Appeal No.	EAT/0529/02/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	            On 20 August 2003
Judgment delivered on 22 October 2003

Before
HIS HONOUR JUDGE D SEROTA QC
MR D J JENKINS MBE
MR T HAYWOOD

MS C PRATT	APPELLANT

SANDEN INTERNATIONAL (EUROPE) LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D PANESAR
(of Counsel)
	
For the Respondent	MR J LADDIE
(of Counsel)
Instructed by:
EEF
Broadway House
Tothill Street
London SW1H 9NO	

HIS HONOUR JUDGE D SEROTA QC

Introduction
1	This is an appeal from the Decision of an Employment Tribunal sitting at Southampton (Mr D N Cowling, Chairman) that was promulgated on 22 March 2002, after a six day hearing.  The Employment Tribunal dismissed Mr Pratt’s claims for constructive dismissal, discrimination on the grounds of race and sex and also dismissed a claim that she had been paid less than a male comparator.  

2	Both parties provided detailed written submissions to the Tribunal and these have been available to the EAT.  

3	On 18 November 2002, at a preliminary hearing, Elias J allowed two of three proposed grounds of appeal to go forward to a full hearing.  

(a) the Employment Tribunal failed to apply the reverse burden of proof introduced into section 63A of the Sex Discrimination Act by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001; 
(b) the Employment Tribunal, in two specific respects failed to deal adequately with allegations of discrimination on the ground of sex.

Factual background
4	We set out sufficient of the factual background to explain our decision.  We have extracted these matters from the careful recital of facts made by the Employment Tribunal, which we gratefully adopt.  

5	The Applicant joined the employer (which we shall refer to as “Sanden”) as a General Affairs and Personnel Administrator in August 1998.  Sanden is the UK subsidiary of a Japanese company, Sanden Corporation.  It is engaged in the development, manufacture and sale of compressors for automotive air-conditioning systems.  It employs 1000 persons in Europe; it has its European head office in Basingstoke, where Ms Pratt was employed.  There were approximately 55 staff, including senior management, finance, personnel staff and the sales and marketing team at the Basingstoke office.  Ms Pratt’s duties included supervision of the office, the responsibility for maintenance of office equipment and buildings, and the general supervision of personnel activities, including the maintenance of personnel records, employee training and discipline, and related personnel matters.  Ms Pratt was fairly new to personnel work, having been a secretary/personal assistance until 1996.  She was, however, undertaking an IPD course and in the words of the Employment Tribunal “was ambitious to progress in the field of human resources”.  She completed her six month probationary period satisfactorily and in April 1999, was awarded a 4% pay increase.

6	In January 2000 Ms Pratt had a meeting with Mr Noji, the Managing Director, and her line manager, Mr Tatsu, who was the Company Secretary.  It was explained to her that Sanden had decided to create a new post of General Manager, Human Resources and Administration; this was to be a senior strategic post in Human Resources and Administration to facilitate the growth of Sanden’s business in Europe.  The new General Manager, it was proposed, would report to Mr Tatsu, while the Applicant would report to the General Manager, but would herself be promoted to the position of Human Resources Manager.  Sanden intended to integrate its operation so that the human resources function in the UK would eventually have responsibility for personnel development across Europe.  The General Manager would be more “policy oriented” than the Manager, who would remain responsible for the daily management of personnel administration.  

