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Cite as: [1991] UKEAT 20_91_1612

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BAILII case number: [1991] UKEAT 20_91_1612

Appeal No. EAT/20/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 December 1991

Judgment delivered on 21 July 1992

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MR A D SCOTT

MR G H WRIGHT MBE

Ms M BROOK & ORS APPELLANT

THE MAYOR & BURGESS OF THE LONDON BOROUGH OF HARINGEY RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant Mr J McMullen

(of Counsel)

Equal Opportunities Commission

Overseas House

Quay Street

MANCHESTER

M3 3HN

For the Respondents Mr C Jeans

(of Counsel)

Legal Services

London Borough of Haringey

Alexandra House

10 Station Road

Wood Green

LONDON N22 4TR

MR JUSTICE WOOD (PRESIDENT) The London Borough of Haringey (Haringey) was one of the Local Authorities who, during the middle 1980s took a leading role in advancing equal opportunities for women, and so far as is relevant for the present appeal, more particularly in the training and employment of women in those trades in the building industries which traditionally have been considered to be the sole province of men.

Haringey had a Public Works Service (PWS) established to do building, construction and engineering work. It was divided into three divisions, Sewerage and Highways; Maintenance; and Capital Works. This last division dealt with large-scale operations. It was a direct labour organisation within the Local Government Planning and Land Act 1980.

Local Authorities are legally obliged to run a direct labour organisation at a profit. The Secretary of State has draconian powers to limit the works done by a direct labour organisation and to close it down if it fails to comply with the Act. In March 1986 the Secretary of State forbade Haringey works of substantial refurbishment.

From about 1986 Haringey started to employ and also to train a substantial number of women in the PWS. By early 1989 the total workforce in PWS was 1,120 of whom 80 were women.

The background to the crisis

Section 16 of the Local Government Planning and Land Act 1980 stated that -

"Every Local Authority or development body who undertakes construction or maintenance work

(a) of any of the descriptions specified in subsection (2) Section 10 above; or

(b) of any descriptions specified by Regulations under subsection (4) of that Section, whether under works contracts or by way of functional works or both, shall secure that, in respect of each financial year, where revenue from work of that description shows such positive rate of return on the capital employed for the purpose of carrying out the work as the Secretary of State may direct."

Initially the rate was to be 5% and specific provisions were to be made for the treatment of any deficit, but by the Local Government Finance Act 1988 deficits were no longer to be anticipated.

By letter dated 5th March 1986 the Secretary of State under the 1980 Act directed,

"In exercise of the powers confirmed by him by S.17(5) of the Act he directs that, with effect from 6th March 1986 your Authority shall cease to have power to undertake (whether under works contracts or by way of functional work) works of new construction as described in S.10(2)(b) and (c) of the Act provided that the Authority may complete any works on new construction which are comprised in works contracts which were entered into before that date, or which are comprised in functional work within the meaning of S.8(1) of the Act."

Thus, from that time onwards Haringey was unable to embark on any new building work and in effect the whole of the PWS was directed to maintenance. Even though the divisions were still maintained, the work was from then on limited to maintenance.

Under the provisions of the 1980 Act the Director of Financial Services had a duty to make a report if a Council carried out an illegal action. If he foresaw that illegal action was to be undertaken, he could report this before such action actually took place. Prior to 1988 three loss-making years were permitted before the Secretary of State could make his direction, but from 1988 he could issue such a direction at any time.

Mr Pirie was Haringey's Director of Financial Services and for the financial year 1988/89 he did not have adequate information from management of the PWS about the financial situation. There was a duty to provide him with that information, but it was not forthcoming. In March 1988 for the financial year 1988/89 Haringey had envisaged a profit from the PWS of some £791,000. That figure formed part of the overall budget and the ability of Haringey to balance its books was dependent partly upon the profit achieved by PWS. In December 1988, however, it became clear that for the financial half-year from April to October 1988 there would be a deficit in the capital division of some £750,000 and there was a projection that there would be a loss in that division for the whole financial year of £5¹/₂m. Even allowing for projected maintenance division profit of £1¹/₂m there was likely to be a £4¹/₂m loss within PWS. Ultimately it was established that the projected loss would exceed £7m and this meant that the whole budget was in jeopardy. Thus, within a very short time Mr Pirie was aware that a very substantial loss was anticipated and when he was informed that this would be some £5m or more he felt he had no alternative but to issue a notice under S.114(3) of the Local Government Finance Act. This he did on 19th December 1988. The result of this was that the Council's budget was in jeopardy and was likely to exceed the resources available even including sums borrowed.

After this notice had been issued the ability of officers to enter into new negotiations was limited and before they could do so there would have to be a formal meeting of the Council at which Councillors were obliged to take action to redress the situation. Losses by this time were in the region of £30,000 a day and it was not possible therefore for Councillors to avoid the conclusion that they were going to be in deficit. Members of the Council could be personally surcharged for any such deficit. Mr Pirie was obliged to report to the District Auditor who took the view that members would not be subject to surcharge because on 22nd December 1988 the Council had met and approved stringent restrictions on expenditure.

