United Kingdom Employment Appeal Tribunal

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Cite as: [1993] UKEAT 193_92_1901

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BAILII case number: [1993] UKEAT 193_92_1901

Appeal No. EAT/193/92

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 January 1993

Before

HIS HONOUR JUDGE J HICKS QC

MR J P M BELL CBE

MR J D DALY

(1)MRS G DICK (2)MRS A LAMBERTY APPELLANTS

CAMBRIDGE HEALTH AUTHORITY RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

APPEARANCES

For the Appellants MR D DE MASSEY

(REPRESENTATIVE)

Clare House

82 Main Street

Witchford

Ely CAMBS CB6 2HQ

JUDGE J HICKS: The Appellants, Mrs Dick and Mrs Lamberty, are professional physiotherapists and they were employed as such by the Respondents, the Cambridge Health Authority. Because of their domestic circumstances - they both had children of school age and they were both in a position where they had to be available to take care of those children during the whole of school holidays - they undertook employment with the Respondents on the basis that they would work during school terms but not during school holidays and administrative arrangements were made to deal with that.

However, the time came when because of, no doubt, ultimately financial restraints the Health Authority found itself in the position where it could not supply an adequate service of physiotherapy during the year as required at the centres at which Mrs Dick and Mrs Lamberty worked because of their unavailability during school holidays. After lengthy consultations and discussions, and under increasing pressures from the consultants and others who felt that an inadequate service was being supplied, the Health Authority eventually informed Mrs Dick and Mrs Lamberty that unless their working arrangements could be altered so that they were more available during school holidays they would have to terminate their contracts of employment, and eventually they did so.

Mrs Dick and Mrs Lamberty applied to the Industrial Tribunal on the basis that that was an unfair selection for redundancy. As the Tribunal recognised, it was perhaps doubtful whether it really was a redundancy situation at all, but that did not affect the Tribunal's consideration of the substantive question, whether the dismissal was unfair. They also applied separately on the basis that quite apart from "unfairness" in the general sense it was unlawful or unfair on the basis of sexual discrimination.

The Tribunal considered those applications and dismissed them both for reasons which they set out at length. There was then an application for a Review which was also dismissed.

We have to consider on this preliminary hearing of Mrs Dick's and Mrs Lamberty's appeals whether there is any arguable ground for attacking the Decision of the Tribunal which justifies an order that the appeals go forward to full hearings.

Mr De Massey submits that there are such arguable grounds and the first principal ground on which he relies is that a question of what is called estoppel arose, and that that was not considered by the Industrial Tribunal. The first difficulty about this ground of appeal is that he accepts that argument was not advanced in those terms before the Industrial Tribunal, although he says that they necessary evidence was available on it, and the general rule is that questions of law that are to be raised should be raised before the Industrial Tribunal, and it is not an error of law on their part if they fail to pick up a point which was never suggested to them. However, apart from that, even if that difficulty could be overcome it seems to us that this is not an arguable ground of appeal because, if we understand the way Mr De Massey puts it, it rests on a misunderstanding of what the law of contracts, so far as it relates to employment, is.

What Mr De Massey suggests is that there were assurances that Mrs Dick and Mrs Lamberty would not be required to work during school holidays. The truth is that he does not need extra contractual assurances of that kind or any recourse to the law of estoppel because undoubtedly it was part of their contract that they would not work during school holidays. The fallacy in his argument is to suppose that that provided them with some ground under contract law or under the law of estoppel which could prevent the employers doing what they did, that is to say, to dismiss them on due notice.

Contract law provides no protection against dismissal for any reason, good, bad or none, so long as the employer gives the requisite notice that the contract of employment requires. It is precisely because of that lack of protection that the statutory protection against unfair dismissal and against sexual discrimination was introduced. Thus, in our understanding, it avails not Mrs Dick and Mrs Lamberty to show that there was either a contractual or an estoppel reason for saying that they were entitled to work only during school terms and to be exempt from working during school holidays. That indeed was the case, but that contract was lawfully brought to an end so far as contract law is concerned.

The question before the Industrial Tribunal, and which the Tribunal considered, was whether for the purposes of the statute the dismissal was fair or unfair, so we see no possibility that that argument could provide a ground of law upon which the decision of the Industrial Tribunal could be attacked.