7	At this meeting (or possibly at another meeting, at approximately the same time) Ms Pratt claims that Mr Noji made a comment to the effect that in Japan women were (or were generally regarded as) less intelligent than men, but that he saw Ms Pratt as a man).  The precise terms of Mr Noji’s comment are put somewhat differently in the Originating Application, Ms Pratt’s witness statement and the Notice of Appeal.  This comment has loomed large in the appeal, but seems to have had a very low profile during the course of the proceedings in the Employment Tribunal.  In April 2000 Ms Pratt was given a salary increase of 19%, as compared to the average salary increase within Sanden of between 4 - 5%.  It was the highest increase awarded in Sanden throughout Europe.  At this time, Ms Pratt was involved in the interviewing process for the new post; she drafted job descriptions and conducted the first two interviews and shortlisted three applicants, two of whom were male and one female (Ms M S Carter).  On 6 May the Applicant herself applied for the new post, but her application was rejected on the basis of lack of experience.  The job was offered to Ms Carter who declined the offer of employment.  She informed Mr Noji she was concerned at a requirement she should work in partnership with Ms Pratt, sharing her duties.  The post was then offered to a Mr Roberts who accepted the post.  Mr Noji was concerned at the reason given to him by Ms Carter, and he consulted the job specifications prepared by Ms Pratt.  In the case of Ms Carter, Ms Pratt had drafted the job specification as including “to work in partnership with the General Affairs and Personnel Administrator” and in the case of Mr Roberts “to supervise the General Affairs and Personnel Administrator”.  Mr Noji considered that the job specifications were misleading, particularly in the case of the version sent to Ms Carter, because the job specification recited the tasks that were basically undertaken by Ms Pratt, and did not include those expected of the General Manager.  He considered that the job specifications conflicted with the advertisement for the post of General Manager, and that the misleading job description sent to Ms Carter had led her to decline acceptance of the post.

8	On 7 August 2000 Mr Roberts commenced employment as the Human Resources General Manager, and on 1 September 2000, the Applicant was promoted to Human Resources Manager with a further salary increase.  

9	It is clear that Ms Pratt’s relationship with Mr Roberts was extremely poor.  The Employment Tribunal concluded that Ms Pratt made no secret of her disagreement with the decision to appoint a General Manager:
“From the moment Mr Roberts took up his post as General Manager, the Applicant did not attempt to hide the hostility she felt towards the new appointee.  She was obstructive and unco-operative and made no attempt to work with Mr Roberts, who was new to the organisation.  In the evidence, there are many illustrations of the Applicant’s aggressive and confrontational approach to Mr Roberts …..”

The Employment Tribunal considered Ms Pratt had sent a note to Mr Roberts that was “discourteous and hostile” and sent further memoranda unreasonably critical of Mr Roberts to Mr Noji and Mr Tatsu, among others, which the Employment Tribunal considered to be “aggressive, accusatory and confrontational”.  

10	On 18 September the Applicant had met Mr Roberts and had what the Employment Tribunal referred to as a “frank exchange of views” and at a meeting on 6 October 2000, attended by Mr Tatsu and Mr Roberts, Ms Pratt behaved inappropriately.  During the course of the meeting she complained that Mr Roberts failed to communicate with her.  She went over to where Mr Roberts was sitting:
 “thrust her face into his and screamed “Communicate!” very loudly and directly into his ear.  Mr Roberts found this very painful and was profoundly shocked by her conduct.”

Mr Roberts complained to Mr Noji suggesting the incident constituted gross misconduct, but Mr Noji told him it was not the company’s policy to dismiss staff.  Mr Noji, however, was horrified at the way Ms Pratt had behaved.  The Employment Tribunal considered that her conduct was such that she could and probably should have been formally disciplined for her conduct towards Mr Roberts.  On 12 January 2001, Ms Pratt issued a grievance against Mr Roberts.  A series of meetings took place involving senior executives and Ms Pratt, as well as Mr Roberts and led to the adoption of an action plan designed to improve relationships between Ms Pratt and Mr Roberts.  Unfortunately the action plan broke down.  The Employment Tribunal considered that Ms Pratt adopted an aggressive and unhelpful attitude, and at a meeting with Mr Tatsu on 22 January 2001, she made a disparaging remark about Mr Tatsu’s command of English which Mr Tatsu, whose first language was not English, found extremely hurtful.  The Employment Tribunal considered that Ms Pratt could and should have been formally disciplined for this conduct.  We interpolate that the Employment Tribunal considered that:
“The fact that the Respondent took no disciplinary action against the Applicant despite her behaviour throughout this period flies in the face of the Applicant’s allegation that the Respondent was looking for an excuse to terminate her contract of employment.”

