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Cite as: [2000] IRLR 243, [1999] EWHC Admin 376

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POST OFFICE v. JULIE FOOTITT [1999] EWHC Admin 376 (29th April, 1999)

IN THE HIGH COURT OF JUSTICE CO/2960/98

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Royal Courts of Justice

Strand

London WC2

Thursday 29th April 1999

B e f o r e:

MR JUSTICE OGNALL

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THE POST OFFICE

-v-

JULIE FOOTITT

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Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HG

Telephone No: 0171 421 4040

Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MISS D COTTON QC (instructed by Solicitor to the Post Office, Croydon) appeared on behalf of the Applicant.

MR T LINDEN (instructed by Legal Services, Nottingham) appeared on behalf of the Respondent.

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J U D G M E N T

( As Approved by the Court )

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Crown Copyright

1. MR JUSTICE OGNALL: This appeal is brought under the provisions of section 11 of the Tribunals and Inquiries Act 1992. By it, the appellants challenge the decision of the Nottingham Industrial Tribunal. The tribunal upheld the service of an Improvement Notice by the respondents upon them pursuant to the provisions of section 21 of the Health and Safety at Work Act 1974.

2. The Notice was served in the name of the respondent who is an Environmental Health Officer in the employment of Nottingham City Council. It alleged a contravention by the appellants of regulation 24 of the Workplace

(Health, Safety and Welfare) Regulations of 1992. It concerned the appellant's premises known as the North Postal Delivery Office in Carrington, Nottingham.

3. Following an inspection by the respondent in February of 1997 and a year late, namely, in March 1998, the appellants were advised inter alia that the changing facilities provided for their staff at the premises did not, in the estimation of the respondents, comply with the terms of regulation 24. Correspondence followed between the parties. Ultimately, on 29th April 1998, the Improvement Notice was issued. It is copied at page 38 of the bundle before me. I will have occasion to refer to its terms when summarising one of the appellant's submissions.

4. The affected part of the premises were those parts used by around 90 men and some 9 women as changing rooms. Broadly speaking, the position was that there was what is described as a "unisex" locker room, male toilet facilities and womens' toilet facilities. If any female employee wished to change her clothing, that is to say, remove more than a topcoat or jacket for example, then she could only do so in what I describe as the general area of the ladies toilet room. It seems that there was generous space there to construct a separate ladies' changing room within it, and that is what the respondents require the appellants to do.

5. All postal workers were required to wear stipulated uniforms during their working hours (cf the Agreement between the Union and the respondents dated June 1992 on the first two pages of the bundle before the court). There was no requirement that the employees had to wear any uniform on their way to or from work, although the evidence suggested that generally both sexes in fact did so. A questionnaire issued by the Union in February 1998 to all employees of the premises elicited a 50 per cent response in which virtually all of those who did respond said they would use dedicated changing facilities if they were provided. A like number said that there were occasions when, in the course of their work, their underclothing got wet. I should observe that this was at a time before the respondents provided what is said to be now more effective rainwear. That is a sufficient summary of the history of the matter and the state of the material part of the premises at the material time.

6. Regulation 24 reads as follows:

"(1) Suitable and sufficient facilities shall be provided for any person at work in the workplace to change clothing in all cases where --

(a) the person has to wear special clothing for the purpose of work; and

(b) the person cannot, for reasons of health or propriety, be expected to change in another room.

(2) Without prejudice to the generality of paragraph (1), the facilities mentioned in that paragraph shall not be suitable unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety."

7. Since it is also relied upon by the appellants, in the course of their submissions, I also read regulation 23 insofar as it featured in those submissions. It reads as follows:

"(1) Suitable and sufficient accommodation shall be provided --

(a) for the clothing of any person at work which is not worn during working hours; and

(b) for special clothing which is worn by any person at work but which is not taken home."

8. There follows to that regulation some notes for guidance, as indeed there followed notes for guidance to regulation 24. The first of the notes for guidance appended to regulation 23 is numbered 217 and reads as follows:

"Special work clothing includes (my emphasis) all clothing which is only worn at work such as overalls, uniforms, thermal clothing and hats worn for food hygiene purposes."

