United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N FETTO (Free Representation Unit) Fourth Floor Peer House 8-14 Verulam Street London WC1X 8LZ
For the Respondents	MR M BARKLEM (of Counsel) Instructed by: Crockers Oswald Hickson Solicitors 10 Gough Square London EC4A 3NJ


 


MR JUSTICE MAURICE KAY: This is an appeal from a decision of an Employment Tribunal sitting at London (North). The decision of that tribunal was that the appellant's complaint of indirect sex discrimination failed as also did her complaint of constructive unfair dismissal. The appeal to the Employment Appeal Tribunal is confined simply to the first of those findings.

1. Mrs Lockwood was employed by the respondent as an account executive/technician for almost 15 years from 1st February 1984 until 15th January 1999.
2. On 5th January 1998 she commenced a period of maternity leave. Her baby was born on 10th March 1998. During her period of maternity leave she had various discussions with the management of the respondent about the circumstances and timing of her return to work. In the event, she returned to work on 28th September 1998. She worked three days per week and took two days per week holiday to which she was entitled. She was therefore working full-time and availing herself of holiday entitlement. The childcare arrangements revolved around Mrs Lockwood's mother.
3. Mrs Lockwood was undoubtedly a valued employee, as is evidenced by the fact that on 16th December 1998 she received an appraisal by her managing director together with a pay rise and a bonus of £1,000.
4. On 17th December 1998 Mrs Lockwood's mother said that she would not be able to continue with the care of the child on a full-time basis after Christmas because she, the mother, was having a health problem of her own. On the evening of 17th December Mrs Lockwood wrote a resignation letter which she dated 18th December 1998. It was addressed to her employer and stated:

"It is with much regret that I have to terminate my contract of employment with Crawley Warren and hereby give the statutory one month's notice.

I have enjoyed my fifteen years with the Company and have made many friends, but due to ill-health within my family and other family commitments, it is necessary for me to spend more time at home at the present time.

Should my circumstances change, I would be very grateful if you would consider me again for a position within the Company, when one becomes available, in the future."

5. Mrs Lockwood went into work the next day, 18th December, and spoke to Mr Packer, the office manager and her line manager. She explained about the childcare difficulties that had arisen. She offered to work from home, purchasing such equipment as was necessary at her own expense, and she also offered, alternatively, to take a period of unpaid leave up to a maximum of six months within which to resolve her childcare difficulties. Mr Packer went to see Mr Bernardes, the managing director, who in turn consulted the personnel manager. At the time the department was under pressure because of six people in the section where Mrs Lockwood worked, another was on maternity leave, one was suffering serious health problems and there were perceptible difficulties. Mr Bernardes suggested to Mr Packer that he should offer Mrs Lockwood an immediate two-week period of paid leave to allow her to explore other options for childcare. Mr Packer passed this on to Mrs Lockwood, although there was some ambiguity in his communication as to whether or not the two weeks would be paid. However, Mrs Lockwood refused the suggestion. Mr Packer in turn refused to accept her resignation and asked her to consider the matter over the weekend. On 21st December 1998 Mrs Lockwood handed Mr Packer the letter which she had written four days earlier. She left the department on 30th December 1998, but the effective date of termination of her employment was 15th January 1999. That date was suggested by her employers so that she might benefit from her pay rise for pension purposes.
6. The claim which Mrs Lockwood made to the Employment Tribunal was one of indirect sex discrimination. Section 1(1)(b) of the Sex Discrimination Act 1975 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 applies or would apply equally 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."

7. The Employment Tribunal correctly observed that it was for Mrs Lockwood to establish that there was a "requirement or condition" applied to her. They concluded that she had not established that a requirement or condition was applied to her which did not already exist and they decided that the complaint of indirect sex discrimination failed.
8. In reaching that decision, they stated that they took the following matters into account:

"(a) Mrs Lockwood was working from the time she returned from maternity leave on 28 September until December in a full-time position, utilising unused holidays for two days in each week. She was therefore working under her normal contract of employment which was a contract for full-time work.

(b) On 18 December 1998 she was offered two weeks' paid leave to resolve the child care difficulties that had arisen on 17 December and was expected to return to work on her pre-existing full-time terms and conditions of employment at the expiry of that two week period. The Tribunal considered that the terms and conditions, namely to work full-time, were already in existence and were not terms and conditions that were newly imposed.

(c) We took into account the decision in Home Office v Holmes [1984] ICR 678, EAT, in which the Employment Appeal Tribunal held that the provision relating to full-time work in the terms of employment was a requirement or condition pursuant to section 1(1)(b) but noted that in that case the applicant had asked to return to work on a part-time basis which is not the situation with Mrs Lockwood. Indeed, Mrs Lockwood received from the Citizens' Advice Bureau on or about 7 July 1998 advice consistent with the decision in Home Office v Holmes that, if she asked to work part-time, the Respondent would have to explain in writing their justification for not allowing part-time work. However, Mrs Lockwood never asked to work part-time."