11	Mr Tatsu considered that Ms Pratt was in so agitated a state about her own position that she did not appear to realise how offensive she had been to him.  At some stage she left the meeting and had to be persuaded to return.  She was repeatedly asked by Mr Tatsu to take a diagram prepared by Mr Roberts and Mr Tatsu which showed the separate roles of the General Manager and the Manager, and the extent to which their responsibilities overlapped.  Eventually, at Mr Tatsu’s insistence, she took the diagram but stormed out of the office, returning later to announce that she would speak to Mr Mulligan, the Executive Director of Sales and Marketing Division and Mr Noji’s deputy, because she was unhappy about the outcome of the discussions.  

12	She saw Mr Mulligan that morning and told him that the meeting with Mr Tatsu and Mr Roberts had been a disaster.  She became very emotional and described Mr Roberts as a “bastard”.  She then asked that Sanden should “buy out her contract” in exchange for two years salary.  She left the meeting, went home and never returned to work. Mr Noji telephoned on 26 January and Ms Pratt told him she felt unable to return to work until her grievance had been resolved.  She was told that her continued absence was unauthorised and she was asked to attend a disciplinary hearing on 7 February to address the issue, in addition to her rudeness to Mr Tatsu.  Meanwhile, Mr Mulligan had completed his investigation of her grievance and came to the conclusion that her accusations were unsubstantiated.  On 13 February 2001 Ms Pratt wrote to Mr Noji to say that she had visited her doctor and attached a copy of a medical certificate and said “Sanden’s desire to discipline me will have to be postponed”.  On 16 March 2001, her solicitors wrote to Sanden’s representative asserting that she had been constructively dismissed with effect from 24 January 2001.  She was in fact paid up until 16 March 2001.  

The award of the Employment Tribunal
13	It is clear from the above that the Employment Tribunal was highly critical of the conduct of Ms Pratt.  The Employment Tribunal rejected her claim for unfair dismissal; as there is no appeal in relation to this matter, we say little about it except that the Employment Tribunal at paragraph 37 found:

“In our view, the Respondent was extraordinarily patient and tolerant in the light of the Applicant’s patently hostile reaction to any attempts on the part of the Respondent to persuade her to work with the new General Manager.”

The Employment Tribunal also rejected a claim for discrimination on the grounds of race.  Again, there is no appeal before us in relation to this part of the Decision; we note that the Employment Tribunal concluded that the primary facts as found by them did not give rise to any inference of discrimination on racial grounds, and further:
 “any inference that the Tribunal might have made is negated by satisfactory explanations from the Respondent of non-racial grounds for the action taken or the decisions made”.

14	The Employment Tribunal also rejected the claim under what was the Equal Pay Act 1970; again, there is no appeal before us in relation to this part of their Decision, and we say nothing more about it. 

15	We now turn to explain how the Employment Tribunal dealt with the claim in relation to discrimination on the grounds of sex.  Firstly, as it seems to us, the Employment Tribunal correctly directed itself in relation to sections 1, 6(2) of the Act and effect of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001, which introduced a reverse burden of proof in certain circumstances into section 63A of the Sex Discrimination Act.  The Employment Tribunal concluded:
“It is our unanimous decision that the Applicant has not established that she had been treated less favourably than a man was or would have been treated.  We can find nothing in the evidence to support the Applicant’s contention, either that she was treated less favourably than a man or that she was treated in the way that she was treated because she is a woman.  She was promoted and received regular and substantial salary increases.  The circumstances which led to the termination of her employment were wholly unconnected with the fact that she was a woman.  Even if we are wrong and the Applicant was less favourably treated than a male comparator, any inference that the Tribunal might have made is negated by more than satisfactory explanations from the Respondent of gender-neutral grounds for the actions taken or the decisions made.”

