United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 325_95_2802

Appeal No. EAT/325/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28th February 1996

Judgment delivered on 13th May 1996

HIS HONOUR JUDGE P CLARK

MR J H GALBRAITH CB

MR N D WILLIS

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P KARA          APPELLANT

LONDON BOROUGH OF HACKNEY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MS L COX Q.C.

The Legal Department

Liberty

21 Tabbard Street

London SE1 4LA

For the Respondents MR R SINGH

(of Counsel)

The Solicitor

The London Borough of Hackney

29 Mare Street

London E8 1HE


 


JUDGE CLARK: This is an appeal by the employee, Paul Kara, against a decision of the London Industrial Tribunal sitting at Stratford on 13th January 1995 (Chairman: Mr Andrew Bano) dismissing his complaint of unlawful direct sex discrimination against his employer, the London Borough of Hackney. Extended reasons for that decision are dated 6th February 1995.

The appellant is 35 years old. He commenced employment with the Inner London Education Authority ["ILEA"] in July 1984. On the demise of that authority he was transferred to the respondent, first to the Education Department and later the Social Services Department, where he is now employed as a Training Administrator. There was an evidential dispute, left unresolved, before the tribunal as to the extent to which his work brought him into contact with the public and representatives of other bodies during the course of his ordinary working duties. However, it was common ground that there was a degree of such contact.

The appellant describes himself as a bi-sexual male transvestite. He is not trans-sexual and does not wish to become a woman. He is divorced. Throughout his employment with ILEA and with the respondent until about March 1993 he wore items of clothing conventionally regarded as female wear at work, including leggings, tights, tee shirts with halter tops and belts. On two occasions prior to April 1993 he wore a skirt.

Shortly after the second occasion he was interviewed by the Social Services Manager, Mr Roger Catchpole, who told him that his style of dress had become an issue in the department. As a result the appellant volunteered to desist from wearing items of clothing which might be regarded as confrontational.

He then pursued the matter internally through his trade union Gay Mens officer. Eventually the matter was referred to the Deputy Director of Social Services, Mr Ian Wilson, who interviewed the appellant at length. Two principal issues arose out of the respondent's restrictions on the appellant's preferred mode of dress; the first concerned his religious beliefs, with which we are not concerned; the second was whether such restrictions raised equal opportunities issues.

On 16th November 1993 Mr Wilson wrote a long letter to the appellant setting out his views on both questions. We have considered that letter, as did the tribunal; in their view it revealed sensitivity, objectivity and an understanding of the importance of equal opportunities issues. Mr Wilson concluded that no such issue arose.

The respondent did not, at that time, have a written dress policy. That came later in April 1994. However it was common ground that at the relevant time there was in place an instruction that all staff were required to attend work looking clean, neat and appropriately dressed. The reason behind that policy was that the respondent wished to enhance its image in its dealings with the public, the business community and representatives of Government. The dress restrictions were applied to both male and female members of staff. In evidence the respondent referred to two specific occasions when female employees had been taken to task about their dress.

Not content with Mr Wilson's decision the appellant presented a complaint of sex discrimination to the Industrial Tribunal on 21st January 1994. He set out the grounds of his complaint in this way:

"ON 16 NOVEMBER 1993 THE DEPUTY DIRECTOR OF SOCIAL SERVICES MR IAN WILSON WROTE THE ATTACHED LETTER TO ME. IN IT HE BANNED ME FROM BEING ABLE TO COME TO WORK IN WHAT HE DESCRIBES AS WOMENS CLOTHING. THIS AMOUNTS TO DIRECT DISCRIMINATION AGAINST ME ON GROUNDS OF GENDER SINCE NO SUCH INSTRUCTION HAS BEEN ISSUED AGAINST ANY FEMALE EMPLOYEE TO BAN THEM FROM ATTENDING WORK BECAUSE THEY WERE WEARING WHAT MR WILSON OR ANY OTHER MANAGER WOULD DESCRIBED AS MALE CLOTHING.

