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Cite as: [2000] UKEAT 647_97_1705

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BAILII case number: [2000] UKEAT 647_97_1705
Appeal No. EAT/647/97, EAT/1207/97 EAT/129/98
EAT/342/98 EAT/1132/98, EAT/106/99 EAT/1457/96

             At the Tribunal
             Judgment delivered on 17 May 2000







Transcript of Proceedings


Revised (12/07/2000)

© Copyright 2000



    For the Appellant MR S BLOCH
    (of Counsel)
    Instructed By:
    Short Richardson & Forth
    4 Mosley Street
    Newcastle upon Tyne
    NE1 1SR
    For the Respondent MS TESS GILL
    (of Counsel)
    Instructed By:
    Messrs Mortons
    17 Fawcett Street
    Tyne & Wear
    SR1 1RL



  1. We have before us 7 related appeals. A number of them will be dealt with below under separate headings but, although at the price of repeating ourselves later under those separate headings, it would be as well for us to begin by giving an overall view and chronology of the main proceedings with which we shall be concerned.
  2. In June 1989 the Appellant, Margaret O'Donoghue, a barrister, took up an appointment as an Assistant Solicitor with Langbaugh Borough Council, a smaller predecessor of the Respondent, Redcar and Cleveland Borough Council. In the course of a reorganisation of Local Government Langbaugh Borough Council almost doubled it size to become the Respondent Council. It was then decided that it was appropriate to create a post to be known as Senior Solicitor. Ms O'Donoghue applied for that post but failed to obtain it in circumstances which we shall have to explain more fully below. She launched an IT1 on the 30th March 1996 for sex discrimination in relation to her being neither short-listed nor interviewed for the post. Later the post was readvertised and she was interviewed by a panel of six Councillors with a senior colleague of hers, a Mr Frankland, in attendance. On the 4th June 1996 she launched a second IT1 for sex discrimination claiming that, following the interview, a less well-qualified male applicant had been appointed to the post. Those complaints were heard together over 5 days (with a further day for the private deliberations of the Tribunal) by the Tribunal at Middlesbrough under the Chairmanship of Mr J.C. Sutcliffe. In the course of that hearing Ms O'Donoghue had produced notes or a diary entry made by her of unacceptable remarks made to her or in her presence by two Councillors almost 2¼ years before the interviews, in or about December 1993. The two Councillors were members of the interviewing panel of 6 Councillors. She had relied on the notes and the remarks as being evidence of prejudice or discrimination against her on the grounds of sex. After the hearing had finished (but before the decision was known to the parties) the Respondent Council suspended her from work and launched disciplinary proceedings against her. She was dismissed by the Respondent on the 26th September 1996. On the 3rd October 1996 Ms O'Donoghue lodged an IT1 claiming victimisation under the Sex Discrimination Act and that she had been unfairly dismissed. She believed that the disciplinary action taken against her and her subsequent dismissal were related to and were a vindicative response to her having taken the earlier "protected" discrimination proceedings. The local Press, attending the hearing, had drawn attention to the unacceptable remarks of the Councillors as she had recorded them in her diary; the Councillors concerned had appeared in the Press in a poor light. Ms O'Donoghue (if we may summarise) felt that that, in particular, had triggered a wish on the Council's part to be rid of her irrespective of merit and as an instance of victimisation.
  3. On the 13th November 1996 the Tribunal sent to the parties its decision on the cases heard together in September 1996; the Tribunal held that Ms O'Donoghue had been discriminated against on the grounds of her sex. There was therefore to be a "Remedies Hearing". The Council lodged a Notice of Appeal as to the conclusion on liability.
  4. On the 17th January 1997 the Remedies Hearing took place and by a decision sent to the parties on the 17th March 1997 the Tribunal awarded Ms O'Donoghue some £9,132 of which £3,500 was for injury to feelings. Ms O'Donoghue appealed on several grounds against the lowness, as she saw it, of that award. Both Ms O'Donoghue and the Council sought a review of the Remedies decision and, after a hearing on the 2nd June 1997, the Tribunal by a decision promulgated on the 23rd July 1997 reduced the component for loss of earnings from £5,638 to £787.30. Ms O'Donoghue appealed against that by a Notice of Appeal of the 27th August 1997.
  5. On the 30th October 1997 there began, before a different Tribunal in Middlesbrough, this time under the Chairmanship of Mr P.G. Rennie, the hearing of Ms O'Donoghue's IT1 as to victimisation and unfair dismissal. The hearing was spread over some 35 days down to April 1998 and the Tribunal then met for a day's private deliberations. On the 10th July 1998 the decision was sent to the parties; Ms O'Donoghue was held to have been victimised under the Sex Discrimination Act and to have been unfairly dismissed but, held the Tribunal, she would in any event have been fairly dismissed by the end of the six months from the date of her effective date of termination (27th September 1996), namely by the 26th March 1997. Ms O'Donoghue appealed against the finding that she would in the event have been fairly dismissed by that date, a conclusion which, of course, would be likely severely to restrict any monetary recovery by her at the remedies stage.
  6. In the meantime there had been, in relation to the remedies decision in the original pair of IT1s, a series of further reviews and appeals against the conclusions on review. Moreover, Ms O'Donoghue had on 21st July 1997 lodged another IT1 claiming victimisation by the Council under the Sex Discrimination Act relying on events so stale that it generated a successful claim by the Council that it should be struck out, with costs, as being out of time and unreasonable. Ms O'Donoghue appeals against that.
  7. That, although by no means a complete record of all the proceedings, we hope suffices by way of general introduction to the several appeals which we shall now turn to and deal with separately, largely in the order in which they were argued.
  8. The Victimisation Appeal

  9. The Employment Tribunal at Middlesbrough under the Chairmanship of Mr P.G. Rennie heard an application by Ms O'Donoghue over a period between October 1997 and April 1998. Some 35 days were devoted to the hearing of which 33 were for the hearing of oral evidence. Then there was a further day for the internal deliberations of the Tribunal. On the 10th July 1998 the Extended Reasons and Decision, together some 74 pages of close-typing, were sent to the parties. The unanimous decision of the Tribunal was that the Council had unlawfully discriminated against Ms O'Donoghue contrary to section 6 (2) (b) of the Sex Discrimination Act by way of victimisation. The Tribunal also held, although this is not material to the appeal before us, that she had been unfairly dismissed and had not caused or contributed to that dismissal by her conduct. Importantly, as this is at the heart of this appeal, the Tribunal continued:-
  10. "(4) However, and in any event, that Applicant would have been fairly dismissed by the end of the period of six months after the effective date of termination of her employment, that is 27th September 1996".

    Although that paragraph would seem to relate only to her successful claim in unfair dismissal it also related, in the circumstances, to her successful claim for victimisation because the form that that victimisation was alleged and held to have taken was her dismissal by the Council on 27th September 1996. The practical consequence of that paragraph (4), unless overturned, is therefore severely to restrict Ms O'Donoghue's recovery of compensation. Accordingly she appeals against that conclusion; so far as concerns the Tribunal's Decision promulgated on the 10th July 1998 her appeal is restricted to that paragraph (4).

