United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 359_93_0712

Appeal No. EAT/359/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7th December 1993

Before

THE HONOURABLE MR JUSTICE TUCKER

MR K M HACK JP

MR A FERRY MBE

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STOKE ON TRENT COMMUNITY TRANSPORT          APPELLANTS

MISS LISA CRESSWELL          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR M SYLVESTER

(Of Counsel)

Messrs Rees Jones

Huntbach & Phoenix

6-10 Bagnall Street

Hanley

Stoke-on-Trent

ST1 3AQ

For the Respondent MS I OMAMBALA

(Of Counsel)

Messrs Robin Thompson

& Partners

Bethesda Chambers

Lower Bethesada Street

Henley

Stoke-on-Trent

ST1 3TA


 


MR JUSTICE TUCKER: This is an employer's appeal from a decision of an Industrial Tribunal sitting at Birmingham on the 2nd December 1992 whereby it was held that the Applicant, the Respondent to the present appeal, succeeded in her complaint that she had been unlawfully discriminated against in relation to her employment.

The Appellants, the Stoke-on-Trent Community Transport, are a charitable organisation providing transport facilities for elderly and handicapped people in the City of Stoke-on-Trent. The Respondent, Miss L Cresswell, had been employed by the Appellants since the 26th March 1990, as a clerk in their office. She was dismissed from that employment on the 28th February 1992. So she had not been employed for as long as two years and it was not open to her to complain that she had been unfairly dismissed. It was necessary for her to establish that she had been discriminated against on the ground of her sex.

The Respondent alleged and the Tribunal found that the principal reason for that dismissal was that she wore trousers. The Appellants denied that. They stated that it was because of difficulty in funding which necessitated the reduction of staff by one, coupled with other matters relating to the Respondent, including her dress at work.

That was not the reason given by the Appellants in their Notice of Appearance. In paragraph 8 of that document they gave, as the grounds on which they intended to resist the application, the fact that the Respondent objected to paying Poll Tax and that when the City Council made an attachment order against her wages her attitude changed. Nothing now turns on that but it may explain why the Industrial Tribunal did not make such precise findings of fact as they might have done if the Appellants had focused their attentions throughout on the real question in the case which is one of sexual discrimination.

The grounds of the appeal are those set out in the Notice of Appeal supplemented by the Appellants' solicitor's letter of the 28th April 1993. In our view the first two grounds set out in paragraph 3 (a) and (b) of the Notice, either cannot found an appeal or have not been substantiated. The real ground of complaint is to be found in paragraph 3(c) as amplified in the letter i.e.:

". . whether it constituted sexual discrimination to forbid the respondent, who was an office worker, to wear trousers at work, whilst male drivers working for the Appellant were not subject to a real dress code."

The Appellants complain that in reaching its conclusion, that there had been sexual discrimination, the Tribunal were wrongly comparing drivers with office staff.

Mr Sylvester, who has appeared before us for the Appellants, concedes that he is bound by the Tribunal's finding that the dismissal was for wearing trousers. The Tribunal expressly rejected the Appellants' argument that they operated a dress code for bus drivers whom they employed. They had made no express finding about the existence of such a code for office workers, though they did find that this matter had not been communicated to the Respondent at her initial interview.

In paragraph 7 of their decision the Tribunal pose the proper question for them to answer - i.e:

"Having found the principal reason for the dismissal we then had to consider whether this amounted to unlawful discrimination under the provisions of Section 6(2)(b) of the Sex Discrimination Act 1975."

Where, as in this case, it is and was necessary for the Tribunal to examine how the Respondent was treated in relation to other employees, it is necessary also to bear in mind the provisions of Section 5(3) of the Act:

"A comparison of the cases of persons of different sex . . . must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

This is the "like for like" test referred to in several of the cases, and as Mr Sylvester reminded us, the test is one which comes from that provision of the Statute and is a mandatory test "must be such" etc.

That is what the Tribunal attempted to do. They compared what had happened to the Respondent with what had apparently, not happened, to the drivers. The Tribunal referred to the four or five male drivers. They Appellants say it was wrong to find that there were only four or five male drivers, they point to two passages in the Notes of Evidence where there are references to women drivers also. There may have been occasions when women were employed as drivers but we accept the submission of Miss Omambala for the Respondent that at the material time all the drivers were male. There can be no doubt that the Respondent was treated differently from those male drivers. The Tribunal were entitled to look for an explanation for this. It was for the Appellants to produce evidence to show that this was not due to any sexual discrimination but was for gender neutral reasons. Miss Omambala submits that the reasons put forward were rejected by the Tribunal, that the Tribunal made a proper approach to the problem and that they arrived at a decision which it was proper for them to reach.

We conclude that the Tribunal were justified, on the evidence which was before them, in finding that at the date of the Respondent's dismissal all the drivers were male and that they seemed to be able to dress as they wanted without let or hindrance. It was justifiable for the Tribunal to go on to conclude that since the male drivers had not been dismissed for that reason, the Appellants, in dismissing the Respondent, a woman, for a similar reason must have discriminated against her on the grounds of her sex.

