EB v BA

The appellant appeals the judgment of the Employment Appeal Tribunal (“EAT”) dismissing her appeal from a decision of the London Central Employment Tribunal (“ET)”, following an eight day hearing. Before the ET the appellant succeeded with her complaint of unfair dismissal on procedural grounds, but lost on her other complaints. This appeal principally concerns the ET’s rejection of her complaint of sex discrimination. The central core of that complaint was that, on the grounds of her gender reassignment, she was discriminated against in allocation of work contrary to section 2A of the Sex Discrimination Act 1975. As a result of that discrimination she was, so she complains, chosen for redundancy in July 2001 and then dismissed purportedly on the grounds of redundancy on 31 August 2001. The respondent largely based the decision to make the appellant redundant (or purported so to do), on the grounds of what is inelegantly described as the appellant’s “billability”. Her monthly billings, so it is said by the respondent, were not such as to keep her employed at a time of a general downturn in the market for the respondent’s services in the appellant’s area of expertise The appellant’s case was that she was not able to bill because she was not allocated contracts after, and because of, her gender reassignment in April 2000. The appellant also challenges the ET’s decision that she was dismissed by reason of redundancy.

The ET described the appellant in this way:

11.

The Applicant was born as a male on 6^th March, 1957. It is obvious from the evidence that she is highly intelligent. She graduated from Cambridge University in medicine in 1978 and pursued a medical career. For reasons which are not relevant her career path changed towards business and she obtained a further degree in business studies. She worked for a period with a financial services consulting firm, and subsequently at the London Stock Exchange. She joined the Respondent in January 1997.

12.

The Applicant married in 1991 and has three sons. She realised that she could not see a future for herself in male form and decided she would have to transition. She first sought expert medical advice in February 1999. On 28^th April, 2000 the Applicant transitioned, by which it is meant that she started living full-time in a female role. She had been living in a female role outside of work prior to that date. She underwent gender reassignment surgery on 4^th November 2000 and returned to work at the end of that month. She had taken some extra time off prior to her return because of the final illness of her mother.

The ET devoted much of its decision to the evidence of the appellant’s competence.

The respondent is part of a worldwide business which provides management consultancy services to commercial organisations across various business sectors and tactical and management services to public sector organisations. Mr Jeans QC stressed the respondent’s commitment to diversity.

Within the respondent’s business, the appellant was a principal in the capital markets area of the business. A principal fulfils the roles of a senior job manager, handling clients and being involved in the process of finding new clients. A principal is the second highest position in this part of the business, the highest being “partner”.

The ET described “billability” in this way:

Billability

36.

The next procedure or concept which it is necessary to introduce is that of “billability”. We consider that the word is somewhat misleading. Mr Foster made the point that the Respondent made money on the basis of billing time to its clients, and so the process of recording time is important to the firm’s budgeting and accounting processes. That position is not unique to the Respondent and is familiar to those involved in professions and businesses where time and expertise are being sold.

37.

There were three categories of time for time recording purposes. The first was time billable to a client project, and the second was time billable against the firm’s investment budget. The latter category includes time spent on developing a particular piece of work for general marketing or developing a particular client. Those two types of work are billable and count towards the employee’s target. Non-billable time includes general marketing work such as writing proposals and non-billable initiatives which have not had an investment budget allocated to them.

38.

Each consultant has a target of billable time to meet, and the size of that target varies according to the seniority of the individual. What that word “billability” means is that it is a record of the time actually billed within the two relevant categories. It was expressed as a percentage.

If a consultant spent 100% of her employed time on billable client projects, then the billability figure would be 100%.

The ET said this about the decision to allocate:

58.

The criteria for deciding who was to work on a particular project as set out by Mr Foster were as follows. He said the Partner in charge of a project sought to staff that project with the best consultants available at the time in order to meet the client’s needs on that particular project. That is why it was referred to as an “internal market”. Secondly, the cost to the client was relevant, so that a member of staff at a lower grade may be staffed on a project, rather than someone from another country. The Applicant accepted that London staff were more expensive that those employed in the rest of Europe. Thirdly, the question of language was also relevant in some circumstances. For example, a German speaking client may require a German speaking consultant because of a lack of sufficient English skills in the client’s office.

In order to be able to “bill” on a project, the employee had to be assigned to work on that contract. As to this the ET said:

57.

The method by which any individual consultant was allocated to a particular project is very important in this case. If an individual is not allocated to work on projects then of course his or her billability is reduced. We were told that the staffing procedure, by which is meant the allocation of an individual to a particular job, was the subject of an “internal market”. On each Monday there was a telephone conference call involving all Partners and Principals in Europe to discuss existing work, proposals for new work, and staffing of individuals on projects. There were some samples of the paperwork associated with those telephone calls in the bundles. We do not propose to refer to those in detail. The Applicant participated in such calls because she was a Principal.

During the course of argument Mr Jeans confirmed that the decision to allocate was taken orally and over the telephone by a partner without any record being kept of why an employee had been chosen for a project in preference to another.

When a project is in the proposal stage, the person responsible for the project will identify who will be working on the project and the percentage of time which he or she can bill to the project (we saw an example of that in one of the sheets prepared for the weekly allocation meeting). This process is called tagging. Although an employee could be assigned to a project although not named in the proposal, the absence of the employee’s name from the proposal would make it less likely that he or she would do billable hours if the client accepted the project.

Before looking at the figures relating to the post-transition stage, it is important to note the appellant’s case, as set out in bar charts attached to her witness statement, that her billability was 92% in her seven months as a principal prior to transition. As to those bar charts, the ET said

70.

The Applicant also produced some bar charts comparing her billability pre-transitioning to her billability in the post-transition period, and further bar charts comparing her billability from January 2001 with the billability of other Principals and Senior Associates. We do not intend to try and explain those bar charts in words, because the extent of the billability of the Applicant was not in dispute. It was the reason for the lack of billability that was at issue.