At first it was envisaged that PWS would have to close completely. Mr Pirie sought advice from consultants and commissioned a report which was available in January 1989. Another suggestion at first was that the redundancies would only be in the capital works division, but it was subsequently decided that there should be redundancies throughout PWS so as to obtain the best productive workforce throughout the totality of the organisation. It was Mr Pirie's view that if the Council were to avoid a loss in the financial year 1989/90 then it would be advantageous to have the redundancy payments made during the financial year 1988/89. His view was clear, that Haringey had no other realistic option than to make the redundancies on the scale anticipated.

There was an emergency meeting of the Council on 8th February 1989 and in general terms the decision was to try to save PWS by reducing the workforce by half and concentrating on certain viable projects. At that time there were some 1,431 employees and it was envisaged that approximately 603 redundancies would be made. As would be normal the first step was to seek voluntary redundancies and a letter of 3rd March 1989 was sent to the workforce, including the Applicant. That exercise was not as successful as had been hoped and it was clear that a further 120 jobs would need to be lost through compulsory redundancy. The situation was urgent because of the necessity to balance the budget for the new financial year.

The position facing Haringey can therefore be summarised thus:-

1.Haringey faced a financial crisis.

2.It was obliged to reduce PWS by approximately half.

3.The new PWS - in its leaner form - needed to be financially stable.

4.To this end it was necessary to eliminate loss-making elements and to achieve a balanced workforce.

5.This in its turn demanded a close examination of each trade and of the balance between trades.

6.This drastic reduction in the workforce should, if possible, be achieved in the financial year 1988/89 and was in any event a matter of extreme urgency.

The Criteria

By the time that the stage of compulsory redundancies was reached it was important, indeed necessary, that Haringey should have established a set of criteria. However, those criteria evolved through various stages and during the hearing before the Industrial Tribunal the stages were christened "Criteria 1", "Criteria 2" and "Criteria 3". It was Criteria 3 which was relevant for compulsory redundancies. It is however important to the Appellants' case that one ought to see how that stage was reached.

"Criteria 1" was drawn up and circulated to a limited number of people on about the 16th February 1989. It paid attention to attendance and sickness including uncertified absences. It also referred to the number of periods of sickness and injury over the last 12 months, performance (including quality, quantity of work and skills) and qualification and training. It did not give any weight to length of service.

"Criteria 2" was formulated on 24th February 1989. It referred to attendance (including absence without permission), sickness (including the number of days absence), injury over the last 12 months and the number of periods of sickness and injury over the last 12 months, performance (including quality of work, quantity of work and skills), qualification and training and also to length of service. Half a point was given for each completed year of service up to a maximum of 20 points.

Both ACAS and the trade unions were critical of "Criteria 2". ACAS felt that the performance assessments could not be made objectively and the trade unions were bitterly opposed to the calculation of the points to be given for the length of service. Both the Regional Organiser of MATSA and the Branch Secretary and the District Officer of T & GWU were opposed to any other criteria for the decision on compulsory redundancies than "last in first out", LIFO. In a letter of 15th March 1989 the District Officer wrote -

"We are also firm believers in equal opportunities and have backed the Council in trying to achieve its policy of equal opportunity over the past 10 years. However, when we are in a serious position such as this present one, we believe that the fairest and most democratic way of approaching enforced redundancies should they be on the basis of "last in first out". We fully realise that this could upset the ethnic and the female balance of some departments, but again, we strongly believe that when we are talking about a person's employment and, indeed, somebody who may have been employed by your Council for a number of years, for them to lose their job and a more recent member of staff being kept on is totally unacceptable to the Transport and General Workers' Union".

The Personnel Department of Haringey therefore formulated "Criteria 3" and this was drawn up on or before 21st March 1989.

The members of the Council were kept in touch with the progress of the Criteria at all stages. "Criteria 3" was sent to the Trade Unions on 22nd March 1989.

Under "Criteria 3" weight was to be given to attendance, sickness, conduct and length of service. As so much depends on an understanding of "Criteria 3" which are those which are relevant to this appeal we set it out in full.

"ASSESSMENT CRITERIA

CRITERIAMEASURED AREASTANDARDRATING

AttendanceAbsence without0 days15

permission- 1 pt for every day(15 - No of

15 or more days 0 days)

SicknessNumber of days0 - 10 days15

Sickness/Injury11- 20 days10

over last 12 months21- 30 days 5

31 - or more days 0

Number of periods of0 - 315

sickness and injury4 - 610

over last 12 months7 - 9 5

10 or more 0

ConductDisciplinary offencesFinal warnings 0

Written warnings 5

No record 15

____________________________________________________________________________________________

Length ofContinuous Haringey2 points for each 0-40

Serviceand Local Governmentcompleted year up to

servicemaximum of 20"

Mr Hyde, the Personnel Services Adviser in Central services at Haringey told the Tribunal that after "Criteria 3" had been drawn up the Convenor, Mr Dagens, had commented that it was "as near right as possible".

