United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TOM LINDEN (of Counsel) Messrs Burges Salmon Solicitors Narrow Quay House Narrow Quay Bristol BS1 4AH
For the Respondents	THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK: This appeal comes before us in the following circumstances.

Mrs Stephens, the applicant, was a very well qualified teacher, who was employed by the respondent School from September 1990 until she resigned by letter of 26th June 1995.

Prior to 1st January 1995 she was employed full-time at the School. On that date she commenced maternity leave. Her baby was born on 24th February; maternity leave was due to expire on 9th September 1995.

In April 1995 one of the deputy heads, Mr Causton, learned that the applicant had expressed a desire to return to work on a part-time, rather than a full-time basis.

That matter was discussed at a Governors' meeting held on 10th May 1995. The Governors decided they did not wish to consider any additional part-time arrangements.

That decision was adhered to and on 26th June 1995 the applicant tendered her resignation. Her letter of that date reads:

"Dear Mr Law

It is with regret that I have decided not to return to my post in September and I am therefore handing in my notice.

As you are aware, I had hoped to return part time but I understand that this will not be possible. Although I would have liked to have returned to KLB I do not feel that I would be able to maintain high standards in a full time post given my new commitments. I am sorry that the school is unable to be more flexible in allowing women who have had children to continue their careers, albeit on a part time basis.

It has been a difficult decision to make, mainly because I have enjoyed teaching at KLB and had hoped to continue teaching there.

Wishing you all the best for the rest of term."

Thereafter, on 11th August 1995, she presented a complaint of indirect unlawful sex discrimination and constructive dismissal to the Industrial Tribunal. Those claims were resisted by the respondent.

The matter came before an Industrial Tribunal sitting at Bristol on 1st December 1995 and 11th January 1996. By a decision promulgated with full reasons on 26th January 1996, the tribunal dismissed both complaints.

As to the decision on the sex discrimination claim, with which we are concerned, the tribunal found:

(1) that the respondent imposed a requirement or condition applicable equally to men, namely that the applicant should return to work in full-time employment.

(2) that adverse impact was made out by the applicant under s.1(1)(b)(i) of the Sex Discrimination Act 1975.

(3) that the respondent had failed to justify the potentially discriminatory effect on the applicant of the requirement; but that

(4) the applicant had failed to show that the application of the requirement was to her detriment because she could not comply with it.

Their finding on this part of the case is dealt with in paragraph 17(iii) of their reasons in this way:

"(iii) In order to be successful in a claim under this section, the final matter that the applicant must show is that she cannot comply with the requirement. Price v Civil Service Commission [1977] IRLR 291 confirms that the test is a practical test and not a theoretical test; the requirement only acts to the applicant's detriment if she cannot comply with it; if she can comply with it there is no detriment. The applicant adduced no evidence as to whether or not, as a matter of practice, she could or could not comply with the requirement. Her evidence is, however, that she was actively considering returning to work on a full-time basis and was prepared and had indeed considered returning on that basis for a trial period to see how it worked. She never (apparently) pursued that as a possibility in any discussions she had with the respondent and on the basis on her own evidence, we are not satisfied that she was unable to comply with the requirement."

On that point alone, this part of her complaint failed.

Against that decision she appealed to this Appeal Tribunal. The appeal came before a tribunal presided over by Lindsay J on 21st November 1996. In a judgment delivered on that day the Appeal Tribunal allowed the appeal and remitted the matter to the same Industrial Tribunal on one limited aspect. It seems that the two principal points argued on behalf of the applicant were as follows. One was that the tribunal, in paragraph 17(iii) had said:

"The applicant adduced no evidence as to whether or not, as a matter of practice, she could or could not comply with the requirement."

This tribunal rejected the applicant's complaint as to that finding at page 12 A-C of their judgment in these terms:

"Had the Tribunal said "no sufficient evidence" it seems to me that that could not be a matter of any real complaint and, indeed, that must be what the Tribunal meant because immediately after the passage about adducing no evidence, the Tribunal then quoted the evidence which was, indeed, directed to the question of practicability of compliance with the requirement. It is well settled that the reasons given by Industrial Tribunals are not meant to be picked over by way of some pedantic or linguistic analysis; one has to look at the broad sense of the language used and although the words "adduced no evidence" are there, it seems to us plain that truly that what the Industrial Tribunal was meaning to say was that there was not sufficient evidence. On that basis, it seems to me, there can be no complaint."