It seems to follow therefore that the ET accepted this important evidence which sets the scene for what was to happen thereafter.

The ET wrote:

60.

We were provided with a print of the billable hours worked by the Applicant from 15 August 1998 to 15 July 2001 on a half-monthly basis. The figures from the beginning of 2000 were as follows:

Date	% billable
15 January 2000	78
31 January 2000	84
15 February 2000	10
29 February 2000	0
15 March 2000	38
31 March 2000	92
15 April 2000	80
30 April 2000 [transition 28 April]	80
15 May 2000	29
31 May 2000	100
15 June 2000	100
30 June 2000	73
15 July 2000	36
31 July 2000	20
15 August 2000	0
31 August 2000	0
15 September 2000	50
30 September 2000	100
15 October 2000	100
31 October 2000	91
15 November 2000	0
30 November 2000 [gender reassignment 4 November]	0
15 December 2000	45
31 December 2000	40
15 January 2001	0
31 January 2001	0
15 February 2001	0
28 February 2001	0
15 March 2001	0
31 March 2001	0
15 April 2001	0
30 April 2001	0
15 May 2001	0
31 May 2001	0
15 June 2001	0
30 June 2001	20

61.

We record again here that the Applicant transitioned to a female role on 28 April 2000 and returned to work after her gender reassignment surgery at the end of November 2000. That explains why the Applicant was not billable during November 2000 at all. She had undergone an earlier operation in Feburary 2000 when she was away from work. That explains the zero figure for the period ended 29 February 2000. The majority of the time during August 2000 is ‘exempt’ on the chart. We note that there was no billable time recorded for five months from 15 January 2001.

There were thus no billable hours between January and mid-June 2001. Although the appellant did have good billability during parts of 2000 after transition, she had this to say about that work in her witness statement quoted by the ET:

“In summary…the work assigned to me by BAH in the 15 months post-transitioning, (ie between April 2000 and August 2001) meant that I was staffed on three projects.”

The three projects were for clients: 124, 66 and 180. The appellant was assigned to a project for client 124 for the period from May to July 2000 (ET, paragraph 62). The appellant said this project was in difficulties before she worked on it. In June and July the applicant also worked on projects for client 66 (ET, paragraph 64), from which she had to withdraw due to a perceived conflict of interest. The appellant's billability in the period from 1 May 2000 to 31 July 2000 ranged from 20% (lowest) to 100% (highest). The appellant was assigned to a project for client 180 for a six week period from September to October 2000 (ET, paragraph 51). The ET said that 180 was agreed to be a difficult project, and that the Appellant was chosen for the project on that basis. The appellant's billability in the period from 1 September 2000 to 31 October 2000 ranged from 50% (lowest) to 100% (highest). The ET recorded that the majority of time during August 2000 is 'exempt' on the billability chart (ET, paragraph 61). However, the appellant (witness statement, paragraph 42) states that she was 'unstaffed' during this period i.e she was not allocated to any project and, therefore, her billability was 0%. In her witness statement, the applicant stated that client 124 was I (paragraph 40); client 66 was D (paragraph 42) and Client 180 was R (paragraph 43, I was a subsidiary of R (paragraph 34)). Furthermore, it appears that the appellant had been assigned to work for both I and R prior to her transition. She was, it seems, assigned to I in Dec 1999 (paragraph 34) and R in November 1999 (paragraph 30). Therefore if the appellant’s evidence is correct, she was assigned to only one 'new' client post her transition. In relation to that client, D, the appellant says in her witness statement that the respondent was hired on the basis of her CV. If the appellant had already worked for two of the clients, then that strengthens her case on discrimination. She would only have been allocated one project after transition involving a client for whom she had not worked before. I have been compelled to refer to the applicant’s evidence because there were no findings of fact about this. I shall deal later with the significance of this omission in relation to the nature of the applicant’s work in the important period immediately following her transition. The extent and nature of that work was of obvious importance in analysing the impact of her transition in April, 2000 (see paragraphs 36 and ff ).

The ET had this to say about 180:

51.

We heard a considerable amount of evidence concerning a project for client 180 spanning a period of six weeks. The Applicant was assigned in September 2000 to work on this project by Mr Foster. The project involved the creation of a model of global finance work. The Applicant said that Mr Foster told her that he believed it to be undo-able, which Mr Foster disputed. We find that it was agreed to be a difficult project, and the Applicant was chosen for the project on that basis. The timing of the project suited the Applicant well because she was scheduled to undergo surgery in November of that year.

52.

The work (or a substantial part of the work) which the Applicant had done was later redone by Mr Foster. We accept his evidence that both he and the client were not satisfied with the output created by the Applicant's model. The Applicant said that all that was necessary was that her model needed debugging. We are not in a position to judge.

53.

Mr Foster told us in answer to a question from a member of the Tribunal that there was an exchange of views between Mr Foster on the one hand and the Applicant and her team on the other during the last working day before the Applicant went off on medical leave for surgery. Mr Foster said that the exchange was angry. That evidence was not in his witness statements, nor was that precise allegation put to the Applicant in cross-examination. We find that the project had not by then been completed and that the Applicant was aware that Mr Foster was not content with the progress. We do not accept that there was an angry exchange, because if there had been then we would have expected that to have been an earlier reference to it.

54.

The figure charged to the client for the project was £250,000 plus expenses of £25,000. The actual cost of the work to the Respondent was approximately £351,000 plus £18,000 of expenses. There was some lack of clarity as to the reason for the discrepancy. It was put to the Applicant in cross-examination that that was the cost of redoing the model. The implication was that the 'loss' was the fault of the Applicant. She did not accept that and told us (which we accept) that she had not previously been given that figure. The charge out rate of the Respondent was £56,000 per week and Mr Foster accepted that the cost to the client in any event would have been £336,000 plus expenses, based on a project period of six weeks. He also accepted that the actual figure charged was £250,000. He agreed (and we so find) that the Applicant was never told that she was alleged to have been responsible for the extra costs of £94,000. We find that the Respondent intended in the first place to charge the client less than the actual cost, because it was hoped to use the model on projects for other clients, and the extra cost cannot simply be attributed to any errors made by the Applicant.