  11. Ms O'Donoghue, amongst whose gifts, as will appear, is a remarkable talent to fall out with and antagonise those working around her, was found to have "an adversarial approach" and the Tribunal, after holding that her conduct had not caused or contributed to the dismissal of which she had complained, continued in their paragraph 19:-
  12. "Having said that, the adversarial approach of the Applicant and the problems that that created could not properly be ignored. They gave rise to the question of whether, in due course, and irrespective of the Applicant's previous complaint to the Tribunal, they would have led to her dismissal in any event. We considered but rejected an assessment of the percentage risk. We came to the conclusion that at some point such a dismissal would have taken place. We were entirely satisfied that in time Mr Kilburn, [the Chief Executive, held by the Tribunal to have been a dynamic and forceful man of clear ability whose attitude was that every employee had a part to play as a member of an interdependent team rather than in isolation] aware of the substantial problems that the Applicant's attitude and approach were causing, would have attempted to deal with that effectively by warning the Applicant, that the Applicant was wholly incapable of ameliorating her approach and co-operating with colleagues as an integral part of a team and that the outcome would have been the Applicant's dismissal. That would have been for "some other substantial reason" [within the meaning of section 98 (4) of the Employment Rights Act 1996] ...... That dismissal would have been fair. It would not have been tainted by discrimination on the grounds of sex .... the applicant submitted to us that but for the previous Tribunal hearing, she would even now be working at her desk: that was proposition with which we were quite unable to agree. The Applicant showed no insight into the problems that she was causing and we have no doubt that she would have continued to behave in the same way. Mr Kilburn would not have put up with that. There remained the question of how long that would take, that is when the Applicant's employment would have been terminated in any event. We fully appreciated the relatively speculative nature of that question. However, it was clear to us that it would have happened sooner rather than later. Even by September 1996, the upheaval caused by Local Government reorganisation had settled down. Very soon Mr Kilburn would have been turning his attention to the Applicant, particularly with the assistance of Mr Frankland. Doing the best we could, we came to the conclusion that in any event the Applicant's employment would not have continued longer than, and she would have been fairly dismissed by, a date 6 months after the effective date of termination that is 27th September 1996. Effectively, in our view, that amounts to a cut-off point which the parties will bear in mind with regard to issues of remedy".
  13. Miss Gill attacks that conclusion under 4 headings as follows.
  14. (i) Rejection of an assessment of percentage risk

  15. First Miss Gill took us to Davies -v- Taylor [1974] A.C. 207 HL. The case concerned a widow's claim under the Fatal Accidents Act. By the accident the widow lost the prospect of a pecuniary benefit from her husband, who had been killed in the accident. However, she had deserted him before his death. He had learned of her adultery but had asked her to resume co-habitation. She had failed to do that and he had instructed solicitors to commence divorce proceedings and had obtained confirmation as to the adultery from the man concerned. In such circumstances would she have had a reasonable expectation of benefit from him if he had not been killed? The question for the House of Lords was whether her chance of benefiting was substantial or merely speculative. In the former case, on authority, she would recover under the Act; in the latter case she would not. In the Court of Appeal Megaw LJ had concluded her chance as:-
  16. "A speculative possibility, yes; a reasonable expectation, no".

    The House of Lords held that approach to have been right both on the law and on the facts. The widow took nothing under the Act. Lord Reid had at p. 212 said:

    "To my mind the issue and the sole issue is whether that chance or probability was substantial. If it was it must be evaluated. If it was a mere possibility it must be ignored".

    A little later he added:-

    "You can prove that a past event happened but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is evaluate the chance. Sometimes it is virtually 100%; sometimes virtually nil ......".

    He rejected the use of a "balance of probability" test, which was appropriate to the judging of whether or not a past event had occurred, to the assessment needed under the Fatal Accidents Act. Although all five of their Lordships agreed that the appeal should be dismissed none of the other four in terms approved of any particular passage of Lord Reid's speech. In our judgment nothing in Davies -v- Taylor bars a Court or Tribunal from taking a view, on appropriate facts, that the chance of a future event occurring is 100% and, in, for example, areas inescapably dealing with the future such as the assessment of damages for future loss, nothing could be more familiar than a Court proceeding upon the basis of holdings as to the future as if they were true facts, as, for example, that a man would regain employment after a further 6 months or that a patient would recover from his injuries after no more than a year.

  17. Next we were taken to Ministry of Defence -v- Cannock [1994] ICR 918 EAT, which underlines the danger of confusion between evaluation of a loss of a chance "and a "fact" to be determined on the balance of probability" - p. 938. In Ministry of Defence -v- Hunt [1996] ICR 554 EAT at 560-561 one sees that "The assessment of a chance at or near 100% can be permissible and appropriate"; it may be exceptional but it is not perverse.
  18. Against that background it becomes necessary to see whether the Tribunal determined as it did - that there would have been a fair dismissal not later than six months after the 27th September 1996 - on a balance of probabilities (a view which could have been consistent with their evaluation that that was no more than 51% likely to happen) or not. We do not read their conclusions as having been reached on the balance of probabilities. The findings "We came to the conclusions that at some point such a dismissal would have taken place"; "The outcome would have been the Applicant's dismissal"; "Mr Kilburn would not have put up with that"; and "In any event the Applicant's employment would not have lasted longer than and she would have been fairly dismissed by ...... six months .... after 27th September 1996" are all consistent with the Tribunal's holding, as a matter of evaluation of a chance, that it was 100% likely that she would have been thus dismissed. The Tribunal in this part of the case does not refer to the balance of probabilities. They had earlier expressly said that they were holding the primary facts that they did find on the basis of the balance of probabilities - see their paragraph 8 - which primary facts they then set out in their paragraph 9, itself some 58 pages long. There is no reason to suppose, in the absence of some corresponding reference, that they still had that basis in mind when they determined, as the passages quoted above show, in their paragraph 19. True it is that they say "We considered but rejected an assessment of the percentage of risk" but that is not an indication that they were adopting a balance of probabilities test, nor is it inconsistent with their being entirely certain, as a matter of evaluation of a chance, that dismissal would have occurred as they held it would and that the case was thus not one for some percentage discount.
  19. We are unconvinced that there was in this part of the Tribunal's Decision any error of law of the kind asserted.
  20. (ii) Inconsistency and Perversity