9. Before the court the appellants have raised five issues. First, whether the tribunal was wrong in law in finding that a postman's uniform, worn by postmen and women travelling to and from work at the premises, was "special clothing" for the purposes of regulation 24. They submit that it is not, in which event no duties fell to be imposed upon the appellants in consequence of it. Second, if and contrary to that first submission, it is to be considered as "special clothing", whether it was nonetheless wrong in law to find that regulation 24 applied to the premises, on the basis that the requirements set out in regulation 24(1)(b) did not apply, in that any person could be "expected" to change in another room, namely, the men's locker room or the ladies' toilet area as appropriate. Thirdly, if contrary to submissions one and two, the court holds adversely to appellants, whether the tribunal misdirected itself and/or fell into error of law in finding that the changing facilities were not

"suitable and sufficient" for the purposes of regulation 24. Fourthly, whether in upholding the Improvement Notice, it was wrong in law, in that the respondent failed to make out the specific grounds or reasons for issuing the Improvement Notice as recorded within it. Lastly, whether in expressing the conclusions of the tribunal in terms, that the facilities were not suitable and sufficient "in all cases", the tribunal by necessary implication found that, save for the circumstances found by it to create a need for any change in facilities which, the appellant submits, were irrelevant considerations, otherwise the facilities were suitable and sufficient, in which event the appeal ought to have been allowed.

10. Two of those issues were raised before the tribunal, namely issues one and three. The remainder were not but Mr Linden, on behalf of the respondents, did not seek to argue that the appellant should in consequence be precluded from arguing all of them in this appeal and in fact they have done so. This judgment will address each of them.

11. As to the first issue, the appellants submit that the description "special clothing" should be construed as clothing which is worn not only exclusively for the purposes of work, but worn only at work and not, for example, also on the way to or from work. They submit, reading regulations 23 and 24 together, that is the necessary conclusion. Miss Cotton drew my attention to the notes for guidance, number 217 appended to regulation 23. I have already recited it. She submitted that, although not a definitive, that guidance supported her submission namely that the words meant only clothing worn exclusively at work and at no other time. It is necessary to note from that submission two things. First, that regulation 23(1)(b) itself acknowledges that

"special clothing" may be of that category notwithstanding that it is "taken home". I see no warrant for interpreting those words as excluding being taken home by dint of being worn by the owner. Secondly, that note 217 is couched in inclusive and not exclusive terms. It includes all clothing there described. It does not exclude other clothing from falling within the category of special clothing.

12. The respondents in their skeleton argument contend that the question of whether clothing is special clothing does not and cannot depend on whether or not the employer anticipates that his employee will wear it to and from work, or whether in fact the employee does so. It must depend, it is submitted, in each case on the nature of the clothing and the requirement to wear it. It is submitted that the clothing must be worn for the purposes of work and it must be "special" in the sense that it would not normally be worn otherwise as day-to-day clothing. Any extension of those criteria designed to restrict it to clothing that is de facto only worn at work is unwarranted. Thus runs the submission on behalf of the respondents.

13. The decision of the tribunal on this point was in these terms. For this purpose I advert to paragraphs four and five of the decision to be found in the respondent's bundle:

"4. It is not contended on behalf of The Post Office that their male and female employees should use the facilities at the same time if changing is necessary.

The words 'special clothing' within regulation 24 are not defined and so we have to interpret those words. Some guidance is to be found in the code of practice issued with the regulations and in particular, in the guidance issued with the regulations in relation to regulation 23 which applies to 'accommodation for clothing' and the guidance in relation to regulation 23 provides at paragraph 217 to "special work clothing" (which is a slightly different phrase to that used in regulation 24) includes 'all clothing which is only worn at work such as overall, uniforms, thermal clothing and hats worn for food hygiene clothing purposes'. That guidance is not binding upon us but we are entitled to take it into account when considering what 'special clothing' within regulation 24 is. It is noticeable that the definition of 'special work clothing' in the guidance to regulation 23 is inclusive and not exclusive, and of course it may be that there are other types of clothing which would come within that term. Regulation 24 refers to 'a person who has to wear special clothing for the purposes of work'. We take the view, having considered the question, that

'special clothing' is to be defined for the purposes of regulation 24 as any clothing which would not ordinarily be worn other than for work and which is designed to relate to the employee's work such as for instance a distinctive uniform. It seems to us that just because the clothing or uniform may also be worn whilst travelling from home to work and back again, would not prevent it amounting to special clothing within regulation 24. The Post Office argue that the fact that it is worn in those circumstances, prevents it being 'special clothing' for the purposes of work within regulation 24. We do not accept that contention.

