United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS H WILLIAMS (of Counsel) Instructed By: Ms J Deighton Deighton Guedalla Solicitors Top Floor 30/31 Islington Green London N1 8DU
For the Respondent	MR SIMON DEVONSHIRE (of Counsel) Instructed By: Messrs Lawrence Graham Solicitors 190 Strand London WC2R 1JN


 


MR JUSTICE HOLLAND:

Introduction

1. This is an appeal from the decision of an Employment Tribunal sitting at London Central, which decision together with Extended Reasons was sent to the parties on the 8^th February 2001. The issue is sex discrimination.

The Facts

2. The relevant facts are as follows. The Applicant before the Tribunal (and the present Appellant) is now aged 34. In March 1996 she commenced employment with the Respondent employers as a full time Senior Business Travel Consultant. The Respondents company is a comparatively small travel company, situate in Chalk Farm and divided into three parts: Travel for the Arts; Blair Communications and Blair Travel. The first such part is described as "a niche business organising specialist opera tours" and involves seven employees; the second part was dedicated to organising conferences for the legal profession and ceased to operate after October 2000; the third and final part constitutes a travel agency, in its turn in two parts, one retail, the other corporate. Adverting to Blair Travel, it involves four travel consultants, two on the retail side, two on the corporate side. Those on the retail side deal direct with the public; those on the corporate side deal with regular clients, exclusively by telephone. Upon joining the Respondents, the Applicant became one of the two consultants serving the corporate side and achieved a high standard in her work.
3. The subsequent relevant chronology is as follows:

a. 22^nd to 24^th December 1997. Her working hours were reluctantly reduced during this period to help her overcome the shock of a family bereavement. Her day started at 10.00 a.m. (and not 9.00 a.m.) and finished at 4.00 p.m. (and not 5.30 p.m.).

b. 2^nd September 1999. The Applicant commenced maternity leave having intimated a wish to return to work at its conclusion.

c. 8^th September 1999. Her son was born.

d. 17^th February 2000. The Applicant wrote to Mr. Andrew Blair (the founder of the Respondent company and its managing director) indicating an intention to return to work on the 27^th March 2000 (that is, at the end of her maternity leave) but adding:

"However I would like to negotiate a change in my present working hours to more adaptable child friendly working hours. My suggestion is working part-time hours, on Tuesday, Wednesday and Thursday from 10.00 am to 4.00 p.m.

I do appreciate that this matter may need to be discussed further in more detail, therefore I am available to call into the office for a meeting."

e. 19^th February 2000. Mr. Blair responded: "Part time hours is neither practical nor appropriate for senior travel consultants", and invited her to return to full time employment.

f. 28^th February to 3^rd May 2000. Orally and by way of correspondence the Applicant and Mr. Blair sought to negotiate a solution to this impasse but to no avail. The Applicant starts to suffer stress so as in any event to be unfit for work.

g. 15^th May 2000. By way of an ET1 the Applicant complained of sexual discrimination in the following terms:

"On 17 February 2000, Ms Pryce wrote to Mr Blair confirming her intention to return to work on 27 March 2000. She also requested a return to work on a part – time basis i.e., Tuesdays, Wednesdays and Thursdays from 10.00am – 4.00pm. Some reasons being that she was still breast feeding and had difficulty in finding suitable child care.

On 19 February 2000, Mr Blair refused Ms Pryce's request claiming it was impracticable.

Ms Pryce tried to negotiate a change in Mr Blair's stance to no avail. She has informed Mr Blair that she is willing to be flexible in her request for child friendly working hours to suit the interests of the company.

Ms Pryce was unable to return to work on 27 March 2000 owing to stress, anxiety and related problems. She is still on sick leave.

Mr Blair has discriminated against Ms Pryce on the grounds of her sex.

Ms Pryce seeks a recommendation that Mr Blair allow her to return to appropriate part-time work; and/or compensation for discrimination and interest."

The Statute

4. It is common ground that the issue is as to indirect discrimination and that the relevant provisions of the Sex Discrimination Act 1975 are:

Section 1(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 he 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 then 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.

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.

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-

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

The Issues

5. Before the Employment Tribunal it was conceded:

a. that the Respondents, through Mr. Blair, had applied to the Applicant "a requirement or condition" which they applied or would apply equally to a male employee, namely that as a senior travel consultant she should work full time and not part time; and

b. that this requirement or condition was to her detriment because in her circumstances following the birth of her son she could not comply with it.