16	We shall refer later in this judgment to certain specific allegations made by Ms Pratt in which she asked the Employment Tribunal to conclude that she had been the subject of discrimination on the grounds of sex.  At this point, however, we note that the Employment Tribunal dealt with factual allegations in a compendious way and did not consider it appropriate to draw any inferences from primary facts found by them and then went on to find that any inference it might have drawn was negated by satisfactory explanations from Sanden on gender-neutral grounds.  
The approach to section 63A of the Sex Discrimination Act
17	Our attention was drawn to two decisions relating to the approach to section 63A which should be adopted by Employment Tribunals.  Firstly, in Barton -v- Investec (a decision of the EAT presided over by HH Judge Ansell) the EAT said at paragraph 25:
“(1) Pursuant to section 63A of the Sex Discrimination Act 1975, it is for the Applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondents have committed an act of discrimination against the Applicant which is unlawful by virtue of Part 2 or which by virtue of section 41 or 42 of the Sex Discrimination Act is to be treated as having been committed against the Applicant.  These are referred to below as “such facts”
(2) If the Applicant does not prove such facts he or she will fail.
…...
(4) In deciding whether the Applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
(5) It is important to note the word is “could”.  At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination.  At this stage a Tribunal is looking at the primary facts proved by the Applicant to see what inferences of secondary fact could be drawn from them.
……
(8) Where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent.”

18	The matter was also considered by the Court of Appeal in Nelson -v- Carillion Services Ltd [2003] EWCA Civ 544 (unreported) Simon Brown LJ V B LJ, gave the leading judgment and adopted, as Mr Laddie put it, “a more conservative approach”.  He had this to say, at paragraph 26:
“It seems to me tolerably clear that the effect of section 63A was to codify rather than alter the pre-existing position established by the case law.  The burden of proving indirect discrimination under the 1975 Act was, …… always on the complainant, and there pursuant to section 63A it remains, the complainant still having to prove facts from which the tribunal could conclude that he or she has been unlawfully discriminated against “in the absence of an adequate explanation” from the employer.  Unless and until the complainant establishes that the condition in question has had a disproportionate adverse impact upon his/her sex the tribunal could not in my judgment, even without explanation from the employer, conclude that he or she has been unlawfully discriminated against.”

19	It was submitted to the Court of Appeal that in a case of direct discrimination, the burden of proving disproportionate adverse impact switched to the employer once a “credible suggestion” of disproportionate adverse impact had been raised.  Simon Brown LJ stated in paragraph 36:
“I have in short come to the clear conclusion that in an indirect discrimination case the burden of proving disproportionate adverse impact lies on the complainant and that merely to raise “a credible suggestion” that, were the relevant (valid and significant) statistics provided, these might establish disproportionate impact is not sufficient for the claimant’s purposes and imposes no further burden of explanation on the employer.”

Dyson and Scott Baker LJJ agreed with Simon Brown LJ.  We are told that the Court of Appeal was referred to a copy of the judgment in Barton -v Investec, but no reference to it was made in the decision.  

20	Having considered these authorities, we are quite clear that the burden of proof only shifts to the respondent after an applicant has shown:(a) less favourable treatment than an actual or hypothetical comparator, and (b) the circumstances of unfavourable treatment were such as to properly permit the drawing of an inference that the less favourable treatment was on the grounds of the complainant’s sex.  

21	We prefer this formulation to that put forward by Mr Panesar in paragraph 4 of his Skeleton Argument.  Mr Panesar had submitted that the Employment Tribunal should:
“(i) Decide whether A has proved facts that in the absence of explanation constitute discrimination.
(ii) In the event that such facts are proved, then the burden of proof should be shifted to the employer to prove that their actions were not due to discrimination on the grounds of sex.”

