United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J TAYLOR (of Counsel) Instructed By: Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ
For the Respondent	MR D R OUDKERK (of Counsel) Instructed By: Messrs Russell Jones Walker Solicitors Scottish Equitable House 43 Temple Row Birmingham B2 5JT


 


JUDGE PETER CLARK:

1. We have before us an appeal by the respondent employer before the Birmingham Employment Tribunal, Lander Carlisle Ltd, (the Company) against that tribunal's decision, promulgated with extended reasons on 28 June 1999, upholding the applicant, Mrs Highfield's complaint of direct sex discrimination and a cross-appeal by the applicant against the tribunal's finding dismissing her complaint of indirect sex discrimination and a further contention that the tribunal failed to adjudicate on a live claim before them, that of indirect discrimination on grounds of her marital status.

The Facts

2. The Company manufactured plastic injection mouldings for the automotive industry at their premises in Birmingham.
3. On 12 June 1995 the applicant's husband, John Highfield, commenced employment with the Company. At the outset of his employment he worked on a constant night shift, Monday to Thursday each week, from 8.45 pm - 6.15 am. At all relevant times the couple had a daughter then aged 9 years.
4. On 1 July 1996 the applicant commenced her employment with the Company as a general operator on the "twilight shift", that was, 4 pm – 9 pm, Monday to Thursday.
5. In February 1997 the Company asked the applicant to change her working hours. She agreed. Her new contractual hours were 1 pm – 6 pm, Monday to Thursday.
6. In August 1997, at the applicant's request, the Company agreed to alter Mr Highfield's hours to 8.45 pm - 6 am, Monday to Thursday.
7. In October 1997 the Company decided to alter the shift patterns. Part-time work would henceforth only be available at week-ends.
8. The applicant found the proposed arrangement for part-time working at week-ends only unacceptable. It would disrupt family life if she worked at week-ends and her husband during the week. Equally, she felt unable to work full-time during the week, since this would upset arrangements for her daughter's care during the week.
9. She nevertheless tried working a full-time shift for one week in early November 1997, that is, working 8 am – 4.30 pm, Monday to Friday. The experiment was not a success, placing an undue onus on Mr Highfield to both pick up their daughter at the end of the school day and to take her to school in the morning.
10. As a possible solution the applicant suggested a work-share arrangement to a fellow employee, Mrs Totney. They put the plan to their trade union representative who in turn put it to management. The proposal was that the applicant would work 1 pm – 5 pm and Mrs Totney 5 pm – 9 pm on Monday to Friday.
11. The Company agreed to a three month trial period, beginning on 1 January 1998 (reviewable in March), of the proposed job share arrangement. It worked well, so the tribunal found.
12. However, on 25 March 1998 the Company decided that it did not want the shift-share to continue in the long term and gave 12 weeks' notice that it would cease on 19 June 1998.
13. At a meeting held on 30 March 1998 between the applicant, her trade union representative and Ms Morris, the Personnel Officer, she was told that she must go on to either full-time working during the week or part-time working at week-ends, failing which she would be dismissed.
14. In a further effort to resolve the matter it was agreed that Mr Highfield would commence a three week trial period working from 10 pm – 7.30 am Monday to Thursday. At the same time the applicant started a similar trial period working the full afternoon shift of 1.15/ 1.30 pm – 9 pm Monday to Thursday. The new arrangement proved unacceptable to Mr Highfield, who reverted to his original night-shift hours on 6 May 1998 and a week later the applicant reverted to working afternoons only from 1 pm – 5 pm.
15. On 7 May Ms Morris wrote to the applicant informing her that unless she accepted either part-time week-end working or full-time week day working her employment would terminate on 19 May. She appealed unsuccessfully against that decision on 13 May and on 19 May her employment was terminated.