6. That concession left two issues arising for resolution by the Tribunal:

a. Was this requirement or condition such that the proportion of woman who could comply with it was "considerably smaller" than the proportion of men who could comply with it?

b. If so, could the Respondents show such requirement or condition to be justifiable irrespective of the sex of the person to whom it was applied?

7. In the event after a prolonged hearing reflected in reasons that are truly extended, the Tribunal decided that the Respondents had not indirectly discriminated against the Applicant pursuant to Sections 1(1)(b) and 6 and accordingly dismissed the complaint. She appeals contending that the decision reflects errors of law so as to be fatally flawed.

The First Issue

8. The Tribunal directed itself that its task was two fold at this stage. First, it had to identify the appropriate 'pool', that is, the group of employees whose circumstances were sufficiently proximate to enable a fair proportionate comparison to be made (see Section 5(3)); and second it had then to make the comparison so as to discern whether within the pool there was a 'considerably smaller' proportion of women who could meet the requirement or condition. Adverting to the first task, the Tribunal accepted the submission made to them on behalf of the Applicant "that the pool should be limited to employees who are or had been employed by Blair Travel as Travel Consultants". That approach led to the identification of a pool of ten. Two such were men - and each could comply with the requirement. Of the remaining eight women, the Tribunal found that only one (the Applicant) could not comply with the requirement. The resultant comparison in terms of proportion was between 100% (men) and 87% (women) and the Tribunal held that the latter proportion was not "considerably smaller" than the former so that the Applicant failed on the first issue. By way of check the Tribunal did a parallel and effectively identical calculation, this time on the basis of a pool of eight that being an arguable view of the situation as at March 2000.
9. On behalf of the Applicant, now the Appellant, Miss Williams contends that these findings reflected two errors of law. To develop her first submission it is necessary to advert to further material facts. On the retail side of Blair Travel one of the two travel consultant was Miss Elizabeth Reynolds. In October 1999 she commenced long term sick leave, suffering from chronic fatigue syndrome. In the event she never returned to this employment and by the date of the hearing she had terminated it. There was some evidence that in March 2000 she too had expressed an interest in part-time work which had been rebuffed as impractical. For the Tribunal all this posed two problems: should this lady be included in the pool? And if so, should she be assessed as a woman who could not comply with the requirement or condition? in essence, were the relevant circumstances in her 'case' materially the same as in the other 'cases', see Section 5(3)? The Tribunal decided that she should be included in the pool but as someone who for present purposes could comply with the requirement or condition. They did do a parallel calculation to that already recorded, this time on the premise that Miss Reynolds should not have been in the pool and recorded, as would be expected, an effectively similar apportionment. They did not do a calculation on the premise that Miss Reynolds was properly in the pool and fell to be categorised as one who could not comply with the requirement or condition. Had they done so then with a pool of ten the apportionment would have been 100% - 75%;' with a pool of eight, 100% - 71.4%.
10. In explaining its approach to this problem the Tribunal said:

"The Tribunal rejects Mr Masarella's submission that Ms Reynolds should be treated as a person who cannot comply with the requirement. Her inability to work part-time (or, indeed to work full-time) was not related to her being a woman or for maternity-related reasons as was the case with the Applicant. Her case is not comparable to the Applicant's. Ms Reynolds' reason for not being able to work would have been no different from that of a man who would not have been able to work full-time for health reasons. The circumstances of her in ability to work were not the same, they were materially different, within the meaning of section 5(3) of the 1975 Act, to the circumstances of the Applicant who could not work full-time due to gender-specific reasons. It was not a like for like comparable situation."

11. It is the submission of Miss Williams that the Tribunal, having correctly decided to include Miss Reynolds in the pool, thereafter misdirected itself. The plain fact was that this woman could not comply with the requirement or condition of full-time employment and thus fell to be added to the Applicant for apportionment purposes. The fact that her inability in this regard arose from her illness rather than (whether directly or indirectly) her gender was immaterial and the Tribunal should have regarded it as such.
12. Miss Williams has a further point with respect to this first issue. Certain statistics showing, by reference to certain categories of employment activity, that women were more likely to engage in, and arguably had a greater need for part-time work were put before the Tribunal only to be rejected as material to its decisions. The point well emerges from the relevant part of the Notice of Appeal:

"Further or in the alternative the Tribunal failed to take into account relevant national statistics that were before it:

Nationally amongst managers and administrative staff only 4.4% of men and 23.2% women work part time.

