Bascetta v Santander UK Plc

Neutral Citation Number: [2010] EWCA Civ 351 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL Case No: A2/2009/0546 Royal Courts of Justice Strand, London, WC2A 2LL Date: Tuesday, 16 th March 2010 Before: LORD JUSTICE PILL LORD JUSTICE MOORE-BICK and SIR DAVID KEENE - - - - - - - - - - - - - - - - - - - - - Between: MS ENZA BASCETTA - and - SANTANDER UK PLC - - - - - - - - - - - - - - - - - - - - - ^ (DAR Transcript of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Appellant Respondent THE APPELLANT APPEARED IN PERSON Mr David Oudkerk (instructed by DLA Piper UK) appeared on behalf of the Respondent. - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pill: 1. The appellant, Miss Bascetta appeals against the decision of the Employment Appeal Tribunal, Wilkie J presiding, allowing an appeal by Santander UK Plc, formerly Abbey National Plc (“the respondents”) against a decision in the employment tribunal held at Bedford and that the appellant had been unlawfully dismissed by the respondents and that the respondents had unlawfully discriminated against the appellant by way of victimisation in respect of her dismissal. 2. Other complaints made by the appellant to the employment tribunal (“the Tribunal”) had been dismissed, the claim remitted to a separately constituted employment tribunal for re-hearing on unfair dismissal and victimisation. The appellant was employed by the respondent or their predecessor company from 30 May 1988 until 24 August 2006. By 2006 she was employed in the respondent’s IT department as a team leader. There were two team leaders, the other being Miss Sue Watkins. A re-organisation was conducted in 2006 and it was decided that only one IT team leader was required. A selection exercise took place between the two women. Competencies to be applied had been agreed with the appellant’s union. The case was a difficult one because most of the woman were longstanding employees and had good work records and high competencies. The appellant scored two fewer points than Miss Watkins (15 as against 17) and was selected for redundancy and dismissed. 3. In 2004 the appellant had brought acclaim for sex discrimination against the respondents. It was dismissed by a consent order of 5 February 2006. There had been a proposed settlement agreement about that first claim and it was alleged by the appellant that in relation to it the respondents had failed to honour that agreement, thereby being in breach of contract and guilty of victimisation and direct sex discrimination. The Tribunal rejected that claim on the facts and no appeal has been pursued. The protected act relied on by the appellant when alleging victimisation in the second claim is the first claim, and the respondents acknowledge that it was a protected act for this purpose. 4. The Tribunal accepted that in February 2006 the respondents conducted a re- organisation, which required only one team leader. The Tribunal found that there was a genuine redundancy and the main reason for the decision to dismiss was in fact redundancy. The Tribunal accepted that the selection exercise used and the competencies agreed were those agreed with the appellant’s union, that the selection criteria were not unreasonably arrived at and that the procedure was potentially fair. It was common ground that if the scores of the appellant and Miss Watkins had been level the appellant would have been selected for redundancy because Miss Watkins had longer service. The respondents also contended that it was not accepted by the appellant that the appellant’s sickness record was inferior. 5. The selection exercise was conducted by Mr D M Sheridan, the respondents’ head of IT Planning and Compliance. Having reminded itself that the Tribunal should not substitute its own decision on the merits for that of the respondents, the Tribunal found at paragraph 89: "Mr Sheridan, we find, was inconsistent in his application and his knowledge to the criteria. Although Mr Sheridan may have attempted not to use his greater knowledge of Ms Watkins he did so, giving credit to her for work not done and relationships within the organisation and matters outside the stated period of consideration. In addition the ISBAN incident detrimentally affected the score given to the claimant, lessening the marks she received." 6. The Tribunal found that the respondent’s application of its procedure was flawed to an extent that took it outside the range of reasonableness and the selection of the appellant was under fair and that she was unfairly dismissed. There was a formal internal review on 5 July 2006 and an appeal hearing on 14 August 2006 against dismissal. Both internal hearings were resolved against the appellant. The minutes of the hearings appear to demonstrate thorough investigations, fairly conducted. Indeed the entire procedure was conspicuously thorough. 7. When considering the claim of victimisation, The Tribunal stated that credit having been given to Miss Watkins for work she had not done and Mr Sheridan having used his knowledge of her of over a period of more than 12 months to her benefit, the protected act could have been a factor in the decision to select the appellant for dismissal. The respondents had not been able to establish that the dismissal was unconnected with the protected act, so the complaint of victimisation succeeded. The lower mark to the appellant because of the IZBAN matter was not found to relate in any way to the earlier proceedings. 