Newspaper tycoon loses case to GS hopeful Lanning

by Barrabas

A hushed and tightly packed courtroom heard recently of Machiavellian events and tales of incompetence from deep inside Falconcrest, and although losing her mischievous case, the ET was not amused by the inept performance of PCS as represented by Huge and cronies, "deprecating" the "inefficient manner in which important decisions were made and arrived at" and concluding "Let us hope that as a result of this case the senior officers of the union will take note and seek to avoid a repetition of these events."

Fat chance. And we pay for the dubious pleasure. Incidentally this report would have cost £10 if we hadn't stolen it.

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Case Number: 2302963/1999 and 2301245/2000

THE EMPLOYMENT TRIBUNALS

BETWEEN

Applicant		Respondent
Ms V Stansfield	AND	1. Joan Easton
		2. Public and Commercial Services Union

DECISION OF THE EMPLOYMENT TRIBUNAL

HELD AT: London (Central)	ON: 10, 11 July 2000 and 1 August 2000
CHAIRMAN: Mr N S Rabin	MEMBERS: Mrs R Hill Mr J Brass

Appearances

For Applicant: Mr R Thacker (Counsel)

For Respondent: Mr S Cavalier (Solicitor)

DECISION

The unanimous decision of the Tribunal is that the Applicant's claims of sex discrimination and victimisation are dismissed.

EXTENDED REASONS

1 The Issues

Ms Stansfield brought a claim of sex discrimination which was presented to the Tribunal on 20 October 1999 alleging that she had been excluded from two interview panels for the post of design manager and design assistant in circumstances where, as head of the department she should have been included and in comparable circumstances male heads of department had been included on other interview panels. The Respondents deny discrimination and say that the reasons for Ms Stansfield's exclusion from those two panels were procedural and had nothing to do with her sex. After submission of her Originating Application in October 1999 Ms Stansfield complained that a grievance which she believed had been completed was reactivated by the Respondents and that this amounted to victimisation. She presented her second Application on 7 March 2000. The Respondents say that the grievance was ongoing and was being processed in accordance with procedures. It had nothing to do with the fact that the Applicant had brought a claim of sex discrimination.

2 The Evidence

Evidence was received from the Applicant in person, and on her behalf from Mr Terry Collins who was a member of Ms Stansfield's staff who applied for and was appointed to the post of design manager. He then sat on the interview panel which selected the design assistant. For the Respondents evidence was received from Mr Hugh Lanning, Assistant General Secretary of the Respondent union, Miss Joan Easton, Director of Personnel and an individual Respondent in these proceedings, and Mr Jim McAuslan, Deputy General Secretary of the Union and Ms Stansfield's line manager. There was an agreed bundle of documents. Having considered the oral and documentary evidence, we make the following findings of fact:

3 Findings of Fact

(i) Ms Stansfield commenced employment with the Civil and Public Services Association (CPSA) in May 1987. In March 1998 she was appointed Assistant Secretary - Editor of the Union's journal entitled "Red Tape". At that time, after a lengthy process of reorganisation, the Union merged with the Public Services, Tax and Commerce Union (PTC) to become the Public and Commercial Services Union (PCS). Ms Stansfield was appointed Editor/Publications Manager of the Union's monthly I, magazine, entitled, somewhat unimaginatively, "The Magazine This represented a promotion from Grade PS1 (professional staff) to SS2 (senior staff) with an appropriate salary increase.

(ii) On 14 June 1999 Hugh Manning, Assistant General Secretary, issued a communications review which identified:

"... an extended role for the Editor to oversee the style, tone and content of all publications. The post, which should be titled Publications Manager, would be responsible for editing the Magazine,. to be extended to include managed responsibility for the design manager and the clerical staff..... It would appear to me that the post is S5 Band 2 (Senior Manager).....

We need a clear and more integrated structure in design and need to keep our skills mix up to date to reflect changing styles and technologies such as the Web. It is recommended that we appoint a design manager to oversee the design studio ... I also recommend that the studio has at least one designer and at least one design assistant".

(iii) The job descriptions for the design manager and design assistant posts and an internal recruitment timetable were drawn up by Jim McAuslan and Joan Easton. There is a document in the bundle headed "Recruitment Timetable" which refers to the post of design manager and states the panel for short listing and interview to be Jim McAuslan (Chair), Val Stansfield and Joan Easton. It gives the dates for advertisement, which was to be internal only, dates for closing of applications, shortlisting and an interview date of Friday, 23 July. The only applicants for the post were Terry Collins and Nikola Bryce, who were already working for Ms Stansfield in Publications.

