Ministry of Defence v Cartner

The Court of Appeal considered an appeal by the Ministry of Defence against findings of direct and indirect sex discrimination made by an Employment Tribunal and partially reviewed by the Employment Appeal Tribunal. The statutory framework was section 1 of the Sex Discrimination Act 1975, defining direct discrimination (s 1(2)(a)) and indirect discrimination by the application of a provision, criterion or practice (s 1(2)(b)).

The court held that there was sufficient evidence on which an Employment Tribunal could reasonably find direct discrimination and therefore the Employment Appeal Tribunal was entitled to remit that issue for rehearing rather than substitute a dismissal. On indirect discrimination the key factual question was whether a practice advantaged seagoing candidates; although the EAT had identified an overstatement in the ET's reasoning, the Court concluded that the EAT should have remitted the indirect discrimination issue to the ET for rehearing rather than affirming the finding on substituted reasoning.

Background and parties: Mrs Jacqueline Cartner, a Royal Navy Chief Petty Officer and former member of the Women’s Royal Naval Service, claimed she was discriminated against in promotion to Warrant Officer on grounds of sex. The Employment Tribunal found both direct and indirect sex discrimination. The Ministry of Defence appealed to the Employment Appeal Tribunal which allowed the appeal in part: it set aside the ET's finding of direct discrimination and remitted that issue for rehearing, but dismissed the appeal against the finding of indirect discrimination. The Ministry of Defence then appealed to the Court of Appeal.

Nature of the application / relief sought: The appellant sought reversal of findings of discrimination and, in respect of direct discrimination, argued that the EAT should have itself dismissed that part of the claim rather than remit it. It also challenged the ET's and EAT's conclusions on indirect discrimination, contending that there was no lawful finding that a provision, criterion or practice (PCP) advantaged seagoing candidates.

Issues framed by the court:

• whether the EAT was wrong in remitting the direct discrimination issue rather than deciding it;
• whether the ET and EAT were correct to find an indirectly discriminatory PCP that advantaged seagoing candidates, and if the EAT was wrong in its approach whether the matter should be remitted to the ET.

Court’s reasoning: The Court analysed section 1(2) of the Sex Discrimination Act 1975 and established that direct discrimination is often shown from surrounding circumstances, comparators and statistical material. It concluded there was evidence upon which the ET could reasonably have found direct discrimination (including comparative grading and promotion histories, acting-up periods, perceived downgrading of shore-based experience and statistics). Accordingly the EAT was not in error to remit the direct discrimination issue for rehearing. On indirect discrimination the Court reviewed the ET’s factual findings that seagoing experience was treated as a yardstick and that commanding officers’ reports and official communications (including a 2007 letter encouraging reconsideration of seagoing declarations) supported a practice favouring seagoing candidates. The EAT had identified an overstatement by the ET that sea-time was a necessary prerequisite and had substituted its own reasoning. The Court concluded the EAT should have remitted the indirect discrimination issue for rehearing because it could not say the ET’s conclusion was plainly and unarguably right notwithstanding the identified misstatement; factual findings required further consideration at first instance.

Disposition: The appeal was dismissed except that the Court allowed the appeal insofar as the EAT had failed to remit the indirect discrimination issue to the Employment Tribunal; the indirect and previously remitted direct discrimination issues were sent back to the ET to be heard together.

The Court of Appeal dismissed the Ministry of Defence's appeal except insofar as it found that the Employment Appeal Tribunal should have remitted the indirect discrimination issue to the Employment Tribunal. Rationale: the EAT was entitled to remit the direct discrimination issue because there was evidence on which the ET could reasonably reach that conclusion; by contrast, having identified an overstatement in the ET's reasoning on the PCP of seagoing preference, the EAT should have remitted the indirect discrimination issue rather than uphold the finding with substituted reasoning because the outcome was not plainly and unarguably right on the facts.

Employment Tribunal found direct and indirect sex discrimination. Employment Appeal Tribunal (UKEAT/0242/10/DM, promulgated 31 January 2011) allowed the employer's appeal in part, set aside the ET's finding of direct discrimination and remitted that issue for rehearing but dismissed the appeal against indirect discrimination. The Ministry of Defence appealed to the Court of Appeal ([2011] EWCA Civ 1516).