THE EFFECT OF THIS EMBARGO HAS LEFT ME FEELING THREATENED BY UNJUSTIFIABLE DISCIPLINARY ACTION. IT MAY AFFECT MY WORK SIGNIFICANTLY SINCE I FEEL HUMILIATED AND DISTRACTED. I SEEK A DECLARATION THAT MR WILSON'S DECISION AMOUNTS TO DIRECT DISCRIMINATION AND APPROPRIATE COMPENSATION."

Having set out the facts as they found them the Industrial Tribunal, in paragraph 13 of their reasons, directed themselves as to the law by reference to a passage in the judgment of this appeal tribunal (Phillips J presiding) in Schmidt v Austicks Bookshops Ltd [1978] ICR 85, 88 A-D. They then reach this conclusion in paragraph 14 of their reasons:

"14 Although the facts of that case [Schmidt] might not lead to the same decision today in view of changes in fashion since 1977, the principle of law which it lays down is, in our judgment, still valid. On the basis of the Respondent's evidence, we are satisfied that at all material times the Respondents had in force a policy on dress requiring employees to dress cleanly, neatly and appropriately for the job which they were doing. We are also satisfied that the Respondents applied that policy equally to both their male and female employees."

They dismissed the complaint.

Ms Laura Cox Q.C., on behalf of the appellant, accepts first that the Industrial Tribunal was entitled to make the findings of fact set out in paragraph 14, and secondly that the tribunal correctly applied the Schmidt principle. During oral argument heard on 28th February 1996 she did not seek to distinguish Schmidt on the facts of this case, but invited us to overrule Schmidt on the basis that it is not good law. As a matter of authority she submitted that the reasoning in Schmidt relied on by this Industrial Tribunal was based on the Court of Appeal decision in Peake v Automotive Products Ltd [1977] ICR 968, but that the relevant part of the reasoning in Peake was later expressly disavowed by the Court of Appeal in Ministry of Defence v Jeremiah [1980] ICR 13. Secondly, and in any event, she argued that the reasoning in Schmidt cannot survive the House of Lords decision in James v Eastleigh Borough Council [1990] ICR 554. She has helpfully summarised her submissions that Schmidt is no longer good law by way of the following propositions:

(i) the reasoning in Schmidt depends on the rationale of the Court of Appeal in Peake, namely that regard must be had to the differences between men and women when considering whether the applicant has been treated less favourably than, in this case, a woman for the purposes of Section 1(1)(a) of the Sex Discrimination Act 1976 ["SDA"].

(ii) that approach was subsequently rejected by the Court of Appeal in Jeremiah, leaving only the `de minimis' principle standing in the case of Peake.

(iii) This is not a de minimis case, as Mr Rabinder Singh, on behalf of the respondent, accepts.

(iv) Although Schmidt has been followed by the Employment Appeal Tribunal in Burrett v West Birmingham Health Authority [1994] IRLR 7 (a case in which the Court of Appeal refused leave to appeal) and Smith v Safeway Plc [1995] ICR 472, no consideration was given in those cases as to whether its legal basis was still valid.

(v) in the absence of the `de minimis' principle it is necessary to go on to ask the question in James - did this appellant receive less favourable treatment on the grounds of his sex, in other words, but for his sex would he have received the treatment which he did.

(vi) If the "but for" question is asked, the appellant's complaint must succeed.

Alternatively, she submitted that if Schmidt was correctly decided on the wording of the SDA, then the domestic legislation is in conflict with the Equal Treatment Directive (76/207/EEC) ["the Directive"]. This was a new point, not raised before the Industrial Tribunal, to which we shall return.

Following the oral hearing before this tribunal we reserved our judgment. It then came to our attention that on 16th February 1996 the Court of Appeal had given judgment in the employer's appeal against the majority decision of this tribunal in Smith v Safeway (reported. Times. 5 March 1996). We were not directed to this recent authority by Counsel and invited written representations on the effect of that decision on the issues raised in this appeal. We have considered those submissions in addition to the oral arguments advanced at the hearing of this appeal. Having done so, it now appears that the following questions arise for determination:

(1) are the statements of principle contained in the judgment of the Court of Appeal in Smith v Safeway prima facie dispositive of the issues in this appeal?

(2) If so, was Smith decided per incuriam?

