Cjd V. Against A Decision Of The Employment Appeal Tribunal Royal Bank Of Scotland
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lady Paton,Lord Drummond Young |
| Neutral Citation | [2013] CSIH 86 |
| Date | 24 October 2013 |
| Docket Number | XA67/12 |
| Court | Court of Session |
| Published date | 24 October 2013 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2013] CSIH 86 | |
| Lady Paton Lord Bracadale Lord Drummond Young | XA67/12 OPINION OF THE COURT delivered by LORD BRACADALE in the Appeal by CJD Appellant; against A decision of the Employment Appeal Tribunal ROYAL BANK OF SCOTLAND Respondents; _______________ |
Respondents: Napier, QC; Brodies LLP
24 October 2013
Introduction
[1] Between 7 July 2003 and the date of his dismissal on 23 March 2009 the appellant was employed as a customer services officer by the Royal Bank of Scotland (the respondents). In a judgment dated 16 June 2010 an employment tribunal (the tribunal) found that the appellant had been unfairly dismissed by the respondents and that the respondents had discriminated against him within the meaning of section 1(1)(a) of the Sex Discrimination Act 1975 (the 1975 Act), contrary to section 6(2)(b) of that Act. The case was continued for a hearing on remedy. Before that was heard the respondents appealed to the Employment Appeal Tribunal (the EAT). The EAT upheld the appeal on both legs and dismissed the appellant's claims. Against that decision the appellant has appealed to this court.
The legislation
Unfair dismissal
[2] The relevant sections of the Employment Rights Act 1996 (the 1996 Act) provide:
"98.- General.
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it-
...(b) relates to the conduct of the employee,
...
(4) [Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.
98A Procedural fairness
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-
(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
(3) For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act."
Sex discrimination
[3] The relevant sections of the 1975 Act provide:
1. Direct and indirect discrimination against women
(1) In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if-
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or
(b) he applies to her a requirement or condition which he applies or would apply equally to a man but-
(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and
(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
(iii) which is to her detriment because she cannot comply with it.
(2) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if-
(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man, or
(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but-
(i) which puts or would put women at a particular disadvantage when compared with men,
(ii) which puts her at that disadvantage, and
(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.
(3) Subsection (2) applies to-
(a) any provision of Part 2,
(aa) sections 29 to 31, except in so far as they relate to an excluded matter,
(b) sections 35A and 35B, and
(c) any other provision of Part 3, so far as it applies to vocational training.
2.- Sex discrimination against men.
(1) Section 1, and the provisions of Parts II and III relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite.
(2) In the application of subsection (1) no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth.
5.- Interpretation.
...
(3) Each of the following comparisons, that is-
(a) a comparison of the cases of persons of different sex under section 1(1) or (2),
(b) a comparison of the cases of persons required for the purposes of section 2A, and
(c) a comparison of the cases of persons who do and who do not fulfil the condition in section 3(2),
must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
6.-Applicants and employees.
(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her-
...
(b) by dismissing her, or subjecting her to any other detriment.
63A.- Burden of proof: employment tribunals
...
(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 section 35A or 35B, 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."
Factual background
[4] Until January 2009 the appellant was in a relationship with LC who was another employee of the respondents. The appellant lived with her in her flat in Glasgow.
[5] On the night of 3/4 January 2009 an incident occurred at the flat involving the appellant and LC. The incident is described in paragraph 14 of the tribunal's judgment in the following terms:
"During the evening of Saturday 3 January, the claimant left said flat and went for a number of drinks whilst the said LC remained in her flat with a friend. The claimant returned to the said flat late in the evening of Saturday, 3 January, or in the early hours of Sunday 4 January. There was then an altercation involving the claimant and the said LC. There was a degree of physical contact (unwanted) involving the claimant and the said LC in the course of which the claimant pushed the said LC, but the full extent of which has not otherwise been established. It is not established that the claimant pushed the said LC in circumstances in which he was not entitled to do so. There were also raised voices. A neighbour called the police. The claimant left the flat, but returned. When he returned he kicked the door of said flat. It has not been established that he thereby caused any damage to said door. He was subsequently arrested by the police. The said LC was not arrested or charged. The claimant was held in custody and appeared in Glasgow Sheriff Court on Monday 5 January 2009. He was charged with assault and breach of the peace. He was not charged with vandalism. He pled not guilty to both charges and was granted bail on the standard conditions, including the condition that he would not contact the said LC. An intermediate diet was fixed for 26 January 2009."
As a result of the incident coming to the notice of the respondents the appellant was interviewed by David Lowe, an area manager of the respondents, on 12 January 2009. The note of the meeting included the following statement:
"The extent of the assault charge is [the appellant] is charged with pushing LC onto a sofa. He says she was slapping and scratching his face and he pushed her off. [The appellant] is not aware of LC attending the hospital".
The appellant was suspended at the end of this meeting. On or about 16 January 2009 Mr Lowe interviewed LC. Mr Lowe's summary of the information provided by LC included the following:
"[the appellant] came home at 12.45 on 4 January. Her friend, A, was still there. [the appellant]was quite drunk. He had also taken a lot of cocaine which he confirmed when she asked him. They argued and he threw a cushion at her. He got more angry. He generally has a real temper. She thought he was going to drive if he left so she tried to take the car keys from him. She felt like slapping him but didn't. He slapped her on the face and she slapped him back. Both voices were raised. He then launched at her, grabbed her hair, slapped her face and was pushing her head against the...
To continue reading
Request your trial
-
Mr O Dervis v Haringey London Borough Council and The Governing Body of Tiverton Primary School: 3325526/2019
...the employee’s conduct was ‘in some sense reprehensible’ (note: this was the EAT judgment in what became CJD v Royal Bank of Scotland [2013] CSIH 86, [2014] IRLR 25 (see para above) where the argument was slightly different). In the instant case, the 15 Case Number: 3325526/2019 judge point......