United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS ANNE WHITE (of Counsel) Messrs Thompsons Solicitors Acresfield 8 Exhange Street Manchester M60 8BT


 


MR RECORDER BURKE QC

1. This is the Preliminary Hearing of Miss Symonds' appeal against the decision of the Leicester Employment Tribunal, chaired by Mr Threlfall and promulgated with extended reasons on 5 June 2000, on a preliminary issue.
2. The history of the proceedings is, briefly, as follows. Miss Symonds, who had been for many years employed in another fire brigade on fire control duties which are broadly separate from fire fighting duties, wanted to apply for a job which she saw advertised in the Leicestershire Fire & Rescue Service as an Equal Opportunities and Training Officer. She obtained a job description and person specification, which documents set out three requirements for the job. They were: that the applicant must firstly be a qualified fire fighter of not less than 5 years operational experience; must secondly be of not less than substantive sub officer rank and, thirdly, must have qualified by having passed the statutory fire service examinations to the level of station officer.
3. Miss Symonds had never been, as we understand it, a fire fighter; and therefore while she had obtained the equivalent in the fire control part of the fire service of sub officer rank and had operated in the equivalent, it is said, to station officer rank (although that may be a fact in dispute) nonetheless she had not ever been a fire fighter and thus on the face of it did not appear to qualify for the job for which she sought to apply.
4. Her IT1, as presented to the Tribunal in March of last year, stated that she had suffered indirect sex discrimination because the third requirement, namely the requirement to have passed the statutory fire service examinations to qualify for the position of station officer, was a requirement with which considerably less women than men could comply. She did not in her IT1 complain that the two other requirements were discriminatory. The case was listed for a Preliminary Hearing to consider whether the complaint must fail as a result of the decision of the Employment Appeal Tribunal in Cardiff Women's' Aid v Hartup (1994) IRLR 390, the basis for that issue being the suggestion of the Respondents that she had not actually applied for the job and had no genuine intention of applying for the job. The Tribunal rejected that as a ground for dismissing or striking out the Applicant's case at the hearing of the preliminary issue.
5. The Preliminary Hearing was, however, extended on the application of the Respondent and without objection on behalf of Miss Symonds to deal with a second issue raised by the Respondents namely, that the Applicant, Miss Symonds could not succeed in any event because she could not establish any detriment, because, even if she succeeded in demonstrating that one of the three conditions about which she was complaining was discriminatory, she could not meet the other two conditions and thus could never be eligible for the job or, to put it into more technical language, come within the pool of applicants for the job. Before the hearing started the Respondents made an application to amend their IT3 in various ways. Only one of the amendments might have been relevant to the preliminary issues as we have just defined them and that amendment appears to us to have been by way of clarification rather than by way of raising any new issue. The solicitor acting for Miss Symonds himself applied to amend the IT1 in order to assert that a second of the three conditions was also discriminatory, namely the requirement for five years operational experience. There was no application to allege that the remaining condition, namely the requirement that the applicant be of not less than substantive sub officer rank, was discriminatory, although that requirement inherently and inevitably also required fire fighting experience. The Tribunal refused to permit the amendment sought on behalf of Miss Symonds. It went on to find, putting the matter in very broad terms for the moment at this preliminary stage, that Miss Symonds could never succeed because, if she established that the one condition on which she relied was discriminatory (the amendment having not been allowed), nevertheless she could never establish a detriment because, to put it very broadly, she could never have got into the relevant pool.
6. By her appeal Miss Symonds seeks to attack that decision of the Tribunal on two grounds. Firstly, it is sought to attack it on the basis that the Tribunal erred in not permitting the amendment, which amendment would have caused no prejudice to the Respondents, which the Respondents had already anticipated in their IT3 and which would not have meant that the preliminary issue, as enlarged by consent between the parties or at least with the Applicant not objecting, would have had to have been adjourned, or indeed to have been conducted in any different way. It is important to note that, at this stage on this preliminary issue, no question of justification was being raised. The amendment might have meant a different task and perhaps would have meant a different task for the Respondents in terms of justification, but justification, at the stage of the Preliminary Hearing was not an issue. However, whether or not the amendment should or should not have been granted, the fact remains that had the amendment been granted the Applicant's case would only have challenged as unlawful by reason of indirect discrimination two of the conditions; and there was still a third condition which was not challenged. Thus, it can be said, the Tribunal may well have been correct in saying that there was no detriment even if the amendment sought had been allowed on an amended basis because Miss Symonds could never have satisfied the third unchallenged condition. This Miss White has, very frankly, accepted in the extremely helpful and brisk submissions that she has made to us this morning with conspicuous ability.
7. The second issue challenged in the appeal is more significant than the first. The second issue is whether the Tribunal was right to say that there could have been no detriment because Miss Symonds could not get over the third hurdle even if one or both of the first two hurdles were discriminatory. We do not propose to go into detail at this preliminary stage; not without a considerable degree of hesitation, we take the view that it is just arguable that that view taken by the Tribunal was wrong in law and that the Tribunal ought to have considered whether there was a detriment to the Applicant in not being able to qualify by reason of inability to satisfy what she alleged to be a discriminatory and therefore unlawful condition. We are not suggesting for one moment that an argument along those grounds would succeed; but indirect discrimination cases raise difficult questions; and having considered it with some care, we take the view as we have said, that there is here an arguable point. Of course if the application for the amendment had been to include all three conditions the position would have been much clearer; but we have dealt with it on the basis of the application that was made and we can not deal with it on any other basis.
8. This takes us back to the amendment issue which, for the reasons we have explained, may not be of great relevance. However, because it may be of relevance to the division of this Employment Appeal Tribunal that ultimately hears this case, we believe that there are arguable grounds for saying that the Tribunal erred, even having regard to its very wide discretion in relation to amendments, in not granting the amendment in this case. We have indicated that it probably does not make any real difference; but lest it does, we decide that point too should go through to a full hearing.