We emphasise that it is not open to us to conduct a re-hearing. We might not have reached the same conclusion as the Tribunal did on the evidence which it had before it, but we can only interfere if it is shown that the Tribunal went wrong in law or that they reached a perverse finding on the facts. We are not persuaded that either of those events occurred here. These employers placed themselves in a position where they were vulnerable to an accusation of sexual discrimination. They came up with a belated explanation which the Tribunal rejected. The Tribunal having heard the evidence were entitled to reach the decision which they did. It was a decision which could reasonably be reached by any reasonable tribunal. Cases have been cited to us where situations were not "like for like" but in the present case which concerns a small organisation, employing very few staff operating from the same premises, there is in our opinion no determinable difference between the bus drivers and the office workers. Although, it is true to say, that Mr Sylvester asks us to bear in mind, and we do, that here the drivers were issued with uniforms and the office workers were not. The most helpful of the cases which have been cited to us was that of M Schmidt v. Austicks Bookshops Ltd [1978] ICR 85 which was a decision of this Tribunal presided over by the late Mr Justice Phillips. It concerned the dismissal of an employee on the ground that she had been sexually discriminated against in that she was obliged to wear a skirt. At page 87 of that case between letters B and C Mr Justice Phillips delivering the judgment of the Appeal Tribunal said this:

"But because the complainant's dismissal for refusing to obey the rules about clothing was caused by a refusal to wear a skirt the Industrial Tribunal said correctly (and this is not challenged) that it could not be said that within the term of s.6(2)(b) there was discrimination by dismissing her, because she was not dismissed for refusing to wear overalls."

and on the same page between G and A on the following page, the learned Judge said this:

"It really comes to this, that if one considers the situation of the men and the situation of the women there was no comparable restriction which could be applied to the men, equivalent to that applied to the woman, preventing them from wearing trousers which could make it possible to lead to the conclusion that the women were being treated less favourably than the men. In other words we agree with the view of the Industrial Tribunal about this but might be rather more inclined to let that reasoning lead to a conclusion under s.1(1)(a) than under s.5(3); but the result is the same.

According we agree with the Industrial Tribunal about the skirts, which means that we agree with them also about the result of the case."

and there is another passage of general application at the end of that judgment, which is in these terms:

"we can say as a general proposition (of course, we are only talking about discrimination in the field of employment) that an employer is entitled to a large measure of discretion in controlling the image of his establishment, including the appearance of staff, and especially so when, as a result of their duties, they come into contact with the public."

The next and important case to which our attention is invited is that of Automotive Products Ltd v. Peake [1977] ICR 968 (CA). At page 973, Lord Denning MR said this at B:

"Although the Act applies equally to men as to women, I must say it would be very wrong to my mind if this statute were thought to obliterate the differences between men and women or to do away with the chivalry and courtesy which we expect mankind to give womankind. The natural differences of sex must be regarded even in the interpretation of an Act of Parliament."

and another interesting passage appears in the judgment of Lord Justice Shaw at page 975 between letters C and D:

"The Sex Discrimination Act 1975 was not, in my judgment, designed to provide a basis for capricious and empty complaints of differentiation between the sexes. Nor was it intended to operate as a statutory abolition of every instinct of chivalry and consideration on the part of men for the opposite sex. The phrase used in all the prohibitions imposed by the Act is `discrimination against' one sex or the other. This, to my mind, involves an element of something which is inherently adverse or hostile to the interests of the persons of the sex which is said to be discriminated against."

The final case to which we would refer is that of Webb v. EMO Air Cargo (UK) Ltd [1992] ICR 445 another decision of the Court of Appeal. That case concerned the dismissal of a woman employee on the grounds her pregnancy. Lord Justice Glidewell's judgment is the leading judgment in that case and we bear in mind the passage in it at page 455 between F and H:

"In my judgment, if a woman was dismissed from employment for a reason arising out of pregnancy and she claims that she was discriminated against in breach of the Sex Discrimination Act 1975, it is necessary for the industrial tribunal which hears her complaint to decide whether a man with a condition as nearly comparable as possible which had the same practical effect upon his ability to do the job would, or would not, have been dismissed. I therefore conclude that dismissal of a pregnant women for a reason arising out of, or related to, her pregnancy can in law be, but is not necessarily, direct discrimination under section 1(1)(a)."

We have borne in mind those authorities, and in particular the passages in the judgments to which we have specifically referred and we have sought to apply those principles to the present case. We are bound to say that we do not find this an easy case. We have no doubt at all that the Appellants over reacted to the Respondent's conduct and that they were wrong to dismiss her. We have no doubt that if she had been employed for the requisite time that dismissal would have been declared to be unfair. That of itself does not suffice, but having heard careful arguments on both sides, and having given the matter close consideration, we find that the Tribunal were justified in concluding that the case went further than that and that there was material before the Tribunal which justified them in reaching the decision which they did. We cannot say that it was a perverse decision nor can we say that it was wrong in law. We are not re-hearing the case but we do not find grounds for disturbing the decision which the Tribunal reached.

For those reasons this appeal must be dismissed.

This is not a case where we think it appropriate to make an Order for Costs. This is a decision with which Mr Ferry would have agreed.