On 18th April 1989 the Trade Unions were notified of the numbers required to be made redundant in each particular craft or trade group. On 19th April a Newsletter was sent to the staff setting out the revised "Criteria 3" and on 21st April the Notification of Dismissal for Redundancy was given to each of the Applicants. The effective date of termination of their employment was 30th April. All were given the appropriate payments and wages in lieu of notice.

Appeals

This was the first time that redundancies had been made on such a scale and there was no agreed appeal procedure. Appeal Panels consisting of members, and not of officers, were set up and there was also a plenary panel meeting on 5th July 1989, a large number of appeals had been documented for review. It was intended that each individual case should be considered and indeed a great deal of time was spent on individual cases. It was however recognised that almost all cases involved compassionate issues. It was soon realised that it was impossible to distinguish between cases on compassionate grounds as a matter of consistency and the panel further realised that if a number of appeals were upheld then there would be a need for further redundancies because the workforce would be larger than the budget allowed. This would have involved a total revision of criteria and a total reselection process.

The ultimate conclusion of the Panel was therefore to look strictly at "Criteria 3" and the application of the points system. In only one case was an appeal allowed and that was on arithmetical grounds. It was the evidence of Mr Melling that if more than five appeals had been successful the whole process would have had to be restarted and that the consequences of this would have been catastrophic.

With the burden of all these problems facing them together with the urgency of the situation, Haringey's duty was to be fair in its selection for redundancy both in criteria and procedure and secondly, and separately, to avoid any direct or indirect sexual discrimination in that selection.

All the Applicants were involved in the second phase - the selection for compulsory redundancy. They variously allege unfair dismissal or sexual discrimination. An Industrial Tribunal sitting in London (North) for some 32 days under the Chairmanship of Mrs Marjorie Don decided against the Applicants on all grounds. They were all represented below and now appeal. For convenience this appeal has been heard in two parts. The first is the appeal by the women and the second that by the men. The women have throughout been supported by the Equal Opportunities Commission (EOC) and represented by Mr Jeremy McMullen of Counsel. Haringey has throughout been represented by Mr Christopher Jeans.

The way in which the women's appeals were presented was under the heading of unfair dismissal and sex discrimination as detailed in the notice of appeal. We propose to follow the same course.

Unfair Dismissal

This heading concerns only Miss Agbonifo and Ms Theobald of the Applicants.

Miss Agbonifo complains:-

That the Tribunal made no finding on her specific "claim" that she applied in April 1989 and before the effective date of termination on 30th April for at least one job advertised by Haringey.

That the Tribunal's general finding that there were no available jobs before the date of the dismissal was perverse in relation to her.

That Haringey should have offered her jobs prior to her dismissal.

It is right to comment that Miss Agbonifo may not have been considered by the Tribunal to be a wholly reliable witness. She had originally been a volunteer for redundancy, but when she complained about the way in which her voluntary application had come to be signed, she was allowed to be treated as compulsorily redundant for the purposes of appeal. There were serious conflicts in her story to which we need not refer in detail. Her evidence was also unclear about those jobs which she was seeking to identify as available and also as to the relevant dates.

The Tribunal deal with alternative employment in paragraphs 175, 176, 179 and 181 of its Decision as follows:-

"175 Mr Jeans maintained that there is no obligation on an employer to find alternative employment for a redundant employee. The borough in general had very few vacancies for any positions at the relevant time, let alone positions which might be suitable for PWS craft employees. Nevertheless, from 28 February 1989 there was a systematic scrutiny of available jobs to ensure that any potentially suitable vacancy was targeted at PWS employees. ... A Job Shop was set up which was run by Mrs Madeleine Kingston. It was widely advertised ... and the fact that this exercise yielded only one successful placement confirmed the shortage of vacancies."

"176 The representatives on behalf of the Applicants maintained that effort to find alternative employment by the Respondents was nil."

...

"179 The Tribunal found as a fact on the evidence before it that the respondents did make efforts to find the employees alternative employment. It was a sad fact that there were no suitable jobs available. Some employees applied for jobs within the Council after they were made redundant and for whatever reason were unsuccessful. However, this does not make the decision to make these employees redundant unfair."

...

"181 The employees were interviewed by Mr Andrews and Mr Berwick. The Tribunal accepted their evidence that they were directed to the Job Shop to seek employment and that the Job Shop was in very close proximity. The Tribunal found as a fact on the evidence before it that the Respondent made every effort to find the employees suitable alternative employment. The fact that they were unsuccessful was not the Respondent's fault. The Tribunal accepted that there were no jobs available within the borough at the time of the dismissals. There may have been jobs available at a later stage but the Tribunal is only concerned with what happened at the actual time of the dismissal. In addition, the Tribunal accepted Ms Featherstone's evidence that she canvassed other local authorities and was unsuccessful in finding her women alternative employment. The Tribunal found as a fact on the evidence that the Council as a whole looked for alternative employment both inside and outside the Borough. The Tribunal finds as a fact that the Respondents could not have made any further effort to find the employees alternative employment."