(iv) On 14 July 1999 Nikola Bryce had lodged a grievance against Ms Stansfield, accusing her of bullying. We have not seen the details of those accusations. When the matter was eventually adjudicated by Mike King, Senior National Officer, in February 2000, he concluded that although there was some substance in Ms Bryce's grievance, he did not believe that any one individual was responsible. He observed that Ms Bryce found Ms Stansfield's style "difficult if not distressing on some occasions" and that other staff in the department described her management style as "in yer face", which was not said as a complaint but as a reflection of her and her personality. He considered that Nikola Bryce was "a very different personality". He recommended a workshop to consider the different values of members of the team and how they should interact with each other.

(v) Both Mr Collins and Ms Bryce were surprised to receive a memorandum from Joan Easton on 21 July 1999 informing them that the interviews for the design manager post had been postponed for a short while. In that memo she stated:

"the reason is that for this level of post there has not yet been a formal agreement about the composition of the panel. I apologise for the mistake in the paperwork that indicated a Friday interview.

I shall contact you again, once this has been sorted out. The next hon. officers' meeting is on 9 August. I would expect that we can proceed after that...."

(vi) A copy of that note was sent to Jim McAuslan but, surprisingly in our view, not to Val Stansfield. In evidence Miss Easton said that she thought Mr McAuslan, as Chair of the Panel, and Ms Stansfield's line manager, would have told her; Mr McAuslan said that he had assumed that Miss Easton, as the person responsible for organising the interviews, would have told her. In the event neither of them told her, she only learned of the postponement of the interviews which she thought she was going to be part of, in conversation with Mr Collins and Ms Bryce. Ms Stansfield tackled Miss Easton about this and was told that the reason for the postponement was that the procedure for the manning of the selection panel had not been agreed by the senior officers of the merged union (referred as "the Honorary Officers").

(vii) The decision to postpone the interviews derived from Mr Lanning, when he was told about the proposed interviews and the makeup of the selection panel. Mr Lanning was closely involved in negotiating the principles and the details of the merger. Although it had formally taken place more than a year previously, a lot of the policies had not been fully worked out to accommodate the historic position of the two unions and their respective memberships. Negotiations were complicated by the fact that although the staff members of the two unions were themselves members of the GMB Union, the different unions were represented by different branches of GMB, so that effectively four groups of individuals were involved in agreeing any policy decision or document affecting staff. The reason why Mr Lanning became aware of the proposed interviews and the constitution of the interview panel was that Ofelina Allen, a member of the personnel department, had approached Mr Lanning with her concern that Ms Stansfield, as a member of the proposed interview panel, was the subject of a grievance taken out by Nikola Bryce. In his evidence to this Tribunal Mr Lanning assured us that the decision to postpone the interviews was not because Ms Stansfield was, ~the subject of a grievance by one of the candidates although as Miss Easton acknowledged, it might have been a factor had it not been for the procedural defect. Miss Easton assured both Ms Stansfield and Mr Collins that Ms Bryce's grievance was not the reason for the postponement.

(viii) When a staff briefing announcement was issued on 23 July stating that "the Hon Officers have now adopted the principles of recruitment and selection" Ms Stansfield raised this with Joan Easton who explained that while the principles had been agreed, the detailed policy (and some procedures) had not, particularly in relation to the PS1 and PS2 posts. On 9 August 1999 the Honorary Officers (comprising the President, Vice Presidents and senior full-time officers of the merged unions) met to resolve a number of staff-related issues and among the decisions taken was the following:

"selection Panel: Design Manager Post

In view of the need to fill the design manager post, it was agreed to use the proposed panel for posts at bands PS2 and PS1

four from one SFTO [senior full-time officer) the immediate line manager, two lay members and the Director of Personal (sic) [advisory capacity]"

(ix) Following that decision Mr Lanning wrote to the President and Vice Presidents on 11 August 1999 as follows:

"subject selection Panel: PS2. - Design Manager Jim [McAuslan) had originally proposed a panel of three (DGS, Production Manager, Director of Personnel).

I suggest we use the format proposed in the recruitment and selection procedures - that is a panel of four. Les Priestley volunteered at the meeting - as this is not a negotiations post I would have thought one lay member would be sufficient.

I do not think it would be appropriate for the two line managers (the DGS and Production Manager) to be on the panel - notwithstanding that the Production Manager post is still under discussion as to how it should be filled.

Therefore I believe that the panel should be DGS (McAuslan) Les Priestley, Director of Personnel plus one further SS1 Or 2.