The other point, on which the appeal was allowed, was a complaint that the question as to whether the applicant could comply with the full-time requirement or condition had been conceded by the respondent's representative below, with the result that the applicant's representative did not address argument to the Industrial Tribunal on the very point on which the applicant's sex discrimination claim failed. Although the Industrial Tribunal had said, in a letter to the Employment Appeal Tribunal, that no such concession had been made, the Employment Appeal Tribunal took the view that the applicant's representative had not had the opportunity to properly address the Industrial Tribunal on the point, and thus the appeal was allowed and the matter remitted to the same Industrial Tribunal to reconsider their finding at paragraph 17(iii) in the light of further argument, but based upon the original evidence before the Industrial Tribunal.

The remitted hearing took place before the same Industrial Tribunal, chaired by Mr MJR Griffiths, on 17th January 1997. The tribunal affirmed their earlier conclusion that the applicant had failed to show that she could not comply with the full-time requirement. Extended reasons for the second decision are dated 30th January 1997.

Against that second decision the applicant again appeals. Mr Linden submits on her behalf that the Industrial Tribunal applied a test more stringent than that set out in the case of Price v Civil Service Commission, to which the Industrial Tribunal specifically refer in the second reasons and/or that the tribunal closed its mind to evidence which was before it in support of the applicant's case that she could not in practice comply with the requirement.

At paragraph 1 of their second reasons the tribunal correctly formulate the issue which they were asked by this tribunal to consider as follows:

"1. ... Shortly, the issue is whether or not the applicant has shown sufficient evidence to this Tribunal to satisfy the requirements imposed on her by Section 1(1)(b)(iii) of the Sex Discrimination Act 1975. ..."

However, Mr Linden submits that the tribunal then departed from that formulation, first, by saying in paragraph 9 of their reasons:

"9. ... Indeed, we find no evidence from the applicant as to the practicalities of her ability to work full-time."

Mr Linden further submits that in paragraph 10 of the reasons where the tribunal deal with the resignation letter dated 26th June 1995, the tribunal misconstrued the language of that letter in finding that there the applicant was expressing no more than a "preference" to work part-time, rather than an "inability" to do so.

Mr Linden goes further. He submits that the tribunal, particularly in paragraph 9, have quite deliberately, bearing in mind the first Employment Appeal Tribunal judgment, found that there was no evidence to support the applicant's case that she could not in practice comply with the requirement. He points in particular to paragraph 22 of the applicant's witness statement before the Industrial Tribunal, which formed part of her evidence in chief, in which she states:

"22 I decided that I was no longer able to work full-time. As a full-time teacher I spent most evenings and usually an entire day at the weekend in preparation and marking. Such a time-commitment would not be possible now that I had a small child."

That, he submits, is some evidence as to the practicalities of her ability to comply with the requirement.

In our judgment Mr Linden's submissions involve too close an examination of the language of the Industrial Tribunal's reasons. Like our predecessors in the first appeal, we do not think that the omission of the word "sufficient" before the word "evidence" in the last sentence of paragraph 9 is fatal to the Industrial Tribunal's reasoning. Nor do we think that their analysis of the language of the resignation letter contained in paragraph 10 of their reasons can be regarded as impermissible.

In addition to identifying the correct issue in paragraph 1 of the second reasons, the Industrial Tribunal concluded paragraph 11 of those same reasons in these words:

"11. ... Accordingly we are left with a consideration of the direct evidence of the applicant as to whether or not she can comply with the requirement or condition, or, put another way, whether or not she has adduced sufficient evidence to satisfy us that she cannot do so."

In our view the Industrial Tribunal were well aware of and answered the issue specifically identified by the first Appeal Tribunal, by assessing and evaluating the internal inconsistencies in the applicant's evidence in chief and in cross-examination, more particularly identified in the first Appeal Tribunal's judgment, and thereafter reached a permissible conclusion of fact that she had failed to satisfy them as to her inability to comply with the requirement.

Further, we are not satisfied that the tribunal misdirected themselves as to the proper test to be applied in determining that question; we reject Mr Linden's submission on that aspect of the matter also.

In these circumstances, we have concluded that there are no grounds for interfering with the second decision of the Industrial Tribunal. It must stand and, accordingly, the appeal is dismissed.