United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondent	MR M LANE (of Counsel) Messrs Thompson Smith & Puxton Solicitors 4-5 North Hill Colchester Essex CO1 1EB


 


JUDGE PETER CLARK: This is an appeal by Ms Brown, the applicant before an Industrial Tribunal at Bury St Edmunds, against that tribunal's decision to dismiss her complaint of unlawful sex discrimination against the respondent. Extended reasons for that decision are dated 25th April 1996.

The factual background is as follows, according to the findings of the Industrial Tribunal. The respondent ran the Harlow Job Club and Restart programme under contract on behalf of the Department of Employment.

In April 1994 the appellant joined the Job Club. Her membership, initially for 16 weeks, extended until November 1994. Thereafter she continued to use its facilities in order to search for employment.

The respondent's declared recruitment policy was described by them as follows:

"Normally, we would advertise, consider the CV's, draw up a short list and interview those candidates on a short list."

During the material period certain posts fell vacant and were filled in the following way. First, when the post of leader was vacant in August 1994, it was filled by Mr Coutts without being advertised and without a short-listing or interviewing procedure taking place. Further, whilst Mr Coutts was on leave for two weeks during September 1994, a Mr McCann was engaged for that short period to support Ms Szabo, the assistant leader. No selection process was applied to Mr McCann's recruitment.

Secondly, in December 1994, a Mr Perryman, then leader of the Restart programme, died suddenly. He was replaced by the assistant, Mr Jaynes; and a member of the Job Club, Mr Bunn was appointed Assistant Leader. There was evidence, which the tribunal rejected, from Mr Coutts that a notice was displayed stating that the Assistant Leader post was vacant, and that Job Club members could apply. The tribunal concluded that no selection process was gone through before Mr Bunn was appointed. He simply asked for the job, having heard of the vacancy, and got it.

The appellant complained that she had not been afforded the opportunity to apply for any of the above posts, although she would not have sought the post eventually filled by Mr Coutts, contrary to the respondent's own selection procedures and that in the circumstances she had been subjected to both indirect and direct discrimination, or one or the other, on the grounds of her sex and that such discrimination was unlawful by virtue of s. 6(1)(a) or (c) of the Sex Discrimination Act 1975.

As to the complaint of indirect discrimination, the tribunal found that the respondent did not apply a condition or requirement with which the appellant could not comply. They proceeded to treat the complaint as one of direct discrimination.

They directed themselves in accordance with the well-known guidance set out in the judgment of Neill LJ in King v Great Britain China Centre [1991] IRLR 513. They observed that the respondent appointed men to the relevant posts without going through its own selection procedures. The appellant was not considered for appointment. No explanation was provided by the respondent as to why they made these appointments in breach of their own procedures. Had the matter ended there, they might have been minded to uphold the complaint.

However, they took into account that the Job Club membership as a whole were similarly disadvantaged to the appellant. 70% of those members were men; 30% were women.

In all the circumstances the tribunal declined to infer that the unfavourable treatment afforded to the appellant was on the grounds of her sex. They dismissed the complaint.

The Appeal

Ms Brown submits first that the tribunal erred in dismissing the claim based on indirect discrimination on the basis that the respondent imposed a requirement or condition with which she could not comply, namely, that it was necessary to be present when vacancies were being discussed, and that a considerably smaller proportion of women could comply with that requirement or condition than the proportion of men who could comply with it.

We reject that argument. We are not satisfied that the need to be present when vacancies were discussed amounted to a requirement or condition within the meaning of s. 1(1)(b) of the 1975 Act.

As to direct discrimination, the question for the tribunal, having found less favourable treatment for which the respondent had provided no explanation, was whether it should infer that such treatment was meted out on the grounds of sex. The House of Lords has recently affirmed, in Zafar v Glasgow City Council [1998] IRLR 36, that unreasonable behaviour on the part of the respondent, without proper explanation, will not necessarily lead to the tribunal being bound to draw an inference of unlawful discrimination, although such an inference will be legitimate. The tribunal in this case found that the inept appointment procedures employed by the respondent applied equally to all relevant potential applicants. In these circumstances it decided not to draw the inference of discrimination.

Ms Brown has argued that the tribunal ought to have found that direct discrimination was made out on the basis that she was better qualified for the relevant jobs than either Mr Bunn or Mr McCann. We understand that evidence was given on both sides as to the respective qualifications, in particular in respect of typing, of those men and the appellant. That evidence and any findings based on it is not recited in the tribunal's reasons and we think that is because the complaint here was not that of discrimination in selecting between the successful candidates and the appellant; it was in the arrangements made for the appointments which precluded her from any proper selection process. That was the issue with which we find the Industrial Tribunal dealt, and for the reasons which we gave earlier, based on the recent decision in Zafar, we think was permissibly resolved in favour of the respondent.

In these circumstances it seems to us that the tribunal properly directed itself in law. It did not reach a conclusion which could be regarded as perverse in the sense identified by May LJ in Neale v Hereford & Worcester County Council [1986] ICR 471, and in those circumstances we have concluded that no error of law is made out and the appeal must be dismissed.