In this matter it would be desirable to have either a woman or someone with experience of design issues... Clearly either of the JGSs (Joint General Secretaries or other SFTOs would "fit the bill" although this might make it a bit top heavy for the nature of the post. In terms of women at SS2 level the options are limited (veronica Bain, Jill Evans, Pat Campbell, Emma Whyles in addition to Val Stansfield and Joan Easton)."

(x) Following that memo Barry Reamsbottom, Joint General Secretary of the Union, informed Joan Easton on 18 August that the composition of the selection panel was agreed as follows: McAuslan, Priestley, Marian Chambers (Vice President) and Joan Easton (non-voting) and that the interviews would take place on 24 August.

(xi) Following his interview on 24 August Terry Collins was appointed to the post of Design Manager. Jim McAuslan asked him and Ms Stansfield to sift through the substantial number of applications which had been received for the post of design assistant - over 100 in all. Mr McAuslan had informed Ms Stansfield that the interview panel for the design assistant post would be herself, as head of the department, Mr Collins as the design manager and someone from Personnel.

(xii) Ms Stansfield and Mr Collins worked hard to come up with a short list of nine candidates based on the criteria that had been discussed. Ms Stansfield learned that without any consultation with her, a decision had been taken (Ms Stansfield presumed that it was by Miss Easton) to revisit the shortlisting process and to exclude Ms Stansfield from the selection panel again. Ms Stansfield was very upset about this, not least by the fact that she learned about it from a colleague, Martin Boyle, Head of Recruitment and Membership Services and an officer on the same level as the Applicant. He told her that she had been removed from "yet another panel". Ms Stansfield wrote the following memo to Joan Easton with a copy to Barry Reamsbottom on 2 September 1999:

"Design Assistant Panel. I am disturbed to learn of a number of matters which appear to be in direct contradiction to information you gave to me on August 31 when we discussed the above.

You told me that the reason you had changed the composition of the interview panel from that which you had agreed with Jim McAuslan was that in the intervening period an agreement had been reached with the GMB on the composition of panels for PS3 posts. Having checked the position with my GMB representative I am advised there is no such agreement; merely a set of proposals which may or may not be agreed.

In fact this coincides precisely with the information which you gave to the design manager on September 1 since you told him that they were proposals not an agreement.

What is more, I understand that the recent interviews for the PS3 graded post of library assistant were conducted by a panel comprising the line manager, the head of department and a member of the personnel department.

The only conclusion I can draw from this is that what you told me on August 31 was not true. I am drawn to the conclusion that you have taken this action as a means of excluding me as an individual from this process, and not because there has been a policy decision to which you are bound. I therefore now require an explanation for your discriminatory action before I consider what steps I next take..."

On 3 September Miss Easton replied as follows:

"...Design Assistant Post. When I came back from leave, I found that a short list of nine (out of seventeen) had been draw up by yourself and Terry Collins, only. This, I understand was because of Terry's imminent jury service.

However, there had been no Personnel representative involved. As I was to be part of the interviewing panel, I then reviewed all of the candidates from this "long list" of seventeen. I selected ten candidates for further consideration.... I therefore asked Jim McAuslan as overall line manager of the department to make his selection. He did this without seeing either mine or Terry's list. The result was that Jim selected eight for interview. Of these four were ones that I had chosen and two were from Terry's list. There were also two others whom we had all chosen. These are the eight invited for interview.

I also reviewed the composition of the panel in the light of the appointment the week before of the immediate line manager - Terry. In view of his involvement it was not then possible to include you. In practicable terms it was going to be difficult to find a free independent person at such short notice. Several names were suggested and luckily, one of them, Ron Snowden ??? was able to rearrange his work to participate. I trust this explains the situation. I can understand your disappointment at not being involved...."

(xiii) The PCS recruitment and selection policy was finally agreed and sent to senior officers on 30 September 1999. It included the following provisions in respect of interview panels:

"The posts at PS3 and below

At least three people including

* the immediate line manager

* an independent person from another department/bargaining unit

* the Director of Personnel (or representative)

The Director of Personnel to agree the panel composition in consultation with the AGS (Assistant General Secretary].

For posts at bands PS2 and PS1

A maximum of four people chosen from the following

* one SFTO (or representative)

* the immediate line manager (or a more senior line manager in the recruiting department)

* two lay members (for all national and negotiations posts)

* the Director of Personnel (or representative) in an advisory capacity if not already included

The JGSs (Joint General Secretaries) to agree the panel composition in consultation with the AGS and Director of Personnel and, where appropriate, with the President. (There follows the recommendations for interview panels for posts at SS2 and SS1)."