5. It seems to us, that the only reason why such clothing is worn by Post Office employees is because they have to wear such uniform while carrying out their duties. The evidence is quite clear, they are required by their contracts of employment to wear the uniform while carrying out their duties. There is an expectation that they will attend at the place of work already wearing their uniform, that is the usual practice. However it is clear, on the evidence that we have heard that there is no contractual requirement that they should do so, and there is no prohibition against them attending at a place of work in other clothing and getting changed into uniform whilst at the place of work and before beginning to undertake their duties."

14. I accept the respondent's submissions as I accept the reasoning and definition advanced by the tribunal. I am satisfied that upon the material before the tribunal and upon a true construction of regulation 24 the uniforms in question are "special clothing" and that in consequence the respondent employers were fastened with the duties to their employees as set out in regulation 24. It therefore becomes necessary to consider the ensuing submissions on the appellant's behalf.

15. I turn to the second. Miss Cotton submits that on the evidence before the tribunal it was not open to the tribunal to conclude that the female employees could not be expected to change in any other room, in this instance, the ladies' toilet area cf. regulation 24(1)(b). For my part, I find it difficult to countenance a freestanding conclusion on that submission without first considering the third one, namely, that the tribunal erred in law in concluding that the facilities were unsuitable and insufficient. True it is that subregulations (a) and (b) of regulation 24 are necessary conditions precedent to the obligation to provide the facilities in question, but I think that there is considerable force in the respondent's contention on this issue. If there was evidence warranting the conclusion that the existing facilities were unsuitable and insufficient, it is difficult to envisage a situation where nonetheless it could properly conclude that the women workers could be expected to change in another room, namely, the ladies' toilet room. Apart from that difficulty, Miss Cotton has submitted that in any event, no reason of "propriety" could diminish in law the reasonable expectation that the female staff could change in the toilet area. That is because she submits that the concept of propriety is to be confined to gender separation, namely, between male and female employees. I do not agree. Note 224 to regulation 24 refers inter alia to the interests of privacy. I can see no reason why requiring one female to undress in the presence of another or others cannot be said to offend against principles of propriety. True, no doubt, many would have no objection to changing in an the company of others of the same sex, but I do not accept that absolves the employer from providing, whether by cubicle or otherwise, facilities for those who may prefer privacy. I consider that the concept

of "propriety" is wide enough to embrace that consideration. Accordingly, it seems to me that, if the appellants fail on issue 3, they also fail on issue 2.

16. I therefore turn to issue 3. Miss Cotton accepts that here she must surmount a formidable hurdle. Of course, in this form of appeal she is confined to demonstrating errors of law. I am not here to review, for my own part, the merits of the facts. She must therefore demonstrate that no reasonable tribunal, properly directing itself, could have concluded as this tribunal did. Miss Cotton has acknowledged that is the extent of her task. The thrust of her argument here is that if one reads paragraph 7 of the tribunal's reasons, it gives account to what she submits are irrelevant considerations. It is unnecessary for me to recite the terms of paragraph 7. I adopt its contents into this judgment. In particular, it is submitted that in that paragraph the tribunal considered exigencies which might arise in the course of the working day which are in no sense peculiar to an employer who is required to wear any kind of uniform. I confess that, as I listened to it, there was a certain charm in that argument. But, it is important to note that, in the course of their analysis of this matter, the tribunal did (my emphasis) specifically address inter alia the situation where the employee "may wish to change either immediately before or immediately after the working day". That, plainly, must be a reference to the requirement that they must wear a uniform whilst at work and not before or after work. Miss Cotton has also drawn my attention to a letter from the respondent to the appellants in which

(see page 63) that the respondent acknowledged that it might be relatively easy for the few women employees at these premises to change in the staff toilets. That is as may be. But, at best in my judgment, that concession, insofar as it may be relevant, goes to sufficiency. It does not go to suitability of the facilities.

17. Having read the determination of the tribunal as a whole and viewing it, as of course I must, on the basis of all the information before them, that is, in all the circumstances of the case, I am satisfied that, either upon the basis of direct facts established before them, or by way of way legitimate inferences from those facts, the tribunal was justified in reaching the conclusion that it did. Or, more strictly, put the other way, the assertion of Wednesbury unreasonableness is not made out.

18. I turn therefore to issue four. This is founded upon the precise terms of the reasons set out in the at Improvement Notice:

"The reasons for my said opinion are:

the changing room facility is not suitable since separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety have not been included."

