Hobson v London Borough Of Hackney

On an appeal from an Employment Appeal Tribunal, the Court of Appeal may interfere only on a question of law. Whether language expresses gender stereotyping is a question of fact for the employment tribunal, assessed objectively from the language and circumstances. A complainant need not first establish that a reference was unjustified or unfair where the pleaded case is that its language was discriminatory; justification and detriment are separate issues. Employment tribunals should take the complainant’s subjective perception into account, but should avoid describing complainants as hypersensitive. If conduct cannot objectively amount to a detriment, the tribunal should say so without casting that aspersion.

Ms Hobson, an agency social worker supplied to Hackney, alleged that a reference written by her line manager used gender-specific and stereotypical language, causing Hackney to withdraw a conditional offer of permanent employment. She also alleged sexual harassment and victimisation.

The Employment Tribunal rejected her claims, finding that the reference was not discriminatory in language and that the other alleged acts were not unlawful. The Employment Appeal Tribunal dismissed her appeal. Before the Court of Appeal, the principal issue was whether the Tribunal had erred in law by failing to consider whether the reference was justified, fair or derogatory, and whether its reasons for rejecting the alleged gender stereotyping were adequate.

1. Appeal dismissed. The Court of Appeal unanimously held that no error of law had been shown in the Employment Tribunal’s decision.
2. The statutory question was whether Ms Hobson had been treated less favourably on the ground of sex than a man was, or would have been, treated in the same circumstances. The Tribunal was entitled to approach the pleaded case as one based on allegedly gender-specific language in the reference. No comparator had been provided, and the asserted detriment did not itself establish discrimination.
3. The Tribunal was not required first to decide whether the opinions expressed in the reference were justified or fair. Discriminatory language and detriment are separate questions under the Sex Discrimination Act 1975. The justification issue had not been the case advanced below and could not be raised for the first time on appeal.
4. Whether the reference conveyed stereotypical assumptions about women was a question of fact and impression for the Employment Tribunal. Its conclusion that, with the name and gender removed, no reasonable reader would regard the reference as relating to a woman was open to it and adequately reasoned. The Court of Appeal could not interfere absent an error of law or perversity.
5. In a postscript, Lord Justice Peter Gibson, with whom Lady Justice Arden agreed, stated that references to undue sensitivity or hypersensitivity should generally be avoided. The complainant’s subjective view that conduct was offensive must be considered, but a tribunal may conclude objectively that the conduct did not amount to a detriment and should state that conclusion without further aspersion.

The appeal was dismissed with costs, subject to the stated order concerning enforcement and detailed assessment of publicly funded costs.

• Court of Appeal (Civil Division): appeal from the Employment Appeal Tribunal dismissed. The appeal concerned the Employment Tribunal’s dismissal of Ms Hobson’s sex-discrimination and victimisation complaints.
• Employment Appeal Tribunal: appeal dismissed.
• Employment Tribunal: complaints dismissed.