55.

No job assessment form was produced in connection with the project. The Applicant learned that the model had been rewritten in February 2001 when she received an electronic copy of the model. The alleged errors by the Applicant were never taken up with her by the Respondent at all, nor did she approach Mr Foster about them.

56.

Mr Foster made the other Partners and the Principals in Europe aware of the fact that the work undertaken by the Applicant on the project for client 180 was less than satisfactory. Mr Teschner told us that the result of that project did not prevent him from allocating other work to the Applicant. The Applicant accepted that there was a black mark against her name in the minds of the Partners. We do not accept that the performance of the Applicant on this project was as poor as some of the evidence could have led us to believe.

As to the other two projects the ET said:

62.

The Applicant was assigned to a project for client 124 for the period from May to July 2000, which she said was in difficulties before she worked on it. The Applicant met with Mr Foster on 11 July 2000 for an informal discussion over lunch, as we have mentioned above. The purpose was to discuss how things were going following transitioning, and the Applicant’s own business objectives. The Applicant did not complain about lack of work at the time because, as she told us, she had no need so to do. We note in connection with the redundancies to come that the Applicant believed the Respondent to be dangerously amateur at capital markets business.

63.

We have evidence that the Applicant was extremely busy in the middle of 2000. There is an exchange of e-mails in July 2000 because of the Respondent’s monitoring system would only accept a maximum of 100% billability, and the Applicant had been working more than the normal hours. It can be seen from the table that her billability was high during May and June.

64.

In June and July the Applicant also worked on projects for client 66, although she had to withdraw due to a perceived conflict of interest. Neither of those projects was material to the case before us,

Turning to the proposal stage, the ET said:

[The applicant] said that she was not ‘tagged’ for any work. By that she meant that she was not provisionally selected for a project pending confirmation that it had been obtained by the respondent.

The ET made no adverse finding about her evidence on tagging, although Mr Jeans did draw our attention to evidence which he said contradicted the appellant’s assertion that she was not tagged.

On behalf of the appellant it was submitted in the closing address:

iii Although the FS Partners were aware of the severe lack of billable work being assigned to EB, such that at least in RF's case this "rang alarm bells" (albeit not discrimination-related according to RF), none of them took any steps to monitor allocation of work, to discuss the lack of allocated work with EB or to consider the possibility that this might have a connection with her GR.

There appears to have been no dispute about this.

We asked Mr Jeans to give us a figure for the number of projects which were handled, in part or in whole, by the Financial Services Group (“FSG”), of which the appellant was a member during the period April 2000- August 2001. He was unable to give us this figure. The ET made no finding as to the number. He drew our attention to a spread sheet covering FSG projects in the period from early 1998 to 2001. Doing my rough best, over 200 projects relate to the period with which this case is concerned. Assuming that figure to be accurate, the appellant worked on only three of them and that was in 2000.

Section 2A of the Sex Discrimination Act 1975 provides:

Section 63A provides that:

63A Burden of proof: employment tribunals

(1)

This section applies to any complaint presented under section 63 to an employment tribunal.

(2)

Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -

(a)

has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2, or

(b)

is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act.”

Section 139 of the Employment Rights Act 1996 provides:

Redundancy

(1)

For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to-

(a)

the fact that his employer has ceased or intends to cease –

(i)

to carry on the business for the purposes of which the employee was employed by him or

(ii)

to carry on that business in the place where the employee was so employed, or

(b)

The fact that the requirements of that business –

(i)

for employees to carry out work of a particular kind, or

(ii)

for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

have ceased or diminished or are expected to cease or diminish.

The appellant challenges the ET’s findings that she was not unlawfully discriminated against in the allocation of work following her gender reassignment and not discriminated against in being chosen for redundancy. The two are closely linked. If she was unlawfully discriminated against in the allocation of work, then, given the purported reasons for her redundancy, she would have been unlawfully discriminated against in being chosen for redundancy. The appellant has a quite separate argument that the ET was wrong to conclude that she could properly be dismissed on the grounds of redundancy. The appellant also submits that the delay of some nine months between the hearing and the decision was such that she was denied a fair hearing. Other complaints made by the appellant such as those relating to lack of reasoning all fall to be considered as part of the burden of proof argument. We start with the complaint against the ET’s finding on discrimination.

The appellant makes very detailed complaints about the decision of the ET. However, as the argument before us progressed it became clear that in large measure the complaints overlapped. The complaints can conveniently be described as relating to the manner in which the ET applied section 63A. The ET held that the burden of proof had shifted to the respondent, a finding which the respondent challenges by way of a cross-appeal. The appellant submits that the ET’s reasoning shows that it did not in fact place the burden of proof on the respondent. The appellant also complains about a failure on the part of the respondent to make proper disclosure. It did not produce the necessary material to discharge the burden of proof, leaving it to the appellant to try and prove discrimination when the burden of proof was on the respondent. However that complaint is part and parcel of the burden of proof complaint.

Three paragraphs in the ET’s decision deal with pre-hearing disclosure:

65.

In her Originating Application under the heading “Particulars of Discrimination” the Applicant simply stated that “the Respondent reduced the amount of project and other work allocated to me, reducing my ability to reach my billable hours target and other standard performance targets.”

66.

The Applicant was requested to provide further and better particulars of her Originating Application, including details of all projects which she alleged she should have been allocated to her. In her reply to that request she said that the request was a request for evidence and that the Applicant was not required to answer it, and pointed out that the Respondent possessed details of all projects carried out for clients during the employment of the Applicant. The reply continued by stating that “such projects would have included, but not necessarily be limited to pending full disclosure by the Respondent, the capital markets project set out in table 1”. That table contains 48 different projects. We were not referred to that list of projects at the hearing.