8. The Employment Appeal Tribunal held that the Tribunal had erred in law in its approach to the respondents’ decision. It noted at paragraph 14 that the appellant’s case had always been that she had been unfairly treated, victimised, in respect of the marking of her assessment. It has not been asserted that the marking of Miss Watkins had been over-generous. Having noted that to achieve success the appellant would have needed three additional points, one of which had accrued (?) in relation to the IZBAN incident, The Employment Appeal Tribunal stated that the decision: “"...could only be unfair if the unfairness included over marking Ms Watkins of at least 2 marks. In turn that focuses attention on the correctness in law of paragraph 47 of the decision." 9. That provided in respect of the assessment of Miss Watkins: “….we note that in respect of competencies 1 and 2, namely change, facilitation / stakeholder management and project management and to a lesser extent competency 3 process improvement, Ms Watkins’s responsibility for SOX influenced the (beneficially to Ms Watkins) scoring. SOX however was only transferred from Mr Metcalfe to Mr Sheridan who then allocated it to Sue Watkins at the end of January 2006. Thus at 10 February 2006 it was impossible (we have heard no explanation, and on the limited evidence presented to us), to assess Ms Watkins could properly be evaluated against those competencies viz a viz any involvement with SOX. If those were taken into account it appears more likely than not that Mr Sheridan’s assessment of Ms Watkins would have been reduced by between 1 and 3 marks.” 10. Appearing in person the appellant has invited us to read, with that paragraph, paragraph 95 of the Tribunal’s decision when victimisation was being considered: "In respect of the other discrepancies. We are not persuaded that the Respondent has given a cogent explanation as to why benefit in the scoring was given to Ms Watkins in the assessment in respect of Socs [SOX] matters (which was referred to on three occasions) together with the vagueness of the period of assessment. The Claimant was not given credit for matters which occurred outside the 12 month period as identified during the appeal process yet Ms Watkins was." 11. The Employment Appeal Tribunal acknowledged that the Tribunal had been entitled to look at both assessments, provided they did not make the mistake of re-doing the exercise themselves, thereby substituting their own judgment for that of the respondent. The Employment Appeal Tribunal also held that: "...the question of the fairness of the selection as between the two of them [the appellant and Miss Watkins] was put generally in issue sufficient to put the correctness of the assessment of Ms Watkins in issue." 12. An issue, which has featured heavily at all stages of these proceedings, has been described as the SOX issue. Part of an IT team leader’s responsibility covers responsibility for compliance with regulations. That is known as SOX control. A central part of the finding of The Tribunal was that the selection exercise was unfairly conducted by Mr Sheridan and involved victimisation because of the reliance allegedly placed by him on Miss Watkins’ experience of SOX. The Employment Appeal Tribunal held that the SOX issue had not been explicitly raised by the claimant in her particulars of claim, her ET1 or her witness statement and it would not be safe to proceed on the basis that it was the subject of cross-examination of Mr Sheridan for The Tribunal. In using the SOX material as crucial to its reasoning, the Tribunal had acted in a way which was procedurally unfair to the respondent and the finding of unfair dismissal would not stand (paragraph 25 of the Employment Appeal Tribunal’s determination). 13. The relevant findings in relation to Miss Watkins are at page 433 of the bundle and it is necessary to read those on the first of the pages cited. Under the general heading “Technical competence” the first subheading is “Change Facilitation/Stakeholder Management.” Under the heading “evidence”, it stated: (checked to audio as not in bundle) “Sue has shown that she is flexible and adaptable to the changing nature of our business at the moment. She has recently taken on responsibility for the SOX control across IT and has had to maintain existing relationships as part of this as well as develop some new ones to achieve the end game. She has achieved all this whilst balancing the existing workload, parts of which are under scrutiny. The score is stated to be two. It being the maximum score permitted in this test. Two, The Project Management Evidence, although not formal projects, Sue has developed (inaudible) that support our ongoing transformation in areas such as time recording, project reporting and SOX control. Sue has demonstrated she can identify the risks and issues associated with these initiatives alongside other dependencies, score two. Three, Process Improvement Evidence. Sue has had experience at developing processing improvement plans, most notably our revised approach to project reporting across IT has simplified the returns required yet improving the output reports for senior management. She will need