United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 315_95_0205

Appeal No. EAT/315/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25th January 1996

Judgment delivered on 2nd May 1996

Before

THE HONOURABLE MR JUSTICE TUCKER

MR E HAMMOND OBE

MRS J M MATTHIAS

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BRITISH TELECOMMUNICATIONS PLC          APPELLANTS

MRS H M P ROBERTS & MRS A LONGSTAFFE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant RUTH DOWNING

(of Counsel)

BR Group

Legal Services

81 Newgate Street

London EC1A 7AJ

For the Respondents CLIVE LEWIS

(of Counsel)

Lawford & Co

Solicitors

102-104 Sheen Road

Richmond

Surrey

TW9 1UF


 


MR JUSTICE TUCKER: This is an appeal by employers from the decision of an Industrial Tribunal sitting at Southampton on 11 January 1995. The unanimous decision of the Tribunal was that the Appellants had discriminated against both Respondents on grounds of sex. They awarded each of the Respondents £500 for hurt feelings, and they recommended that both Respondents should be allowed to job share by 11 March 1995. The two cases gave rise to similar considerations and were by consent heard together.

The Respondents are young women who are employed by the Appellants as Customer Service Advisers. Mrs. Roberts is now aged 27 having been employed since 11 September 1989 and Mrs. Longstaffe is 35 having been employed since 6 January 1986. They each complained to the Industrial Tribunal of sex discrimination, the details of which are set out in Box 10 of their Originating Applications. The Appellants denied sex discrimination in the case of either Respondent.

The complaints arose out of the fact that following maternity leave the Respondents were not considered for a job share arrangement. They had both been full-time employees and therefore worked from Monday to Friday. That had once been sufficient to man Customer Service Department. But due to customers' demands the Appellants found it necessary to extend the original hours of the Department to include Saturdays, and also extended hours during the week.

Both Respondents took maternity leave during 1994. They wanted to return to work afterwards, but because they had young babies to look after, they decided that they would like to share jobs so they would have more time for their children. They applied accordingly.

An agreement had been reached between the Appellants and the Respondents' Trade Union about Job Sharing. The Terms of Conditions of this agreement are set out in a document which is before us. The relevant part is Paragraph 2:

"Applications from staff from any NCU represented grade will be considered in the light of the operational needs of the job concerned to determine whether it is suitable for sharing. Although all reasonable efforts will be made to meet applications it cannot be guaranteed that every request will be met."

For reasons the logic of which escaped the Tribunal and which also escapes us, the Appellants' Manager Mr. McLennan refused the applications. He wrote a letter to the Union on 22nd February 1994 in which he said this:

"Since the inception of part-time working in CSC with a 6 day span for the working week, I have not considered job share as a practical solution in the CSC. Job share was made available prior to this and I have two pairs. All those returning from maternity leave to date have changed to part-time, and play a full role in the CSC. I believe this to be the natural alternative with CSC."

In evidence before the Tribunal, Mr. McLennan said that if he had considered either job in isolation there is no reason why it could not individually have been shared. He did not look at the individual jobs, but instead looked at the operational needs of his whole department and he saw the general need was for flexibility in his department and Saturday working, and for doing what might be termed unsocial hours.

Without considering the job itself, he merely said (and we paraphrase); "I need part-timers in my department".

In Paragraphs 39 and 40 of their decision, referred to by Counsel for the Respondents as Key Paragraphs, the Tribunal set out their conclusions as follows:

39. "It is obvious to us that Mr. McLennan failed to give proper or reasonable consideration to the applicants' applications for job sharing, and therefore they have both suffered a detriment within the meaning of Section 6(2)(b) of the Sex Discrimination Act 1975, or alternatively they have not had a "proper access to opportunities for ... or any other benefits" within the meaning of Section (2)(a) of the same Act.

40. This discrimination within the meaning of Section 6 followed directly from their pregnancy and maternity leave, and as such would be automatically direct discrimination on grounds of sex within the principles laid down by the European Court of Justice in Dekker (1992) ICR 325 and Webb v EMO Air Cargo Ltd. (1994) ICR 770.

These are the sole reasons given by the Tribunal for their finding of discrimination, which both sides agree were findings of direct discrimination.

We are bound to say that we have some difficulty in following the Tribunal's reasoning in these two paragraphs. We cannot understand why it should necessarily follow from Mr. McLennan's failure to give proper or reasonable consideration to the applications (presumably a reference to Paragraph 2 of the Job Sharing Agreement) that the Respondents should have suffered a detriment or other disadvantage. We can only think that what the Tribunal had in mind was the affect on Mrs. Longstaffe in having to work part-time, including Saturday work, and on Mrs. Roberts in having to work full-time. Our further difficulty is in understanding why the Tribunal concluded that discrimination occurred, or why it followed directly from the Respondents' pregnancy and maternity leave.