19. Miss Cotton complains that nowhere in those words is there any reference to what is the true case for the respondents, namely, the nature of the provision for changing within the female toilets. It confines itself in its terms to the provisions of separate (my emphasis) facilities for men and women. That is true, but I drew her attention to the correspondence surrounding the issue of that notice. That demonstrates, in my judgment, that the appellants must have been alive to the true nature of the respondent's contention. For example, if one looks at page 58 of the bundle, a letter of 6th March 1998, enclosing the Notice of Intention to serve the Improvement Notice in question. It is quite clear, from a reading in particular of the third paragraph of that letter, that the issue canvassed before me was indeed to be the issue which the respondents required the appellants to address. In those circumstances, I invited Miss Cotton to assist me with any authority to the effect that I must view the wording of the notice

in isolation, as opposed to in its overall context of the correspondence. In an effort so to do she referred me to a decision of the late McNeill J in West Bromwich Building Society v. Townsend [1983] ICR 257 and to a passage in the judgment of the learned judge. I was unable to find in that case, or in the discrete passage to which she alluded, any warrant for the restrictive approach contended for by counsel. I am satisfied that there is nothing in this point.

20. I lastly turn to issue five. The appellant fastens upon phraseology used by the tribunal in paragraph 8 of its reasons. I only read from the material part as I judge it to be:

"It seems to us that to insist on female employees using the toilet areas would not comply with the sentiments of paragraphs 224 and 225 of the code of practice. Bearing that in mind, we take the view that at these particular premises they are not suitable and sufficient facilities provided for any person in the workplace to change clothing in all cases."

21. It is suggested by Miss Cotton that the use of those words lends force to the conclusion that the tribunal was relying on irrelevant situations where an employee might wish to change irrespective of whether she was wearing a uniform. In other words, the use of the phrase "in all cases" is an implicit acknowledgment that they took into account exigencies which, as I have already indicated, Miss Cotton has submitted were irrelevant. Ingenious though that argument is, it is also, in my clear estimation, disingenuous to a degree. It is perfectly apparent to me that those words were simply imported directly from the preamble to regulation 24 itself. I repeat "suitable and sufficient facilities shall be provided for any person working in a workplace to change clothing in all cases (my emphasis)."

22. Unhappy it may have been, but there can be no sensible doubt in my judgment that by using those words

the tribunal was merely recording their conclusion that the non-compliance with that regulation had not been made out. It may be that in adopting and including the words "in all cases" there was an overslavish adherence to the precise wording of the regulation, but I am quite satisfied it does admit of the construction contended for the appellant's behalf by Miss Cotton. Accordingly and for those reasons, this appeal is dismissed.

23. MR LINDEN: My Lord, in those circumstances, there are two matters I need to trouble you with briefly. The first is time for the compliance with the Improvement Notice. The parties are agreed that we invite your Lordship to order that the time for the Notice be extended to 1st May 2000.

24. MISS COTTON QC: There is very good reason for that ...

25. MR JUSTICE OGNALL: If there is, I am not going to embark upon an investigation whether it is good or otherwise.

26. It is so ordered.

27. MR LINDEN: The second matter is a question of costs. I apply for my costs and your Lordship appreciates this is a case where it is appropriate to make a summary assessment. There is a Schedule of Costs in court. I understand that my learned friend Miss Cotton does not make any point in relation to it.

28. MR JUSTICE OGNALL: What is the sum?

LORD JUSTICE MANN The sum is £3,9038.18.

29. MR JUSTICE OGNALL: Always very embarrassing this. The court becomes aware of counsel's fees. That may prompt either astonishment or envy, I do not know. There we are. Well, good luck to you Mr Linden. Do you dissent from this?

30. MISS COTTON: My Lord, no. There are points I could make but I will not.

31. MR JUSTICE OGNALL: In that event there be an order that the appellants pay the respondents costs in the total sum of £3,9038.18. Anything else?

32. MR LINDEN: No. Thank you both very much.

33. MISS COTTON QC: Might I ask for leave to appeal?

34. MR JUSTICE OGNALL: You are obliged to do so I think.

35. MISS COTTON QC: Might I just tell your Lordship why I ask for leave to appeal.

MR JUSTICE OGNALL: Yes.

36. MISS COTTON QC: The reason is that your Lordship's decision may have consequences far beyond this particular post office and whereas your Lordship has taken a very clear view about the proper construction of this regulation as otherwise might not to the agree with your lordship. For those reasons, I ask for leave to appeal.

37. MR JUSTICE OGNALL: Thank you. Leave to appeal is refused.

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