(3) If not, does the approach of the Court of Appeal in that case signify a conflict between the SDA and the Directive?

(4) If such conflict does or may arise in this case ought we to refer the matter to the European Court of Justice?

(5) Given that issues (3) and (4) above were not raised before the Industrial Tribunal, ought we to entertain them in this appeal?

(6) Ought we to grant leave to the unsuccessful party to appeal to the Court of Appeal?

We shall deal with each issue in turn.

Smith v Safeway

In Smith the applicant's hair style breached the employer's rule that male staff should have tidy hair not below collar length. No similar rule applied to female staff. The Industrial Tribunal dismissed his complaint under the SDA, applying Schmidt, holding that although the employer had different rules governing dress and appearance for men and women, those rules were rigorously applied and it was not discriminatory to require different hair lengths. On appeal, the Employment Appeal Tribunal by a majority (Pill J dissenting) reversed the Industrial Tribunal decision. However it is clear from reading the report that all three members accepted the principle in Schmidt; the majority members distinguishing it on the facts of the case.

It is equally clear that the argument before the Employment Appeal Tribunal included a submission on behalf of the appellant that Schmidt could no longer stand in the light of James. That argument was rejected by this tribunal (479H-480D) on the basis that in James it was accepted that the male applicant received less favourable treatment; the issue was whether that was on the grounds of his sex. Different treatment is not necessarily less favourable treatment.

The Court of Appeal accepted that Schmidt was plainly correct and formulated the principles to be applied where it is alleged that an employer's appearance code was unlawfully discriminatory as follows:

(1) There is an important distinction between discrimination between the sexes and discrimination against one or other of the sexes. It is the latter which is forbidden by the SDA. Further this approach accords with the meaning of "discrimination" in the Directive and the SDA gives full effect to the Directive.

(2) That it is necessary for a complainant to show not merely that the sexes were treated differently, but that the treatment accorded to one was less favourable than the treatment accorded to the other.

(3) In considering the effect of a code governing appearance, it is necessary to look at the rules overall, not item by item. This applies both to dress and physical appearance.

(4) Whilst accepting that one of the objects of the prohibition of sex discrimination was to relieve the sexes from unequal treatment resulting from conventional attitudes, that does not necessarily render discriminatory an appearance code which applies a standard of what is conventional. A code applying conventional standards applies an even-handed approach between men and women and is not one which is discriminatory.

(5) The particular code must be looked at as a whole; neither sex must be treated less favourably as a result of its enforcement.

Applying those principles to the facts in Smith the Court of Appeal concluded that the majority members of the Employment Appeal Tribunal had substituted their view for that of the Industrial Tribunal on the facts. Such an approach was impermissible in the absence of a perverse finding by the Industrial Tribunal. The appeal was allowed.

Similarly, applying those principles to the facts of this case it is abundantly clear that this Industrial Tribunal reached a permissible conclusion on the facts as found; it correctly applied the law; we cannot interfere with the decision subject to the further issues raised in the appeal.

Was Smith decided per incuriam?

We have considered the unrevised judgment of Phillips LJ, which expresses the reasoning of the Court and is fairly summarised in the Times law report. There is no mention of the argument advanced by Ms Cox in the instant appeal to the effect that Schmidt followed that part of the reasoning of the Court of Appeal in Peake which was later disavowed in Jeremiah. However, in our judgment the reasoning in Schmidt, upheld by the Court of Appeal in Smith, does not depend upon that part of the reasoning in Peake which was later disapproved in Jeremiah. We do not propose to depart from the otherwise binding authority of Smith on this ground.

The Directive

We accept that no conflict exists between the words of the Directive and the definition of unlawful sex discrimination contained in the Section 1 of the SDA, as the Court of Appeal held in Smith.

It follows that no need arises to refer such a question to the European Court of Justice.

It also follows that it is not necessary for us to decide the procedural issue as to whether or not these matters may be argued for the first time in this appeal. We have considered the arguments advanced by Ms Cox de bene esse, and have rejected them.

Accordingly this appeal is dismissed.

Finally, in the light of the Court of Appeal decision in Smith we dismiss the appellant's application for leave to appeal.