United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS NAOMI CUNNINGHAM Representative Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ
For the Respondent	RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


JUDGE J R REID QC

1. This is an appeal from a decision of an Employment Tribunal sitting at Caenarfon after a hearing on 27-28 February and 18 April 2001, the second day of which was apparently aborted because of weather difficulties. The Tribunal promulgated its decision on 3 May.
2. By that unanimous decision the Tribunal, after granting leave to amend the name of the Respondent, dismissed the claims of the Applicants for redundancy payment, reimbursement of costs of uniform and the balance of bank holiday pay. By agreement it ordered the payment of £7.20 gross to each of the 2 Applicants for gross holiday pay. It determined that the Applicants were not unfairly dismissed by the Respondents from their employment, and dismissed the complaint of indirect sex discrimination. Therefore other than the small amount of holiday pay conceded the Originating Application was dismissed.
3. Against that decision the claimants below, Mrs Ann Jones and Mrs Rhian Wyn Jones appealed. An order on the Preliminary Hearing which took place here on 18 October 2001 directed, apart from making various procedural directions, that the appeal be allowed to proceed to a full hearing solely on the issue of sex discrimination.
4. The background of the case is short and simple. Mrs Ann Jones and Mrs Rhian Wyn Jones were 2 night workers at the Respondent's care home. They worked as a pair with 2 other night workers, a Mr Stanfield and a Mrs Pritchard. Under the rotas which were in force for some time Mr Stansfield and Mrs Pritchard worked every Saturday night. They became dissatisfied with never having a Saturday night off and voluntary attempts to reorganise the rota so that they got some Saturdays off and the Mrs Joneses got some Saturdays on having failed, the employer imposed new rotas which split the Saturday working between the 2 teams.
5. The Mrs Joneses were not content with this and as a result of their discontent failed to attend and were dismissed for non attendance. The Tribunal held the dismissals were fair. The Tribunal also as I have said held that there was no indirect sex discrimination against the 2 Appellants. So far as that latter point is concerned the relevant part of the decision is at paragraph 17 of the Extended Reasons which is in these terms:

"As to the applicants' complaints of sex discrimination, nothing was stated whatsoever by either applicant in evidence in that respect, neither where any documents introduced by them. Therefore, the tribunal accepts the respondent's submission that no case was put forward by the applicants for the respondent to answer, nor for that matter for the tribunal to consider in accordance with the principles in the LONDON UNDERGROUND case."

6. The appeal to us points out that the Tribunal is in error in suggesting that no documents relating to the sex discrimination were introduced. In fact there was documentary evidence that appears to not being referred to in the course of argument relating to various matters in the form of various statistical charts and that the Applicant through their representative, who was a professionally unqualified representative from the CAB, had said in opening that the Applicants were discriminated against in that the proportion of women who could comply with working on a Saturday night was considerably smaller than the proportion of men who could comply with it.
7. The way in which the appeal is put is that the point having been raised, the Tribunal should under what was then Rule 9 have insured that the point was properly explored. It seems to us clear that the point was inadequately presented to the Tribunal by an inexperienced and unqualified advocate. In the Affidavit he indicates that this was the third time that that he had dealt with pay in indirect discrimination case and that he had appeared orally at 3 Tribunal hearings in all.
8. It was no doubt the inadequacy of the presentation which failed to sufficiently alert the chairman so that he did not as he should have done have explored matters more thoroughly in a quosi inquisitorial manner. The result of this was that he did not go through, the five steps that are customarily gone through when the complaint of indirect discrimination. The first of those is "What was the requirement or condition concerned?" In this case that was abundantly clear it was the working on Saturday night. Secondly, the Tribunal failed to ask itself what was the pool that they had to consider in order to determine whether requirement or condition applying or sought to be applied to the 2 claimants (namely that they should work on Saturday night) was such that the proportion of women who could comply with it was considerably smaller than the proportion of men who could comply with it. Thirdly, they failed to consider whether the requirement to work on a Saturday night had a disparate impact on the small pool or any larger pool. It is noticeable that the pool contested for at that hearing was not a small pool of the employees but a general pool of a proportion of women against men who could work on a Saturday night. As a result of not asking that question no investigation was made of what might have been found in the larger pool. Fourthly, the Tribunal should have decided whether or not as a matter of fact the 2 Appellants could have complied with the requirement and fifthly, they should have made a finding of fact as to justification.
9. We have considered whether on the findings of fact which were made it is possible for us to reach conclusions which would obviate this case being sent back for a rehearing. Reluctantly we have decided that we cannot. The findings of primary fact are too inadequate and confused for us to make the necessary secondary findings of fact drawn from those primary facts or to draw conclusions of law. In particular we are unable to make any determination as to whether or not the 2 Appellants could reasonably have complied with the requirement for Saturday working. There appears to be substantial evidence that Mrs Anne Jones at least could have done so but we do not think that we can determine that matter nor can we determine whether the employer can show that the provision was justifiable irrespective of the sex of person to whom it applied. There is material from which a Tribunal might very well come to the conclusion that the actions of the application of the condition or requirement were justified by the employer who appears to have done everything that reasonably could to keep the small of its night pool happy but we do not feel able to determine as an Appellant Tribunal whether or not justification has been established.
10. Furthermore, we are not satisfied that we have adequate material to ensure proper identification of the pool or what the situation was within the appropriate pool. In all those circumstances with considerable regret, because it will mean still further delay and still further expense, we feel that this matter has to be remitted. It should be remitted to a differently constituted Employment Tribunal. That Tribunal will consider whether or not there was by reason of the condition that the 2 Mrs Jones work on Saturday night indirect sexual discrimination against them and whether they were unfairly dismissed as a consequence of indirect sexual discrimination if a finding be made that there was such discrimination.
11. The issues therefore have to be addressed are we hope more limited than they were first time round and we hope that with the guidance that we have been able to offer, limited as it is, it will be possible on the next occasion before the Tribunal to be adequately addressed and be presented with adequate evidence to decide those issues. In those circumstances for those reasons and to that extent the appeal will be allowed.