The Applicant's Claims

16. A complaint of unfair dismissal was stayed pending the outcome of the Seymour-Smith litigation.
17. Her originating application, presented on 27 August 1998 and drafted with the assistance of her trade union representative, alleged sex discrimination in addition to her complaint of unfair dismissal. The different ways in which the sex discrimination claim was put are set out in further particulars of the applicant's claim dated 24 February 1999 and settled by her solicitor. That document sets out three bases of claim:

(1) direct sex discrimination

(2) indirect sex discrimination

(3) indirect discrimination on grounds of her marital status (marriage discrimination)

18. In considering both the appeal and cross-appeal it is convenient first to set out the law applicable to each head of claim.

Direct Sex Discrimination

19. We begin with the relevant statutory provisions to be found in the Sex Discrimination Act 1975 (SDA). They are:

"s.(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man. …

s.5(3).. A comparison of the cases of persons of different sex … under section 1(1) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

s.6(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -

(a) in the way he affords her access to opportunities for promotion, transfer or training, or any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment."

20. Mr Tayler has correctly identified the steps to be taken by an employment tribunal in considering a complaint of direct sex discrimination, without dissent by Mr Oudkerk, as follows:

"(1) Identify the treatment afforded to the Applicant

(2) Either:

(i) Identify an actual comparator whose circumstances are the same or not materially different to those of the Applicant or

(ii) Consider a notional comparator – ie how a man would have been treated in circumstances that are the same or not materially different

(3) Consider whether the Applicant has been treated less favourably than the comparator

(4) If so, consider whether the Applicant's less favourable treatment was on the ground of her sex."

Indirect Sex Discrimination

21. Section 1 SDA further 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."

22. Again we adopt Mr Tayler's analysis of the process identified by section 1(1)(b). It is as follows:

"(1) Was a condition or requirement applied to the Applicant?

(2) What is the pool for comparison? This is a question of fact for the tribunal which may only be challenged on grounds of perversity: Kidd v DRG (UK) Ltd [1985] ICR 405.

(3) Is the proportion of women that can comply with the condition or requirement considerably smaller than the proportion of men who can comply? This too is a question of fact for the tribunal [subject to the perversity test]: see London Underground Ltd v Edwards (No 2) [1998] IRLR 364; R v Secretary of State for Employment ex parte Seymour-Smith [1999] IRLR 253.

(4) Is the condition or requirement to the Applicant's detriment because she cannot comply?

(5) Is the condition or requirement justified?"

Indirect Marriage Discrimination

23. Section 3 SDA provides, so far as is material:

"(1) A person discriminates against a married person of either sex in any circumstances relevant for the purposes of any provision of Part II [including, in particular, s.6(2)] if -

(b) he applies to that person a requirement or condition which he applies or would apply equally to an unmarried person but -

(i) which is such that the proportion of married persons who can comply with it is considerably smaller than the proportion of unmarried persons of the same sex who can comply with it, and

(ii) which he cannot show to be justifiable irrespective of the marital status of the person to whom it is applied, and

(iii) which is to that person's detriment because he cannot comply with it."

24. The approach to claims of indirect marriage discrimination is identical to that for indirect sex discrimination as outlined above, substituting marital status for sex.

The Employment Tribunal's Self Direction as to the Law

25. At paragraph 9 of their reasons the tribunal set out sections 1(1) and 6(2) SDA. They do not refer, either to section 5(3), the like for like comparison, nor section 3, marriage discrimination.
26. Similarly, in their summary of the principles applicable to both direct and indirect sex discrimination at paragraph 10 of their reasons no reference is made to the like for like comparison. Nor is there any reference to marriage discrimination.

The Employment Tribunal's Conclusions

Direct Sex Discrimination

27. This is dealt with at paragraph 15 as follows:

"Was the applicant treated less favourably on the grounds of her sex? We find that she was for the following reasons:

(a) The respondent's decision to cancel the job-share arrangement directly affected the applicant and Mrs Totney. The refusal to continue with the shift-share arrangement was not due to commercial consideration. It directly impacted on the applicant because she was not able to work those shifts being a primary carer of a young daughter. This was a matter which related to her sex. She had clearly suffered a detriment by being dismissed. This therefore, constitutes direct sex discrimination.