(xiv) On 6 October Terry Collins wrote to Barry Reamsbottom to complain about the manner in which the design assistant post interviews had been organised by Joan Easton, and Ms Stansfield also wrote to Mr Reamsbottom raising a formal grievance against her. Among a long list of complaints about Miss Easton's working methods Ms Stansfield referred to the following:

1. Joan showed bias in her attitude to both myself and the validity of Nikola's complaint

2. Joan sought to deliberately mislead me about the matter of a claim to an employment tribunal

3. To date she has made no report to Jim McAuslan about her investigation, in direct contradiction of her own memorandum

4. Her behaviour throughout this matter has been such as to cause me untold and unnecessary stress."

(xv) On the following day she also sent a long memorandum to Joan Easton addressing various aspects of Miss Easton's memorandum of 3 September. She accused Miss Easton of (a) misleading her on both the issues which she raised with her, (b) attempting to rewrite the history of their meeting on 31 August, (c) failing to understand and appreciate the work which a design assistant does, and (d) saying one thing and doing another. She ended her memorandum as follows:

"Finally I cannot allow you to change the basic nature of my original correspondence. The issue at hand is not whether I am disappointed about not being involved in the appointment of the design assistant. That is entirely irrelevant.

Had I believed that your action were based on an equality of practice in relation to myself as against others you would not have heard a word from me, other than to support your decision. Had you told me the truth on the occasions that we met over this affair, you would not have heard a word from me. The only reason we are in correspondence is that I require from you full and proper explanations for the contradictions in your words and actions in these matters."

(xvi) Miss Easton acknowledged Ms Stansfield's memorandum only briefly, by memo dated 12 October, in which she informed her that she had nothing more to add to her memo of 3 September and continued:

"I trust that, despite your feelings about the appointment, you will make Mike Donahue welcome in the communications department."

That remark, which seemed entirely innocent, was characterised by Ms Stansfield in her evidence as:

"a disgraceful suggestion - implying that I would take out my displeasure with her on (the new design assistant)".

Ms Stansfield was not satisfied with Miss Easton's last response and as a consequence she issued her Originating Application in the Tribunal on 20 October 1999, claiming sex discrimination and naming Miss Easton as an individual Respondent along with her employers, the PCS Union. The grievance which had been taken out against Ms Stansfield by Ms Bryce in July was examined by Miss Easton who told us in evidence that she had carried out an initial investigation. The problem which she faced was that Ms Bryce came from a different union from that of Ms Stansfield and therefore it was not possible to follow a single procedure which would be applicable to both parties. At the request of Hugh Lanning Miss Easton did interview Ms Stansfield and other staff members between 20 July and 2 August 1999. On that date she sent a memorandum to Ms Bryce with copies to Mr McAuslan and Ms Stansfield as follows:

"Investigation of Formal Complaint I have now concluded the investigation into your formal complaint. I shall be reporting my findings to Jim McAuslan when he returns from leave next Monday."

(xvii) Mr McAuslan was due to return from leave on 9 August but by that time Miss Easton told us that she had heard from another witness to the incident, Ms Stansfield's secretary Evelyn Bloomberger who, having first said she did not wish to be involved, had contacted Miss Easton to say that she would give a statement but only after she had had some hospital treatment and also only in the presence of her union representative. Miss Easton therefore deferred sending the papers to Mr McAuslan and was not able to interview Miss Bloomberger until 2 September 1999. Nothing was done by Miss Easton after that date and as Ms Stansfield heard nothing further about it for months, she assumed, as she says in her witness statement, that the matter was closed. A careful reading of Miss Easton's memorandum of 2 August 1999 does not support that assumption, neither does the fact that Ms Stansfield mentioned it again in her memorandum to Barry Reamsbottom of 6 October, quoted above. In her evidence to the Tribunal Miss Easton said that the reason that she took no action was because she knew that a new PCS grievance procedure was being negotiated and would hopefully be resolved by the Honorary Officers in September. It was intended that those procedures would supersede and replace all previous procedures and would be applicable to all staff. The procedures were finally agreed on 8 December 1999 and were circulated to all staff in a published briefing of that date.

(xviii) The day before Miss Easton circulated that information to staff she received from Nikola Bryce a memorandum containing a further complaint about Ms Stansfield and Terry Collins. That complaint related to events which, according to Ms Bryce's memorandum, took place between 22 October and 4 November 1999. Ms Bryce initially went to see Jim McAuslan about it and he suggested that "we could try and resolve this situation through dialogue". Ms Bryce had a meeting with Mr Collins on 9 November which according to Ms Bryce was not productive. Nevertheless she waited until 7 December, some four weeks later, before lodging a formal complaint against Ms Stansfield and Mr Collins, requesting that that complaint be added to her earlier complaint against Ms Stansfield which was as yet unresolved but in hand".

