United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 835_95_0307

Appeal No. EAT/835/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3rd July 1996

Before

HIS HONOUR JUDGE PETER CLARK

MR E HAMMOND OBE

MR R N STRAKER

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MRS C HELLEWELL          APPELLANT

MANCHESTER METROPOLITAN UNIVERSITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR PAUL FOLEY

(Trade Union Representative)

UNISON

3/5 St John Street

Manchester

M3 4DL

For the Respondents MR PAUL GILROY

(of Counsel)

Messrs Addleshaw Son & Latham

Solicitors

Dennis House

Marsden Street

Manchester

M2 1JD


 


JUDGE PETER CLARK: This is an appeal brought by Mrs C Hellewell against a reserved decision of the Manchester Industrial Tribunal sitting on 14th March 1995, dismissing her complaint of indirect sex discrimination contrary to the Sex Discrimination Act 1975 against her former employers, Manchester Metropolitan University ["the University"]. Her complaint of unfair dismissal against those employers was also dismissed but there is no appeal against that part of the decision. The tribunal's extended reasons for their decision are dated 21st June 1995 ["the reasons"].

The material findings of primary fact made by the Industrial Tribunal are contained in paragraph 8 of the reasons and are these. The appellant was employed by the University from October 1982, having been appointed Catering Manager in 1988. In July 1991 she took maternity leave, and returned to her previous position on 30th April 1992. In June 1992, she requested a two year leave of absence, finishing her employment on 31st July 1992. Although the University did not operate a formal career break scheme, they agreed to her request to two years leave of absence to run from 1st August 1992 until 31st August 1994. During that break she had a second child in July 1993.

At the end of her two year break negotiations took place with a view to her returning to work. She was offered the position of Catering Manager Aytoun (Maternity Relief) with effect from 1 September 1994. The hours of work for that post commenced at 8 a.m. and it was to be a full-time position. The appellant felt unable to start at that time in the morning because she was unable to get her eldest child into nursery before 8 a.m. The employers felt unable to re-arrange the hours of work, and it was their case that as a Catering Manager, for operational reasons, the working hours were fundamental to that role. At paragraph 8(g) of the reasons, the tribunal say this:

"(g) The Tribunal is satisfied that the applicant was dismissed because she was not willing to resume employment on terms offered because there was an operational requirement for an 8.00 am start for a job which was full time. The applicant was unable to start at that time because she could not get her child into nursery before 8.00 am and therefore would not be able to start work at that time. The Tribunal were satisfied by the respondents evidence that the operational requirement of starting at 8.00 am was justified."

Based on their factual findings the tribunal expressed their conclusions in paragraph 9 of the reasons in this way:

"9. The Tribunal were not satisfied that this was a case where the employers imposed a requirement or condition which was discriminatory because the proportion of women who would comply with it was considerably smaller than the proportion of men who can comply with it. If the Tribunal is wrong on this point, then they are satisfied that the respondent showed to them that the requirement or condition was justifiable irrespective of the sex of the person to whom it is applied. The claim of indirect sex discrimination therefore fails."

In this appeal Mr Foley, on behalf of the appellant, makes essentially three points:

(1) He submits that there is no factual basis, nor reasoning, on the face of the tribunal's reasons, for its conclusion in paragraph 9 that the appellant failed to establish what in shorthand may be called "adverse impact".

(2) As to the tribunal's finding on justification:

(a) there is no indication as to what test the tribunal applied in deciding that question, and

(b) put another way, it is clear on the face of the decision that the tribunal did not apply the correct test, which is that propounded by Balcombe LJ in Hampson v Department of Education & Science [1989] IRLR 69.

In response, Mr Gilroy for the University, accepts that he is unable to point to any basis in the reasons for the tribunal's conclusion on the adverse impact point, but argues that the overall result is supportable by reference to the finding on justification, which is essentially a question of fact for the tribunal with which this appellate tribunal has no power to interfere. He cites in support of that submission the observation of Lord Fraser, summarised at the end of the headnote, in Mandla v Lee [1983] IRLR 209.

What then is the correct approach for an Industrial Tribunal in cases such as this, and has this tribunal adopted the correct approach?

The Tribunal's duty to give reasons

Rule 10(4)(a) of the Industrial Tribunal Rules of Procedure 1993 requires that the tribunal shall give reasons for its decision in a case brought under the 1975 Act in extended form.

