United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N BOOTH (of Counsel) Oxfordshire Employment Rights Barton Neighbourhood Centre Underhill Circus Headington Oxford OX3 9LS
For the Respondent	MR J L SHAW (Representative) Shaw Personnel Services Ltd Brinkworth House Brinkworth Wilts SN15 5DF


 


JUDGE ALTMAN

1. This is an appeal from the decision of the Employment Tribunal sitting at Reading on 6 July 1999. On that day the Employment Tribunal found that the Appellant had been unfairly dismissed and compensation was assessed. They dismissed her complaint of sex discrimination and it is from that finding that the Appellant appeals.
2. The two complaints of unfair dismissal and sex discrimination arose from the same set of circumstances. It is the argument of the Appellant that in dismissing the complaint of sex discrimination the Employment Tribunal failed to take account of a number of factors before reaching the conclusion that there was no disparate treatment.
3. The Employment Tribunal helpfully set out in some detail their findings of fact. They show that the Appellant was a part-time secretary who began her work with the Respondents in December 1996 at twenty hours per week. The Respondents knew her limitation of availability for work due to responsibility of caring for her child. She worked five hours a day four days a week. About a year later the spread of the hours was changed at the Appellant's request from four to three days. In due course, and as a result of an increasing workload, the Respondents told the Appellant that they needed a secretary who could work full-time for five days a week. At the same time alternative jobs of data inputer, which the Appellant thought would be rather boring, and of receptionist which the Appellant would have considered but only as a 'job share' were discussed as ways of dealing with the Appellant's commitment to child care. The Respondents rejected the suggestion of 'job share' as being too expensive.
4. The implementation of the change from part-time to full-time secretary was brought to a head by the departure of another secretary on maternity leave. It appears from the finding of the Tribunal that the Appellant recognised that she could not offer, as secretary, the hours required by the Respondents and she agreed to work in telemarketing on the same contractual terms as she had previously enjoyed. She then returned to work after a period of sick leave in January 1999.
5. In paragraph (f) of their decision the Employment Tribunal found that the first week of her employment, after the new year, was in telemarketing training. Although Mr Shaw on behalf of the Respondents argued that the dismissal of the Appellant was from her post as secretary, it appears from the findings of the Tribunal that they had found that there had been a variation of her contract of employment to work in telemarketing. They had also found, and it follows from the fact that they accepted that change, that both parties had agreed to this change on the same terms as the Appellant had previously enjoyed.
6. However, when the Appellant returned to work she did so only to be told by the Respondents that she would have to work every day or be made redundant. Whilst it appears that the part-time, reduced number of hours, was to be preserved, the spread over five days became a requirement of the Respondents. The Appellant was apparently very upset. She was not able, because of her child care commitments, to make that adaptation, certainly until her child started school.
7. The Appellant was dismissed and it was that dismissal that was subsequently found to be unfair. The Appellant also claimed indirect sexual discrimination. The Employment Tribunal made findings at paragraph 5(h) of the pool to be considered as the starting point for that allegation. They found as follows: -

"At the date of the (Appellant's) dismissal there were four women working in the Tele-Marketing Division and one man. The male worker was full-time, one woman was part-time working every day, another woman was part-time every day, except for school holidays when she did mot work on Wednesday s, and of course the (Appellant)."

There was a fourth woman whose particular details were not set out in the decision of the Employment Tribunal.

8. The Employment Tribunal then dealt with the circumstances which in their judgment constituted the unfair dismissal. In paragraph 10 they found that the Respondents were aware "that the (Appellant) may well have been labouring under a misunderstanding as to the day she was expected to work in Tele-Marketing." It is that which Mr Shaw relies upon in his submissions that the Tele-Marketing job never really got underway. Nonetheless there was a finding of unfair dismissal and in paragraph 12 the Employment Tribunal then assess the complaint of sexual discrimination. They had earlier set out the submissions made by the parties. First on behalf of the Respondents they summarised it as follows: -

"Regarding the complaint of sexual discrimination he (Mr Shaw on behalf of the Respondents) frankly acknowledges that he had not come here with any provision of statistics, and did not offer the pool that should be considered for any question of indirect discrimination. Mr Shaw referred us to authorities which he submitted assisted his case."