67.

At a Hearing for Directions held on 7 November 2002 the question of disclosure was raised. The note issued to the parties by Mr Latham, the Chairman at that hearing, records as follows:

“With regard to items of disclosure relating to projects and proposals being worked on by the European Financial Services Group, MFT, the Tribunal did not agree that the Order should be made, noting that the burden was on the Respondents to prove or support any contention that they made in that regard.”

The thrust of the appellant’s arguments is that she got the worst of both worlds- she did not get disclosure because the burden of proof was on the respondent whereas in fact the burden of proof was placed on her without access to the necessary documents.

As Mr Jeans accepts, the choice for the Tribunal was either:

The appellant complains about the last two sentences in a passage in the decision which, so she submits, shows that the ET did not approach section 63A properly:

257.

We reviewed and discussed the evidence at great length. As a result of that process we have determined that we are satisfied on the balance of probabilities that the reason for the Applicant not being staffed on projects in the early part of 2001 was a combination of a reduction in the volume of instructions, and the various facets of the operation of the internal market. We have set out above the different reasons given by the Respondent’s witnesses for her not being staffed on particular projects. The more we considered the evidence the more satisfied we became that any initial impression of a connection between the Applicant’s gender reassignment and the reduction in billability was dispelled. There was at no stage any project where we were able to conclude on a balance of probabilities that the reason put forward by the Respondent for the Applicant not being staffed on it was wrong. All the explanations were inherently plausible, and we are not satisfied that they were discredited by the Applicant.

The penultimate sentence puts the issue the wrong way around, as Mr Jeans accepted. The ET should have asked itself whether the respondent had discharged the burden of proof on it. Mr Jeans pointed out however, that the ET had used the right test in the second sentence of this paragraph. As to the last sentence, the appellant submits that the ET appears to be putting the burden on the appellant, once an inherently plausible explanation was given. The penultimate sentence concerns me but I would not attach a great weight to the error if the balance of the decision shows that the right approach was taken. I find the last sentence equivocal and return to it later.

I turn to the issue of the burden of proof

I have already set out the provisions of section 63A (see paragraph 24 above). The manner in which a Tribunal should approach the section has been determined in Igen Ltd v. Wong [2005] EWCA Civ 142; [2005] ICR 931. (The decision in Igen post-dates the ET decision but Igen in large measure confirms an earlier decision upon which the ET relied). Annex A reads:

(1)

Pursuant to section 63A of the SDA, it is for the claimant 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 respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s. 41 or s. 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as "such facts".

(2)

If the claimant does not prove such facts he or she will fail.

(3)

It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".

(4)

In deciding whether the claimant 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 "could" in s. 63A(2). 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 before it to see what inferences of secondary fact could be drawn from them.

(6)

In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

(7)

These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the SDA.

(8)

Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to section 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9)

Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10)

It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11)

To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.

(12)

That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13)

Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

The ET dealt with the issue of the burden of proof in this way:

248.

The first question which we have to determine is if there are primary facts from which we could find that the Applicant had been discriminated against on the grounds of gender reassignment. We have concluded that there are such facts, the consequence of which is that the burden of proof passes to the Respondent in accordance with section 63A of the 1975 Act. To put it another way, it is not abundantly obvious that there was no discrimination.

249.

We have noted the very considerable disparity in the billability of the Applicant by comparison with that of her colleagues in the first five months of 2001. That disparity is graphically illustrated by the bar charts annexed to the Applicant's first witness statement. The reduction in billability to zero almost coincides with the return of the Applicant from surgery at the end of November 2000. Using terminology from earlier authorities, that calls for an explanation from the Respondent. The burden of proof therefore shifts to the Respondent to prove on a balance of probabilities that the reason for the dismissal was in no sense whatsoever on the grounds of gender reassignment.

.............

251.

We have noted various matters. Firstly, the Applicant transitioned on 27th April 2000, and thereafter worked as a female. She attended the Respondent's and client's premises as a female, having been known to her colleagues and some of the clients as being male. There was no significant reduction in the Applicant's billability until some seven months later. It is our view that if the Respondent's Partners responsible for allocating work to staff had concerns about the impact of the change of gender role on clients than any reduction in billability would have occurred earlier.

255.

There is one further point which we have considered during our deliberations. The claim by the Applicant as set out in Miss McNeill's Opening Note was that the Respondent discriminated against the Applicant by failing to assign work to her fairly post-transitioning, and this was ultimately causative of her dismissal. We did not hear evidence in respect of each of the projects mentioned above as to the impact which there would have been on the Applicant's billability if she had been staffed on such project.

Both parties attack this conclusion. The appellant submits that the ET was wrong to find that the burden of proof did not shift in relation to the period between May (the appellant transitioned in the last weekend of April) and the end of November. She points to her evidence that she worked only on three projects (details above in paragraph 15). The ET made no findings as to whether it accepted her evidence as to the nature and quality of her work immediately following her transition. Further, she complains that she was not tagged- I have already explained the importance of tagging (paragraph 11- above). The Tribunal made no finding adverse to her on tagging . She submits that the ET was wrong to conclude in paragraph 251 that there was no discrimination because her billability was high during (part of) this period.

Mr Jeans submits that the finding in the last sentence of paragraph 251 was inconsistent with imposing the burden of proof on the respondent from November.

