Hillman v BBC Resources Ltd.

In a direct sex-discrimination claim, an Employment Tribunal should identify the actual or hypothetical comparator, make findings on the alleged less favourable treatment, and then address the respondent’s explanation under section 63A of the Sex Discrimination Act. However, an appellate court should distinguish an imperfectly expressed decision from an error of law. A concise assessment of diverse comparators may be sufficient where the tribunal’s reasons, read fairly as a whole, show that no like-for-like less favourable treatment was established and that the respondent’s explanation was accepted. Parties should identify comparators in the originating application, particulars or case-management directions before evidence is prepared. Permission to appeal requires a real prospect of success.

The claimant, a camera operator employed by BBC Resources Ltd, brought claims of direct sex discrimination and victimisation concerning the allocation of camera work and a request for part-time work. The Employment Tribunal dismissed the claims in extended reasons sent on 15 August 2003. The Employment Appeal Tribunal dismissed her appeal on 30 March 2004 and refused permission to appeal.

On a renewed application, the Court of Appeal considered whether the tribunal had erred in law by failing to make sufficiently specific findings about actual or hypothetical male comparators, the alleged less favourable treatment, and the BBC’s explanations. The central issue was whether deficiencies in the tribunal’s reasoning disclosed an error of law with a real prospect of success.

1. Application refused. The claimant failed to show a real prospect that an appeal from the Employment Appeal Tribunal would succeed.
2. The Employment Tribunal had correctly directed itself on direct sex discrimination, the burden of proof under section 63A of the Sex Discrimination Act, and victimisation. The Court accepted that, on a fair reading, the tribunal had found that any evidential burden had shifted to the BBC and had concluded that the BBC had discharged it.
3. The tribunal’s treatment of the comparators was compressed and could have been expressed more fully. It nevertheless made its conclusion sufficiently clear: the alleged actual comparators were too diverse for a like-for-like comparison, while the hypothetical case that the claimant would have worked for the three specialist supervisors but for her sex was not established. The tribunal also found non-discriminatory reasons for the relevant crewing decisions and rejected the contention that the allocation pattern resulted from conscious or subconscious sex discrimination.
4. An appellate court must keep a sense of perspective when reviewing the drafting and detail of tribunal reasons. The absence of further factual findings does not itself amount to an error of law where the reasons, read as a whole, adequately support the decision.
5. In direct sex- or race-discrimination cases, pleadings should identify actual or hypothetical comparators. If that is not done in the originating application, they should be identified in particulars or at a directions hearing before evidence is prepared and heard, so that the issues are clear.

Lord Justice Rix agreed. The application was refused.

• Court of Appeal (Civil Division): renewed application for permission refused on 29 November 2004; Lord Justice Rix agreed with Lord Justice Mummery.
• Employment Appeal Tribunal: dismissed the claimant’s appeal against the Employment Tribunal’s decision on 30 March 2004 and refused permission to appeal.
• Employment Tribunal: dismissed the claims for direct sex discrimination and victimisation; extended reasons were sent on 15 August 2003.