    (iii) Reference to alleged past shortcomings

  21. Miss Gill advanced these as separate headings but it is convenient to take them together.
  22. Miss Gill draws attention to a number of findings of fact putting Ms O'Donoghue in good light. Thus Ms O'Donoghue had applied for a more senior job with the Council and had been adjudged first reserve, the person to take the job in the event the winning candidate did not accept the offer to be made to him. Ms O'Donoghue had not previously been given any formal warning nor had previously been the subject of any disciplinary charges. Mr Kilburn knew little or nothing of her conduct. Such allegations dredged up from the past as could be made against her were in any event vague. Mr Kilburn had not responded with prompt action against her when complaints had been made against Ms O'Donoghue but he was aware of the previous complaint she had made to the earlier Tribunal and thus any decision by him would have been vulnerable to the complaint that it was victimisation based upon her having made that earlier complaint. Moreover the Council's actions in the past had been unfair (as the holding of unfair dismissal made plain) and it was thus dangerous to assume that all of a sudden its actions would be fair in the future. Against such a background, for the Tribunal to conclude that Ms O'Donoghue would in any event have been fairly dismissed as early as 6 months later at the instigation of Mr Kilburn was, said Miss Gill, improbable in the highest degree. Even assuming (which was denied) that the Tribunal had so held other than on the balance of probabilities, to have held that such a dismissal would have been a matter of 100% certainty would, argues Miss Gill, been nothing short of perversity.
  23. Mr Bloch, by contrast, draws attention to a long list of findings representing serious shortcomings in Ms O'Donoghue's past conduct. There was plainly a considerable body of material for the Council to draw upon had it elected to move towards Ms O'Donoghue's dismissal. That material could readily be collected even if Mr Kilburn had no personal knowledge of the events of the past and, it seems, a red file was kept and was available of earlier complaints against Ms O'Donoghue. The fact that formal disciplinary proceedings had not been launched in the past did not preclude the Council relying upon earlier events especially since, it seems, the failure to launch proceedings in the past had chiefly been the consequence of an earlier regime's view that if there was a conflict of evidence there was little point in proceeding further with matters of complaint. In any event the Tribunal could not rule out the hypothetical fair dismissal spoken to in the Tribunal's paragraph 19 being the response to some fresh complaint against Ms O'Donoghue, an event which was not itself improbable. Indeed Miss Gill accepted that paragraph 19 was not inconsistent with a view by the Tribunal that there would have been a fresh event of complaint Ms O'Donoghue, one drawn to Mr Kilburn's attention, and that he would then have enquired as to the material as to past complaints and would have accordingly taken steps towards Ms O'Donoghue's dismissal. Mr Kilburn was less tolerant of conflicts and divisions amongst his staff than had been his predecessor and once the difficulties of Local Government reorganisation had settled down he would have been in a position to move, as he had not been in the past, against Ms O'Donoghue. There was a good reason to suppose that the tolerance of Ms O'Donoghue's shortcomings which had been a feature of the past would no longer be tolerated during his regime. Issues of fact apart, Mr Bloch reminds us of the stringent test to be satisfied if a finding of perversity is to be made by an Appellate body - see e.g. Piggott Bros -v- Jackson [1991] IRLR 309 CA.
  24. With that test particularly in mind, we are quite unable to describe the Tribunal's conclusion as to impending dismissal as perverse. The Tribunal's findings of fact give every indication of there having been a careful evaluation of the great mass of evidence laid before them. It was for the Tribunal to assess, on the basis of that evidence, what lay in the future; for every alleged doubt or inconsistency raised by the Appellant there is an answering finding of fact or of probability to which the Council draws our attention. We see the Tribunal's conclusion to have been, to use the language of Piggott Bros supra, a permissible option; we are quite unpersuaded that it was an impermissible one and, indeed, without an exhaustive perusal of the Chairman's Notes of the oral evidence (the cross-examination of Ms O'Donoghue itself took some 17 days) we cannot see how a conclusion that an impermissible option had been settled upon could possibly be reached. No such an exercise was conducted before us and no such conclusion is reached.
  25. Leaving aside the possibility that Ms O'Donoghue's hypothetical dismissal would have been triggered some fresh event of complaint which would then have led to a drawing-down, so to speak, of material of complaint from the past, it is in our view quite unrealistic for the Appellant to argue that there was no basis for the Tribunal's view that she would certainly have been fairly dismissed within the 6 months period they spoke of. Ms O'Donoghue was held by the Tribunal to have been contemptuous, rude, offensive and unpleasant to a female colleague to whom she had formed an irrational dislike. She had made highly damaging, possibly defamatory allegations against a colleague without any basis in evidence. She was uncooperative. She was impertinent to a senior colleague, telling him he was "pathetic and idiotic", an event which the Tribunal held to be one of quite serious misconduct. A Senior Officer told her he had never heard of so many complaints in 30 years in Local Government. A significant number of female colleagues found it difficult to work with her. She was confrontational and obstructive with the local Court officials with whom she had to liaise as part of her job. Complaints against her even from outside the Local Authority had been made, including complaint from the Clerk to the Local Justices. A significant number of complaints against her were described by the Tribunal as justified and she had fallen into the way of meeting complaint against her with unjustified and often tactical counter-complaints. She had behaved mischievously with intent clearly to embarrass the Chief Economic Development and Planning Officer. She even managed to have been held by the Tribunal to have been responsible for a deliberate, gratuitous and grossly offensive slur against the advocate conducting the case against her. This is by no means a total list of the findings of the Tribunal adverse to Ms O'Donoghue but it is quite sufficient, in our view, to show that the Tribunal could reasonably conclude, as it did, that there was ample material which would have been readily capable of being drawn-down by the Council and relied upon in support of a fair dismissal of Ms O'Donoghue within the 6 months period of which the Tribunal spoke.
  26. (iv) Putting out of consideration certain facts

  27. Miss Gill here reverts to a passage from the Tribunal's paragraph 9 which we have already cited, namely that:-
  28. ".... In time Mr Kilburn, aware of the substantial problems that the Applicant's attitude and approach were causing, would have attempted to deal with that effectively ...".

    That, says Miss Gill, represents an error of law. Lest we have misunderstood the error alleged we shall take this part of the Appellant's argument directly from the Skeleton which says that the error lay in that:-

    "(a) In assessing .... the loss that arose from the discriminatory dismissal, the Tribunal should have approached the matter as if the unlawful acts had not taken place;
    (b) That would assume that the disciplinary charges, the disciplinary hearing and the Tribunal would not have occurred;
    (c) It follows that Mr Kilburn would still have been barely aware of the conduct of the Appellant which it appears the Tribunal found would have led to her dismissal within 6 months".

    Surely, however, if the Tribunal should have approached the matter as if the unlawful acts had not taken place then the Tribunal could only have concluded that no loss had been caused by them. The argument, if right, would seem to deny Ms O'Donoghue even the compensation as to 6 months loss to which, at the remedy stage, she will no doubt argue she is entitled. But in any event there is no material to support a finding that Mr Kilburn would have remained so barely aware of Ms O'Donoghue's conduct that he would not have instigated some inquiry as to whether or not there was material which could lead to her fair dismissal. Even leaving aside the possibility of some wholly fresh complaint as to Ms O'Donoghue's behaviour (and there is no good reason why that should be left aside) the position was that there was a new and dynamic Chief Executive who wished to see Council employees playing as members of an interdependent team and not in isolation. He was less tolerant of staff shortcomings than had been his predecessors and there was no reason to take it that he would adopt or did adopt the rather evasive policy that had earlier been applied that where there was a conflict of evidence there was little point in taking disciplinary proceedings. He had been heavily engaged in the Local Government reorganisation but that was settling down. The Tribunal, speaking of Ms O'Donoghue's "unacceptable attitude to others" continued:-

    "We accepted that in due course that would have greatly concerned Mr Kilburn whose approach to conflicts and divisions of this sort was, as was that of Mr Frankland, considerably more direct and less tolerant than had been the approaches of Mr Abigail and Mr Hayes. The new authority, with its much greater responsibilities and dependence upon team work, was not going to put up with the sort of conduct that had been relatively unchallenged in the past".

    Ms O'Donoghue's approach:-

    "Was a divisive and antagonistic approach at odds with the team-work which Mr Kilburn viewed as necessary for the organisation".