As to what are adequate reasons, the judgment of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250, 251 establishes that the tribunal's reasons must contain an outline of the story giving rise to the complaint; a summary of the tribunal's basic factual conclusions and a statement of the reasons which have led them to their conclusions based on those factual findings. The parties are entitled to be told why they have won or lost.

Indirect sex discrimination

The starting point is Section 1(1)(b) of the 1975 Act which provides:

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

(b) he applies to her a requirement or condition which he applies or would equally apply to a man but-

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) which is to her detriment because she cannot comply with it."

The following questions arise under that provision:

(1) Has the appellant shown that her employer has applied to her a requirement or condition which he applies or would apply equally to a man? Here the requirement or condition is said to be an 8 a.m. start to the working day and full-time employment. There is no specific finding on this point by the tribunal, but we infer that they did accept that the appellant had made out this part of her case, and this is common ground between Mr Foley and Mr Gilroy.

(2) Has the appellant shown that she cannot comply with that condition? Again, we infer that the tribunal accepted, from the finding at paragraph 8(g) of the reasons, that she was unable to start at that time because she could not get her child into nursery before 8 a.m. Accordingly she could not comply with the condition in the sense that she could not in practice comply with it. It is further implicit in the tribunal's decision that she suffered a detriment, in the sense that she was put at a disadvantage because she could not comply with the condition. She lost her employment. Again, our reading of the decision accords with that of the parties' representatives.

(3) Has the appellant shown that the proportion of women who can comply with the condition is considerably smaller than the proportion of men who can comply with it (adverse impact)? Where, as here, adverse impact is in issue, it is for the tribunal to determine the relevant pool for comparison purposes, and then to make the comparison between men and women within that pool in order to answer the proportionality question. This the Industrial Tribunal manifestly failed to do. In these circumstances it is impossible to tell how it arrived at the conclusion that the appellant had failed to make out this part of her case.

(4) The Industrial Tribunal made an alternative finding that if they were wrong in finding no adverse impact, nevertheless the employer had satisfied the tribunal (the onus being correctly placed on the employer) that the requirement or condition was justified irrespective of sex. The factual finding on which that conclusion was based is that to be found in paragraph 8(g) of the reasons:

"The Tribunal were satisfied by the respondents evidence that the operational requirement of starting at 8.00 am was justified."

We are bound to say that in our judgment the tribunal's approach to the question of justification was flawed for the following reasons:

(a) the tribunal gives no indication as to the test of justification which it applied. The correct test is that propounded by Balcombe LJ in Hampson at paragraph 34 of the report, where he said:

"In my judgment "justifiable" requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition."

In so formulating the test Balcombe LJ was adopting the approach of the House of Lords in Rainey v Great Glasgow Health Board [1987] ICR 128 and the European Court of Justice in the case of Bilka-Kaufhaus [1987] ICR 110. The Hampson test has since been approved by the House of Lords in Webb v EMO (No.1) [1993] ICR 175, and the earlier test propounded by Eveleigh and Kerr LJJ in Ojutiku v Manpower Services Commission [1982] ICR 661 disapproved. See per Lord Keith in Webb at pages 182E-183A. It is therefore in our view necessary for an Industrial Tribunal to identify the test which it is applying. This Industrial Tribunal failed so to do.

(b) further, the tribunal has plainly not carried out the balancing exercise between the discriminatory effects of the condition and the reasonable needs of the business on the face of its decision.

It follows, in our judgment, that this decision is fatally flawed and cannot stand. We are not ourselves in a position to make the necessary findings to reach our own conclusion in this case. Accordingly we must allow the appeal and remit the case for rehearing.

Mr Gilroy has invited us to remit the case to the same Industrial Tribunal in the event that we allow the appeal. He submits that what is required is for the tribunal to explain to Mrs Hellewell why she has lost. Mr Foley opposes that application. He points out that we simply do not know whether or not the Industrial Tribunal did apply the correct test. If the correct test was not applied, then, when the balancing exercise is performed, the result may be different. Further, justice must be seen to be done. If the same result were to be achieved by the first tribunal, following the correct test, the appellant may be left with an understandable sense of grievance.

We think that for the reasons which he advances, Mr Foley is right. The case will be remitted to a fresh Industrial Tribunal for rehearing.