Mr De Massey advanced various other potential arguments, admittedly subsidiary in the sense that his estoppel point was his main point, and we therefore deal with the other matters in slightly less detail, although we have taken them all into consideration.

First, he says that the Tribunal disregarded the guide lines laid down by Polkey v Dayton Services in the House of Lords. It is perfectly true that the Tribunal does not refer to that case by name, but of course it does not have to. The question is whether it correctly directed itself in law and the only respect in which Mr De Massey suggests that the Industrial Tribunal failed to follow the principles established in Polkey is that they disregarded, he says, its requirement of consultation. However, it seems plain to us that the Tribunal considered at substantial length the extent to which there had been adequate consultation; they rehearsed the stages through which it went in a fair amount of detail and it seems quite hopeless, in our view, to criticise them on the grounds of failing to have regard to the question whether there had been proper consultation.

The next matter which Mr De Massey raises is that there is a case, Briggs v North Eastern Education & Library Board, he cannot, and does not, complain that the Industrial Tribunal did not refer to it, because they did; he says that they failed to have regard to the fact that it was distinguishable on its facts. In Mrs Briggs's case, her wish to confine her hours of employment to certain hours was one which she herself introduced after the contract of employment had begun because she had adopted a daughter. The answer, in our view, is that the Tribunal plainly did refer to and have regard to that distinguishing feature. The only way, as we understand it, that Mr De Massey can seek to make use of that distinction is to suggest that because that fact distinguishes the Briggs case from the present case therefore the Tribunal must inevitably have decided the present case in the opposite sense of the decision in Briggs. That plainly is fallacious and the question is not whether because of that distinction of fact there must be the opposite result in this case but whether, in considering the present case, the Tribunal asked themselves the right questions, and he has not been able to point us to any passage in which the Tribunal has failed to do that.

He next says that the Industrial Tribunal, which referred among other evidence to a letter from a Dr Mumford, which bore on the question of the lack of physiotherapy facilities in the school holidays, failed also to refer to another letter from him commending Mrs Dick's and Mrs Lamberty's qualities as physiotherapists. However, that is not a criticism which can found an appeal, because the Tribunal expressly found that Mrs Dick and Mrs Lamberty were competent, conscientious and indeed had all the other necessary qualities, and emphasised that no complaint was made against them by the employers from beginning to end on those scores.

Mr De Massey then says that in general the Industrial Tribunal failed to refer in their Reasons to all the authorities and European Commission Directives that they were referred to. They certainly referred to a substantial number of authorities and it is simply not incumbent upon an Industrial Tribunal to list in their Reasons every matter that is referred to them, what they are required to give reasons for their decision. This Tribunal went out of its way, perhaps more fully than it was under any obligation to do, to give reasons and the failure to refer to some particular directive or authority cannot be a ground for appeal.

In some written submissions which Mr De Massey handed in, he mentions some other points which we have looked at. So far as the sexual discrimination aspect is concerned, he draws attention to an authority which shows that there can be indirect discrimination notwithstanding that the employer would have treated a comparable male in the same way as he treated the female Applicants. However, in our understanding the Tribunal perfectly recognised that and went on to consider the further basis, commonly called indirect discrimination, in which although the employer treats males and females or treats females and would have treated males in the same way, nevertheless, there is discrimination because what is required is something that is, to paraphrase it in general terms, more difficult for female employees to comply with than males.

The Tribunal recognised that and effectively accepted that the Applicants succeeded in establishing that question, but they then went on to consider the next question which arises under Section 1(b) of the Sex Discrimination Act 1975, which is whether a requirement is justifiable irrespective of the sex to whom it is applied, and they concluded, and it seems to us a conclusion which they were entitled to arrive at because it was a matter of fact for them to find, that this requirement that there be an adequate service provided in the school holidays was one which was justifiable so far as employers were concerned irrespective of the sex of the person as employee to whom it was applied. Therefore we can see no ground for appealing on that basis.

Finally, Mr De Massey said that the Decision was perverse in the sense that no reasonable Tribunal directing itself correctly as to the law could have reached the conclusion which this Tribunal reached. That is a ground which can only be dealt with quite shortly, because either it appears to us that that is the case or it does not, and it seems to us quite clear that there is no possible prospect of attacking this Industrial Tribunal's decision on the grounds of perversity. For those reasons we have come to the conclusion unanimously that these appeals have no prospect of success and should be dismissed at this stage and we so order.