There was ample evidence upon which the Tribunal could reach its decision and we find no substance in this Applicant's appeal under this head.

Ms Theobald. She made three claims in her allegation that she had been unfairly dismissed. First, that the Tribunal made no specific finding on her claim that it was unreasonable of Haringey to decide that as she was redundant she would not be considered for any alternative employment.

That claim was not made until after this witness had given her evidence and as a result of a question from the Tribunal. No such suggestion had been put to Haringey's witnesses. A Mr Berwick was asked to investigate and was recalled towards the end of the hearing. He was only able to make contact with one of the individuals who might have been involved. There was therefore difficulty in meeting this point. Ms Theobald was suggesting that she was singled out for adverse treatment; if the Tribunal had so thought they would surely have so stated. At paragraph 181 to which we have already referred the Tribunal clearly indicate after detailed inquiry that it absolves Haringey generally in this respect. Mr McMullen has abandoned an earlier suggestion that a supervisor's job was suitable alternative employment. We reject this first claim from Ms Theobald.

Secondly, she alleges lack of warning or consultation. This is not raised in her internal appeal or in her originating application. In written submissions it was raised as part of the general similar complaint by other women.

Lastly, Ms Theobald complains about the manner of her dismissal.

These last two issues were essentially matters of fact for the Tribunal who have clearly given the closest attention to all such submissions. These complaints were not raised before the hearing in the Industrial Tribunal. We have been referred by Mr Jeans to a number of passages in the evidence from which it is apparent that the Applicant could have found out more had she so wished. She could have attended meetings. We refer in particular to paragraphs 172 and 173 of the decision where the reasons read:-

"172 With regard to the women there was no doubt that Ms Eve Featherstone was informing women at every stage of the proceedings as far as she was aware. Indeed she circulated Criteria One which appears to have been a private document. Mass meetings were held where individuals could attend and it was up to the individuals to attend these meetings. Ms Featherstone created women's forums to inform the women of what was happening. Some chose to attend and some chose not to attend but it is clear that the Council had, through Ms Featherstone, set up a procedure for informing the women as to what was happening.

173 In all the circumstances the Tribunal finds as a fact that there was sufficient warning and consultation of the redundancy situation with the Trades Unions and with individuals."

Although on the bare facts one might have some sympathy with this Applicant who was just finishing her apprenticeship at the relevant time, the purpose of exempting apprentices was to allow them to finish their apprenticeship and she had finished hers a week before being made redundant. In that week she had been paid her trade rate. Haringey was in a crisis situation and this Applicant fell to be considered as a member of her trade.

We therefore reject her second and third complaints.

Thus all the appeals against the findings that dismissals were fair are dismissed. The industrial members would add that in the light of the difficulties facing them, the staff of Haringey acted in exemplary fashion.

Sex Discrimination

A few general statements are helpful in the present connection.

(a) It was no part of the Applicant's case that Haringey intended to protect men - this was expressly disclaimed.

(b) It was the expressed policy of Haringey that all trades had at all times been open to women.

(c) We do not understand that the Applicants are contending that positive discrimination should have been the correct policy. For Haringey to have done this was to invite a host of applications from those men made redundant and with the staunch support of their Trade Union.

(d) The equal opportunity structure within the PWS was not only exceptional, but if anything weighted in favour of women and was so intended. The background facts are important to an understanding of this whole case.

(e) The timetable facing Haringey, as a result of the crisis, was tight.

(f) The Trade Unions were not prepared to be helpful in considering criteria.

(g) The allegations of sex discrimination relate to the way in which Haringey carried out the redundancy selection process.

The way in which the Notice of Appeal is drafted takes particular aspects of alleged sex discrimination and then examines each from the aspect both of direct or indirect discrimination. We propose to follow that course.

"The Exempt Trades" - Persons not brought within the "compulsory pool", which consisted of those for whom compulsory redundancy was to be considered. This was a phrase introduced for convenience during submissions before the Industrial Tribunal. It has no technical significance.

All Applicants

It is contended that because some trades were not included in the compulsory pool and that those trades were predominantly male, this constituted direct or indirect discrimination.

The background is this. Haringey found itself compelled for legal and economic reasons to reduce the PWS by some 602 and in doing so to end up with a viable and balanced workforce. It first set out all the trades and decided by how much each trade should be reduced. In some cases there was no need for any reduction at all.

Thereafter, secondly, volunteers were sought.

Thirdly, Haringey examined the situation which then pertained and the picture then emerged that in some trades further reduction in numbers was required. The members of those trades constitute the pool to be considered for compulsory redundancy. There was no need to reduce the numbers in the other trades - no necessity at all.

So far as direct discrimination is relevant, it seems to us, as we think it seemed to the Industrial Tribunal, that no one was in that pool because of a sex factor, but because of a membership of a particular trade. We do not understand that discrimination is alleged in any of those trades - save possibly in one, but there was no clear evidence of that. There is therefore no sex factor which includes or excludes any person found to be in that compulsory pool. see the test in JAMES v. EASTLEIGH BOROUGH COUNCIL [1990] ICR 554 H.L.