    The Tribunal took the view that by September 1996 the upheaval caused by Local Government reorganisation had settled down and, as our earlier citation from paragraph 19 of the Tribunal's Decision showed, Mr Kilburn would have been turning his attention to Ms O'Donoghue, particularly with assistance of Mr Frankland. He would not have put up with her behaviour. Those are findings which indicate the Tribunal's view of the likely or probable conduct of Mr Kilburn as it would have been, unprompted by his knowledge of, or wish to victimise, any protected act on the part of Ms O'Donoghue but which would have been prompted by his wishing to achieve a harmonious team. That, we take it, is what the Tribunal meant by holding that Ms O'Donoghue would have been dismissed in any event "irrespective of [her] previous complaint to the Tribunal" and "with matters relevant to the Industrial Tribunal being removed from consideration". We see no error of law in response to Miss Gill's argument on this part of her case.

  29. We have, we believe, now dealt with all the principal points made by Miss Gill in this "Victimisation Appeal". We are not persuaded that the Tribunal is in error of law. We must therefore dismiss the appeal. We add that although this appeal has been called the "Victimisation Appeal" the Tribunal's conclusion that in any event Ms O'Donoghue would have been dismissed by 6 months after the 27th September 1996 has corresponding consequences in relation to compensation for her unfair dismissal. Lest it be thought that by describing the appeal, as the parties have, as the victimisation appeal, the consequence would be that our decision should relate only to compensation for victimisation, we add that the arguments as to the consequences upon Unfair Dismissal, which have not been separately raised before us, would have been almost identical, we think, to those we heard in relation to victimisation and hence in our judgment the Tribunal's conclusion stands in relation to unfair dismissal as it does, in our view, in relation to victimisation.
  30. The Victimisation Remedy Appeal

  31. The Chairman, Mr Rennie, and the two members sitting with him heard Ms O'Donoghue's case as to remedies over 2 days in September 1998 and then met to consider the matter further between themselves on the 21st October 1998. On the 16th November 1998 the Decision and Extended Reasons were sent to the parties. £8,805.64 was awarded, amongst other awards, in favour of Ms O'Donoghue for the victimisation which had been held to have occurred. £2,000 of that award was assigned to compensation for injury to feelings and that sum was described as including damages for an element of aggravation.
  32. Section 65 (1) (b) provides that any monetary award is to be of "compensation" and section 66 (4) adds that "compensation" for injury to feelings may be included. Any award is thus only to be compensatory rather than, for example, punitive or exemplary. Moreover, the compensation for injury to feelings is to be "in respect of an unlawful act of discrimination" - section 66 (4). Although it is, no doubt, not as easy to attribute injury to feelings to precisely this act or that with the precision that could be achieved in, say, cases as to damages for personal injury, where such injury to feelings has been caused both by unlawful acts and by other acts, in principle a Tribunal should attempt the difficult task of apportioning, as otherwise it would be likely to compensate for damage not "in respect of" the unlawful acts.
  33. In the course of their decision the Tribunal said:-
  34. "Consequent upon her suspension and then dismissal from employment the Applicant felt considerable outrage and distress. However, as her own further statement makes clear, a very considerable proportion of that reaction was due to the fact of her suspension and dismissal and would have been felt by her when the same events had occurred at a later stage. She suffered some distress as a result of the fact that this action, when it was taken, had been inspired by her production of the diary note during the course of the Tribunal proceedings but this was limited".

    Later in their Extended Reasons the Tribunal, in relation to an argument as to the principles upon which damages for tort are to be assessed, says:-

    ".... That does not mean that a Court must ignore clear evidence (assuming, of course, that such exists) to the effect that even if the tortious act of which the Plaintiff complains had not taken place, at some stage in the near future that Plaintiff would in any event have suffered the injuries in respect of which the action is brought. Indeed a calculation of tortious damages must take full account of just such a matter. Accordingly, in our judgment, the assessment of compensation in this case had to be made on the basis that the Applicant would have been fairly dismissed, for reasons which had nothing to do with the victimisation, by the end of 6 months after her dismissal was actually effected".

    In the third and last of the material passages to which we need to draw attention the Tribunal said:-

    ".... We took the view that consequent upon our finding that the Applicant would have been fairly dismissed by the end of a further 6 months we had to discount the considerable stress caused to the Applicant by the fact of the termination of her employment because that was a matter which she would have suffered in any event within a relatively short period. The injury to feelings for which the Applicant was entitled to compensation was that which was due, not to the dismissal per se, but to the fact (and her knowledge of the fact) that when it was carried out the underlying reason was her production of the diary note in the course of the previous proceedings. That injury was not a minor matter. We accepted that the Applicant had been caused distress and anger by the knowledge that her dismissal had been caused, or at least accelerated, by matters which she had raised at the hearing of her complaint of sex discrimination. We further accepted that that distress and anger was aggravated by the way in which the Respondent approached the matter - in particular, by the timing of the Applicant's suspension and by holding a disciplinary hearing followed by an appeal which were effectively foregone conclusions - and by its resolute refusal to concede that it had done anything wrong. Having said that, the extent of that distress and anger was limited. Moreover this was not a case in which an employer had invented or even greatly exaggerated complaints about the employee in order to justify its action: by and large we accepted those complaints and that led us to the conclusion that the Applicant would still have been dismissed by the end of a further 6 months, taking the view that what had been invented was not the complaints but Mr Kilburn's knowledge of and reliance upon them at the material time. Taking all these matters into account, and doing the best we could in an extremely difficult and unusual case, we decided that a fair assessment of compensation for injury to feelings (to include damages for an element of aggravation) would be £2,000. That was the sum which we awarded to the Applicant".
  35. As we understand the combined effect of those passages the Tribunal first looked to their estimation of Ms O'Donoghue's present and future injury to feelings as a whole (namely the injury which, at the point of dismissal, was already in the past or was then present and that which then lay in the future, including that which lay even as far in the future as the hearing assessing compensation and thereafter). They then took out of the totality of that injury such injury which, at the point of dismissal, lay in the future but which would have been suffered in any event as a consequence of the fair and undiscriminatory dismissal within 6 months which the Tribunal held would have occurred. The Tribunal then compensated only for the residue of injury to feelings on the basis that only that residue was consequent upon any wrongful acts of the Council.
  36. Miss Gill refers us to Coleman -v- Skyrail Oceanic Ltd [1981] ICR 864 CA where at p. 871 Lawton L.J. said:-
  37. "Compensation is to be awarded for foreseeable damage arising directly from an unlawful act of discrimination. It follows that an applicant can claim for any pecuniary loss properly attributable to an unlawful act of discrimination. .... Any injury to feelings must result from the knowledge that it was an act of sex discrimination that brought about a dismissal. Injury to feelings unrelated to sex discrimination, .... is not properly attributable an unlawful act of sex discrimination".

    Ms O'Donoghue's knowledge of the sex discrimination was not in issue in this case. The passage cited, by its emphasis on the need to distinguish between such injury to feelings as is related and such is not attributable to the unlawful act, do not seem to us to assist Ms O'Donoghue. Mr Bloch refers us to Alexander -v- The Home Office [1985] IRLR 190 CA where, at paragraph 13, May L.J. says:-

    "As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referable to this can be readily calculated. For the injury to feelings, however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the Judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained".

    The same approach is applicable in cases of sex discrimination.