Counsel for the Appellants submits with some force that it is axiomatic that in order to find direct discrimination the Tribunal had to have grounds for finding that the refusal to allow the Respondents to share jobs was taken on the grounds that they were women. There was no evidence that we can see to suggest that a man would have fared any better. It seems to us that the finding of direct discrimination arose solely from the Tribunal's view that since the requests and refusals followed directly from the pregnancy and maternity leave, there was automatically direct discrimination on the grounds of sex.

There is no doubt that the pregnancy and maternity leave in each case was the occasion for or precipitated the request. But whether that directly caused the request or the refusal is another matter. It is necessary to examine what rights the Respondents had on their return from leave. The answer is that they were entitled to continue in their old jobs on the same terms as before. This is what Mr. McLennan offered them in Memos dated 6 January 1994: "You are able to return to your full time post or, if you prefer, I can offer a part-time CO post of 20 hours. The job share option does not help the CSC with Saturday attendance and this is the prime need here at present." In a subsequent letter of 22 February 1994 to the Respondents' Union Representative, Mr. McLennan said this: "My obligation to my people on maternity leave is to hold their jobs open for them. I am happy to do this for both Helen and Annette. However, as they have requested an alteration to their contract I must put the CSC needs first."

It may be that Mr. McLennan was unreasonable in refusing the Respondents' requests. But Miss Downing for the Appellants is correct in her submission that reasonableness has nothing to do with direct discrimination, though it may be a matter for discussion with the Union. In our opinion the situation which gave rise to the application to the Tribunal did not arise because the Respondents sought to exercise their Statutory rights, but because they did not seek to do so, but rather sought to alter the terms of their employment. It is understandable that the Respondents should feel disappointed that their requests were refused, but they do not in our opinion show that they were discriminated against.

The Tribunal were of course right to consider the affect of the decision of the European Court of Justice and House of Lords in Webb v Emo Air Cargo (UK) Ltd. [1994] ICR 770 and [1995] ICR 1021. But that decision ought not to be extended beyond its intended scope. ~This is defined in the speech of Lord Keith at p.1027 of the 1995 report.

"It seems to me that the only way of doing so is to hold that, in a case where a woman is engaged for an indefinite period, the fact that the reason why she will be temporarily unavailable for work at a time when to her knowledge her services will be particularly required is pregnancy is a circumstance relevant to her case, being a circumstance which could not be present in the case of the hypothetical man. It does not necessarily follow that pregnancy would be a relevant circumstance in the situation where the woman is denied employment for a fixed period in the future during the whole of which her pregnancy would make her unavailable for work, no in the situation where after engagement for such a period the discovery of her pregnancy leads to the cancellation of the engagement."

Moreover it seems to us that the result of the decision of the European Court of Justice in Handels-OG Kontorfunktion [1992] ICR 332 is that the relevant Council Directive does not envisage the case of an illness attributable to pregnancy or confinement, and does not preclude dismissals which are the result of absences due to such an illness. A woman is protected against dismissal due to absence during the maternity leave accorded to her pursuant to national law, but not otherwise. As the Court said in paragraph 16 of their decision:

"In the case of an illness manifesting itself after the maternity leave, there is no reason to distinguish an illness attributable to pregnancy or confinement from any other illness. Such a pathological condition is therefore covered by the general rules applicable in the event of illness."

Therefore in our opinion the period protected by statute is the period of the maternity leave, currently fixed at a period of 11 weeks before confinement, and 29 weeks afterwards, a total of 40 weeks. Once a woman returns to work after her leave, the statutory protection finishes, and her work thereafter is to be considered in the same circumstances as if she were a man. Women and men are equally likely to be ill, and also Miss Downing submits that they each have child care needs. While not necessarily agreeing with that latter submission, we do agree that what happened to these two Respondents had nothing to do with them being pregnant, but with them having children to look after, and that they were not permanently entitled to rely on having had babies as a protecting feature.

We are fortified in this reasoning by the decision of EAT in Bovey v Board of Governors of the Hospital for Sick Children [1978] ICR 934, where Phillips J said this at p. 937G:

"It seems to us that there are a number of objections to the employee's claim founded on that paragraph. In the first place, it should be noted that the case is one where the employee "has a right ... under a contract of employment ... to return to work". It seems clear to us that what that has in mind, and what this is aimed at, is a contract of employment under which the employee is employed when she departs on maternity leave. It would be very odd, as is contended in the present case, if it related to some specific contract, as indeed is the case here, to re-employ her on some other and different basis agreed between the parties.