Whilst mindful of the strictures in Yeboah v. Crofton [2002] EWCA Civ 794; [2002] IRLR 634, it seems to me that the ET was wrong to place the burden of proof on the respondent only from November 2000 in the absence of a finding about tagging. In the passages I have cited, it seems to me that the ET erred in two important respects. Firstly it seems to have accepted Mr Jeans argument, repeated before us, that proposals were of significantly less importance than projects because they did not impact on billability (see paragraph 255). In my view that cannot be right. If there is discrimination against an employee one is likely to see it in a failure to involve the employee at the proposal stage. By concentrating just on billability in the last sentence of paragraph 251, the ET did not, in my view, analyse the pre-November 2000 situation adequately. Secondly, the Tribunal failed to analyse the nature and quality of the work which the applicant undertook immediately following transition. If it accepted the applicant’s evidence then it was incorrect to assume that transition had no impact on her work. In the whole period following transition she was only allocated to one new client. It would, accordingly, if the Applicant’s evidence was accepted, be wrong to assume that transition had no impact.

Both aspects of the important period immediately following transition, tagging and the nature of the work on which the applicant was engaged required careful analysis. Such an analysis would involve also an examination of the three projects- had the appellant worked for the clients involved before transition? Conclusions about both features were of great importance in reaching any conclusion about the impact of transition. If transition had had no impact until November, it might well suggest that it had no impact thereafter. Yet the ET overlooked the applicant’s evidence about work in that period and did not appreciate the obvious importance to an employee of being tagged.

In my view, in the absence of any further findings adverse to the appellant, it should have found that the burden of proof shifted to the respondent in respect of the period starting May 2000 and running through to her dismissal. What the respondent would then have to justify is the fact that the appellant worked only on three projects out of (what appears to me to be) over 200 projects in this period. That could then be compared with the immediately preceding period, during which she was promoted to principal (as to which see paragraph 30 of the decision, in which the ET rejected any possible suggestion from Mr Seale, one of the Respondents' witnesses, that the promotion of the Appellant was not justified) and had a very high billability rate (see paragraph 12 above). The ET did not do that and, it appears, could not have done so on the material available to it. Additionally the respondent would have to have justified her non-selection for proposed projects (if that was the case).

We spent some time during the hearing trying to understand what schedules were available for the ET. As I have said (paragraph 22 above) the ET made no finding as to how many projects were handled by the FSG during the material period.

Mr Jeans told us that the respondent’s approach to the case was to require the appellant to identify which projects she should have been staffed on. He relied on the fact, as did the ET (paragraph 254), that she was “present” at the Monday telephone allocation “meetings”. Therefore, so he submits, she would have known what projects there were for which she ought to have been staffed. He also relies on the fact that the appellant had kept some of the emails which preceded the Monday meeting and which gave some details of the projects. Mr Jeans relies on the fact that the appellant was provided with a spread sheet (tab 50 of the appellant’s bundle). The total number of projects on that spread sheet (by my calculation) is just under 800, of which I estimate over 200 projects relate to the period starting in May 2000 and ending in July 2001. The appellant produced a schedule entitled “TYPE OF PROJECTS THE APPLICANT COULD HAVE BEEN STAFFED ON”. It was said to have been compiled “from and limited to the documentation disclosed up to 28.08.02; primarily: e-data sheets and Principal Booking Sheets Covering periods of time as follows: February- July 2000, January to July 2001”. Reference was made to limited disclosure. The schedule covered some 18 projects. The lack of information for some of the projects can be demonstrated by the entry for two projects given the number 294. The appellant was not able to fill in most of the headings on the schedule because, so she wrote, of non disclosure. In the first column she wrote about the first of those projects:

“(Thought to be project on which the risk document "40 recommendations for sound credit risk management" is based)

Functionally, The A is quite clearly better qualified than whoever worked on this project since the credit risk document cited above contains fundamental errors it is almost inconceivable for anyone with appropriate credit risk experience, to have made such errors in a client report.

At the very least the A should have been staffed at a partial level to provide the necessary functional expertise so clearly lacking in the team assigned.”

As to this project the ET said:

82.

Client 294. The Applicant listed two projects for this client and suggested that she had better skills than whoever did work on the projects. Mr Teschner acknowledged in cross examination that the Applicant could have carried out one of those projects. That is all the evidence that was supplied by either the Applicant or the Respondent in respect of them. It is not known when they started, when they finished, and how many hours would have been required to carry them out. We are not provided with any evidence as to who did work on the projects, and why. We are not taken to any appraisals or similar evidence as to the relative skills of the Applicant and those who did work on the projects.

The ET does not return to this project even though the burden of proof was on the respondent to show no discrimination whatsoever.

The appellant also produced what was a very difficult schedule to read produced from the weekly data sheets available her. These only covered the period January to July 2001, which the ET described as the relevant period (see paragraph 59). It would not be the only relevant period if the burden of proof transferred to the respondent in relation to the earlier post-transition period. As to this schedule the ET made a number of observations in paragraph 75 which I set out below.

Mr Jeans submitted that it was the respondent who was seeking detail and that it was the appellant who was avoiding detail. He submitted that, given the appellant only concentrated during the oral hearing on two projects (146 and 105), then those were the projects on which the ET rightly could concentrate. That overlooks what Miss Jane McNeill QC said in her written submissions in answer to the respondent’s closing submissions:

It is not a fair representation of the Applicant's case to contend that she has "shifted ground" in relation to the projects on which she was staffed (paras 21 to 34 of R's submission). It has always been her case that here was billable work which should have been and was not allocated to her and that the non-allocation was on grounds of gender reassignment. She has done her best to supply details of available work at first with the benefit of such documents as were in her possession and more recently with the assistance of documents as disclosed to her by the Respondent. It was agreed at the beginning of the case that both parties would "cut their cloth" to meet the timetable imposed by the tribunal and the fact that certain points were expressly highlighted in the evidence would not be taken by either party as an abandonment of parts of the case which were not specifically developed or "put". The fact that two projects were highlighted in the evidence as being "spot on" for the Applicant was not in any way a departure from the rest of the Applicant's case as set out by her in her evidence and on her behalf, in submissions. (Underlining added)

That passage reveals the practical difficulties which the appellant faced, as does the following further passage in Miss McNeill’s final submissions:

In relation to allocation of work, the documentary evidence is less than complete. BAH's case is set out in paragraphs 20.2 and 20.3 of its IT3 [CB:10:59 to 60], in particular paragraph 20.3. Its case was expanded upon in its witness evidence so as to make out that the primary reason why EB was so short of billable work in the post-transitioning period and, in particular, from January 2001 to July 2001 was that there was a decline in work in her area of expertise. BAH is and has always been much better placed than EB to provide the documentary evidence in relation to work which was available in FS Group Europe. It has still failed to do so comprehensively with the consequence that EB has had to create her summaries and charts in relation to available projects and proposals from a variety of documents supplied. The Applicant refers to the directions order of the Regional Chairman which is at CB:23, in particular the note as to the burden of proof at p.158 para.6 which it is submitted is plainly correct [see above paragraph 28].