  38. In the case before us the hearing as to the amounts of compensation was, as we have indicated, spread over some two days. Oral evidence was given by Ms O'Donoghue and she was cross-examined. We cannot hope, from the material laid before us, to visualise exactly what picture the evidence as a whole should have created. Certainly there is nothing about the award of £2,000 which of itself causes us concern that anything other than "the experience and good sense of the Judge and his assessors" was deployed. Moreover, we identify no error of law in the Tribunal's attempt to separate out that injury which flowed and that which did not flow from the Council's unlawful acts. We dismiss this appeal.
  39. The Documents Appeal

  40. On the 21st July 1997 Ms O'Donoghue presented a fresh IT1 to the Employment Tribunal. It claimed that after her employment had ended in September 1996 and in the course of other proceedings against the Council, the Council, on the 23rd May 1997, had sent to her an amended list of documents which had showed for the first time that, as part of earlier disciplinary proceedings against her, the Council had raised "old, unsubstantiated complaints". That reliance on such old matters was, she said, related to the fact that she had brought a sex discrimination claim against the Council and was itself victimisation under section 4 of the Sex Discrimination Act.
  41. In its IT3 of the 15th August 1997 the Council took the point that this new complaint was outside the three months after the acts complained of permitted by the Sex Discrimination Act section 76 (1) (a). The Council sought a striking-out of this fresh claim and an order for costs.
  42. On the 16th October 1997 the Tribunal at Middlesbrough under yet another constitution (Mr N.W. Garside, Chairman, with Mrs B. Dunkerley and Mr J.D. Smith) heard the Preliminary Issue. On the 28th October 1997 the Decision was sent to the parties. It was unanimous. It was that:-
  43. "(1) The Originating Application is dismissed as it was not presented to the Tribunal within the time limit required by section 76 (1) of the Sex Discrimination Act 1975 and that it is not, in all the circumstances of the case, just and equitable to extend time pursuant to section 76 (5) of the Act.
    (2) The Applicant is ordered to pay the costs of the Respondent in respect of its defence of this Originating Application, including the Preliminary Hearing, such costs to be agreed but in default of agreement to be taxed on the lower County Court scale".

    The Tribunal, presumably not accepting Ms O'Donoghue's case that such raising of old complaints as was visible from documents had not come to light until the 23rd May 1997 (the date of the amended list of documents), held that the material discovery had occurred on the 2nd April 1997 and that the lists of documents were received by the respective parties on the 3rd April 1997. The Tribunal raised with Ms O'Donoghue, then acting in person, whether the alleged discrimination had occurred at her dismissal (September 1996) or on such discovery (3rd April 1997). Ms O'Donoghue had conceded it was at the earlier date. We were not invited to and do not re-open that concession. Whether the three months of section 76 (1) (a) was to run from September 1996 or from the 3rd April 1997, in either case the IT1 of the 21st July 1997 was out of time.

  44. Indeed, it was conceded below by Ms O'Donoghue that the new complaint was out of time. We were not invited to allow her to go behind that concession either and we do not do so. Thus the only question as to jurisdiction is whether the Tribunal erred in law in failing to exercise section 76 (5) in Ms O'Donoghue's favour. That sub-section, speaking of a complaint prima facie out of time, says:-
  45. "A Court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so".

    The Tribunal took into account that Ms O'Donoghue was a qualified lawyer. The Tribunal held that she had had knowledge of the Council's raising of the old complaints even during the earlier disciplinary proceedings against her; even before, in other words, her dismissal in September 1996. The Tribunal concluded:-

    "We do not consider it just and equitable in all the circumstances that time be extended. The Tribunal therefore does not have jurisdiction to deal with the Originating Application and it must therefore be dismissed".

    We see no error of law in that part of the Tribunal's decision and, indeed, we did not understand Miss Gill to press that there was an error in that part.

  46. So far as concerns costs, the chief reason why the Tribunal in October 1997 ordered Ms O'Donoghue to pay costs under Employment Tribunal Rule 12 (1) was that it regarded the new claim as no more than an extension of the application she had already made as to unfair dismissal and sex discrimination in relation to her dismissal. The earlier IT1 had urged that both the disciplinary action taken against her and the subsequent dismissal represented victimisation of her. On the basis, conceded by Ms O'Donoghue, that the event of discrimination asserted in her new IT1 had occurred when she was dismissed in September 1996 and on the further basis, as found by the Tribunal, that she knew of that discrimination on the main discovery taking place on the 3rd April 1997, her obvious course in April 1997 would have been to seek leave to amend her earlier IT1 of the 2nd October 1996 (which did not begin to be heard by the Tribunal until the 30th October 1997) to include whatever new facts she wished to rely upon. Instead she launched the fresh IT1 on the 21st July 1997. Whilst, in principle, it is possible to imagine a situation in which, in the course of existing but incomplete proceedings, a complainant learns for the first time of some form of discrimination so different to that which he had already asserted in the existing proceedings as to justify a fresh IT1, here, where Ms O'Donoghue conceded that the act of discrimination relied on in the later proceedings occurred when she was dismissed (the very event of discrimination complained of in the earlier proceedings) there was no good reason whatsoever for her to have launched new proceedings. That had been the submission of the Council to the Tribunal. Miss Langridge, the advocate for the Council below, had her submission recorded by the Tribunal as follows:-
  47. "She says that there was no reason for this application being a separate originating application as it arises out of the disciplinary proceedings and that the applicant, being qualified as she is, was fully aware of the implications and the requirements of the law in regard to submitting originating applications to the Tribunal".

    That submission was accepted and the Tribunal was satisfied that there should be an order for costs. Miss Gill has addressed no argument on the quantum of costs. She has, though, relied upon E.T. Marler Ltd -v- Robertson [1974] ICR 72. When the Marler case was before the Court in 1973 the discretion to award costs arose only where a party had acted frivolously or vexatiously - see at p. 75 c-d. The discretion to award costs under the current rule, rule 12 (1), arises:-

    "Where, in the opinion of the Tribunal, a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably .....".

    For Miss Gill to draw attention to the passage in Marler at p. 76 in which Sir Hugh Griffiths, giving the judgment of the National Industrial Relations Court, drew attention to it being a serious finding to make against an applicant that he had been frivolous or vexatious, does not assist Ms O'Donoghue as, under the current rule, it plainly suffices if a party has acted no worse than unreasonably. The Marler case does, though, remind us that:-

    "Costs are a matter of discretion for the Tribunal and an appeal against the exercise of the discretion can only succeed if it can be shown on the face of the decision that the Tribunal has misdirected themselves in law as to the manner in which the discretion should be exercised or, alternatively, that the facts point so overwhelmingly to the exercise in the discretion in one manner that any other decision can only have been arrived through a failure to exercise the discretion judicially".

    We detect in the Tribunal's judgment on costs no misdirection in law, nor do the facts so argued point in the way that Sir Hugh Griffiths was there describing. We detect no error of law in this part of the case and we dismiss the appeal so far as concerns costs.