(xix) Following receipt of the additional complaint from Nikola Bryce Miss Easton wrote to Ms Stansfield on 10 December as follows:

"Formal Grievance I write to inform you that the formal grievance that Nikola Bryce registered against you and for which I carried out the initial investigatory interviews, has now been passed to Mike King, Senior National Officer (Leeds Office) to complete. This is under the PCS Grievance Procedure (Section 5.1-5.3).

The procedure allows for you to be given an opportunity to express you (sic) views about the matter and I expect that Mike will be contacting you.

Ms Stansfield said in evidence, and we accept it since it was confirmed by Miss Easton and Mr Lanning, that the person who is the subject of the grievance is not given a copy of the grievance. We find this extraordinary and neither Mr Lanning nor Miss Easton could answer the Chairman's question as to how a person could possibly be expected to "express views about the matter" if they did not know what "the matter" was. Indeed Ms Stansfield told the Tribunal that until she saw a copy of Ms Bryce' s second complaint of 7 December 1999 in the Trial Bundle, she had no idea that there was a second complaint and believed that the only complaint in respect of which there was a formal grievance was that which Ms Bryce had registered in July 1999. In view of the fact that Ms Stansfield had instituted Tribunal proceedings she decided, on legal advice, not to co-operate with Miss Easton or Mr King in relation to the grievance.

(xx) On 22 December 1999 Ms Stansfield wrote to the Joint General Secretaries complaining about the fact that "a further investigation is to be undertaken, this time by Mike King, after Joan Easton had written to her in August saying that the complaint made by Nikola Bryce 'had been completed'. She asked:

"whether it is appropriate to reopen this matter which both Nikola and myself had been advised had been finalised".

As commented above, that was a misinterpretation by Ms Stansfield of what Joan Easton had written on 2 August. Miss Easton replied to Mr Reamsbottom's query about the matter by memorandum dated 7 January 2000 in which she stated as follows:

a) Val is not subject to 'double jeopardy' on the same grievance

b) It was raised, investigated but not dealt with in August/September

c) There was not a single procedure that covered both the aggrieved and the aggriever at that time However as it was necessary that some action was taken when the grievance was first raised, the AGS asked me to conduct an initial investigation

d) As soon as the PCS policy was agreed, copies of the initial interviews that I conducted were passed to Mike King to continue and conclude the investigation (a manager of equivalent status, where the matter concerns a grievance against a line manager).

e) Jim McAuslan has not seen any of the papers of the investigation. My report to Jim was to inform him that I had conducted most (but not all) of the interviews and to discuss how we should next proceed bearing in the mind the lack of policy covering both persons. It was decided that I should finish the interviews (which I was not able to do until September) and use the PCS policy, as the most sensible and practical solution, when it became available.

f) Nicky and her GMB representative were advised of this and were agreeable to wait. Hugh wrote to Val also suggesting that the matter be concluded as set out in the new procedure."

The last point, paragraph f), is incorrect since Mr Lanning wrote to Ms Stansfield about her complaint against Joan Easton. It had nothing to do with Nikki Bryce's complaint against Ms Stansfield, so Ms Stansfield had no reason to believe that the Bryce complaint was still live, until she received Joan Easton's memo of 10 December. Mr Reamsbottom was not satisfied with Joan Easton's reply and wrote back to her on 17 January 2000 with further comments and questions. Having made various points he observed:

"I am also concerned at how apparently restarting an investigation after Val submitted a complaint to an employment tribunal might look. Can you comment on the apparent risk of our being accused of victimisation, of resurrecting a complaint only after an application had been made to an employment tribunal?"

(xxi) Surprisingly, Miss Easton did not reply to that memo until 8 March 2000, by which time the grievance has been adjudicated upon by Mike King. Meanwhile, Ms Stansfield presented her second Originating Application on 7 March 2000 claiming victimisation, on the basis that "the decision to reactivate the grievance amounts to less favourable treatment, and that it has occurred because of my first complaint".

