United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR CLIFFORD DARTON (of Counsel) Messrs Woodford & Ackroyd Solicitors The Director General's House Rockstone Place Southampton SO15 2EP
For the Respondent	MR PETER DOUGHTY (of Counsel) Messrs Warner Goodman & Streat 14-16 Portland Terrace Southampton SO14 7EG


 


JUDGE PETER CLARK: This is an appeal by the employer (the Appellant) against a decision with full reasons of the Southampton Industrial Tribunal, entered on 15 January 1996, that it had unlawfully discriminated against the employee, Miss Karen Skinner (the Respondent) on the grounds of her sex.

The Facts

In February 1995 the Respondent was a single woman, cohabiting with her partner, a full-time student. She had two young children. At that time she was unemployed. Her previous employment experience had included work as a receptionist.

She saw an advertisement for the post of a full-time receptionist at the Respondent's club. She completed a job application form provided by the Employment Service on 14 February.

On 22 February she was interviewed for the post by Ms Karren Clothier, the Respondent's duty manager. Ms Clothier was favourably impressed. She offered the post to the Respondent, who accepted. It was agreed that she would commence work on 27 February.

During the interview Ms Clothier completed an interview report in which she recorded that the Respondent was single with no children. Her evidence was that this is what she was told by the Respondent; the Respondent denied that she had ever been asked whether she had any children at that interview. The Tribunal preferred the Respondent's evidence on this point.

Also, during the interview Ms Clothier explained to the Respondent the Appellant's strict dress code, and that the job involved working shifts, including early mornings and late evenings. The Respondent accepted this pattern of work.

Following a letter of appointment from Ms Clothier dated 22 February the Respondent duly started work on 27 February. On her first day of work she mentioned to Ms Harris, her supervisor, that she had children. She added that she would have preferred part-time work but none was available. Ms Harris passed on the Respondent's preference for part-time work to Ms Clothier, but, the Tribunal found, did not at that stage mention the fact that the Respondent had children.

There was a factual conflict as to whether the Respondent was taken to task about her appearance. Ms Clothier stated in evidence that during the first week she told the Respondent that her dress and appearance were incorrect; she wore the wrong shoes and did not tie her hair appropriately. The Respondent's evidence was that she was told only on one occasion that her earrings were wrong. She did not thereafter wear them. Again, the Tribunal preferred the Respondent's evidence.

During her second week the Respondent had a day off, probably on 2 March, and on that day she attended the club for a hair appointment in company with one of her children. Ms Clothier saw her and enquired whether the child was the Respondent's; she confirmed that it was so. From that time, so the Respondent told the Tribunal, Ms Clothier's attitude towards her changed; she seemed either cold or hostile.

The Respondent's employment was sponsored by Alpha Training, and on 9 March Mr David Croucher of that organisation visited the club in order to review the Respondent's progress. A written report was prepared, part of which was completed by Ms Clothier. She recorded; "Karen has been reliable and punctual since starting work, she always looks well presented".

Immediately after the meeting with Mr Croucher the Respondent was called into Ms Clothier's office. Ms Clothier's evidence was that she complained on that occasion that the Respondent was still wearing the incorrect shoes and she said she asked the Respondent whether she was finding it hard working shift work. Ms Clothier said that she was herself a single parent with a young child so she knew how difficult it was to work shifts in such circumstances. Her evidence continued that the Respondent had said that she was finding it difficult getting to and from work. The Respondent's account of this conversation was very different. She said that the principle issue that was discussed first of all related to her children. She said Ms Clothier complained that the Respondent had lied in the interview about not having children, so the Respondent explained she had not been asked about that matter, but Ms Clothier said that she asked everyone and the Respondent must therefore have lied. The Respondent said that as she was then leaving Ms Clothier complained that the heels of her shoes were more than two inches high and that she should therefore change them and the Respondent said she would have to buy some new ones. Again, on this issue the Tribunal preferred the evidence of the Respondent and it was satisfied that Ms Clothier's concern and reason for holding that meeting was that the Respondent had children and that she had not been made aware of this at the initial interview.

Thereafter, on the Appellant's case, the Respondent caused problems by repeatedly trying to change shifts, but the Tribunal accepted that in fact this happened only once, in relation to a birthday party arranged for the Respondent's grandmother. She had also sought to change her shift for the following June in order to take her pre-arranged holiday.