22	We were also referred to the decision of the House of Lords in Shamoon -v- Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285.  Lord Nicholls had this to say at paragraph 7:
“7 …….. In deciding a discrimination claim, one of the matters employment tribunals have to consider is whether the statutory definition of discrimination has been satisfied.  When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the ‘less favourable treatment’ issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the ‘reason why’ issue).  Tribunals proceed to consider the reason-why issue only if the less favourable treatment issue is resolved in favour of the claimant.  Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.
8	No doubt there are cases where it is convenient and helpful to adopt this two-step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others?  But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems.  Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason-why issue.  The two issues are intertwined.”
Lord Nicholls continued at paragraph 11:
“11   This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.  Was it on the proscribed ground which is the foundation of the application?  That will call for an examination of all the facts of the case.  Or was it for some other reason?  If the latter, the application fails.  If the former, there will be usually no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.
12   The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case.  There will be cases where it is convenient to decide the less-favourable treatment issue first.  But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less-favourable-treatment issue until after they have decided why the treatment was afforded to the claimant.  Adopting this course would have simplified the issues, and assisted in their resolution, in the present case.”

Ms Pratt’s submissions on the burden of proof
23	Mr Panesar, on behalf of Ms Pratt, submitted that although the Employment Tribunal, at paragraph 40 correctly directed itself as to the burden of proof under section 63A, failed to apply the burden of proof correctly when it came to its decision on grounds of discrimination, on the grounds of sex as set out in paragraph 41 which we have previously set out.  It was submitted that once the Applicant had heard evidence from Ms Pratt of matters that were capable of giving rise to an inference of discriminatory treatment, the burden of proof should have shifted to the employer.  Mr Panesar goes on to submit that in effect the burden of proof was never shifted.

24	Mr Panesar submitted that no findings were made by the Employment Tribunal on a number of evidential matters raised by Ms Pratt.  Thus is in paragraph 6 of his Skeleton he identifies a number of allegations of detrimental treatment raised by her:
“(i) Her job description was changed.
(ii) Her role was encroached.
(iii) She was subjected to disciplinary proceedings.
(iv) She was rejected for the post of Human Resources General Manager.
(v) She was paid less than a man would have been paid.
(vi) She was not provided with a company car.
(vii) She was given less responsibility than a man.
(viii) She had a manager appointed over her.
(ix) Her pay packet was less than a man’s would have been”

In paragraph 19 of his Skeleton, Mr Panesar submitted that findings were not made in relation to four specific matters referred to by the Employment Tribunal, paragraph 24 of its Decision:
“(i) She was paid less than her male predecessor.
(ii) She, the only female manager was denied a company car.
(iii) She was the only manager to have a manager promoted above her.
(iv) She had less responsibility than other managers (who were male).”

25	We note that the Employment Tribunal also referred to a fifth allegation, namely that Ms Pratt was denied a fair hearing of her grievance.  Mr Panesar complains that the Employment Tribunal dealt with its findings of fact compendiously, should have dealt with each allegation separately, and should have found them proved.  He drew attention to the written submissions for the Employment Tribunal of Mr Nicholas Sproull, who appeared on behalf of Ms Pratt on that occasion.  He picked out five specific instances.
“(a) Mrs Pratt was the only female manager and of all the managers she was the lowest paid (she was also paid less than her predecessor and less than the person currently doing her job (Mr Roberts) ).
(b) She was the only manager to be promoted to that position then demoted (by Mr Saito), and expected to do the job of a manager without the title.
(c) She was the only manager without a company car.
(d) She was the only manager to have a general manager promoted above her.
(e) She was the only manager who, on promotion, had less responsibility than she had before, because her superior repeatedly took over her responsibilities.
(f) She was denied a fair hearing of her grievance and denied an appeal.”