(xxii) Prior to the presentation of the second IT1 Ms Stansfield's solicitors wrote to the Respondents' solicitors on 18 February referring to two posts that they maintained were filled as a result of an interview panel which included two line managers. These were (a) the post of library assistant (Grade PS3) for which the interview was held on 11 August 1999. The panel members were the library manager, the Head of Research and others and (b) the post of research assistant (Grade PS2) for which the interview date was 1 October 1999. This was decided by a panel comprising the Head of Research, the Deputy General Secretary and others. The Respondents' solicitors replied on 29 March 2000 pointing out that the library post was that of a librarianship trainee, and that trainee posts are subject to a separate arrangement under Section 4 of the Respondents' Recruitment and Selection Policy, the composition of the panel depending upon the training topic. They also explained that the research officer post was a temporary post at PS2 and they confirmed that the panel included the Deputy General Secretary and the Head of Research. Another person who would have sat was exempted because of involvement in a race discrimination complaint. The Respondents' witnesses sought to argue that where a temporary post was being filled, there was less risk of error in recruitment and less stringency in the formal recruitment procedures.

4 The Law

Sex Discrimination

Section 1 of the Sex Discrimination Act 1975 provides that:

"(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man".

Section 6 provides that:

"(2) It is unlawful for a person, 'in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her

(b) by dismissing her or subjecting her to any other detriment".

Section 41 deals with employer's liability for the acts of their employees in the course of their employment. Such liability is to be construed more widely than in tort and is a question of fact in every case.

It is well established law that the Tribunal must make its findings of primary fact on the evidence before it. The burden of proving facts which are alleged by the Applicant lies on that Applicant. She has to prove those facts on the balance of probabilities, as to whether any discriminatory action or treatment shown by the primary facts has been taken on the grounds of her sex and is therefore unlawful.

The proper approach to the claim of direct discrimination was set out by the Court of Appeal in the leading case of King v Great Britain-China Centre, which has been recently reaffirmed by the House of Lords in Glasgow City Council v Zafar. In summary:

(a) the burden is on the Applicant to prove her case on the balance of probabilities;

(b) it is unusual to find direct evidence of sex discrimination. Few employers are prepared to admit it, even to themselves;

(c) the outcome of the case will therefore generally depend on what inferences it is proper to draw from the primary facts;

(d) a finding of discrimination (i.e. less favourable treatment) and a difference of sex will often point to the possibility of sex discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation if put forward, or the Tribunal considers the explanation to be inadequate or unsatisfactory, then it is legitimate for the Tribunal to infer that the discrimination was on the ground of sex.

Victimisation

This is covered in section 4 of the Sex Discrimination Act 1975 and provides that:

"A person (the discriminator) discriminates against another person (the person victimised) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has

(a) brought proceedings against the discriminator or any other person under this Act, ..."

In the recent case of Nagarajan v London Regional Transport, the House of Lords examined the question of victimisation and concluded, by a majority, that a person could be victimised by a discriminator who was "consciously or subconsciously" influenced by the fact that he had brought proceedings against the discriminator.

5 Closing Submissions

Both representatives submitted detailed written closing submissions and addressed the Tribunal briefly about them.

Respondents' closing submissions: Having re-stated the law, with reference to the well-known cases of King v Great Britain-China Centre [1991] IRLR 513, Nagarajan v London Regional Transport [1999] IRLR 572 and Zafar v Glasgow City Council [1998] IRLR 36, Mr Cavalier went through the evidence and the decisions to withdraw Ms Stansfield from the interview panels. As regards the Design Manager panel, the decision was that of Mr Lanning and not Miss Easton. The Design Assistant post panel had also been agreed in advance of the final procedure and there was no dispute as to the outcome of the selection process. Mr Cavalier also compared the three posts designated by the Applicant as comparators and said that in each case they were temporary posts where different procedures applied and were therefore not comparable. He also stated that there was an explanation for the composition of the other panels which was a reasonable explanation and not tainted with sex discrimination. As to the grievance, Mr Cavalier pointed to the fact that the grievance which Ms Stansfield had taken out against Joan Easton was also not resolved and while the treatment of the grievances was not satisfactory; there was no less favourable treatment in relation to her case than that of Miss Easton. There was no evidence that any delay in progressing the grievances was motivated or caused by discrimination. He also observed that there was no link in time between the first Tribunal complaint, lodged on 20 October 1999, and the memorandum sent by Joan Easton on 10 December 1999. The complaints could equally be, and in fact were, made by Terry Collins in relation to the grievance against him and there is no question of less favourable treatment of the Applicant when compared to Terry Collins. Finally, he observed that Ms Stansfield had never suggested to Joan Easton that she believed she had been subjected to sex discrimination and that the complaints which Ms Stansfield made to Mr Reamsbottom contained no such allegation, even though that memorandum was sent only a matter of two weeks before Ms Stansfield lodged her first complaint with the Tribunal.