I turn now to the summary of the submissions on behalf of the Appellant as being

"that the (Appellant) was unable to work full-time because of her child-care responsibilities. The requirement for working five days a week had a disproportionate effect upon the (Appellant) by reason of her responsibilities as the sole carer of her child."

In their conclusions in paragraph 12 the Employment Tribunal say this: -

"We have to say that in relation to this claim that we did not receive a great deal of assistance from the parties as to how we were to consider this matter. We have proceeded on the basis that the respondent, in respect of the pool of workers in the Tele-Marketing Division set a condition of the need to work five working days, irrespective of the hours actually worked during such days. The pool of workers comprised of four women including the (Appellant), and one man. The man was able to comply with the requirement of five working days, one woman worked five days, another worked five days save for school holidays when she did not work Wednesday, and the (Appellant). We are satisfied that in essence, three out of the four women could comply and that one man also could comply. Given the small pool that we were considering, we find ourselves unable to formulate any sensible conclusion that a considerably smaller number of women could comply with the condition than men. An alteration in respect of one man and one woman would fundamentally alter the figures in this case. We accordingly therefore determine that the (Appellant) has not made out her case that she was indirectly discriminated against on the grounds of her sex and accordingly, this application stands dismissed."

9. It is accepted that the pool selected of the Tele-Marketing Division was the appropriate pool for analysis. On behalf of the Appellant Mr Booth submits that the Employment Tribunal should have taken account of the fact that it is common knowledge, he would say, that a much larger proportion of women than men are restricted, by child-care responsibilities, in the hours of work they can offer to an employer, both as to number and as to timing. He submits that in the context of this case it was a requirement for the Tribunal to take account of that when assessing the significance of their statistical analysis of the pool. In addition, he says that when the Employment Tribunal analysed the pool itself they adopted a narrow approach by rejecting any significance to be attributed to those figures in the light of the fact that they could be fundamentally altered by the adjustment of the personal circumstances of work of one man and one woman. He submits that the consequence of considering those facts would have been the inevitable result that the Appellant would have been found to have been discriminated against on the ground of her sex. She was the only woman unable to accept the working condition of the Respondents and the only man was quite able to do so. He says that conclusion was inevitable, whether one looks at it as the percentages which show that 100% of the men could comply and only 75% of the women could, or whether one looks at it numerically.
10. We have not found the submissions on the facts of this case easy. One of the women working in the Tele-Marketing Division has child-care responsibilities which were adapted and where fitted in with the requirements of the Respondents who themselves had adapted to provide for school holidays. We have been told that the reason why five days a week were essential was that this sort of marketing requires the availability of the telephone operator every day so as to provide a follow-up during a short period of days for a customer whose patronage was being solicited. There is nothing within the decision to support that proposition and indeed if we were analysing the facts we would be left wondering how the Respondents managed in their circumstances to accommodate school holidays as they obviously did.
11. In support of his submissions Mr Booth has referred to a case of London Underground Ltd –v- Edwards (1998) IRLR 364. It is unnecessary for us to refer in great detail to what was been said in the analysis contained within the judgment in that case. Although it is right to say that at page 369 (25), in referring to the extent to which the Employment Tribunal should refer to a national well known statistic, Potter LJ said when considering as a basis for their decision the reliability of the figures with which they were presented,

"the Industrial Tribunal were entitled to take the view that the percentage difference represented a minimum rather than a maximum so far as discriminatory effect was concerned."

In other words in assessing the particular statistic represented by the pool in the particular case and in analysing what inferences could fairly be drawn from it learned the Lord Justice held that a Tribunal is entitled to draw upon its own knowledge of a generally known national statistic as between men and woman generally. We emphasise that what learned Lord Justice did not say is that the Industrial Tribunal were bound to consider those matters but only that they were entitled to do so.

12. Furthermore in paragraph 22 on page 368 Lord Justice Potter referred to the decision in Greater Manchester Police Authority –v- Lee (1990) IRLR 375 and the judgment of Knox J dealing with criticism of the Industrial Tribunal. He said this: -

"We are not expressing the view that had the question been one for us we would have reached the same conclusion. That is not the function of this Tribunal. It is of course notorious that this Tribunal is solely concerned with questions of law and the question of law is not "do we agree with what the Industrial Tribunal said on this issue?" but "do we consider that no reasonable tribunal could have reached its conclusion"

And it is emphasised that matters of this kind are issues of fact left to the experience of the Employment Tribunal.