(b) We are satisfied that the applicant was treated less favourably than a man. The respondent was much more willing to change hours and arrangements for Mr Highfield than Mrs Highfield. This constituted direct sex discrimination."

Indirect Sex Discrimination

28. The tribunal state their conclusions on this part of the applicant's claims at paragraph 16 thus:

"Whilst we are satisfied that the respondent imposed a requirement or condition that employees during the week must work full-time, we are not however satisfied that this requirement was such that the proportion of women who could comply with it was considerable (sic) smaller than the proportion of men who could comply. On the statistical information and submissions made by the applicant 95.5% of female employees could comply with the requirement, whereas 100% of the male employees could comply. That difference does not seem to us to be such that it can be called 'disproportionate'. Accordingly, the claim for indirect sex discrimination fails and is dismissed."

Marriage Discrimination

29. There is no reference to this head of claim anywhere in the tribunal's decision or reasons.

The Appeal and Cross-Appeal

Direct Discrimination

30. Mr Tayler challenges both parts of the tribunal's findings at paragraph 15 of their reasons. He points out that at paragraph 15(a) the tribunal identified the relevant treatment as the Company's decision to cancel the job-share arrangement between the applicant and Mrs Totney. However, they then failed to identify an actual or notional comparator and consequently failed to make the necessary finding that the treatment afforded to the applicant was less favourable than treatment afforded to such a comparator. Moreover, there is no finding that any less favourable treatment of the applicant was on grounds of her sex.
31. As to paragraph 15(b), the tribunal identified different treatment to that under paragraph 15(a), namely the Company's refusal to allow the applicant to work a revised afternoon shift from 12 noon - 8 pm. They identify as the relevant comparator Mr Highfield, but fail to consider whether he is in fact a true comparator (s.5(3)). It was the Company's case that whereas it was possible to alter Mr Highfield's shift pattern by one hour without disrupting production, the same was not true of the applicant's shift pattern. Further, the tribunal failed to consider the further question, even if Mr Highfield was a true comparator and the applicant was treated less favourably than him, was that treatment on the grounds of her sex, particularly where Mr Highfield's hours were altered, on the tribunal's own findings at paragraph 4 (x) of their reasons, pursuant to an agreement reached between the applicant and the Company in order to assist her child care arrangements.
32. Mr Oudkerk submits that the tribunal correctly directed themselves as to the law and were entitled to find as a matter of fact that the applicant's claim of direct sex discrimination was made out. Although no comparator is mentioned in paragraph 15(a) of their reasons, he contends that the tribunal plainly had in mind Mr Highfield as the relevant comparator.
33. Alternatively he submits that even if paragraph 15(a) cannot stand, the finding in paragraph 15(b) is unassailable. We should infer from the fact that in closing written submissions the representations of both parties addressed the specific issue as to whether or not Mr Highfield was a true comparator the tribunal accepted the applicant's case on that issue and rejected that of the Company.
34. As to the tribunal's omission of any reference to s.5(3) SDA or it effects at paragraphs 9 and 10 of their reasons he prays in aid the judgment of Morison J in Chief Constable of the Thames Valley Police v Kellaway [2000] IRLR 170 (EAT), paragraph 48, where he said:

"Whilst we would not condone a tribunal decision which does not set out the relevant legal position and does not make findings of fact on all the principal submissions made, this does not amount to an automatic ground of appeal. It has to be shown that omitting to set out the legal principles or key submissions made has led to a consequent error of law or incorrect finding of fact."