Applicant's closing submissions: Mr Thacker repeated the legal principles involved and also quoted the same authorities as had Mr Cavalier. As to the evidence, Mr Thacker contrasted the manner in which Ms Stansfield gave her evidence in a clear and forthright way, with that of the Respondents and in particular Miss Easton, who was vacillating and timid. He suggested that it was Miss Easton's timid nature which somehow endeared her to the Respondents, who preferred her more compliant approach to that of Ms Stansfield who was very positive and direct. He submitted that the Respondents had displayed their "inability to fairly treat an applicant who does not conform to their stereotypical expectations of how a woman should behave in a male-dominated workplace". He submitted that the Respondents had conceded that the procedures applied to the two interview panels did not follow the allegedly agreed procedures, and he drew attention to the fact that Mr McAuslan acknowledged that several mistakes had been made by him and by Miss Easton in the manner in which they dealt with the Design Assistant post.

6 Conclusions

(i) Ms Stansfield is claiming sex discrimination under her first Originating Application submitted on 20 October 1999 and victimisation under her second Originating Application submitted on 7 March 2000.

Sex Discrimination Claim

(ii) Ms Stansfield's claim relates to her removal from two interview panels which had been established for the appointment of the Design Manager and Design Assistant in her department. We have looked at the manner in which this was achieved and in particular as to whether Ms Stansfield can complain of any less favourable treatment. The panel which eventually selected the Design Manager was composed of two men and two women. The panel for the Design Assistant was composed of two men (including the immediate line manager) and one woman.

(iii) The reason why the Applicant was removed from the first panel was mainly because the procedures for selecting panel members had not been finalised and Mr Hugh Lanning wanted to avoid any objection which might have been taken to the make-up of the panel. There was also a consideration that because the Applicant was the subject of a grievance taken out by Nikola Bryce, one of the candidates, this could be seen as presenting a problem. Both Joan Easton and Jim McAuslan said that this would have been a factor if the procedural objection had not been present. We heard other reasons why Ms Stansfield's position on the interview panel was withdrawn such as the fact that her own job as Publications Manager had not yet been confirmed and Mr McAuslan stated (for the first time before the Tribunal) that he had design experience which Ms Stansfield lacked and for that reason he felt that he was better qualified to sit on the panel than she was.

(iv) The Design Assistant post was chosen by a panel which was constituted in accordance with the procedure. It was insensitive to tell Ms Stansfield that she was on the panel and then take a decision (presumably by Joan Easton) to remove her and not inform her directly. As in the Design Manager post panel, Ms Stansfield had to learn of her removal from the Design Assistant panel from a third party.

(v) Ms Stansfield asks us to look at a number of comparators - jobs where a line manager such as herself was on the selection panel in circumstances where she was withdrawn. There were three such posts and in each case we are satisfied that they were temporary appointments and there were circumstances why the line manager or someone equivalent to Ms Stansfield was appointed as a member of those panels. We do not consider that any of the three posts in question are direct comparisons and they do not assist us in coming to a conclusion of less favourable treatment. We entirely accept that Ms Stansfield could have sat on the panel for the Design Assistant's job but the Respondents chose not to allow her to do so. We ask ourselves why not. We conclude that the main reason was a personality clash between Joan Easton, as Director of Personnel, and Ms Stansfield, but that reason had nothing to do with Ms Stansfield's sex. We are not saying that because Joan Easton was a woman she could not have discriminated against Ms Stansfield on such grounds, but having heard the evidence of both women, we do not draw an inference of sex discrimination as Miss Easton's motive for excluding Ms Stansfield from the interview panel.

(vi) We examined very carefully the suggestion made by Mr Thacker in his closing submissions that the Respondents were influenced by the way in which Ms Stansfield reacted to her removal from the interview panels, in a manner which did not conform to the Respondent's stereotype of how a woman should behave in a male-dominated workplace. We agree with Mr Thacker's characterisation of the way in which Ms Stansfield and Miss Easton gave their evidence, but we do not accept the conclusion that he would have us draw from that comparison. On the contrary, if we had felt that Miss Easton, who is a named Respondent in these proceedings, had been a more positive and efficient manager, we might have been persuaded that she did intend to discriminate against Ms Stansfield in engineering her withdrawal from the interview panels, or by "reactivating" the Bryce grievance. However, our view of Miss Easton confirmed to us that she is not a person who was capable of acting in that way. We suspect that her performance before this Tribunal reflects her general management style arid that it was because of her vacillation and procrastination that matters were allowed to slip in the way that they did. During the course of her cross-examination the Chairman suggested to Miss Easton that perhaps she might have been content to sit on Ms Bryce's grievance, hoping that it would go away, or at least be forgotten about, or even that she had forgotten about it. Miss Easton accepted that those might have been possibilities. Mr McAuslan took a more positive line, believing that things had got better and that there was no need to disturb a situation if it was improving of its own volition. We therefore conclude that Miss Easton's lack of action in relation to the Nikki Bryce grievance, was due to inertia and procrastination on her part and it was only when Ms Bryce submitted a further grievance, at a time when the new procedures were available, that Miss Easton was obliged to take action. That action was not, in our judgement, in any way provoked by the fact that Ms Stansfield had carried out a protected act under section 2 of the Sex Discrimination Act 1975, namely the commencement of proceedings against the Respondents some two months earlier.

