United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS A THOMAS (Of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH


 


MR RECORDER LANGSTAFF QC

1. This is a preliminary hearing in an appeal from the Employment Tribunal sitting at London South which gave reasons on 27 September 2001. We propose to give leave on all the grounds which had been argued before us today by Miss Thomas on behalf of the Appellant for the matter to go forward to a full hearing. However, we shall for the assistance of that Tribunal say a few words about our reasoning. In particular Miss Thomas has claimed that in rejecting the Appellant's claims of discrimination on the grounds of sex both direct and indirect the Tribunal failed to deal with a number of allegations of discrimination. These, she says, were free standing complaints of matters which ought to therefore have been resolved as such by the Tribunal. In particular she has identified four such matters. The first is the withdrawal of rest room facilities by the Health and Safety officer and the inappropriate alternatives suggested. The second is the failure of Mr Deacon and others to identify or consider breast feeding as a welfare consideration and therefore to reject the applicability of the respondents' transfer policy to the Appellant. Third, is a failure to respond to the Appellant's specific and repeated request for a risk assessment and her concerns about a potential return to operational duties whilst she was breast feeding, and fourth the perception that she was given of the respondents' position and approach on breastfeeding which was that any period longer than six months was generous, notwithstanding that this was not a policy and there was no intent to enforce it.
2. None of these was clearly identified in the originating application as a free standing complaint. But she has persuaded us that it is arguable that they might and should therefore have been seen as such. That argument is based upon somewhat oblique references in the voluntary particulars of the originating application, in particular those that appear from paragraph 38 onward, coupled with wording at the outset of the voluntary particulars, which makes it plain that incidents prior to April 1999 were to be relied on as background and it might follow by implication that those thereafter were to form the basis for substantive complaints.
3. But in any event she contends this was put beyond doubt by her closing submissions on behalf of the Applicant which conveniently were in writing. She has identified passages in those submissions which appear arguably to treat each of these four heads as separate complaints. When the Tribunal gave their decision they identified in paragraph 2 from letters (a) to (i) the issues as the Tribunal itself saw them. These issues however were not, she tells us, identified with the assistance of Counsel at the outset of the hearing nor were they separately the subject of discussion during closing submissions. They were instead the Tribunal's own expression of the issues to which the rest of their reasoning was to be directed. Save in one respect they do not deal with the issues which we have mentioned above. That one respect is at letter (e), the failure to carry out a risk assessment, where the argument is that what the Tribunal should have considered is not only the legal requirement arising from directive to carry out such a risk assessment but the respondent's behaviour in repeatedly receiving, but not dealing with, requests by the Appellant for such a risk assessment, thereby arguably causing her a potential detriment in the way that she felt and perceived her position, to her dignity, and in creating what she may have seen as a threat to herself and her baby.
4. We should say very little about the next issue which is raised which is that of the way in which the Tribunal dealt with that which was a detriment save to say we think the point she raised may possibly be arguable.
5. Finally she has submitted to us that where the Tribunal dealt with the question of justification in paragraph 79 of their decision there may have been two errors of law each independent of the other. The first is that that passage is capable of being read as meaning that the Tribunal received evidence capable of justifying the requirement or condition. It may however equally be capable of being read as saying that the evidence which the Tribunal identified was in fact explained by the further words which appear in the last four sentences, namely that they felt that their own views as to the rights and wrongs of the situation were sufficient material on justification and that evidence did not have to be called as such directed to the issue. Secondly, and separately, we have been urged to consider that having identified a requirement or condition that whether or not it was justified would depend not just upon whether the policy as such was or might be appropriate to the need of the undertaking necessary for that purpose but whether also its application in the individual case of the Appellant was proportional to the discriminatory effect of the requirement or condition upon her. It is argued by Miss Thomas that there is nowhere apparent any of the balancing exercise one might otherwise have expected in a case of justification.
6. For those reasons we consider that this is a case which is properly arguable. We think it should take no more than half a day to argue notwithstanding the number of issues. It is Category B. Skeleton arguments identifying any cases to be relied upon to be filed no less than 14 days prior to the hearing together with photocopies of any authorities.