Nationally amongst staff working in selling 32.4% of men work part time and 70.8% of women work part time.

Only 57.1% of women can work full time because of their child care responsibilities compared to 92.5% of men.

The Tribunal therefore failed to pay any account to statistics which it should properly have taken into account and which provided a context which make it clear that the disparate impact established by the Blair Travel statistics is not an exception and is clearly significant."

13. In response Mr. Devonshire for the Respondents submitted that the Tribunal correctly tackled this first issue as an industrial jury, making its decisions on the evidence, properly eschewing any purely mechanistic approach, see London Underground v. Edwards (No. 2) (1999) I.C.R. 494 at 510. He supported the inclusion of Miss Reynolds in the pool; he further supported, respectively, the decision to regard her as someone able to comply with the condition and the decision not to place weight upon any national statistics adduced before it. What eventually was under challenge was fact finding of a type and range that was properly open to the Tribunal.
14. For our part:

a. We draw attention to that which is demanded of a Tribunal acting as a jury by Section 1(1)(b) as buttressed by Section 5(3): a programmed progression by way of fact finding to a final overall finding, yea or nay, of indirect sex discrimination. By way of Section 1(1)(b)(i) and (iii) the progression leads to a finding, yea or nay, whether justification is called for; and by way of Section 1(1)(b)(ii) any such justification is evaluated. Given that this forensic machinery is available for application in all manner of situations that involve or ought to involve both sexes, it is manifest that a Tribunal must be accorded wide, flexible discretion when fact finding and that eschewing a mechanistic approach reflects good sense as well as good law.

b. Did the facts relevant for this Tribunal in this exercise include the health related cause of Miss Reynolds's disability? In our judgment the answer has to be 'yes'. Given her disability and the resultant inability to comply with a condition or requirement for full time employment, should she be a member of the 'pool'? If she is to be a member of the 'pool', is the fact of her disability to impact upon the apportionment exercise, and if so, how? and to what effect? If this exercise serves to lead to justification as an issue, what scope is there for such invoking her disability? As it seems to us, all these issues, essentially at what stage and to what effect should the fact of her disability be called into consideration, were wholly for the Tribunal as jury. The way in which in the event the Tribunal dealt with the fact and significance of this consultant's disability is already recited in this judgment: we cannot see a basis to impugn the Tribunal's decision on this matter as erroneous in point of law. Different Tribunals might have reached different conclusions (for our part, we are attracted by the notion that Miss Reynolds should have been excluded from the pool) but that is no reason to discard this Tribunal's decision for it cannot be condemned as perverse. Miss Reynolds's affliction had to be considered along with all the other material facts; there is no legally definitive way of evaluating it; and that which appealed to this Tribunal was open to it. Before we depart from this aspect of the appeal it is helpful to refer to a point discussed in argument: what if a male travel consultant were similarly afflicted? If included in the pool and treated as in the position of the applicant for the disparate exercise (as is respectively consistent with the submissions presently advanced on behalf of the Applicant with respect to Miss Reynolds), the results become artificially absurd.

c. Again, the Tribunal's decision not to be influenced by national statistics in the particular circumstances of this case was one of fact – and cannot be impugned as perverse. Indeed, we remain sceptical as to the statistical validity of reference to the national statistics as cited in the Notice of Appeal when evaluating disparate impact in the confined and very specific circumstances of Blair Travel. True, our reservations are as to fact but they run counter to any inclination to find perversity or a failure to take into account all relevant material.

