a comparison between the way in which Mrs Sergeant was treated, and the way that a man in comparable circumstances would have been treated by the Respondents.  In those circumstances the Tribunal had never asked itself the right questions.  If it had never asked itself the right questions, it could not hope to come up with an answer that could be legally supported in this Tribunal.  

	The way in which this Tribunal seems to have approached the matter, in particular, in paragraph 5 of the decision, was that it was sufficient for the purposes of deciding the case to ask whether the actions taken by the Respondents, were reasonable and logical and whether requirements of a medical report and suspension were imposed on Mrs Sergeant because she was pregnant.  They said in a crucial part of the decision that any employer notified of the condition and of a request to go on light duties, and faced with a medical report such as this, could not fail to have regard to the advice and act accordingly.  In those circumstances Mrs Sergeant was not treated less favourably, or to her detriment, as a result of her pregnancy.  The difficulty is that there is no attempt in that passage or any in any earlier passage in the decision to make a comparison of the way Mrs Sergeant was treated with the way that a man in similar circumstances would have been treated.

	There is no reference to the statutory provisions in Section 1 (1) or Section 5 (3) of the 1975 Act.  There is no reference to the tests developed in the cases to determine the application of the statutory provisions.  This Tribunal is not criticising the Industrial Tribunal for failure to cite the case of King.  The case of King had not been decided, or reported at that stage.  But the law, as stated in King, was nothing new.  That case contains a helpful summary of propositions extracted from the earlier cases.

	Mrs Omambala argued that this Tribunal cannot be satisfied that the decision of the Tribunal, both in relation to the medical report and the suspension, can be supported.  It is impossible to support it if there has not been relevant enquiry into the treatment of a comparable male.  In those circumstances Miss Omambala asks either that this Tribunal substitutes its own conclusions, based on the correct application of the law to the facts found, or alternatively, the appeal should be allowed and the case remitted to a different Tribunal for the matter to be re-heard, applying the correct legal principles.

	For the Respondents, Mr Hutchinson, argued that the Tribunal did properly evaluate the evidence of Mrs Sergeant in respect of all relevant matters.  It decided on the evidence that the Respondents had not required a medical report.  He referred to the findings of fact made by the Tribunal, both in relation to the medical report and in relation to the suspension.  He emphasised, in particular, that the Tribunal had not accepted relevant evidence given by the Applicant.  He drew attention to the fact that the Tribunal stated that the conclusion reached by the Respondents was, both in relation to the report and the decision to suspend, reasonable and logical.  He submits that in all the circumstances the Industrial Tribunal properly directed themselves on the law and the evidence.  There is no error of law in their decision.

	We are unable to accept Mr Hutchinson's submissions.  The passages which he relies on in support of the appeal reveal the failure of the Industrial Tribunal to address itself the crucial question of a comparison.  In the absence of a comparison there are missing from the decision of the Industrial Tribunal, relevant findings of primary fact.  In those circumstances it is impossible for the Employment Appeal Tribunal to accede to Miss Omambala's submission that this Tribunal should substitute its own conclusion, allow the appeal and find sex discrimination established.  This Tribunal is driven to the course of allowing the appeal, with a direction that the matter must be remitted to a different Tribunal for a re-hearing.  It is impossible, without a re-hearing, to know what the relevant facts will be found on the essential exercise of making a comparison between the treatment of Mrs Sergeant and the treatment of a comparable male. 

	For those reasons the appeal is allowed.  This case is remitted to the Industrial Tribunal, differently constituted.  The matter will be re-heard on the evidence and applying the proper legal principles.