I should mention one other schedule- a “Scott” schedule produced as part of the final submissions of the respondent. That set out a number of projects with a cross-reference to the evidence about them. I find it very surprising that the ET only had such a document at the end of the case. The absence of such a schedule at the outset of the hearing made the appellant’s task and that of the ET extremely difficult. Additionally, the ET was provided with some 1700 pages of documents, many of which were not referred to in the course of argument and were therefore not read (ET, paragraph 5).

The ET said this about the documentation:

68.

The Applicant produced two further schedules attached to her written witness statement listing projects upon which she said that she could have been staffed during the first seven months of 2001. The first schedule lists what the Applicant said were projects in areas for which she possessed the appropriate skills and capabilities and which were appropriate to her development needs so that she could have been staffed on them, but was not. There are eighteen projects listed in that schedule, and there is a footnote by the Applicant stating the document had been produced based on her understanding of the current information available.

69.

The second schedule contains items which the Applicant said were proposals which she could have helped write and where she could have been proposed to the clients as someone who would be staffed on the project if the client had agreed ton engage the Respondent on the project. This schedule contains some 228 items and the Applicant suggested that she could have been staffed on those against which she had placed four ticks. There were 35 such projects. She said in her written witness statement that that schedule was produced from the weekly data sheets covering the relevant period.

70.

The Applicant also produced some bar charts comparing her billability pre-transitioning to her billability in the post-transition period, and further bar charts comparing her billability from January 2001with the billability of other Principals and Senior Associates. We do not intend to try and explain those charts in words, because the extent of the billability of the Applicant was not in dispute. It was the reason for the lack of billability that was at issue.

The Tribunal’s view on the unsatisfactory nature of the documentation is shown clearly by a number of passages in the decision:

75.

We now turn to specific projects which were mentioned in more detail. There are a few preliminary points by way of introduction to this section of our reasons. The Respondent did not produce a schedule of any projects undertaken by it during the period in respect of which the Applicant's billability was low. The raw information comes from the first two schedules attached to the Applicant's first witness statement. The first of those schedules lists 18 projects. However, the projects were primarily identified by client number, and not project number although the project number is shown in most cases. There are some notes by the Applicant as the suitability of the projects for her. We have already referred to the second schedule. This suffers from three particular disadvantages. Firstly, all the projects listed were numbered sequentially from 1 to 228. Those numbers bore no relation to the client number or project number. Secondly, the description of each project is extremely short and we think that there may be some confusion in the evidence by the Respondent among various projects. Finally, the schedule as originally produced was A4 size and, quite frankly, was illegible. An expanded version at A3 size was produced, but it was still not readily legible. (Underlining added)

97.

We comment here that we are left with a sense of being dissatisfied with the evidence concerning the various projects. There was clearly some confusion about various of the projects. Ideally we would have like to have had a list produced by the Respondent of all projects which were staffed from, say, September 2000, with the Applicant noting against each project whether she contended that it was discriminatory for her not to have been staffed on that project. That procedure would have helped to clarify the issues, and focus the evidence on those issues. We should also mention that other projects were mentioned by various witnesses in evidence, but it is those listed above which were relied upon as being ones where the Applicant could and should have been staffed. (Underlining added)

253.

Secondly we have looked in detail at such evidence as there was before us as to why the Applicant was not staffed on particular projects. That of course is the nub of the claim. The references to projects by reference to the client has not helped matters. In many cases there was more than one project for a particular client, and it appears that that has caused some confusion at times. We have explored those points above.

254.

We are left overall with a distinct feeling of dissatisfaction with the evidence before us, but we have to make a decision on that evidence, also taking into account why other evidence may not have been produced. Miss McNeill criticised the Respondent in her written closing submissions when she said that '[the Respondent] is and always has been much better placed than [the Applicant] to provide the documentary evidence in relation to the work which was available in FS Group Europe. It has still failed to do so comprehensively with the consequence that [the Applicant] has had to create her summaries and charts in relation to available projects and proposals from a variety of documents supplied.' An Order for disclosure was refused by a Chairman, Mr Latham. We note that the Applicant was in fact in a position to identify projects upon which she says that she should have been staffed, because she took part in the weekly staffing calls. She also had access to the Respondent's intranet containing relevant information. The Applicant produced three different schedules for the purposes of this hearing and we have not always found it easy to ascertain exactly what the competing allegations were in respect of each of them. We would have found our task much easier if the Applicant had identified one list of projects upon which she alleged she should or could have been staffed, perhaps divided into different categories of importance or seriousness. However that was not done, and we are left with the original schedule provided as further particulars, along with the two later schedules attached to the Applicant's witness statement. In making these comments we are not stating that the burden of proof was on the Applicant to show that she should have been staffed on the projects, but rather saying that such an approach could have added clarity to the evidence we heard.

