Madarassy v Nomura International Plc

JurisdictionEngland & Wales
JudgeLORD JUSTICE WALLER,Lord Justice Mummery,LORD JUSTICE MUMMERY,Lord Justice Waller,Lord Justice Laws,Lord Justice Maurice Kay
Judgment Date26 January 2007
Neutral Citation[2007] EWCA Civ 33,[2005] EWCA Civ 1118
Docket NumberA2/2005/0870,Case No: A2/2005/0870
CourtCourt of Appeal (Civil Division)
Date26 January 2007
Andrea Madarassy
Nomura International Plc

[2005] EWCA Civ 1118


Lord Justice Waller

Lord Justice Mummery






Royal Courts of Justice


London, WC2

MISS J MONAGHAN (instructed by Equal Opportunities Commission, Arndale House, Arndale Centre, Manchester M4 3EQ) appeared on behalf of the Applicant

The Respondent did not appear and was not represented


I will ask Lord Justice Mummery to give the first judgment.


There is before the court an application for permission to appeal. It is made by Miss Monaghan on behalf of Ms Madarassy in a sex discrimination case. The matter was dealt with by Wall LJ on the papers on 24th June 2005, when he directed that the permission application should be adjourned into court for oral argument before two appeal judges without notice to the respondent. What he said in his written reasons for taking that course was this:

" Whilst I have concerns about aspects of the EAT's decision, and in particular its decision to remit for review by the same ET, the court may need some persuading that the original ET decision was as a matter of law wrong and that a substantive appeal to the Court of Appeal is called for. This also seems to me a case in which the issues and strength or otherwise of the appellant's case should be tested in argument at an oral hearing without notice to the respondent. If the appellant can persuade a two-judge court she has an arguable case, the issues to be addressed on the substantive appeal can be defined and an appeal can then proceed. If not, the appellate stage of the proceedings can be bought to a timely end."


The decisions referred to in the written reasons of Wall LJ are the decision of the Employment Tribunal, contained in extended reasons sent to the parties on 18th February 2003, and the judgment of the Employment Appeal Tribunal, given on its behalf by Nelson J on 5th April 2005, dismissing most of the points of appeal taken by Ms Madarassy after her claims had failed in the Employment Tribunal for unfair dismissal and victimisation, and in most instances in respect of her claims for sex discrimination.


In the Employment Appeal Tribunal there were certain matters raised by a cross-appeal, which were directed by Nelson J and the lay members to be remitted to the Employment Tribunal for review and reconsideration of the reasoning and further evidence.


On this proposed appeal Miss Monaghan has put in a skeleton argument in support of some general criticisms of the approach of the Employment Tribunal to the complaints of sex discrimination. The complaints arose in respect of treatment which Ms Madarassy said she had suffered while she was employed by Nomura International Plc between 17th January 2000 and 22nd November 2001. During that period of employment she was involved, among other things, in executing transactions in relation to equity capital markets. She became pregnant. She knew she was pregnant in the middle of 2000. She informed her employers in November 2000 and went on maternity leave in March 2001, from which she returned on 9th July 2001. Soon after her return, questions arose about her being dismissed for redundancy. Grievance procedures were invoked. The whole matter of her complaints of sex discrimination, victimisation and unfair dismissal were set out in her originating application to the Tribunal on 14th December 2001.


The matter heard by the Employment Tribunal involved evidence given by no less than 32 witnesses, 19 days of evidence were involved. We have both from the Employment Tribunal and the Employment Appeal Tribunal extremely lengthy judgments, considering no less than 33 complaints, some of which were ruled out of time.


The position is that Miss Monaghan has put in a skeleton argument which has identified certain fundamental errors relied on in respect of the Employment Tribunal decision, errors which are perceived as being so fundamental that they have attracted the support of the Equal Opportunities Commission to this appeal.