The alternative submission is that there was indirect discrimination because Haringey have applied a requirement or condition that unless someone was not a member of one of the trades whose members were not included in the compulsory pool, they were at risk of redundancy and because there happen to have been more men than women in those other trades there is discrimination which requires justification.

The submission before us seems to have been slightly different from that presented to the Industrial Tribunal in that the latter included also an element of scoring points required for a particular trade, but it seems to us that the Industrial Tribunal dealt with this whole subject succinctly in paragraph 208 of the Decision -

"208 In consideration of the case law, and in consideration of the evidence, the Tribunal does not find as a fact that a requirement or condition was placed upon the women with which, as women, they could not comply. The Council never specifically exempted any particular trade. Mr Wright determined the numbers to be retained in each particular trade according to the needs of the workforce. It so happened that the Council's policy of positively recruiting women and in recruiting women to the PWS, accidentally meant that women were not represented in certain trades. The Tribunal does not accept that certain trades were designated as exempt trades. It was an accidental happening that certain trades contained no women and it was an accidental happening that employees employed in certain trades were not made redundant because the needs of that particular trade were essential to carrying on an effective PWS for the future. It so happened that the numbers in that trade were satisfied after the voluntary redundancies had been made."

We cannot think that what occurred constituted the erection of a rule or barrier which had the effect of discriminating against women. Those trades were open to women, in due course they might have included a preponderance of women. There are no biological or social elements concern. These submissions are not dissimilar to those considered in ENDERBY v. FRENCHAY HEALTH AUTHORITY [1991] ICR 382.

If this submission is well founded, namely that the mere holding of a job or position can constitute a requirement or condition and, is prima facie discriminatory requiring justification, it could be applied to whole factories.

Mr Jeans submits that if this argument is accepted it makes the necessary finding of a requirement or condition for all practical purposes otiose and justification will be required in every case. The advantage to the applicant is a shift of burden of proof, but can this have been the intention of Parliament or of EEC law?

For the reasons which we gave in ENDERBY we do not think so.

Mr Jeans also comments with some force that the only possible advantage to these women of including the other trade which had been excluded, would be to manipulate the figures so as possibly to increase a percentage of those who were or were not made redundant of either sex.

Had it been necessary to do so, it seems to us that the evidence of justification was overwhelming on this issue. Without direct discrimination in favour of women, what else could Haringey have done? It did not want or need to reduce the other trades. Even if Criteria 3 had been applied to a larger pool, the line drawn across after the calculation of points - the cut-off point - would have been below the last name in each of these trades and all its members would have escaped redundancy.

It is also difficult to see how any of the applicants suffered detriment caused by this alleged requirement or condition.

Ms Theobald

Under this heading of submissions, Ms Theobald, who was a carpenter and the sole female carpenter, alleges that because she was a carpenter and not classed as a joiner she suffered less favourable treatment. Joiners were not in the compulsory pool, carpenters were. She alleged that it was a condition or requirement that she was a carpenter and that to treat employees by their nominated and contractual trade, if they might have been regraded into another trade which was predominantly male, was to apply a requirement, and that requirement or condition was therefore prima facie discriminatory and requires justification. She alleged that there was no justification for so doing.

A number of points need to be made. Ms Theobald's contract of employment showed her as a carpenter; she described herself as a carpenter in her Originating Application and in her evidence; there are acknowledged differences between carpenters and joiners which differences were accepted by the Tribunal.

In the alternative it was argued that there should have been cross-grouping between carpenters and joiners, or between carpenters and glaziers. Even if this had occurred Ms Theobald would not have escaped once the points had been calculated and awarded.

The Industrial Tribunal deal with this aspect of Ms Theobald's claim in paragraph 147 of the decision as follows:-

"147 The Tribunal found as a fact on the evidence before it that the trade groups existed before the redundancies occurred. The Respondents were entitled to say that they did not need a particular employee in that particular group. The applicants were grouped according to their contracts of employment. Ms Theobald, in her Originating Application, stated that she was an apprentice carpenter. After her redundancy she stated that she should have been classified as a joiner. Documentation indicated that she was indentured as a carpenter/joiner. However she always described herself as a carpenter. The Tribunal finds that it was reasonable for the Respondents not to have re-classified these employees into different groupings, employ them elsewhere and so have 'bumped' other employees. They were classified according to their contracts of employment. This was reasonable."

This paragraph coupled with paragraph 208 to which we have already referred seems to us to dispose of these arguments.

In addition, upon the figures which we have been shown, she could show no detriment even if there had been cross-grouping.

If Ms Theobald's case is an example of a condition or requirement in sex discrimination, it seems to us that the allegations of prima facie indirect sex discrimination are almost limitless. What of an applicant who has argued and succeeded in obtaining a trade grading with enhanced pay, who subsequently on a redundancy brings proceedings against her employer for not treating her as a member of the lower paid trade?

