Ministry of Defence v Cartner

Where an employment tribunal has made an error of law, an appellate tribunal may uphold its conclusion only if it is plainly and unarguably right despite that error. A conclusion which is merely permissible cannot be substituted for the tribunal’s factual determination. The case must instead be remitted unless the factual findings require the appellate tribunal to substitute the only plainly and unarguably wrong conclusion.

A provision, criterion or practice for indirect sex discrimination may consist of a preference which advantages seagoing personnel. It need not make sea service an absolute prerequisite for promotion. Direct discrimination may be inferred from the totality of the evidence, including comparative evidence, procedural features and statistics. It need not be intentional or deliberate.

Mrs Cartner, a shore-based Chief Petty Officer in the Royal Navy, was not promoted to Warrant Officer. She alleged direct and indirect sex discrimination. The Employment Tribunal upheld both claims.

The Employment Appeal Tribunal allowed the Ministry of Defence’s appeal against the direct discrimination finding and remitted that claim. It dismissed the appeal against indirect discrimination, holding that the Tribunal had been entitled to find a practice favouring seagoing candidates: UKEAT 0242/10/DM.

The Ministry appealed. It contended that the direct claim should have been dismissed rather than remitted, and that the indirect claim should either have been dismissed or remitted because the Tribunal had overstated the evidence concerning sea service.

1. Appeal allowed in part. The Court upheld the EAT’s remittal of the direct discrimination claim. It allowed the appeal against the EAT’s disposal of the indirect discrimination claim and remitted that claim to be reheard with the direct claim.

2. There was evidence from which the Employment Tribunal could reasonably infer direct discrimination. A tribunal may consider all the surrounding circumstances and the totality of the facts. That includes comparative qualifications, the treatment of material in the candidates’ records, the subjectivity of the procedure and relevant statistical evidence. Direct discrimination need not be intentional or deliberate. The possible integrity of the decision-makers did not make a finding of discrimination perverse.

3. The evidence was sufficient to defeat the perversity challenge to the indirect discrimination finding. A PCP could be a preference or advantage for seagoing candidates. It did not have to be an absolute requirement that sea service was necessary for promotion. The evidence about operational tours, breadth of experience, adaptability and the greater opportunity to demonstrate performance at sea could support that finding.

4. The Employment Tribunal had nevertheless erred by treating sea service as a necessary prerequisite or essential condition for promotion. The EAT acknowledged that error but upheld the result because the Tribunal had been entitled to reach it. That was the wrong appellate approach. Under Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812, the conclusion could stand only if plainly and unarguably right despite the error. The Court could not say that a favourable finding on remittal was inevitable.

5. Accordingly, the indirect discrimination claim had to be remitted. The EAT could not cure the Tribunal’s erroneous factual finding by supplying its own assessment of evidence heard over five days.

• Court of Appeal (Civil Division) — allowed the Ministry’s appeal in part in [2011] EWCA Civ 1516. It upheld the remittal of direct discrimination and directed that indirect discrimination also be remitted.
• Employment Appeal Tribunal — in UKEAT 0242/10/DM, allowed the Ministry’s appeal against the direct discrimination finding and remitted it, but dismissed its appeal against indirect discrimination.
• Employment Tribunal — upheld Mrs Cartner’s claims of direct and indirect sex discrimination.