    The Senior Solicitor Post; Sex Discrimination

  48. Ms O'Donoghue began employment with Langbaurgh Borough Council in June 1989. She had completed pupillage as a Barrister in April 1987. As part of the Local Government Reorganisation Langbaurgh was transformed into a unitary authority, namely the Respondent, Redcar & Cleveland Borough Council. The legal and administration department of the successor Council was practically twice the size of the former's.
  49. On the 12th October 1995 Mr Hayes, Director of Law and Administration, advised the staff of the proposed new structures for the department. Mr John Frankland became the Deputy Director of Law and Administration ("DDLA") after being short-listed and interviewed by a panel of Counsellors. On the 10th November 1995 the post of Senior Solicitor was advertised internally to those who were in a "prior consideration" category (which Ms O'Donoghue was not) and was re-advertised more generally but still internally on the 8th November 1995. Ms O'Donoghue applied for the job on the 20th December 1995. She was the only applicant but, even so, was not short-listed. The Tribunal said as to that:-
  50. "Mr Hayes says that their reasons were: first that she did not meet fully the person specification in that she had no experience of managing staff nor did she have three years operational experience at senior level; and, second, her application form referred to her attendance at Council Committees which Mr Hayes regarded as misleading in view of her refusal to attend .....".

    That last reference is to an earlier finding of the Tribunal that Ms O'Donoghue was primarily engaged in advocacy on behalf of the Council but that she had, though, advised the Council's Environmental Health Committee but had then refused to do so when it became the Public Protection Committee with added responsibilities.

  51. The Council once again re-advertised the Senior Solicitor Post, this time nationally. Ms O'Donoghue was short-listed and interviews were held on the 20th March 1996. As to the arrangements made with relation to selection the Tribunal held:-
  52. "In the meantime the Council had established a standard format for interviews involving a five minute presentation by applicants followed by answers to pre-set questions which the applicants did not see beforehand. As part of the preparation for these interviews Mr Hayes arranged two training courses in Equal Opportunity matters and two of those who ultimately interviewed the applicant were amongst those who attended. In the event the final advertisement produced nine applicants for the post of Senior Solicitor, six males and three females, including the Applicant. The task of short-listing them Mr Hayes delegated to Mr Frankland who carried out the task with Counsellor Jeffrey using a marking-grid which Mr Frankland had prepared. Originally four were selected for interview and then Mr Frankland suggested adding Mr Cookson's name at which Counsellor Jeffrey suggested that, if so, the Applicant's name should be included and Mr Frankland agreed".
  53. Mr Cookson, the same age as Ms O'Donoghue, had qualified as a Solicitor in 1992 after work in private practice. After a further year in private practice he had joined the Legal Department of Oldham Borough Council in November on a four-day week. On the fifth day he acted as Company Secretary for a charity. He had earlier but very different experience with Local Government as he had, before training as a Solicitor, spent four years as an archaeologist with Wakefield District Council.
  54. The interviews for the Senior Solicitor post took place. The pre-agreed format was used and interviews took no more than twenty minutes each. The interviewing panel was chaired by Counsellor Davies and included Counsellors Jeffrey, Roberts, Szintai, Kay and Tombe. Mr Frankland, the DDLA, attended. The Tribunal held:-
  55. "..... It is probably fair to say that from the evidence there appears to have been two "parties", one which preferred Mr Cookson and the other the Applicant. However, after Mr Frankland had spoken and there had been some discussion about the difficulties which some Council staff had in getting on with the Applicant, there was a clear majority in favour of Mr Cookson. Nevertheless it was agreed that, if Mr Cookson did not take up the appointment, then the Applicant was to be the reserve candidate."
  56. Commenting on the respective merits of Mr Cookson (who got the job) and Ms O'Donoghue (who did not) the Tribunal says:-
  57. "..... Whilst neither he nor the Applicant had much experience in managing legal staff, only the Applicant had the three years operation experience at senior level required by the Job Summary. On the other hand, whilst the Applicant's experience was longer than that of Mr Cookson and more clearly related to the supervision required in the post for which they were applying, Mr Cookson was thought by the Panel to have a wider experience and, unfortunately for her, but not improperly, the Panel's attention was drawn to alleged difficulties which the Applicant had with other members of the staff which was not unknown to some of the Panel. The Applicant stressed that such comments and complaints as may have been made had not led to any disciplinary action against her. She also stressed that, so far as she could tell from the evidence of the witnesses and such interview notes as were available, she was the candidate favoured by the majority of the interviewing panel at the conclusion of the interviews and the reason why the majority swung to Mr Cookson thereafter was because of the intervention of Mr Frankland. This may well be the case but it does not necessarily indicate any impropriety in the Panel's ultimate choice. We do not think that such choice can be challenged unless there is some evidence of sex discrimination".

    As for Ms O'Donoghue's assertion as to what one could tell from the evidence of the witnesses and from such interview notes as were available, there was, in fact, no finding by the Tribunal that she had been at any stage the candidate favoured by the majority but it is notable that Ms O'Donoghue's own contention was that it had been Mr Frankland's intervention that had swung the majority against her and that the Tribunal accepted that that might well have been the case. Also the Tribunal had held a little earlier, as seen from the earlier citation, that that had not been improper on his part.

  58. Mr Cookson was offered and accepted the job. On the 29th March 1996 Ms O'Donoghue completed an IT1 complaining of sex discrimination. At that point she made no complaint as to the events of March 1996 and the appointment of Mr Cookson but complained only of the earlier decision, in late 1995 or January 1996, not to shortlist her despite her despite her having been the only candidate at that stage for the post of Senior Solicitor. That IT1 was ruled upon at the same time as the IT1 with which we are more immediately concerned; that first IT1 failed.
  59. On the 4th June 1996 Ms O'Donoghue lodged a second IT1 claiming sex discrimination in relation to the appointment of "a male applicant who was less well qualified and had less experience relevant to the post in question than I"; that is to say, although he was not named, Mr Cookson. The Council, in its answering IT3, in denying that the male applicant was less well qualified than Ms O'Donoghue, made, inter alia, the point that Mr Cookson had scored 2 points more than Ms O'Donoghue in relation to his experience of managing and supervising staff, which, asserted the Council, was experience Ms O'Donoghue did not have. The Tribunal made no finding on this point but a table of comparative figures produced to the Tribunal showing assessments of the nine candidates does appear to support the Council's contention that whereas Ms O'Donoghue had no points under the heading of experience and supervision, Mr Cookson had two and that his total score was higher (although only marginally so) than hers.
  60. The two IT1s were heard together over some five days in September 1996 before Mr J.C. Sutcliffe, Chairman, Mrs Jackson and Mrs Ross at Middlesbrough. Oral evidence was heard from some nine witnesses. On the 13th November 1996 the Decision was sent to the parties. As we have mentioned, the first IT1 relating to the January 1996 short-listing failed. As for the second, the Tribunal held that Ms O'Donoghue had been discriminated against on the grounds of her sex contrary to section 6 (1) of the 1985.
  61. On the 19th December 1996 the Council lodged a Notice of Appeal. We need to say something about the form the Notice of Appeal eventually took. At several points the original Notice of Appeal asserted that there was no evidence of this or that or that some specified evidence on a particular subject was the only evidence given on that subject, assertions which, unless the parties agree, can only be made good or disproved by reference to the Chairman's Notes of Evidence. However, on the 16th July 1997 the Employment Appeal Tribunal had refused a request for Chairman's Notes and, on the subject coming up again before the Employment Appeal Tribunal in April 1999, nothing had been said on the point in the formal judgment but, it transpires, it had been suggested orally by the EAT that the parties should attempt to agree what the evidence was or was not on such subjects as were regarded as relevant. Unfortunately that was not attempted until far too close to the hearing before us and in any event no agreement emerged. We found it difficult to see how justice could be done to the Appellant's arguments without Chairman's Notes and ultimately the matter proceeded before us on the unsatisfactory basis, but the one which seemed to be the least unjust, that a late request would be made to Chairman for his Notes, that if they were received in time the Notice of Appeal would be reconsidered in the light of them but that if nothing was received in time then Mr Bloch for the appellant Council would be unable to advance argument as to the absence of evidence on a number of particular subjects. In fact Mr Sutcliffe's Notes were made available - some 75 pages of longhand - and we are grateful, as should also be the parties, to him for his speedy assistance and also to Mr Reed, his Regional Chairman, for the help that he gave us in procuring the Notes so quickly. Also put in front of Mr Sutcliffe for his consideration was a Memo agreed by Counsel raising three particular areas in which a transcription of the Notes of Evidence was likely to be the most relevant of all. The Memo said:-
  62. "Please identify (and transcribe) any passages in the Notes of Evidence relating to ..."