In London Underground –v- Edwards at paragraph 25 on page 369, Lord Justice Potter said

"an Industrial Tribunal does not sit in blinkers. Its members are selected in order to have a degree of knowledge and expertise in the industrial field generally."

The need for Employment Tribunals to look at the facts and to form a judgment as to the facts is an essential of their decision. Furthermore there is no obligation on an Employment Tribunal to look only at the mathematical structure of the results of analysing a pool. Their approach should not be, as Mr Booth has accepted, formulaic and as was pointed out in submissions by Mr Alan which were adopted by the Court of Appeal, there may be smaller overall numbers involved in the pool under consideration so that a variation of one employee in either compared group within the pool may have a large effect on any percentage difference, and there may be some fortuitous circumstances affecting the numbers within a pool or within either compared group. In other words things such as the size of the pool and the personal circumstances of the employees within it may give rise to the conclusion that any disparity on the face of the figures is not a evidence of a pattern, but is fortuitous.

13. Because of the order we propose to make we say very little about the analysis of the facts in this particular case.
14. We reject the proposition that there was any obligation as a matter of law upon the Employment Tribunal to give any particular weight to any particular factor in assessing the argument as to disparity. However, when we look at the actual wording of the decision of the Employment Tribunal on its face, we come to the conclusion that it appears on the face of the decision that the Employment Tribunal restricted their assessment to an analysis of the way in which the numbers fell within this particular pool. They concluded that because it was so small and that the alteration of one man and one woman could fundamentally change the figures, that the case for sexual discrimination was not made out.
15. Having set out their analysis of the figures they use the words "we accordingly, therefore determine". We have considerable sympathy with an Employment Tribunal whose obligations are to consider issues which arise, and who do not have the advantage of detailed legal submissions on the law or the facts, such as we have had by the representatives who have appeared before us today.
16. We draw our attention to the Origination Application that was before the Employment Tribunal. In her Originating Application, having set out her account of what took place, the Appellant said this: -

"I consider that a man would be less likely to be put in this position because fewer men than women work part-time and fewer have child-care responsibilities. Therefore, I have been discriminated against on the basis of my gender."

17. It is clear to us therefore, that one of the issues addressed to the Tribunal was to consider, when assessing the pool in this case, the way in which the numbers fell in the light of the assertion contained in the Originating Application. Where that leads in a case which is not one of a simple inability to work full-time because of child-care facilities, but seems to be a case of a pre-school child and a mother who can work four days but not five, we have no views, because we are not a fact-finding body in this circumstance. However, we are driven to the conclusion that on the face of the decision itself, it does not appear that, in reaching their decision that the allegation of sexual discrimination was not made out, the Employment Tribunal have considered the areas of evidence, including their own knowledge, which were available to them. The pool is not the general public in this case, but it can be argued that in assessing the significance of the way the numbers fall within the pool the Employment Tribunal would have been entitled to consider first, the general statistics, such as they may find them to be, of the national position or general social position, and secondly, to have considered the substance of the statistics and what they meant, other than in purely numeric terms. There may be other factors also. We emphasise that whilst the Employment Tribunal would have been entitled to consider these factors, whether they should have done so and if they had, what consequence would have flown from it, are, it seems to us impossible to say.
18. We have come to the conclusion that on the face of the decision there is not that apparent examination. The Employment Tribunal in this case has heard essentially the relevant evidence, has been able to reach a decision on the issue of unfair dismissal, but has not on the face of it considered all the factors in analysing the question of sex discrimination. We have determined therefore, to allow the appeal to the extent of remitting this case to the same Employment Tribunal to re-open the issue of sex discrimination so as to consider afresh the question of disparity in the light of such factors as appear to them to be relevant having heard full argument about it. It may be that they would wish to entertain further evidence on this aspect of the case and we make no order one way or the other about that. Nor do we wish this judgment to contain any indication of any factors which the Employment Tribunal is bound to take into consideration, let alone the conclusions that should flow from it. It may be that in any event, in addition to that, there are issues of justification to consider and we say no more about that either.