The main points are, first, that the Employment Tribunal was wrong in its perception of the correct burden of proof in the case in the light of section 63A of the Sex Discrimination Act 1975, which has been the subject of authoritative decisions in this court only earlier this year. It is said that this fundamentally flaws the whole decision. Secondly, there are criticisms of passages in the Employment Tribunal's extended reasons which appear to require a male comparator in a case which rests on treatment of the applicant in respect of her pregnant condition and her maternity, in which case male comparators are not appropriate. Thirdly, there are complaints about the approach of the Tribunal to the limitation point, and the approach of the Tribunal to the evidence. In respect of certain matters the Employment Tribunal said there was "no evidence" when there was. In respect of other matters it appeared to require corroboration when the law does not require corroboration. Fourthly, there are complaints in relation to risk assessment by Nomura under the 1999 Regulations and, as already indicated from the passages which I have read out, there are complaints about the course taken by the Employment Appeal Tribunal in remitting certain matters to the same Employment Tribunal for review, rather than ordering a fresh hearing by a different tribunal.


The position is, in my view, that there is a real prospect of this appeal succeeding in relation to the main points taken in the grounds of appeal. I refer in particular to the burden of proof, treatment of evidence, requirement of a male comparator and approach to limitation points. I would grant permission to appeal on the basis that one or more of those points has a real prospect of success.


I should also mention that there are included in the skeleton argument points taken on detailed findings by the Employment Tribunal in relation to particular incidents or events. Lord Justice Waller will deal with the points which are taken in those details and the approach that this court has in giving permission to appeal. It is our view that there should be some limit imposed at this stage on the extent to which the applicant can on the appeal (or on any subsequent rehearing, if she succeeds on this appeal) reopen matters which have already been the subject of findings of primary fact by the Employment Tribunal. As I said, I will leave it to Lord Justice Waller to deal with those particular points.


There is one final matter I should mention before I conclude this judgment. That is that Ms Madarassy has instituted a separate appeal against a costs order of the same Employment Appeal Tribunal. That is not before us today. It relates solely to an order for costs that the Employment Appeal Tribunal made on 27th May 2005, following written representations of the parties. An order was made that the sum, which was assessed at £2,000, should be paid by Ms Madarassy to Nomura in respect of the costs that had been incurred in relation to the abandonment by Ms Madarassy of certain grounds of her appeal in the Employment Appeal Tribunal which related to the conduct of the Employment Tribunal at the original hearing. It was found by the Employment Appeal Tribunal that the allegations which had been made were unfounded and unreasonable. They were allegations of falsification, fraudulent misrepresentation, forgery and so on. They were matters in respect of which the Employment Appeal Tribunal found it was entitled to make an order for costs against Ms Madarassy.


Ms Madarassy has launched her own appeal against that, listing very detailed grounds as to why the Employment Appeal Tribunal were wrong in law in making this order against her. I originally directed that that application for permission to appeal should come on at the same time as this application, which was made by her representative, Miss Monaghan. I directed that the application for permission to appeal in relation to the costs order should be heard second. This was opposed by the Equal Opportunities Commission, who have taken up Ms Madarassy's case in relation to these other aspects, but not costs. Originally it was thought that there was no ground for hearing them separately.


What has now happened, as a result of repeated applications by Ms Madarassy during August, is that on medical grounds her application for permission to appeal on the question of costs has been taken out of the list for today and adjourned to be refixed at some time in the autumn. It is not therefore possible for this court today to make an order in relation to that application. I would, however, strongly indicate that, in my view, that application for permission to appeal against the costs order should come on at the same time as the hearing of the appeal on the main points, that it is to be heard after the hearing of the main appeal and, if permission to appeal is given in respect of the costs, then the appeal can immediately follow on the grant of permission. It seems to me undesirable that the appeal in relation to costs should come before a different court, or before the same court at a different time than the main appeal. All these cases involve Ms Madarassy's complaints about the way in which the Employment Tribunal dealt with her case and the way in which the Employment Appeal Tribunal dealt with her case. It is not satisfactory that a particular complaint about costs...

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