Ms Fitzsimons and Ms Iluyomade

These appellants, who are "improvers" claimed that they were victims of indirect discriminatory treatment in that Haringey exempted from the compulsory pool apprentices but not improvers. Secondly, they submitted that the Tribunal was perverse in finding "...that apprentices and CITB painters represented the maximum number of trainees that could be accommodated en bloc". Thirdly, that the Tribunal was perverse in finding that there was a distinction between apprentices and improvers.

Apprentices were indentured employees under fixed contracts for three or four years and were normally school leavers (Ms Theobald was not). CITB trainees (Construction Industrial Training Board) originally numbered nine but were reduced to eight at the time redundancies were required. They were all female and employed pursuant to an agreement between the CITB and Haringey for the provision of on-site training and support of their studies at Tottenham College. They were all in fact painters.

Labourer trainees were individuals who after two years' service elected to train into the craft of their choice and worked as labourers to individuals in that craft. They would also attend college on day release. Improvers were employees who had already taken a 6 month training course in their particular trade. They were in all other respects similar to labourer trainees.

Thus, labourer trainees and improvers were in essence a group who could be considered as a group.

It was at Ms Featherstone's express request that the CITB trainees were omitted from the compulsory pool. As painters it was not difficult to supervise them in the future. The painting workforce is a large group. In the case of both the apprentices and the CITB trainees, Haringey was under an obligation either under the indenture or to an outside body.

The Tribunal deal with these submissions at paragraphs 148 to 150 and 209 of the decision. They read as follows:-

"148 It was maintained on behalf of the female applicants that improvers should not have been included in the pool for consideration for redundancy. It was maintained that improvers were essentially in the same position as apprentices. The Tribunal noted that apprentices are indentured employees. Good industrial relations practice has always maintained that the employment of apprentices should be protected. Improvers were not in this indentured category. The Tribunal did not consider it unreasonable for the Respondent, in these circumstances, to have excluded apprentices from a selection for redundancy.

149 The Tribunal noted the evidence that there was very high proportion of trainees in the workforce. The Tribunal did not consider it unreasonable for Haringey to take the decision not to retain a high proportion of trainees in a reduced workforce. It was reasonable to have reduced the proportion of trainees proportionately.

150 It was the Tribunal's understanding that it was on the representation of Ms Eve Featherstone that CITB trainees, who were all women painters, should be excluded along with apprentices from consideration for redundancy. The Tribunal finds as a fact on the oral evidence that apprentices and CITB painters represented the maximum number of trainees that could be accommodated en bloc within a reduced workforce."

...

"209 As has been said, it was reasonable to exclude apprentices from redundancy and CITB trainees were exempted from redundancy at the suggestion of Ms Featherstone to Mr Wright. These particular trainees were women. It was also reasonable to exclude disabled people from being made redundant. Disabled people are in a special category."

As is clear the Tribunal incorporated its finding in the earlier paragraphs into its reasons when considering discrimination.

In his written submissions at pages 40 to 50 Mr Jeans set out a substantial number of references to the evidence and to the arguments of Haringey on these issues. We do not find it necessary to recite all those arguments at this juncture because there is ample evidence to support the findings and conclusions of the Industrial Tribunal. The Tribunal were entitled to hold that the mere holding of a particular job or a particular status was not a requirement or condition - it was not a rule, policy, a barrier placed in the way of women. In any event, the Tribunal had substantial evidence upon which they could find that the decision not to exclude improvers and trainees from the compulsory pool was amply justified. The distinction between apprentices and improvers was clearly made out.

The Criteria

Direct Discrimination - Ms Iluyomade and Ms Agbonifo

These Applicants claim that they had suffered less favourable treatment which they would not have suffered but for being women, in that they suffered loss of points under Criteria 3 for sickness and periods of absence, in the former case it was time off for ante natal care which had counted against her, and in the latter case time off in connection with her abortion.

Before the Industrial Tribunal Ms Brook, Miss Murray and Ms Dawson had made similar claims in respect of time off in connection with menstrual problems. The Tribunal rejected these claims and their appeals have been abandoned. The logical basis for this abandonment is not entirely clear to us.

In paragraph 233 of its Decision the Tribunal found that Haringey's records on sickness and absence were correct. In the case of Ms Iluyomade there was a conflict of evidence concerning one day absence and a half day absence. She complained that these absences should have been reclassified as ante natal leave. Clearly the Tribunal did not accept this. Moreover we have been satisfied that even if these absences had been reclassified and her points recalculated, it would have made no difference to the result as she could not have avoided "the cut" for plumbers.

Ms Agbonifo's absences were said to be in part in connection with the illnesses of her children and in part with the closure of a nursery. It was open to her to seek special leave of absence which would normally have been given. She did not do so and reported as "sick". She has only herself to blame for this.

However, the second limb of her claim raises more difficult issues. It concerns her abortion, which we understand to have been carried out at her choice and not on purely medical grounds. One day's absence was for a pre-abortion blood test. Two days' absence was for the abortion itself. Seven days' subsequent absence were due to a medical condition arising from the abortion.