9. In making his submissions today, Mr Fetto, on behalf of Mrs Lockwood, has concentrated on a single aspect of the case. His submission was that the finding that Mrs Lockwood had not shown that a requirement or condition had been applied to her was wrong in law. He submitted that the words "requirement or condition" have to be given a wide meaning, sufficiently wide to embrace matters that are no more than aspects of the current contractual obligations. In support of his submission, he referred us to the Northern Irish case of Briggs v North Eastern Education and Library Board [1990] IRLR 181 in which Lord Hutton, LCJ, stated at paragraph 27:

"We are of opinion that the consideration that the nature of the job requires full time attendance does not prevent there being a "requirement" within the meaning of s.1(1)(b) and Article 3(1)(b). We are further of opinion that the fact that the employer requires the employee to carry out the job she is employed to do does not mean that the employer does not "apply" a requirement to her."

That statement was supported and conditioned by the earlier decision of the Employment Appeal Tribunal in Clarke v Eley (IMI) Kynoch Ltd [1982] IRLR 482, at page 485, where Browne-Wilkinson J referring to words "requirement or condition" stated:

"In our view it is not right to give these words a narrow construction. The purpose of the legislature in introducing the concept of indirect discrimination into the 1975 Act and the Race Relations Act 1976, was to seek to eliminate those practices which had a disproportionate impact on women or ethnic minorities and were not justifiable for other reasons. … If the elimination of such practices is the policy lying behind the Act, although such policy cannot be used to give the words any wider meaning than they naturally bear, it is our view a powerful argument against giving the words a narrower meaning thereby excluding cases which fall within the mischief which the Act was meant to deal with."

10. Mr Fetto sought to apply those principles to the present case and submitted that, properly so applied, they ought to have resulted in the Employment Tribunal in the present case finding that the employer had applied a requirement or condition within the meaning of section 1(1)(b). His submission was that the real battleground in the present case ought not to have been whether or not there was a requirement or condition, but ought to have been upon the ground of justifiability under section 1(1)(b)(ii). Indeed, he went so far as to concede that the employer may be able to establish justifiability in the present case, but, he added, it is for the employer to do so.
11. On behalf of the respondent, Mr Barklem sought to take issue with the primary submissions of Mr Fetto, although not with the basic principle that he had expounded. The submission of Mr Barklem was that the Employment Tribunal had reached a proper determination of the question of "requirement or condition" on the evidence before it. He submitted that what was in issue in the present case was not something akin to a request for part-time work but was a suggestion of a total lack of work for an unspecified period subject to a maximum of six months.
12. One difficulty with that submission is that on the findings of fact in the Employment Tribunal Mrs Lockwood had not simply asked for a period of unpaid leave; she had advanced two alternative proposals. One was unpaid leave up to a maximum of six months but the other was continuing to work from home at her own expense as regards the purchase of equipment. Somehow that alternative possibility seems to have become lost in the final reasoning of the Employment Tribunal when they set out the matters which they had taken into account in reaching their conclusion that there had not been a requirement or condition applied in the present case.
13. It seems to us that a request to work from home at one's own expense is conceptually similar to a request to work part-time. Indeed, Mr Barklem frankly conceded as much. Although Mrs Lockwood on the findings of the Employment Tribunal had never asked to work part-time, she had asked to work from home.
14. In our judgment, there is force in Mr Fetto's submission that the Employment Tribunal misdirected itself when considering the question of whether there had been a requirement or condition applied to Mrs Lockwood in the present case.
15. We have come to the conclusion that, in line with the authorities to which we have referred, the response of the employer to the alternative proposals put forward by Mrs Lockwood to the effect that, following a two week period of leave she must work full-time, was one which did impose a requirement or condition as a matter of law. Because we have come to that conclusion, this appeal will be allowed.
16. We refer again to the observation of Mr Fetto that if and when an Employment Tribunal has to consider whether that requirement or condition was justifiable, it may be that the employer can succeed upon the issue of justification. However, the Employment Tribunal in the decision which is the subject of the present appeal, because it made a finding of no requirement or condition, did not go on to consider the issue of justification.
17. Having allowed the appeal, we shall remit the matter to the Employment Tribunal on the basis that there is a finding of a requirement or condition within the meaning of section 1(1)(b) of the Sex Discrimination Act 1975. The Employment Tribunal can then consider the remaining parts of that section and, in particular, can consider the issue of justifiability.
18. We have heard rival submissions as to whether any such remission should be to the same tribunal or to a tribunal which is differently constituted.
19. In our judgment, the circumstances are such that the matter should be reconsidered by the same tribunal. There is no suggestion of anything other than a scrupulous approach to the case on the part of that tribunal. We have found that they fell into legal error on one point, a point that is by no means a simple one and it seems to us that the interests of justice, including but not limited to the question of expense are best served by remitting the matter to that tribunal, so that upon the evidence it has already heard, it can decide the matters which now remain to be decided.
20. In making that order, we remind ourselves that the evidence before the Employment Tribunal included written witness statements as evidence in chief. Thus, the evidence in chief is preserved and no doubt the Notes of the Chairman as to any cross-examination will assist the tribunal in its remaining task.