(vii) It is instructive to see the comment made by Terry Collins about Joan Easton's management style, in a memo which he sent to Barry Reamsbottom, Joint General Secretary of the Union, on 6 October 1999:

"In conclusion I have been given the impression throughout this entire exercise that the Director of Personnel has, from start to finish, adopted an attitude which seems contradictory. On the one hand she has said that the main responsibility for appointments rests with line managers of the area where the vacancy arises, with Personnel there to advise. On the other hand she has overruled our agreed decisions on the composition of the panel and the sift. While I accept that she has a role to play, it seems to me that the views and the needs of the communications Department were almost secondary to her desire to have things done her way, without explaining what advantages her way offered."

This criticism is made by a man, and in our view it had nothing to do with gender discrimination. We bear in mind the guidance given to tribunals in the case of Zafar v Glasgow City Council [1998] IRLR 36, -

"If the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for it to infer that the discrimination was on racial grounds".

This applies to cases of race or sex discrimination and it is too high to put the matter by saying that such an inference should be drawn. We therefore decline to make the inference. Our view is reinforced by the fact that when Ms Stansfield raised a grievance against Joan Easton on 6 October 1999 she did not mention sex discrimination as such, even by inference. Neither does she do so in her letter of 7 October, addressed to Joan Easton personally, in which she makes a number of bitter accusations against her. The burden is on the Applicant to show that she was a victim of sex discrimination and based on the evidence which we have heard and seen in this Tribunal, we find on the balance of probabilities that she has failed to demonstrate sex discrimination in the way she was treated by the Respondents.

Victimisation

(viii) We are satisfied that Ms Stansfield did not seriously think that the Nikki Bryce grievance had been resolved. That is apparent from the comments in her memo of 6 October. However, she could be forgiven for believing that it had, in view of the long delay in which nothing was said or done. Again, having heard the evidence of the Respondents, we are satisfied that the reason for 'sitting on Nikki Bryce's claim' was a combination of inertia and incompetence on the part of the Respondents. Jim McAuslan's evidence was that he thought that the atmosphere in the department had improved to a point where the original grievance might resolve itself% Two things happened to shatter that hope. Firstly, the Grievance Procedure was finally and formally approved and published to all staff on 8 December 1999. Secondly, and coincidentally, Ms Bryce sent a long memo to Joan Easton on 7 December raising additional complaints, mainly against Terry Collins but also mentioning Ms Stansfield. Because of that, Joan Easton had no excuse for further procrastination and she was forced to take action under the Grievance Procedure which was now available to her. She did so on 10. December. Once she had passed the papers to Mike King, the procedure took its course and there was no further less favourable treatment of Ms Stansfield, bearing in mind that Mr Collins was also subject to the same procedure at the same time.

(ix) We therefore conclude that the revival of the Nikki Bryce grievance in December 1999 was not as a result or consequence of Ms Stansfield's application to the Employment Tribunal in October. There was in our view no connection between the two acts and we make no finding of victimisation against the Respondents.

(x) While we have found that the Respondents in this case have not committed acts of sex discrimination or victimisation against Ms Stansfield, as she has claimed, we do deprecate the way in which grievances have been allowed to drag on without resolution, the way in which Ms Stansfield was informed, or rather not informed, of the decisions relating to her position on the interview panels, matters which were of considerable importance to her in relation to her status within the union, and generally the inefficient manner in which important decisions were made and arrived at. Let us hope that as a result of this case the senior officers of the union will take note and seek to avoid a repetition of these events. The claims against both Respondents are dismissed.

Chairman DECISION SENT TO THE PARTIES ON 16 AUG 2000 AND ENTERED IN THE REGISTER 16 AUG 2000 FOR SECRETARY OF THE TRIBUNALS