The Industrial Tribunal deal with these issues in paragraphs 194 to 198 inclusive of the decision.

"194 The Tribunal initially considered whether the female applicants had been directly discriminated against. Mr McMullen submitted that Criteria Three directly and indirectly discriminated against women and that the discrimination was not justified. However, as Criteria Three was applied directly to men and women objectively, the Tribunal finds as a fact that the women were not directly discriminated against by being dismissed by reason of redundancy.

195 Mr McMullen averred that the women with menstrual problems, those who had suffered a miscarriage or an abortion were directly discriminated against in that they were penalised in respect of their sickness days absences and sickness spells. Men were not so penalised in this respect.

196 The Tribunal referred to Turley v. Allders Department Stores Ltd [1980] ICR 66 which held that a dismissal on the grounds of pregnancy was not discriminatory under section 1(1)(a) of the 1975 Act. The section makes it necessary to compare like with like which is not possible in such a case. The Tribunal preferred the different approach in Hayes v. Malleable Working Men's Club and Institute [1985] IRLR 367 EAT which was upheld in Webb v. EMO Air Cargo (UK) Ltd [1990] IRLR 124. These cases held that the correct approach is to compare the treatment of a pregnant woman with that of a man in analogous circumstances whose absence from work would have a comparable impact upon the employer's business.

197 The Tribunal compared a woman suffering from menstrual pain with a man suffering, for example, from migraine or prostate problems. Indeed, Mr Theobald suffered from cluster headaches. The Tribunal compared a woman suffering an abortion or a miscarriage with a man suffering from, for example an appendix operation or a hernia problem. Both would be absent from work and both would have an equivalent sickness absence recorded against them.

198 One cannot compare like with like because male and female physiology is different. Taking the above factors into account, and in consideration of the case law, the Tribunal cannot find that the applicants were directly discriminated against on grounds of sex."

WEBB now reported at [1990] ICR 442 has been upheld in the Court of Appeal.

This applicant claims that her condition arises out of her pregnancy. It may be that unless pregnant a women cannot have an abortion, but depending on the facts of the case the pregnancy may or may not be the cause (causa causans) of the abortion. In DEKKER/HERTZ [199] IRLR 27, 37 at paragraphs 47 to 49 a distinction is made in the European Court between "the normal risks of pregnancy and confinement, the usual complications which accompany such events ... and medical conditions which do not arise from the normal risks of pregnancy." That is a distinction which could well be applied to the facts of the present case. The abortion in this case was not a normal risk of pregnancy and confinement. It was carried out at the express wish of the individual.

Indirect discrimination

These two Applicants also allege that the reason that they lost points both under the heading of sickness and absences, was because of reasons unique to women and also because of the need for women to look after children.

The Tribunal rejected these submissions in paragraphs 199 to 208 inclusive of the decision and we find no legal error in these paragraphs.

If ante-natal absences were counted (there is no evidence that they were) this was a mistake and does not arise out of any condition or requirement. We have already dealt with the abortion related absences on the facts of this case.

So far as the children related problems were concerned, application could have been made for special leave and the decision not to do so was that of the Applicants themselves. Again there is no condition or requirement which itself affects the points. There had been no suggestion that the special leave scheme was not operating perfectly satisfactorily.

The Tribunal deal with this in paragraph 217 of the decision which reads -

"217 The Tribunal then considered the absence criterion and the proposition that a considerably smaller proportion of women could achieve maximum points for absence over and above men because the women had dependent children, took time off for period pains, and had statutory time off for ante-natal visits. It was maintained that all applicants except Ms Theobald demonstrated loss of points on one or both of the absence criteria. The Tribunal accepted that more women might take time off than men for looking after their children because traditionally and historically it is the woman's role to look after children. However, the Tribunal noted that the Authority had generous sick dependency leave provisions: if the women did not choose to follow these provisions, it was not the fault of the Authority. As has been said, the Tribunal did not accept that the women necessarily had more sickness time off than the men for their particular problems."

It seems to us on the evidence that the Tribunal was fully justified in reaching this conclusion. Every consideration seems to have been given by Haringey to its women employees in this connection.

Length of service

The last condition or requirement which is alleged to have indirect discriminatory effect is that of length of service.

No one approaches redundancy with equanimity. It causes hardship and unhappiness. Employers, Trade Unions, ACAS and indeed common sense all recognise that length of service is an essential ingredient in any redundancy selections save in the most exceptional circumstances. This has been recognised over many years and indeed the Trade Unions feel sufficiently strongly about it that industrial action might properly be considered a suitable response to any failure to recognise loyal length of service.

In CLARKE v. ELEY [1983] ICR 165 at p.175D Mr Justice Browne-Wilkinson then President of this Appeal Tribunal said this in a reserved judgment.