Whilst having considerable sympathy with the ET, it seems to me that the ET in these passages is overlooking the fact that the burden of proof was on the respondent. In my view the respondent adopted a fundamentally wrong approach to this litigation and in so doing deprived the appellant of a fair trial. Although the ET commented upon the absence of documents or schedules from the respondent, it failed to appreciate the consequences of that absence. Rather, in both paragraphs 75 and 254, it allowed its attention to be diverted to that which was produced by the applicant. It ought to have grappled with the consequences for the respondent. Once the burden of proof had shifted, those consequences could only be adverse to the respondent. The failure was not that of the applicant, it deprived the respondent of the opportunity to rebut the case made against it. Mr Jeans said it would have been disproportionate to have listed all the projects setting out why the appellant was allocated to no more than three projects in the period May 2000-August 2001. I find that difficult to accept. When he was asked: “How many projects were there?”, he was unable to give an answer and referred us to the spread sheet which contains in all some 800 projects over a longer period and is extremely difficult to follow.

Mr Jeans also submitted: “If we weren’t asked about [a project] we weren’t required to prove it”. That demonstrates the respondent’s approach to this litigation and renders section 63A all but meaningless. If an employer takes the stance adopted by the respondent, namely “You prove it”- then claimants, particularly those with limited or no means, who challenge large corporations in cases of this kind would be at a great disadvantage. Such an approach may well render the reverse burden of proof provision of little or no use to a claimant. The stance taken by the respondent may be suitable for commercial cases. In my view it is not suitable for a difficult discrimination case. It is important, in my view, that Tribunals bear in mind the objectives of section 63A at the pre-hearing and hearing stage. Employers should not be permitted to escape the provisions of section 63A by leaving it to the employee to prove her case. I have considerable sympathy for the appellant. She did, as she said, get the worst of both worlds.

The respondent faced a further difficulty if it was to satisfy the ET that the appellant had not been discriminated against. There were no records, so we understand it, of the discussions and decisions leading to the allocation of projects or proposals. What the respondent sought to do was to reconstruct the reasons for the appellant not being chosen in the projects which she had identified. For example, discussing client 32, Mr Seale as the partner in charge gave reasons why the appellant was not chosen for three projects. The ET said:

“We fully accept that there was no written documentation in support of the assertions by Mr Seale. However, we have no reason to doubt his evidence.”

It is instructive to remind oneself, in this context, of what I described as the equivocal sentence in paragraph 257 of the ET decision (paragraphs 31-32 above): “we are not satisfied that they [the inherently plausible explanations”] were discredited by the applicant.” The appellant submits that, in the absence of any documentation, her counsel would be unable to discredit Mr Seale’s evidence and yet there was no such documentation produced.

An examination of the detailed conclusions of the ET about the projects which the appellant had identified reveals the difficulties which she and her counsel faced. Her failure to give evidence about a project was noted. If a Scott schedule had been prepared by the respondent summarising all or a substantial number of the projects during the period May 2000-July 2001 with the reasons why the appellant was not chosen, then the appellant and her counsel could then have concentrated on those which supported her case. As it was, she had to make from memory “a shot in the dark” about which of the projects might support her case. There was the further difficulty which the ET encountered (as we did) in cross-referencing the various projects. The appellant’s counsel could also then have concentrated her cross-examination on the projects which, in her professional judgment, assisted the appellant’s case.

I turn to another client, 146. The ET said:

78.

Client 146. This was one project carried out in the year to 31st March 2001. The Applicant said in oral evidence that she had the necessary skills, and that Mr Maher and Mr Noirot who were staffed on it had inferior skills. However that assertion was not backed up by any supporting evidence. Mr Teschner, who gave the principal evidence concerning this client, told us that the project was carried out in New York. Mr Maher was based in New York at the time that the project commenced, although he subsequently moved to Stockholm. Mr Teschner also denied that Mr Noirot worked on that project, and we were shown a job report which did not include his name as having worked on it. We accept the evidence given by the Respondent. (Underlining added)

The difficulties faced by the appellant given the respondent’s approach to the case are amply demonstrated by this passage. I am not sure how the appellant would have been able to support her assertion that Maher and Noirot had inferior skills. If Mr Noirot had not worked on the project, that would have become clear from a Scott schedule before the trial. The appellant, on the assumption that Mr Noirot had not worked on the project, must have made an unsuccessful “shot in the dark”. In so doing her credibility was at risk. In other passages the ET refers to the difficulty of coming to any conclusions “about the confusion over the projects” (paragraph 84).

What the ET said about a project for client 75 is also illustrative:

86.

Client 75. We have to admit to some confusion when considering the evidence about this client. The Applicant's schedule refers to a project commencing on 26th June, 2001 concerning credit risk management. Mr Foster in his second witness statement written following receipt of the Applicant's list of projects referred to a project known as Project Siren. He referred to a joint venture to build an electronic platform for a derivatives exchange. That appears to be totally different from the project mentioned by the Applicant. Mr Teschner referred to a project commencing in February 2000, followed up by another project on an unspecified date in connection with mutual funds in Germany and asset management. We are unable to make any finding in respect of this client and project because of the paucity of the evidence on each side.

The ET turned to the appellant’s schedule relating to proposals in the period January to July 2001 (see paragraph 43 above) (being a schedule which did not cover what I view as the very important 2000 period). It appears from the ET decision (paragraph 90) that the respondent gave no evidence in chief about it and that the list was put in what is described as an “extremely brief” cross-examination of one of the respondent’s witnesses. Furthermore: “Not all of the projects were referred to in evidence”. This approach hardly squares with the burden of proof being on the respondent in relation to projects within the period covered by the schedule.

The difficulties found by the ET because of the way in which the case was presented to it can be seen in the following passage dealing with a proposal for client 222:

95.