to demonstrate these skills again during the development of the SOX controls and managing the implications of IT etc. Score one.” 14. The Employment Appeal Tribunal also considered the merits. Holding that The Tribunal had erred in concluding that Mr Sheridan had wrongly marked out the “Change facilitation/stakeholder management” for Miss Watkins on the ground that she had only been allocated SOX at the end of January 26 and evaluation by February was impossible. I have read the findings. The marking of one out of two on this head was based on experience Miss Watkins had in relation to that competency, apart from her work on SOX. 15. The Employment Appeal Tribunal held that it was perverse for The Tribunal to suggest that Miss Watkins ought to have scored zero on that competence (paragraph 31) The Employment Appeal Tribunal also found, at paragraph 33 that it was perverse for The Tribunal to have marked down Miss Watkins in relation to competency three, for project management. 16. The Employment Appeal Tribunal was not prepared to reverse The Tribunal’s decision. It would still be possible, the Employment Appeal Tribunal, held for a tribunal to find an unfair dismissal. The erroneous approach of the Tribunal, as shown in paragraph 47 of its decision, was, however, such that a remittal was required. The findings at paragraph 47 were held to have been procedurally defective and erroneous on the merits. 17. On victimisation the Employment Appeal Tribunal reiterated its finding that The Tribunal had erred procedurally: “…in giving weight to the SOX issue without having given the respondent the opportunity to deal with the point. The appeal must succeed.” The Employment Appeal Tribunal went on to hold that in relation to victimisation the question to be asked was why did Mr Sheridan act as he did. 18. In Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, Lord Scott stated at paragraph 77: “The words "by reason that" suggest, to my mind, that it is the real reason, the core reason, the causa causans, the motive, for the treatment complained of that must be identified.” 19. A similar statement was made by Lord Bingham in St Helens MBC v Derbyshire [2007] ICR 841 at paragraph 9. In Khan at paragraph 29, Lord Nicholls propounded a simple common sense approach to this question, is to ask why the alleged discriminator acted as he did. What matters is the discriminator’s subjective intention, what was he seeking to achieve by treating the alleged victim as he did. 20. The Employment Appeal Tribunal held that the Tribunal had never asked that question. It was not, however, plain and obvious that the claim of victimisation could not succeed and that issue should also be remitted to the Tribunal. In relation to the procedural issue, the appellant, who has vented her case, if I may say so, with meticulous clarity and force, submitted that Mr Sheridan had had an opportunity to deal with the relevant issue had he seen fit to do so. Mr Sheridan had been under the impression and had made an assessment on the basis of a belief that Miss Watkins has spent more time on SOX control than in fact she had. 21. We have considered with the appellant’s help the notes of evidence which are available, the note of the Employment Judge who chaired The Tribunal and the note taken by the respondents’ solicitor. The appellant has referred to questions raised on whether the SOX control should have been allocated to Miss Watkins as to whether he had under-marked the appellant and as to whether his evidence as to the length of time that Miss Watkins had done the work was accurate. Nowhere have we been referred to the question as to what, in the Tribunal’s view, had become the vital issue, that is the over- marking of Miss Watkins because of her actual experience of SOX control. 22. Making all allowances for the appellant conducting her case on her own behalf before the Tribunal, as she has in this court, the putting of at vital point to Mr Sheridan is conspicuously absent from the notes. Before the court, there are affidavits from her and a colleague which allege that is was put. These affidavits are long after the event. They are not based on any contemporaneous notes and they were not before either of the tribunals and it would not be appropriate for this court to have regard to them. 23. As I have said, the questions in the general area were put as to other matters to which I have referred, but nowhere is it put that the actual performance of Miss Watkins on SOX control has influenced his marking of her, notwithstanding the fact that she had only been doing the work for a very short time. It was a distraction from this issue by the emphasis which had been placed in the earlier documents and in the course of the case of the under- marking of the appellant as distinct from the over-marking of Miss Watkins. It would have been a very easy point to put. The appellant had available to her the actual assessment, the relevant parts of which I have cited. I have to say with respect that the Tribunal placing in the event such stress on SOX as it did, it is surprising that the members of the Tribunal did not themselves put the point to the witness, Mr Sheridan. 