Ms Clothier also claimed that she lost confidence in the Respondent because she doubted her honesty over an item of lost property. However, she later conceded that there was insufficient evidence to support such a contention. That matter was not raised by Ms Clothier when, on 16 March, she summarily dismissed the Respondent apparently for the reason that she did not meet the club's required standards.

The Industrial Tribunal Decision

Based on their primary findings of fact, which we have summarised above, the Tribunal made the following observations in paragraph 6 of their reasons:

"6. The Tribunal conclude that these facts show that an important factor in the way that the Respondents treated the Applicant and in particular in deciding to dismiss her was that she was a single mother with children. ..."

The Tribunal go on to set out eight specific points which lead them to that conclusion. On the basis of those observations the Tribunal concluded at paragraph 7 of their reasons:

"7. The Tribunal were therefore satisfied that the real reason that the Applicant was dismissed was that she was a single mother with young children and that the Respondents had therefore treated the Applicant less favourably than they would have treated a man. There was therefore discrimination against the Applicant, contrary to Section 1 of the Sex Discrimination Act 1975 which discrimination resulted in the dismissal of the Applicant, this being unlawful as such action is contrary to Section 6 of the 1975 Act."

The Appeal

Mr Darton's principal submission on behalf of the Appellant is that the Tribunal failed to make the necessary comparison between the Appellant's treatment of the Respondent and the treatment which would have been afforded to a hypothetical male comparator. We accept that such a comparison is a requirement before a finding of unlawful discrimination can be made. He relies upon the recent decision of the Employment Appeal Tribunal in British Telecommunications Plc v Roberts [1996] IRLR 601, heard by a division of this Tribunal consisting of both lay members sitting today presided over by Tucker J. In that case the Applicant employees complained of sex discrimination by their employer in failing to accede to their request for job-sharing on their return to work following maternity leave. The Tribunal upheld their complaint; finding that they had been directly discriminated against on the grounds of their sex by the employer's failure to give reasonable consideration to their request to job share in that it followed directly from their pregnancy and maternity leave and was therefore automatically discriminatory in accordance with the principles laid down by the European Court of Justice in Webb v EMO [1994] IRLR 482, and applied by the House of Lords in Webb (No.2) [1995] IRLR 645.

In the opinion of the Employment Appeal Tribunal such a conclusion was flawed; the refusal of the employer to accede to the employees' request was a gender-neutral reason which had nothing to do with maternity leave or pregnancy. No evidence was led to suggest that a man would have been treated differently.

In response, Mr Doughty submits that in her Originating Application the Respondent put the point fairly and squarely before the Industrial Tribunal. She there said:

"I feel that had a man been given the same position, his children would not have been an issue, as it was here."

Further, Mr Darton had submitted in closing to the Industrial Tribunal that it was necessary to make a comparison with a hypothetical male. It is apparent, despite the less than ideal wording of paragraph 7 of the Tribunal's reasons that they made the comparison and concluded that a hypothetical male would have been treated differently. He would not have been dismissed because he had small children.

We accept that it is inappropriate to construe an Industrial Tribunal's reasons as if they were words of a statute. Nevertheless, it is not for us to re-write the Tribunal's reasons so as to comply with the Sex Discrimination Act. We accept Mr Darton's submission that the Tribunal's reasons fall into three sections; the primary findings of fact at paragraph 5; the inferences which they draw at paragraph 6 and their conclusion at paragraph 7. Nowhere is there any indication, at any of those three stages, that they have made the necessary comparison with a hypothetical male. In particular, the use of the word "therefore" in paragraph 7 suggests that the Tribunal has assumed that because the reason for dismissal was not that put forward by the Appellant, but was that the Respondent was a single mother with young children, that it necessarily followed that the complaint of unlawful discrimination was made out. That amounts, in our judgment, to a finding of automatic sex discrimination without applying the statutory test.

We accept Mr Doughty's submission that if the comparison was made, and a finding of disparate treatment was made, it would then be open to the Tribunal to find as a matter of inference, having rejected the explanation put forward by the Appellant for the dismissal, that the

complaint has been made out - King v Great Britain China Centre [1992] ICR 516, 528F- 529C, per Neill LJ. However, we are not satisfied that this Tribunal made the necessary comparison, and to that extent the Tribunal fell into error.

In these circumstances we shall allow the appeal and, having considered the submissions of both Counsel, who agree with the course which we propose to take, we shall remit the case to the same Industrial Tribunal for a determination of the question whether the Respondent was treated less favourably on the grounds of her sex than a hypothetical male in similar circumstances would have been treated.