United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 800_93_0812

Appeal No. EAT/800/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 December 1994

Before

HIS HONOUR MR JUSTICE HOLLAND

MR T S BATHO

MR G H WRIGHT MBE

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MRS R M McGOLDRICK          APPELLANT

SOUTH DERBYSHIRE SKI CENTRE LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR R FIRKINS

(Solicitor)

D H Walton

208-213 2nd Floor

Pitman Buildings

161 Corporation Street

Birmingham B4 6PT

For the Respondents MR K MASLEN

(Director)


 


MR JUSTICE HOLLAND: by a Notice of Application dated 13 May 1993, Mrs. McGoldrick made two complaints against the Respondents, her employers. First, she alleged unfair dismissal infringing the right provided by Section 54 Employment Protection (Consolidation) Act 1978. Second, she complained of sex discrimination as defined by Section 1 Sex Discrimination Act 1975.

In the event on 13 September 1993, an Industrial Tribunal sitting at Nottingham, unanimously decided first, that the Respondents did not discriminate against the applicant, contrary to the Sex Discrimination Act 1975 and second that the complaint of unfair dismissal should be rejected because the Respondents did not dismiss the applicant. There is an Appeal by Mrs McGoldrick against those two findings. She started to work for the Respondents at their Swadlincote Ski Centre as part of the bar and kitchen staff on 25 September 1987. There is a finding by the Industrial Tribunal that in about 1989, the Respondents introduced a form of uniform dress which they required all their female staff, other than the manageress to wear at work. All of the staff accepted that continuing requirement. As to the subsequent events, we take them from the Reasons sent to the parties by the Tribunal on 17 September 1993. The facts starting at paragraph 2 are as follows:

"..2. By 1992, the dresses which had been provided were showing signs of wear and tear and it was generally agreed that they needed to be replaced. The respondents place emphasis on an Austrian theme in their restaurant which they regard as an attraction. They have Austrian music; they serve Austrian dishes of food; they sell Austrian beers. They decided that the female staff should be dressed in an Austrian style. They took steps to investigate a design and had a sample manufactured which was worn by a member of the staff for a trial period of some 6 months. At the end of the trial, the respondents made a decision to introduce dresses of that design for all the female staff.

3. The respondents posted a notice saying that it would be a requirement that all female staff should work wearing the new dress as from 17 February 1993. It was at the same time made clear that any male members of the staff were to wear shirts, ties and trousers at work. The applicant was not willing to wear the new form of dress.

4. On 17 February, the applicant presented herself for work in the previous uniform dress and she was then told that she would be taken off rota and not allowed to work unless wearing the new dress which she was not prepared to do. She did not work that evening.

5. She reported for work again on 19 February and she maintained her refusal to wear the new dress. She asked to see the Managing Director, Mr Freeman, who came to have a discussion with her. The applicant, on that occasion, was accompanied by a person claiming to be her representative, but who would not disclose her identity and in those circumstances Mr Freeman was not willing to discuss the matter any further.

6. The applicant left and she did not work for the respondents again..."

Turning to the two complaints that were before the Industrial Tribunal it is, we think, logical to consider first the allegation that there had been unfair dismissal. If it could be shown that the finding of the Industrial Tribunal was wrong on that point, then that would plainly bear upon the allegation made pursuant to the Sex Discrimination Act. As to this issue of unfair dismissal, the Industrial Tribunal at paragraph 11 of their reasons, directed themselves as to the law, citing and quoting Section 55(2) Employment Protection (Consolidation) Act 1978 which reads:

"...an employee shall be treated as dismissed by his employer if, but only if-

(a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice, or...

(c) the employee terminates that contract with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct..."

Having thus directed themselves as to law, the Industrial Tribunal, understandably focused on paragraph (a) so that having reviewed the evidence, they were able to find that it was not the employers who terminated the contract of employment, but Mrs McGoldrick herself. Thus it was that there was no termination which would constitute a dismissal. They then went on to consider whether there was constructive dismissal as defined by paragraph (c). Having carefully considered the facts in paragraphs 14, 15 and 16 of their Reasons, they then found as set out in paragraph 17, that there was no constructive dismissal of Mrs McGoldrick by these employers.

Turning then from this approach to the Notice of Appeal and to the argument advanced to this Tribunal by Mr Firkin, one has to observe immediately that there is no question of law raised by this approach by the Industrial Tribunal; yet further, turning to the facts, Mr Firkin in the course of his submission, recognises that this Tribunal is not in a position to deal with the matter on the basis of argument as to fact. There being no question of law and there being no opportunity or inclination for this Tribunal to re-open the facts, there is no basis upon which this Tribunal can allow that part of the Appeal which relates to the finding that the claim of unfair dismissal should be rejected. Thus it is, we have no hesitation in dismissing that part of the Appeal.

Turning then to so much of the complaint as alleged sex discrimination, in paragraph 7 of the Reasons the Industrial Tribunal directed itself as to law, by citing and quoting Section 1 Sex Discrimination Act 1975 which reads:

(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provisions of this Act if-

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man..."

Having thus directed itself as to law, the Tribunal went on to deal with the facts in this fashion:

"...8 The applicant says that she found the new style of dress embarrassing. It was not in its design in any way offensive or degrading, but it may have been ill-fitting and did not suit her personal taste. There were comments from customers on the new form of dress. Those comments were both favourable and unfavourable.

9. The Tribunal finds that the requirement to wear a uniform in general is not a detriment to female employees who are required to wear it. Mr Perkins on behalf of the applicant argues that the requirement to wear an Austrian style of dress was not applied to male members of the staff. They, however, were required to conform to a particular standard of dress which had been laid down by the respondents.

10. The Tribunal finds that the applicant was not treated less favourably than the male members of treated by the respondents and in those circumstances her complaint of sex discrimination is not made out..."

This Tribunal has considered that approach to the problem, taking into account the finding made subsequently in the Reasons that identical dress had been a requirement of the Respondents for their restaurant staff for some three years or so preceding these material events, during which period of time there had been no objection raised at all.

Mr Firkin has presented his arguments as carefully as he may in the circumstances and with polite persistence, but this Tribunal cannot find any question of law arising from the Reasons given by this Industrial Tribunal, it cannot fault in any way the direction that it made as to law, nor the way in which it sought to apply that law to the facts as it found. That being the situation, then with respect to this further head of complaint, the Appeal is dismissed.

Before departing from this matter, this Tribunal would wish to draw attention to Section 136(1) Employment Protection (Consolidation) Act 1978, which reads:

"(1) An appeal shall lie to the Appeal Tribunal on a question of law arising form any decision of, or arising in any proceedings before, an industrial tribunal..."

We turn from that provision which provides us with jurisdiction to this particular Appeal. We have to deprecate bringing an Appeal to this Tribunal when there is plainly no question of law that arises at all. This was a decision which manifestly identified the law correctly and sought to apply it correctly. If there is a complaint that is raised, it is a complaint that goes to the facts and it is not for this Tribunal to seek to make findings of fact alternative to those made by an Industrial Tribunal. All that has to be stated by this Tribunal firmly, notwithstanding our appreciation of the fashion in which Mr Firkin presented his arguments to us in the course of this Hearing. This Appeal is dismissed.