"It is most undesirable in present circumstances where redundancies are, unhappily, an everyday event that there should be a doubt as to the question whether or not the formula "last in, first out" is lawful. Therefore, although we cannot ourselves decide the point, it is right that we should indicate our view so as to give as much reassurance as possible. In our view, bearing in mind that Parliament has encouraged the making of redundancy agreements between employers and unions and that "last in, first out" has for very many years been far the most commonly agreed criterion for selection, it would be right for an industrial tribunal to hold that the adoption of "last in, first out" was a necessary means (viewed in a reasonable and common sense way) of achieving a necessary objective, ie an agreed criterion for selection. Accordingly such need outweighs the limited discriminatory effect of adopting the criterion "last in, first out," if any. In our view, to select on the basis "last in, first out" is quite different from selecting on the basis "part-time workers first." Although "last in, first out" may have a limited discriminatory effect, taking part-time workers first is grossly discriminatory. In the present case, 100 per cent. of part-time workers were women; nationally over 80 per cent; of part-time workers are women. Therefore, in balancing the need for an agreed criterion for selection for redundancy against the discriminatory effect of the criterion adopted, the scales are quite differently loaded in the two cases."

Although this guidance is necessarily obiter it was clearly entitled to be given full weight in the future. In BESSENDEN v. CORNESS [1977] ICR 821. Lord Justice Stamp at p.828B said this -

"...but it does not in the least follow ... that when coming to consider under subsection (6) whether the employers had acted reasonably or unreasonably in the circumstances, it is not open to the tribunal to take into account as one of the matters affecting that question that fact that if the employers had to make a painful choice between selecting one employee or another for dismissal, it is, other things being equal, generally regarded as fair to retain the services of that employee who has been longest in service."

We also note the remarks of an Industrial Tribunal sitting in Liverpool in GREIG v. SIR ALFRED McALPINE & SON (NORTHERN) LTD [1979] IRLR 372 that

"...if an employer adopts criteria other than last in, first out for redundancy selection ... he must be able to show both that the criteria adopted are reasonable and that he has applied those criteria rationally and objectively."

A substantial portion of the judgment from that Industrial Tribunal was approved in a reserved judgment in this Court, Browne-Wilkinson J presiding in WILLIAMS v. COMPAIR MAXAM LTD [1982] ICR 156.

It is argued by Mr McMullen for the Applicants that nevertheless length of service is a criterion and he is entitled therefore to look to the provisions of S.1(1)(b) of the 1975 Act.

This may be analytically correct but it seems to us that in the light of history, indeed the approach generally on both sides of industry and in the light of the ACAS advice, that justification will be a fairly simple burden for an employer to undertake.

In the present case it was not the sole criterion. Secondly, the weighting given was the product of detailed consultation with advice from ACAS, the Trade Unions, Council Members and we are told leading Counsel. We also note that Haringey's options were limited. A performance assessment was not practicable in the absence of appraisals and in the face of resistance from the Trade Unions to the setting up of special assessment panels. NALGO had said that they would instruct their members not to participate. ACAS had counselled against the dangers of using performance assessments without those appraisals. Points for training would have proved unfair as training was not open to everybody. ACAS advised against the inclusion of such a criterion. Giving greater weight to conduct would not have had a significant effect.

As we have said earlier it is not suggested that there should be positive discrimination in this case and Haringey had to do what was fair between a number of people. It was entitled to take into account financial and administrative problems and factors see RAINEY v. GREATER GLASGOW HEALTH BOARD [1987] ICR 129. To suggest that a Local Authority like Haringey which had taken initiatives designed to increase the representation of women within its workforce, should then give them preference in a redundancy is to introduce positive discrimination or gender quota.

Lastly, it is argued that the Applicants were required to obtain a preset number of points to avoid redundancy and that this in itself was a condition. It seems to us that no one could have told what the "cut-off" point would be in each particular trade until after the points had been calculated and there could not, in reality, be said to be any pre-determined figure. A person who is rejected because he is not the best candidate on an amalgam of factors has not been subjected to any requirement of condition but he has simply failed to defeat his competitors. It is the position of the individual on the list which is the determining factor not the amount of points scored. The cut-off point is unknown until after the event.

Although it was unnecessary, the Tribunal agreed with the parties that it should deal shortly with pools, detriment and justification. It is clear from a reading of the decision that these issues were not dealt with absolutely fully.

Pools

We have heard submissions on the choice of pools. This is an issue of fact. We can find no reason for criticising the pool which the Tribunal chose. It was a matter for them and was certainly within their discretionary limits.

Detriment

We have been presented with numerous tables, as were the Industrial Tribunal, to show that in practical terms there is no detriment to any one of these applicants from a re-juggling of the conditions and the points awarded under Criteria 3. Looked at overall we are satisfied, as were the Tribunal, that the applicants could not show any detriment.

Justification

The Tribunal deal with justification in paragraphs 220 to 224 of its decision. Mr McMullen criticises some of the wording but looked at in the round it seems to us that the approach of the Tribunal was perfectly correct and that there was indeed overwhelming evidence to justify if justification was necessary. We are unable to accept criticisms which are made of the way in which the Tribunal decided that issue.

It follows therefore that these appeals must be dismissed. The industrial members reject these criticisms levelled at Haringey.

Leave to appeal.