35. We make two observations on Kellaway. The first is that it appears that in that case the EAT accepted the submission made by Counsel for the applicant (respondent to the appeal) at paragraph 44 that the employment tribunal had identified correct male comparators. Secondly, whilst we endorse nearly all that Morison J said in the passage above cited, we do not find it necessary to follow the final five words of that passage. The question on appeal will not be whether a finding of fact is correct, but whether it is supported by any evidence. If so, we cannot interfere with such finding.
36. Reverting to the instant case, we find that the tribunal fell into error in the following respects:

(1) they failed to identify any comparator, actual or hypothetical, in relation to the treatment considered at paragraph 15(a). That error alone permeates and fatally undermines their conclusion on that part of the case

(2) they failed to consider whether, as a matter of law and fact, Mr Highfield was a correct comparator for the purpose of the treatment considered at paragraph 15(b). The absolute omission, either of any reference to section 5(3) or its effect at paragraphs 9 and 10 of their reasons, or the significant factual dispute raised by the parties as to whether or not he was a true comparator is in our view fatal to the finding at paragraph 15(b).

37. It follows that the tribunal's finding of direct sex discrimination cannot stand and must be set aside.
38. Mr Tayler has gone on to submit that having identified errors of law in the tribunal's approach to the question of direct sex discrimination we are ourselves in a position to substitute a declaration of no direct sex discrimination. We disagree. The principles are clear. Having identified an error of law on the part of the tribunal we can either affirm the decision as being plainly and unarguably right notwithstanding the tribunal's misdirection, or reverse it where the decision is plainly and unarguably wrong; alternatively we must remit the point to the same or a different tribunal for reconsideration or rehearing. Dobie v Burns International [1984] ICR 812; Hellyer Bros Ltd v McLeod [1987] ICR 526.
39. In this case there are respectable arguments on the facts by both sides which are left wholly unresolved in the tribunal's reasons. It is not for us to find the facts. Accordingly the inevitable result is that the issue of direct sex discrimination must be remitted to, we think, a fresh employment tribunal for rehearing.

Indirect Sex Discrimination

40. Both Counsel rely upon the Court of Appeal decision in London Underground Ltd v Edwards (No.2) [1998] IRLR 364 to achieve a different result in this part of the cross-appeal.
41. Mr Tayler submits, correctly we think, that the question of what is colloquially known as adverse or disproportionate impact is essentially a matter of fact for the employment tribunal. We can only interfere with a tribunal's finding if it can be shown to be perverse in the Wednesbury sense. On that basis he asks us to dismiss this part of the cross-appeal.
42. However, Mr Oudkerk has persuaded us that in paragraph 16 of their reasons the tribunal appear to have focused solely on the statistical evidence, without more, and have failed on the face of their reasons to consider additional relevant factors, namely,

(1) the small number of part-time workers

(2) that the only affected employees were two part-time women, the applicant and Mrs Totney

(3) their finding at paragraph 14 that the Company's decision to do away with all part-time shifts, except for week-ends, left them exposed to the risk that it would almost inevitably impact unfavourably against women workers.

43. We accept that submission. In these circumstances we think it right to uphold this part of the cross-appeal and to direct that this part of the case should also be remitted to a fresh employment tribunal, applying the principles referred to earlier.

Marriage Discrimination

44. It is axiomatic that an employment tribunal must consider all claims actually raised before them. Mr Tayler accepts that this head of claim was raised directly by the applicant, both in her further and better particulars of the originating application and in her representative's written closing submissions.
45. In these circumstances we accept Mr Oudkerk's submission that in not dealing with this part of the applicant's claim the tribunal fell into error.
46. Mr Tayler has sought to persuade us, by reference to the statistics before the tribunal, that the tribunal implicitly rejected the claim of indirect marriage discrimination as an inevitable corollary of their finding on indirect sex discrimination. Alternatively, we should affirm this decision not to uphold that part of the claim on the grounds that to do so is plainly right.
47. We think that submission fails on two counts. First, because we have upheld the challenge to the tribunal's finding on indirect sex discrimination. Secondly, and in any event because we are not equipped to adjudicate on a claim on which the original tribunal has made no findings of fact.

Conclusion

48. Both the appeal and cross-appeal are allowed. The case will be remitted on all three heads of claim for rehearing before a fresh employment tribunal, applying the law as we have endeavoured to state it to the facts which they find.

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