Client 222 There were apparently four projects for this client. When asked in cross-examination about the first project, Mr Teschner simply said that he did not know about it. In his first witness statement, Mr Teschner referred to a project for the client advising on a partnership strategy for relationships with other banks. He said that Mr Noirot was the best consultant that was available, and was more cost-effective, although he accepted that the Applicant could not have been staffed on it. However, in his second witness statement he had said that the first of them was not a financial services project, and was not therefore dealt with by the Financial Services Group. The second project involved private banking, and required languages and IT skills which Mr Teschner said the Applicant did not have. The third and fourth projects each required German. Under cross examination, Mr Teschner had said that the Applicant was suitable for carrying out the second project, and was capable of carrying out the third and fourth projects. Those discrepancies have only come to light when we have analysed the evidence and they were not put to Mr Teschner.

I turn to the ET’s general conclusions about the appellant’s competence.

The ET said:

71.

We now move on to record the evidence given on behalf of the Respondent as to the reason for that lack of billability. We will deal first with a summary of the evidence given by the Respondent’s witnesses, and below we deal with specific projects identified by the Applicant in the schedules to which we have referred.

72.

Mr Teschner gave by far the greatest volume of evidence concerning this aspect of the matter. The general position as explained to us by Mr Teschner was this. In his witness statement he said that when there was a great deal of capital markets work then inevitably the Applicant was kept busy. However, when that work reduced, she was at a disadvantage by comparison with others because her particular expertise was not required, and others had better consulting styles and job management skills. In his witness statements he also gave evidence about specific projects. That evidence is substantial but can be summarised as follows. There were various reasons put forward by Mr Teschner as to why the Applicant was not staffed on particular projects. There were thirteen projects where fluency in a foreign language (principally German) was required. There were six projects based in New York. The Applicant could have been staffed on three particular projects, but the evidence was that other consultants were better equipped that she was. In two cases the client particularly requested certain individuals to work on the project. In another two cases more junior members of staff were allocated to the project because they were cheaper. In one case it was throught that the Applicant was not available at the relevant time. There were six cases where Mr Teschner said that either the project did not fall within the financial services area, or the Applicant did not have the appropriate expertise. Mr Teschner was taken through lists of projects provided by the Applicant during cross-examination. He explained why the Applicant was not allocated to some of them, for the reasons which we have just mentioned. He agreed that there were five projects for which the Applicant was suitable. He was not asked why the Applicant was not staffed on those projects. We deal with specific projects below.

73.

Mr Seale told us in oral evidence-in-chief that the Applicant was perceived to be doing less well than her contemporaries, and was therefore less likely to be staffed on projects. He said that the Partners sought the best person possible when they had the opportunity to make the choice. In his witness statements he commented upon certain projects referred to by the Applicant. He referred to eight clients, although some were involved in a number of different projects. The reasons for the Applicant not being staffed on those projects were similar to those stated by Mr Teschner. His comments were, however, limited to a relatively small number of projects. On one project, Mr Seale stated that others had been involved in the proposal and development project and were therefore staffed on it. During cross-examination he confirmed those reasons for the Applicant not being staffed on specific projects which were put to him. He made specific reference to the expertise of the Applicant, to which we make reference elsewhere. He stated that in connection with a project for client 124 that she would have been allocated work on that project further if there had been any subsequent phase of it, but in fact it ended in June 2000.

74.

Mr Foster gave evidence concerning the limited number of projects. The reasons given for the Applicant not being staffed on those projects were that others had greater skills, or that the projects had to be staffed locally.

Mr Jeans submitted that the respondent could discharge the burden of proof on it by either general evidence of her relative lack of competence and suitability combined with market deterioration or by a detailed analysis of the projects and proposals to which she was not staffed. I disagree. On the facts of this case only a detailed analysis could, in my view, discharge the burden. Without such an analysis it is very difficult to see how the respondent could justify the fact that the appellant was only allocated to some three projects over such a long period.

My conclusion on this aspect of the case can be simply stated. For all the reasons which I have set out above, the appellant was denied the protection provided by section 63A and the findings of the ET on the discrimination issue cannot stand.

I should add a brief comment about the EAT’s judgment. The EAT was satisfied with the ET's approach. The ET had carried out a detailed examination of the contracts coming to findings on the specific ones where serious complaint had been made at the Tribunal hearing and yet at the same time coming to an overall view as set out in paragraph 257 (EAT, paragraph 52). The EAT did not accept the appellant’s complaints about the ET. It is right to say that the EAT did not approach the appeal in the way which I have done.

This case called out for a pre-hearing case management conference during which the consequences of the burden of proof moving to the respondent (if it was later found that it did move) were worked out. As it was the hearing on November 7 2002 (paragraph 28 above) left matters very much in the air.

The appellant submitted that if she succeeded then this Court should substitute for the finding of the ET a finding that she was unlawfully discriminated against in the allocation of work and, therefore, in being made redundant. The respondent has failed to satisfy the burden of proof and therefore she succeeds. The respondent has had a full opportunity to prove its case, it chose to run the case in the way which it did and should not get another chance to prove its case. Mr Jeans asks for remission to the same Tribunal and points to the findings of fact in its favour. I have no doubt that, if the case is remitted, it should be to another tribunal. The thrust of my judgment is that the whole case went wrong and, if I am right, then, if it is to be remitted, it should be to a new tribunal.

I have already concluded that the ET, in the absence of any further findings adverse to the appellant, should have concluded that the burden of proof shifted to the respondent in respect of the period starting May 2000. However, if the necessary findings of fact had been made adverse to the appellant, then it may be that a tribunal would not necessarily reach this conclusion. In those circumstances, the proper course is to remit the complaint of discrimination to a new tribunal for a fresh hearing.

In the light of my conclusion in paragraph 67, I would also remit the issue of redundancy to the tribunal. The issues of discrimination and redundancy are so linked on the facts of this case that it would be sensible for the tribunal to consider both matters.

My conclusion makes it unnecessary to deal with the appellant’s argument that the nine month delay in delivering judgment vitiates the decision. All I would say is that such a delay is very undesirable but having regard to the manner in which the case was presented to the ET, I have considerable sympathy for the Tribunal.

I agree

I agree