The Second Issue

15. The submissions of Miss Williams reflect the guidance given by the House of Lords in Webb v. Emo Cargo (1993) ICR 175, 182: "Justifiable requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition." Adverting to paragraph 16 of the Reasons wherein the Tribunal sought to achieve this balance by means of an extensive factual review, Miss Williams contends that in the event there was a failure to take into account matters that were material, which failure was compounded by consideration of factors that were immaterial. She points out that there is no specific review in the Reasons of the impact of the condition or requirement upon the Applicant – no reminder, for example, of the impact upon her career progression nor upon her financial circumstances – and there was no apparent evaluation of the discriminatory effect of the condition. Turning to that which, as she submits, had no part in the balancing exercise, she cites the Tribunal's sustained interest in the Applicant's travel problems arising from the fact that the journey between her home and the Respondents' premises took some 1½ hours: "The Applicant's inability to return to work on a full time basis after her maternity leave was not wholly gender-specific or maternity-related or because of her inability to organise proper child care arrangements. A considerable factor in her difficulties was due to her travel problems …", see paragraph 16(12). This interest in the travel aspect led on to an observation (similarly irrelevant, says Miss Williams) that the Applicant might with advantage seek a position nearer to her home. Miss Williams points out that the premise for adjudication upon justification is a finding of disparate gender based impact: per her skeleton argument " … the reason for the (Applicant's) non-compliance with the condition was irrelevant to (among other things) the issue of whether she has suffered a detriment within the meaning of the statutory test … the fact that an inability to comply may be for a non-gender specific reason does not impact upon the question of whether the justification defence is made out …"
16. Mr. Devonshire in response submits that the finding by the Tribunal that the Respondents proved justification cannot be impugned as perverse. Since it is a finding of fact that ought to be the end of the matter.
17. For our part:

a. Whilst many balancing exercises throw up relatively evenly weighted considerations and consequently call for fine judgment, it is trite that from time to time the weighting on one consideration may so readily outweigh other considerations as to become factually decisive. In this case having heard the evidence, there are clear findings: "The Respondents accepts the evidence of Mr. Blair and the submissions made on Blair Travel's behalf, that the Travel side of the business could not function, bearing in mind the specialist nature of the business, without employing full-time travel consultants with their 1:1 relationship with their clients … Given the nature of the business, Mr. Blair cannot be criticised for not considering part-time work or job-share for a trial period. On the evidence there were no viable alternatives to full-time work. Part-time and job-share were not viable alternatives …" Given these findings, then to all intents and purposes the balancing exercise was over in the particular circumstances of this case. In the course of argument we sought to identify what, if any, scope there was left by the foregoing for a finding of unjustified discrimination but, despite the best efforts of Miss Williams, to no avail. Emphasising that we are concerned with this particular case, this one finding of fact was plainly factually decisive and contentions that other factors have not been considered, or have been wrongly considered are to no practical avail. The overall finding by the Tribunal that justification was made out was, so far from being perverse or legally defective, the only one left so soon as the foregoing finding was made as to the Respondents' need for the relevant condition or requirement.

b. Leave aside the foregoing, we agree with Miss Williams that the impact of the condition or requirement upon her client should have been explicitly reviewed in the course of the balancing exercise. That said, the repetitive care with which the Tribunal reviewed and tested the Respondents' case must connote an appreciation of the impact of the situation upon the Applicant and the concomitant need for cogent justification.

c. Again leaving aside the foregoing, we agree with Miss Williams that the Reasons arguably give excessive attention to the Appellant's travel difficulties and would have benefited from the inclusion of a careful direction as to the materiality of such in the present context. That said, some materiality did exist: the Respondents' justification had to be tested and the physical availability of the Applicant had to be a factor for that purpose. As was pointed out in argument, if the Applicant had lived in the immediate vicinity of the Respondents' premises so as to be able to offer more time or greater flexibility then the justification may have been more difficult to sustain.

d. We note without dissenting the analysis proffered by Miss Williams as to the successive stages in resolving the issue posed by Section 1(1)(b) and her submissions as to what was factually relevant at each such stage, but we would add a cautionary note. Overall what is sought from a Tribunal is the jury decision, yea or nay, has there been indirect discrimination? It is neither easy nor necessarily productive to subject every factual situation to analysis such as serves to put relevance into compartments as prescribed by the Section - hence the warning against a purely mechanistic approach to be found in London Underground v. Edwards (No 2) op. cit. As and when we contemplate drafting a judgment that would serve to expose error on the part of this Tribunal and guide a freshly constituted Tribunal to a fresh, hopefully error-free decision, it is only too obvious that whereas the issues can be identified and compartmentalised, the facts can not be similarly treated – certain matters are arguably relevant at every stage and the handling of such material has to be left to a jury acting as such. Turning to the Tribunal under appeal we cannot regard the criticisms made as serving to impugn their overall decision – plainly one that was made after dealing sympathetically and in depth with the complaint.

Conclusion

18. This appeal must be dismissed.