It was submitted that the approach adopted by the Employment Tribunal was mistaken.  It should have found whether these allegations were made out, and if so, it should then have proceeded on the basis that the Respondent was required to show that their actions were not due to discrimination on the grounds of success.  Mr Panesar submitted that the Employment Tribunal had run together, as proven facts that in the absence of explanation, might constitute discrimination, and the issue as to whether they were in fact due to discrimination on the grounds of sex.  The Tribunal had dealt with matters in a “broadbrush” way and failed to apply the appropriate test.  In paragraph 41 the Tribunal referred to the fact that Ms Pratt had been promoted and received regular salary increases.  This was not relevant to the issue as to whether she had been shown differential treatment; we feel bound to interpolate at this stage that it seems to us that the approach adopted by the Employment Tribunal was entirely sensible and in accordance with what Lord Nicholls had said in Shamoon in the passages that we have already referred to. 

26	Mr Panesar submitted that although some matters, which he claimed the Employment Tribunal had not dealt with, were not referred to in Mr Sproull’s final submissions, nevertheless, these points were never abandoned, so the Employment Tribunal was obliged to address them.

Respondent’s submissions
27	Mr Laddie submitted that the correct approach was that indicated in Barton -v- Investec and Nelson -v- Carillion. Ms Pratt was required to show that she had suffered detriment and that she had been less favourably treated.  Only where she could show that in both of these matters did the burden of proof shift.  He submitted that Mr Panesar had conflated the issues of detriment and less favourable treatment.  Mr Laddie submitted that Mr Panesar was, in effect, suggesting that if Ms Pratt could show that she had suffered a detriment, then the burden of proof must shift; that was not the test, he submitted.  Mr Laddie submitted that the reasoning of the Employment Tribunal at paragraph 41 makes clear that the Employment Tribunal were simply not satisfied that Ms Pratt had established that she had suffered less favourable treatment than an actual or hypothetical comparator, and that circumstances of her less favourable treatment were not such as to permit the drawing of the inference that the treatment was on grounds of her sex and the Respondent had negated any such inference.  However, and in any event, the Employment Tribunal had in effect done what was recommended by Lord Nicholls in Shamoon, and gone on to consider, whether even if Ms Pratt had suffered less favourable treatment, whether that was by reason of her sex; the Employment Tribunal had found, in terms, that that was not the case.  

The Employment Tribunal’s approach to the facts
28	It is apparent that before coming to their conclusions in paragraph 41, the Employment Tribunal had carried out a detailed analysis of the factual background, running to some seven pages.  It makes clear in paragraph 2 that:
“The Tribunal found the following facts proved on a balance of probabilities, having considered all the evidence, both oral and documentary, and having considered the submissions made on behalf of the parties.”

We now refer to certain of the specific matters in respect of which it is asserted that findings were not made by the Employment Tribunal.  