24. I agree with the Employment Appeal Tribunal that the Tribunal was not entitled to make the finding it did without giving Mr Sheridan an opportunity to deal with the complaint found to be crucial. In relation to victimisation the Tribunal held that the witness had not dealt with the point. He had not been invited to do so when cross-examined. The addition of the victimisation claim added to the importance of the point being specifically put to a witness against whom a serious allegation had been made. I agree with the Employment Appeal Tribunal that committal of the procedural ground is required. I also agree that the Tribunal’s approach to this part of the evidence involves such a misapprehension of the evidence as to amount of an error of law. 25. In my judgment it is clear from the detailed assessment made by Mr Sheridan that it was not the actual time which Miss Watkins had spent on SOX which led to the assessment under the several headings to which I have referred: “She is flexible and adaptable to the changing nature of our business. She has developed plans that support our ongoing transformation in areas such as time recording and project reporting, to which SOX control has been added.” 26. Mr Sheridan expressly acknowledges that in relation to SOX control it will be necessary for Miss Watkins to demonstrate these skills again. That is not the comment of a man who was relying on actual achievement in SOX control. In informing his assessment under the general but important headings of Change Facilitation, Project Management and Process Improvement. In relation to Change Facilitation, the reference to SOX is an example of the quality which the respondents’ value. At paragraph 47, The Tribunal has not been specific about the reduction in scores. The appellant submits that under Change Facilitation the Stakeholder Management score of two of Miss Watkins should be reduced to zero. I cannot accept that submission. There are no zeros against either of the women in any part of the assessment. 27. On victimisation the Tribunal, in stating its conclusions, has simply restated the factors which led to the decision of unfair dismissal. “Not” is missing from paragraph 96. Assuming its presence, I agree with the Employment Appeal Tribunal’s conclusion that The Tribunal had not asked itself the central question required of victimisation as indicated in the authorities. The Tribunal stated: “The protected Act could have been a factor in the decision to select the claimant” 28. The Tribunal then states that the burden of showing it did not then pass to the respondents. The Tribunal accepted at paragraph 94 that the loss of the mark because of the IZBAN incident did not relate in any way to the earlier proceedings. Holding that the respondents had failed to establish that the protected act did not influence the decision to dismiss, the Tribunal again laid stress on the SOX control issue on which the EAT, in my judgment rightly, held that they had misdirected themselves. Indeed the Tribunal makes three references to SOX, the third of which the need on Miss Watkins’ part to demonstrate skills in the future, is entirely contrary to any suggestion that preference was used as a form of victimisation against the appellant. 29. I agree with the EAT that the Tribunal did not pose the question that they should have posed for themselves. Moreover, their analysis of the evidence did not justify the conclusion on victimisation which they reached. I agree with the Employment Appeal Tribunal’s overall conclusion that because the matter is to be re-heard, further comment on the facts and evidence would not be appropriate. Clearly the Tribunal re-hearing the case will do so with an open mind and on the basis of the evidence. I refer only to the statement of Millett LJ to British Aerospace Plc v Green [1995] ICR 1006 at page 1019. That is sufficient to dispose of the appeal, but I wish to make my view clear that documents relating to retained employees are not likely to be relevant in any but the most exceptional circumstances. The question for the industrial tribunal, which must be determined separately for each applicant, is whether the applicant was unfairly dismissed, not whether some other employee could have been dismissed. If the applicant can show he was unfairly dismissed he will succeed. If he cannot, he will fail. It will not help him to show that on the same criteria some other employee might not have been retained. 30. The Tribunal is not entitled to embark upon a reassessment exercise. I would endorse the observations of the appeal tribunal in Eaton Ltd v King [1995] IRLR 75 that it is sufficient for the employer to show that he set up a good system of selection and that it was fairly administered, that ordinarily there will be no need for the employer to justify all the assessments on which the selection for redundancy was based. It is the only second part of that paragraph that is relevant. I will leave the first part of the transcript. 31. While in no way seeking to anticipate the approach or findings of The Tribunal, it is important that, when conducting assessment of the respondent’s conduct, that the Tribunal bears those principles in mind. For the reasons I have given, I would dismiss this appeal. Lord Justice Moore-Bick: 32. I agree that the appeal should be dismissed for the reasons given by Pill LJ and add a few words of my own in deference to Miss Bascetta’s argument. 