    and then three particular subjects were described. The first was:-

    "The expression by Ms O'Donoghue of views characterised in the Extended Reasons as "strong feminist views"".

    That expression is to be found in paragraph 18 of the Tribunal's Extended Reasons which we shall come on to below. The Chairman's answer, so far as has been admitted, was as follows:-

    "From a quick re-read of the Notes of Evidence there is no express reference therein to Ms O'Donoghue and "strong feminist views"".

    Also as part of the answer to the same question the Chairman drew attention to evidence from Councillor Roberts in the following exchange:-

    "Question - see 129 -Your recollection of the conversation?
    Answer A few like this. She often had extreme views and we replied in like terms.
    Question Her views?
    Answer She spoke of automatic rights for womens plans. This has been our view for either male or female.
    I could have made like remarks but light-hearted. Margaret had extreme views.".
  63. "Margaret" is, of course, Ms O'Donoghue. The second subject specifically raised with the Chairman was as to the effect such views had on the interviewing Councillors and on Ms O'Donoghue's "Seniors", meaning Mr Hayes and Mr Frankland. On this Chairman's answer was:-
  64. "There appears to be no express reference in the Notes of Evidence as to the effect of Ms O'Donoghue's views on either the interviewing [Councillors] or her "Seniors"".

    On the basis of the three indications given by the Chairman and on the basis also of the availability of the whole of his Notes, had the parties wished to search through them, we ruled that paragraph 6 (4) (c) and (d) of the original Notice of Appeal should be struck-out and that paragraph 6 (4) (b) should read:-

    "(b) There was no express reference in the evidence that any of the interviewing Councillors or the two seniors were affected in their decision by Ms O'Donoghue's views".

    At the time we made the ruling we indicated that if any party wished to argue that it was unfair so to rule without a full transcription of all the Notes then that was the time so to argue. Miss Gill in terms indicated she made no challenge to our ruling and Mr Bloch made none either. Accordingly we shall consider the Council's Notice of Appeal on the footing that it includes an amended paragraph 6 (4) (b) and is without 6 (4) (c) and 6 (4) (d).

  65. It will be remembered that the Tribunal had concluded that the choice of Mr Cookson could not, in its view, be challenged "unless there is some evidence of sex discrimination". The Tribunal continued "in this respect the Applicant cites three relevant matters". It is important to have in mind that Ms O'Donoghue, then appearing in person, relied on three grounds only to show sex discrimination.
  66. The first was quite hopeless as a foundation for a claim of sex discrimination. The Tribunal dealt with it as follows:-
  67. "The first of these is the fact that the interviewing panel included a Councillor whom she had prosecuted in the Magistrates Court a few years ago for non-payment of Community Charge. Prima facie this would appear unwise but the Councillor concerned, Councillor Jeffrey, was a good witness and we consider it to be unlikely that he was in any way prejudiced".

    Councillor Jeffrey was the Councillor who had procured that Ms O'Donoghue's name should be added to the list of those to be interviewed for the post of Senior Solicitor and that fact, together with the Tribunal's own findings, establishes it was unlikely that he was in any way prejudiced against her; still less was it likely that his prejudice, if any, derived from her being a woman.

  68. The second matter relied upon by Ms O'Donoghue was dealt with very briefly by the Tribunal and, rightly in our view, no weight appears to have been attached to it. It was:-
  69. "A second matter concerns the clear evidence that, whilst the Council had a nominal Equal Opportunity Policy, the evidence demonstrated in the exhibits shows that it had done precious little to implement the policy".

    That goes no distance in proving sex discrimination in any particular case.

  70. The third ground asserted is referred a little more fully by the Tribunal as follows:-
  71. "Finally, there is the third matter of the discussion in the Party Group Room in 1993 between the Applicant and Councillors Davies and Roberts and the sexist language of the two Councillors recorded by the Applicant at the time. The Councillors say that such remarks were banter triggered by feminist comments from the Applicant. This may well have been the case but their recorded comments are clearly not acceptable bearing in mind that the Applicant was in effect, an employee of the Councillors".

    This third ground requires further examination.

  72. In, as it would seem, late December 1993 or thereabouts, some 2¼ years or so before the selection of Mr Cookson, Councillors Roberts and Davies had made some comments to or in the presence of Ms O'Donoghue in the Council Room given over to the Labour Party Group. Ms O'Donoghue is not recorded by the Tribunal as having made any formal or other complaint to Council on the subject but she noted the remarks in her diary. Councillor Roberts she recorded as saying "There are too many women in these Council Offices" and, "We don't want them to be hard, we want them to be soft". She records Councillor Davies as saying "The women here don't want to be chair - they don't want to be on [the] Policy and Resources [Committee]. They prefer the men to do it". She finally recorded Councillor Roberts as saying:-
  73. "There should be polygamy - four or five wives each and they should each have their tasks - I haven't been in a kitchen for 15 years - I remember there are two taps and a washing-up bowl .....".

    At the Tribunal hearing the Councillors did not deny such remarks may have been made but they suggested they were banter following extreme feminist remarks made by Ms O'Donoghue. It was those remarks of the Councillors which the Tribunal later in their decision described as may well having been banter triggered by feminist comments from the Applicant. There is no express finding by the Tribunal that those unacceptable, indeed downright silly, remarks made in 1993 were themselves indicative of sexual discrimination operating against Ms O'Donoghue in the job selection process in early 1996. Indeed, the Tribunal's next paragraph, paragraph 18, begins:-

    "Nevertheless ....".

    It is worth citing that next paragraph in full as it is this paragraph that attracted the greatest attention from the parties in argument before us. Paragraph 18 reads as follows:-

    "18. Nevertheless having heard all the evidence and considered the exhibits, the Tribunal agreed that the actions of both the Applicant's seniors in her department and the Councillors on their interviewing panel were affected not only by Mr Frankland's advice that the Applicant was not an easy person to work with or good with staff but also by the Applicant's strong feminist views which she had freely expressed over a period of years. It can truly be said that the Applicant would "not have been treated in the way in which she was but for her sex". We find that she was discriminated against on the grounds of her sex".

    It is notable that neither singly nor in combination the "three relevant matters" which Ms O'Donoghue had urged as evidence of sex discrimination against her had proved sufficient to lead to the finding in her favour. That may, of course, raise the point that the ground eventually relied upon by the Tribunal was one which had not been argued. But that is not the only weakness in the route used by the Tribunal to get to its conclusion.