(i) The car; Ms Pratt relied upon a Mr Bennett has being a comparator, so far as the car was concerned; this matter is dealt with in paragraph 51 of the Decision.  The Employment Tribunal found, as indeed accepted by Ms Pratt, that their jobs were different and that they were not employed on like work.  Further, work they undertook was wholly dissimilar.
(ii) Ms Pratt’s allegation that she was the only manager to have someone promoted above her.  The answer to this is quite clear; that she was not a manager at the time of Roberts’ appointment but only afterwards; see paragraph 10.  Further, she was the first person to be appointed as Human Resources Manager.  
(iii)  The allegation that she was given less responsibility than others; the Employment Tribunal dealt with her responsibilities in detail at how they were affected by Mr Roberts’ appointment.  It seems to us that it is impossible to assert that she was given less responsibility than other managers.  She was the only Human Resources Manager.  
(iv) The assertion that she was paid less than her predecessor; in relation to her equal pay claim; she did not rely upon payment to her predecessor, but instead chose Mr Bennett as a comparator.  As we have noted, any comparison with Mr Bennett was rejected on the facts.
(v) Change in job description; the Employment Tribunal accepted this was for a non-discriminatory reason and preferred the evidence of Sanden’s witnesses to her own.  
(vi) Encroachment of her role; the Employment Tribunal dealt with this matter extensively; see paragraphs 9 - 13 and 17 - 18.  It is quite clear that the Employment Tribunal found her role had not been encroached.  She had in fact been promoted and showed an inability and unwillingness to work with Mr Roberts.  
(vii)  Subjection to disciplinary proceedings; this was not a matter relied upon in Mr Sproull’s submissions.  In any event, she could scarcely have been surprised if she was subject to disciplinary proceedings, having absented herself from work.  It is clear that the Employment Tribunal were satisfied that the decision to initiate disciplinary proceedings was not gender based.
(viii) Rejection from the post of Human Resources General Manager.  It is difficult to see how this could conceivably have been on the grounds of sex, having regard to the fact that initially the post was offered to another woman (Ms Carter), and on the findings of the Employment Tribunal that it went to someone who was reasonably considered to be better qualified.  Further, this is not a complaint that features in Mr Sproull’s submissions.
(ix) Ms Pratt’s allegation that she was paid less than a man would be paid; it is clear that the Employment Tribunal lacked an appropriate comparator but found she was given regular salary increases, including the largest in the company’s history and was promoted to a managerial position.  There is nothing in this point; 
(x) she was given less responsibility than a man; she had a unique position and there was no evidence whatsoever to support this allegation.  Further this is one of the matters not raised by Mr Sproull.
(xi) She had a manager appointed over her; it is clear that the Tribunal were satisfied that this did not affect her responsibilities, the reasons were, in any event, not gender based; 

Second ground of appeal
29	Mr Panesar accepted that this ground really related to two specific instances where he claimed the Employment Tribunal had failed to deal with matters raised by Ms Pratt, were in effect instances of his first ground of appeal.  The matters relied upon by Mr Panesar were firstly the statement alleged to have been made by Mr Noji, to which we have referred, that in effect that in Japan women were (or were generally regarded as) less intelligent than men, but that he saw her as a man.  Secondly, he referred to the failure to deal with other individual items, which we have in fact considered under the first ground of appeal.  Our attention was drawn to the unreported decision of the Court of Appeal of Wheeler -v- Durham County Council [2001] EWCA Civ 844 Pill LJ had this to say at paragraph 40:
“In addition to the passing references to the absence of sexual discrimination, the tribunal set out its general conclusions.  There were undoubtedly deviations in certain respects from ordinary procedures.  It is not disputed that in the end the tribunal members asked themselves the correct question.  The allegation is that their decision is erroneous in law because they did not require explanations from the employers of each of the events surrounding the appointment.  I am unable to accept that, in all the circumstances where deviations from ordinary practice occur or where there are differences of treatment which emerge in the selection process, the employer must invariably give an explanation and the tribunal must find it a satisfactory explanation if it is to fail to infer that the decision was reached in breach of the Act.  In my judgment there must be a nexus between the facts relied on and the discrimination complained of before such an explanation can be required.  Some conduct of employers will require specific explanation, other conduct or events can be dealt with by way of the general finding which the tribunal made.  It is a matter for analysing the facts of the particular case and is a question of fact and degree.”
Paragraph 43 continued:
“I have considered the reasoning of the Employment Tribunal,  In my judgment, their final conclusion cannot in any way be faulted.  Plainly they applied the right test.  In my view they reached a conclusion they were entitled to reach.  Their conclusion is not erroneous, by reason of the absence in some cases of detailed analysis of the differences in procedure or of events which occurred.  Those events were not such that an inference of sexual discrimination could readily be drawn from them…..”

Lord Phillips M R had this to say in paragraph 53:
“In Anya -v- University of Oxford [2001] EWCA CIV 405, the Court of Appeal held that an Employment Tribunal must make conclusions on the factual issues essential to its conclusion.  It does not follow, however, that an Employment Tribunal has to explore the circumstances of every event in the evidence placed before it.  It only has to reach conclusions on the essential issues.”