33. It is axiomatic that any allegation of fact which forms an important element of a party’s case should be put to any relevant witness called by the opposing party in cross-examination in order to give that person an opportunity to respond to it and provide any explanation he may think appropriate. That is all the more so if the allegation involves an accusation of improper conduct of some kind. 34. In the present case the respondent had to decide which of two long-serving and able employees should be made redundant. In order to make a fair decision an objective basis one of its managers, Mr Sheridan, drew up a list of competencies by reference to which Miss Bascetta and the other employee, Miss Watkins, were to be assessed. The first three of those competencies were entitled “Change Facilitation/Stakeholder management”, “Project Management” and “Process Improvement”. When assessing Miss Watkins in relation to each of those competencies Mr Sheridan referred to a function called “SOX Control”, a form of compliance reporting. Miss Bascetta considered that her team should have been given responsibility for that area of work but that Mr Sheridan had allocated it to Miss Watkins’ team because she (Miss Bascetta) had made a complaint against the respondent to the Employment Tribunal on a previous occasion. More importantly, she also considered that he had taken Miss Watkins’ handling of that function favourably into account when assessing her for redundancy, even though at the time she had been responsible for it for less than two weeks. 35. The Employment Tribunal found in Miss Bascetta’s favour on that issue. It held that the assessment had been conducted improperly and that she had been unfairly dismissed. It also held that she had been victimised, since the respondent could not show that the previous proceedings had played no part in its decision. However, on appeal the Employment Appeal Tribunal held that the procedure leading to those decisions had itself been unfair because Mr Sheridan, had not been given a proper opportunity to deal with the allegations made against him. It therefore remitted the matter for re-determination by a differently constituted tribunal. 36. The argument on this appeal has turned to a large extent on whether Miss Bascetta, who represented herself before both the Employment Tribunal and the Employment Appeal Tribunal and who has represented herself with great skill before us today, put her case clearly to Mr Sheridan in cross- examination. In my view that would have involved, first, putting to him that he had taken Miss Watkins’ handling of SOX Control into account when making his assessment of her; second, putting to him that she had been responsible for that function for less than two weeks; and, third, challenging expressly the propriety of taking that matter into account when making his assessment. In addition, if it was going to be part of Miss Bascetta’s case that she had been victimised by Mr Sheridan in reaching his decision, she ought to have put that to him in clear terms in order to enable him to deal with the accusation, which essentially turns on what he had in mind at the time he made his decision. 37. Miss Bascetta says that she did deal with those matters in cross-examination and that Mr Sheridan was able to provide no satisfactory answer to her questions, in particular those relating to the allocation of SOX Control to Miss Watkins’ team. However, that is not borne out by such admissible evidence as we have as to what actually went on at the hearing. We have been provided with the judge’s notes of the hearing and also with the notes made by the respondent’s solicitors. Those notes support Miss Bascetta’s submission that in the course of her cross-examination of Mr Sheridan she challenged the suggestion that Miss Watkins had taken over responsibility for SOX Control in November 2005 and established that she had not done so until January 2006, less than two weeks before the assessments were made. It may well be that Miss Bascetta thought that the implications of those questions and answers were obvious, that is, that they showed that Miss Watkins had not been responsible for SOX Control long enough to justify taking it into account. However, they appear to have been lost on Mr Sheridan and on the judge, who took no steps to clarify the position or to ensure that Mr Sheridan appreciated what is now said to have been the point of the questioning. Moreover, neither the judge’s notes of the evidence, nor those of the respondents’ solicitors, reflect questions or answers of the kind that would have given Mr Sheridan a proper opportunity to deal with the assertion that he was wrong to have taken Miss Watkins’ responsibility for SOX Control into account when making his assessment. 38. I should add that the point did not appear clearly either in Miss Bascetta’s form ET1, nor in her final submissions to the Employment Tribunal. In those circumstances I think that the Employment Appeal Tribunal was right to hold that the decision of the Employment Tribunal was marred by procedural unfairness and that for that reason the matter should be remitted for a re- hearing. 39. As to the victimisation issue, there is nothing I wish to add to what has already been said by Pill LJ. 40. For those reasons I agree that the appeal should be dismissed. Sir David Keene: 41. I agree with both judgments. Order: Appeal dismissed