There is, it seems to us a further objection; that is, that there is no right here which can sensibly be described as "a right to return to work" independently of the Act of 1975, under a contract of employment or otherwise. What happened was that she became pregnant; her old job was open to her if she cared to return to it. To that extent, of course, there was implicit a right to return to work; but that was under her original contract of employment and not otherwise, and what is relied on here is a collateral agreement to return as a part-time physiotherapist, basic grade. It does not seem to us that, in the terms of the Employment Protection Act 1975, that is a contract under which she acquired a right to return to work. Her right to return to work existed independently prior to that and was always recognised. This was merely a collateral agrement about the particular work that she would do when she did return. So for that reason, too, as it seems to us, she does not come within the section."

The Respondents never sought to adduce evidence before the Industrial Tribunal to support a finding that a man seeking for whatever reason to alter his hours of employment would have been treated more favourably or in any different way. In our opinion the reason for the refusal of the Respondents' requests was a gender-neutral reason which had nothing to do with their pregnancy or maternity leave.

We reject the contrary argument advanced by Mr. Lewis on the Respondents' behalf. He submitted that in reality the Appellants were taking advantage of the opportunity presented by women who were placed in a vulnerable position as a result of having a child, in order to obtain the unconnected benefit of obtaining Saturday workers.

So far we have confined ourselves to dealing with the claim of direct discrimination - we agree with Mr. Lewis that this must be considered separate from the claim of indirect discrimination. He may be right in his submissions that direct discrimination is concerned solely with the way in which the Appellants dealt with and refused the applications for job sharing, whereas indirect discrimination is concerned with the differential treatment of full-time and part-time workers.

Mr. Lewis submits that direct discrimination occurred through the failure by Mr. McLennan to make all reasonable efforts to meet the applications for job sharing. However, we are unable to agree, for the reasons we have already given, that even if no such efforts were made, that that gave rise to direct sex discrimination.

Mr. Lewis relied on the decision of the European Court of Justice in Dekker v VJV-Centrum [1992} ICR 325, and in particular on a passage in Paragraph 14 of the Judgment (p.329) where the court said this:

"... an employer is in direct contravention of the principle of equal treatment embodies in articles 2(l) and 3(l) of Council Directive (76/207/E.E.C.) on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions if he refuses to enter into a contract of employment with a female candidate whom he considers to be suitable for the job where such refusal is based on the possible adverse consequences for him of employing a pregnant woman, owing to rules on unfitness for work adopted by the public authorities which assimilate inability to work on account of pregnancy and confinement to inability to work on account of illness."

However there is a distinction between that case and the present case before us, because at the time Mr. McLennan made his decision neither woman was pregnant, and he was not refusing to employ them on that ground.

We referred earlier to the Tribunal's conclusion that the Respondents had suffered a detriment or other disadvantage. But there are no clear or express findings as to the reasons for reaching this conclusion, and no reference to any evidence which was adduced before the Tribunal as to any detriment to either Respondent in having to work the hours they did. It does not necessarily follow that part-time working including Saturdays, is detrimental to an employee.

For all these reasons we are of the opinion that the Industrial Tribunal were wrong in law in deciding that the Appellants were guilty of direct discrimination against either Respondent on the grounds of her sex and we quash their decision to that effect and the Orders made consequentially upon it.

However, that is not the end of the matter, because the Respondents claim that the Appellants have indirectly discriminated against them. We have already referred to the way in which Mr. Lewis advances that submission.

Here we are in some difficulty, since the Tribunal do not appear to have considered the point and gave no ruling upon it. It was a matter which was clearly raised in the Originating Application, and opposed in the Notice of Appearance, but it may be that as the Tribunal found in favour of the Respondents on the complaints of direct discrimination, they felt it unnecessary to go on to consider the alternative claim of indirect discrimination.

Mr Lewis's submission is that the condition imposed on the Respondents was that if they worked full-time they could work Monday to Friday, that if they wanted to work part-time, they would have to work on Saturdays and other unsocial hours, and that to have to work on Saturdays is of itself a detriment. He submitted in reliance on the decision of the Employment Appeal Tribunal in Home Office v Holmes [1984] ICR 678 that the request amounted to work full-time amounted to a requirement or condition within the meaning of that expression in Section 1(1)(b) of the Sex Discrimination Act 1975. He further submitted that this put the Respondents under a disadvantage which amounted to a detriment, and relied on the decision of the Court of Appeal in MOD v Jeremiah [1980] ICR 13.

We do not feel that we have sufficient material before us to pronounce on these questions. In particular we cannot possibly decide the question of justifiability. However, while we cannot say one way or the other whether the Respondents can make out a case of Indirect Discrimination, we do feel that this is a matter which should be considered by the Industrial Tribunal as the fact finding Tribunal.

Accordingly we remit the case to the Industrial Tribunal for further consideration on this one point of Indirect Discrimination. We invite the Regional Chairman to appoint a Tribunal to do so. If the same Tribunal as before can be reconstituted, all well and good. Otherwise the matter will have to be considered by a freshly constituted Tribunal.