30	Mr Laddie submitted that in relation to the allegations of what was said by Mr Noji, Ms Pratt put the matter in a number of different ways.  In her Originating Application she had asserted:
“The Respondent replied “In Japan, women are generally less intelligent than men” ”
Her questionnaire did not include the allegation.  Paragraph 39 was read to the Employment Tribunal; she stated:
“When I asked Mr Noji in January 2000 why there were no female managers in the company he told me that “in Japan we believe, generally, that women are less intelligent than men” but in his eyes he saw me as a man.”

Mr Sproull did not refer to this allegation at all in his closing submission.  The matter is put slightly differently in her Notice of Appeal.  Elias J ordered that the Chairman should provide his note relating to this matter.  It is clear that the allegation was denied by Mr Noji.  The Chairman says (see page 49)
 “There is no reference of specific comments attributed by the Appellant to Mr Noji, the Managing Director, because the Tribunal did not find the Appellant’s allegations proved.”

Conclusions
31	We are satisfied this was a case where both parties were represented by competent advocates.  In our opinion an Employment Tribunal is not obliged to deal with factual matters which are not raised by the parties in their final submissions.  The Employment Tribunal need only deal with factual issues essential to its conclusion.  Where both parties make full submissions and one party does not think it necessary to seek findings, particular factual issues (as in this case) the Employment Tribunal is entitled to assume that the parties do not regard these as essential and is under no obligation to make findings in respect of them.

32	We are perfectly satisfied that the findings made by the Employment Tribunal in paragraphs 3 - 23 of its Extended Reasons and the conclusion in paragraph 41 are more than sufficient.

33	It is clear to us that the Employment Tribunal correctly applied section 63A.  They clearly had the reverse burden of proof in mind, as is apparent from paragraphs 40 and 44.  We note that in paragraph 44 the Employment Tribunal showed itself to be well aware that the reverse burden of proof in cases involving sex discrimination had not yet been applied to cases of race discrimination.  

34	We are satisfied that all relevant factual matters were considered and that the conclusion in paragraph 41 is a conclusion which was justified.  The Employment Tribunal made clear that Ms Pratt had not proved sufficient facts for the reverse burden of proof to apply, but even on the assumption that the Employment Tribunal was incorrect in that approach, the Employment Tribunal adopted the approach subsequently recommended by Lord Nicholls in Shamoon.  The Employment Tribunal, therefore, even on the assumption that Ms Pratt had proved she was subjected to less favourable treatment, still found such treatment was not by reason of her sex, and they accepted the evidence of Sanden in that regard.  In other words, Sanden had satisfied the Employment Tribunal that there had been no discrimination on the grounds of sex.  In relation to the allegation that women were less intelligent, said to have been made by Mr Noji, this is clearly a matter that was not relied upon by Mr Sproull in his final speech, and in any event, was not accepted by the Employment Tribunal.  It was not proved by Ms Pratt, and in our view, takes the case no further forward.  

35	We very much have in mind what Lord Hope said in Shamoon in paragraph 59:
“An appellate court should hesitate before it decides to reverse a decision of the tribunal on a matter of this kind.  The question which was at issue here was a question of fact, and the tribunal had the advantage of seeing and hearing the witnesses.  In a case such as this, where direct evidence of discrimination is absent and so much depends on inference, this is a crucial advantage which the appellate court does not share.  It has also been recognised that a generous interpretation ought to be given to a tribunal’s reasoning.  It is to be expected, of course, that the decision will set out the facts.  That is the raw material on which any review of its decision must be based.  But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge.  Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected.  The reasoning ought not to be subjected to an unduly critical analysis.”

We find this of considerable assistance.  

36	In the event, having regard, as we have said above, neither ground of appeal can succeed and in the circumstances, the appeal is dismissed.