  74. Mr Bloch composes a powerful cumulative list of shortcomings. None of the interviewing Councillors, all of whom gave evidence, had it put to him (as to those other than Roberts and Davies) that he knew of the "banter" incident some 2¼ years before and there was (as the Chairman's answer cited above indicates) no express reference in the Notes of Evidence to the effect of Ms O'Donoghue's views (as then expressed or generally) on those Councillors or even on Councillors Roberts and Davies. There was (as, again, the Chairman's answer indicates) no express reference in the Notes to the effect of Ms O'Donoghue's views on Mr Frankland (one of her seniors). Mr Frankland doubtless did hold and express the view that Ms O'Donoghue was not an easy person to work with or good with staff but there was no express reference in the evidence that in coming to that view (manifestly justified by the evidence as a whole) he had been affected by Ms O'Donoghue's strong feminist views. It is a serious matter to describe a Councillor, who depends for his office on public election, as guilty of sex discrimination in the course of his public duty but there is in the Extended Reasons no assessment, Councillor by Councillor, as to whether each respectively even knew of Ms O'Donoghue's views, yet alone had been affected by them in the course of the selection process. Councillors Roberts and Davies had, of course, heard her "extreme feminist views" at the "banter" incident 2¼years before but, that apart, there are no findings as to which Councillors heard her express or heard of her expressing what views. There can hardly have been any entrenched prejudice against Ms O'Donoghue as it was her own case that at the conclusion of the interviews, before Mr Frankland's intervention, the majority was in her favour. Yet the Tribunal apparently held all the Councillors on the panel to have been affected as paragraph 18 of their decision describes. So also it would be wrong to hold a senior Council officer such as Mr Frankland to have been guilty of sexual discrimination and it cannot it be right, says Mr Bloch, against the absence of express evidence, as indicated by the Chairman's answer, for the Employment Tribunal to have held as it did.
  75. The Tribunal, he added, indicated a degree of confusion by its reference to "the Applicant's seniors" as her other senior, Mr Dobson, played no part whatsoever in the interviewing panel or in the selection process at all and to have held him, as it seems, to have been affected in his actions by Ms O'Donoghue's strong feminist views was not only a finding without any express evidence to support it but was totally irrelevant.
  76. It may be added that to hold that the appointing panel were "affected" by Ms O'Donoghue's views does not suffice in law where there are other reasons operating such as, here, that she was not an easy person to work with or good with staff. Although Nagarajan -v- London Regional Transport [1999] IRLR 572 HL deals primarily with victimisation on racial grounds, it is proper to expect the "significant influence on the outcome" to which Lord Nicholls refers in paragraph 19 of that decision to be required in a broader class of cases, including the case before us. The Tribunal was alive to the need to make an assessment of the importance, from a causative point of view, of the particular motives operating during the selection process; in their paragraph 19 they quote a passage to such effect from Nagarajan -v- Agnew [1994] IRLR 61 extracted from Briggs -v- James [1982] IRLR 502. However, the Tribunal (having already held that it might well have been Mr Frankland's intervention that had swung the majority, not improperly, to Mr Cookson) appears to have made no assessment of the relative significance of the influence of Ms O'Donoghue's strong feminist views on the decision to appoint Mr Cookson. There is no express holding that the strong feminist views became a significant influence on anyone's decision as to selection, still less that they operated to such effect on all or on at least a majority of the appointors or on Mr Frankland. Moreover, we are entitled to doubt that a reaction against "strong feminist views" is of itself an indication of the presence of sexual discrimination. Quite apart from the fact that, in a situation in which teamwork was demanded, it might have been that it was against the expression of strong views of any potentially divisive nature that objection was taken, it might be added that it by no means follows that only a woman can hold or express strong feminist views. Discrimination against a woman as the expressor of feminist views is thus not necessarily discrimination on the grounds of her sex.
  77. Mr Bloch took us to Chapman and Anor -v- Simon [1994] IRLR 124 at 128 where Lord Justice Balcombe says:-
  78. "In order to justify an inference, a Tribunal must first make findings of primary fact from which it is legitimate to draw the inference. If there are no such findings, then there can be no inference: what is done can at best be speculation. There are no primary facts mentioned by the majority of the Industrial Tribunal as justifying their inference that "subconsciously or unconsciously" [Ms Chapman] was affected ....".

    At p. 129 in the same case Lord Justice Peter Gibson adds:-

    "A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion".
  79. We see considerable force in these considerations. In our judgment the conclusion in paragraph 18 was not a conclusion which was a permissible option on the evidence that was, to judge from the material we have, given to the Tribunal. There was not enough found as matters of primary fact nor such an analysis of causation to justify the holding that the Applicant "Would not have been treated in the way which she was but for her sex". On the facts of this case that conclusion represented more of a speculative leap than an answer that could have been reached on the law and on the evidence.
  80. What then to do? Miss Gill recognises, although, as she puts it, with "a heavy heart", that if this stage were to be reached then the proper course would be to remit to the Tribunal. Our understanding is that the Chairman, Mr J.C. Sutcliffe, has retired. Therefore it would have to be to a fresh Tribunal. Mr Bloch argues, however, that we have sufficient material on which to decide that there was here no proven sex discrimination. Ms O'Donoghue's own submission had been that the majority of the interviewing panel had been in her favour at the conclusion of the interviews and that the reason why the majority swung to Mr Cookson was because of Mr Frankland's intervention. Of that the Tribunal held, as we have already cited, "This may well be the case". But the Tribunal had already found that it had not been improper for Mr Frankland to draw attention to the difficulties which Ms O'Donoghue had had with other members of staff and the Chairman's own answer indicated that there was no express reference in the notes of evidence to the effect Ms O'Donoghue's views had had on Mr Frankland. Indeed the Chairman's answer indicates that on a quick read of the Notes of Evidence there was no express reference found to Ms O'Donoghue and "strong feminist views" at all. In the circumstances, although we found this part of the case difficult, we have been persuaded by Mr Bloch that we are entitled to accept what was, after all, Ms O'Donoghue's case, namely that the reason why the majority swung to Mr Cookson was because of the intervention of Mr Frankland, adding, for our part, that there is nothing to indicate that what he intervened to say was in any way motivated by or consisted of discrimination against her on the grounds of her sex. In the circumstances, rather than our remitting to a fresh Tribunal the proper course is, in our judgment, to allow the appeal and to dismiss Ms O'Donoghue's claim to have been discriminated against on the grounds of her sex contrary to section 6 (1) of the Sex Discrimination Act 1985.
  81. Conclusion

  82. As we have understood the arguments of Counsel, we have no need, at all events for the moment, to address the others of the 7 interlocked appeals. Whether they are to be dismissed or withdrawn we leave to be dealt with in the Minutes of Order we mention below. If, when the parties come to reflect on this judgment, they feel the need to restore any of the other appeals or unaddressed matters in the current appeals then, of course, they will be at liberty to make arrangements for those further matters to be heard. Subject to such further consideration, we make the orders that are described in or implicit under the various sub-headings of this long judgment; Mr Bloch is to draft Minutes of Order to be put to Miss Gill for her agreement. When both have signed the Minutes they are to be sent to the EAT. If the Minutes cannot be agreed, the matter can be relisted, for the President alone.

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