United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	Dr L Clark, Advocate General for Scotland Instructed by- Messrs Morton Fraser Solicitors Litigation Division 30-31 Queen Street EDINBURGH EH2 1JX
For the Respondent	Mr B Napier, Queen's Counsel Instructed by- Equal Opportunities Commission St Stephen's House 279 Bath Street GLASGOW G2 4JL

SUMMARY
SEX DISCRIMINATION

Sex discrimination – part-time working


 


LORD JOHNSTON:

1. This appeal is taken at the instance of the original respondent, the Ministry of Defence, in respect of a determination by the Employment Tribunal sitting in Edinburgh that the respondent employee was discriminated against by the appellants in terms of section 1(2)(b) and 6(2)(b) of the Sex Discrimination Act 1975. A monetary award was made. This appeal challenges the whole basis upon which the finding of discrimination was made.
2. The background to the matter is that the respondent has been employed by the Royal Navy for a considerable number of years. At the time that this application was made to the Tribunal she was working at HMS Gannet at Prestwick but living near Stirling and commuting daily to her place of work. The respondent is married and has children one of which is of school age.
3. The essential cause of the dispute was a rejection by the appellants of an application by the respondent that she be allowed to go on to part-time working at the base. It has to be noted, firstly, that this is contrary to a policy with regard to the Royal Navy personnel, who are on the full strength list, that they should not be allowed to work part-time but must work full-time. When the respondent worked previously at the Royal Navy base at Faslane she was allowed to work flexible hours but not to work part-time. When being transferred to Gannet, the respondent decided not to move from her home near Stirling, not least because her husband worked in the Police Force of Central Police, nor did she take up an offer, apparently available, that the whole family could move to accommodation within the base. She accordingly commuted every day, a round trip some 120 miles, taking 70 minutes each way. She has to make child-minding arrangements for her children, since, although her husband's shift pattern is such that he could lend some assistance in child-minding on certain days of the week, the respondent's elder child was due to start primary school late in August 2003, while the younger child continues to need child-minding three days a week. Some assistance is also rendered by the respondent's mother although she is not totally fit. This was the background against which the application to work part-time was made and rejected, having regard to the general policy to which we have already referred.
4. The matter is further complicated by the fact that the relevant legislative framework changed during the period with which this case is concerned, in respect that certain amendments were made to the Sex Discrimination Act 1975 ("The Act") by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001, which, in turn, effected an EU Directive.
5. There is no dispute that the legislation applied to the armed forces (section 85(2)).
6. Section 6(2) of the Act states:-

"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 to 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"."

7. Prior to 12 October 2001 (when the amending Regulations took effect) section 1 of the Act was as follows:-

"In any circumstances relevant for the purposes of any provision of this Act, a person discriminates against a woman if:

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

(b) he applies to her requirement or condition which he applies or would apply equally apply 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."

8. The effect of the change is that section 1 now reads:-

"(1) In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a women if:

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

(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 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.

(2) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if -

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

(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man but

(i) which is such that it would be to the detriment of a considerably larger proportion of women than of men, and

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and which is to her detriment.

(3) Subsection (2) applies to –

(a) any provision of Part 2

(b) sections 35A and 35B, and

(c) any other provision of Part 3, so far as it applies to vocational training".

9. The principal authorities referred to us by both parties were as follows:-

Barry v Midland Bank plc [1998] IRLR 138, CA

Bhudi v IMI Refineries Ltd. [1994] IRLR 204, EAT

Bilka-Kaufhaus GmbH v Weber Von Hartz [1986] IRLR 317, ECJ

Chief Constable of Avon and Somerset Constabulary v Chew EAT/503/00, 28^th September 2001

Enderby [1993] IRLR 591, ECJ

Jeremiah v Ministry of Defence [1979] IRLR 436, CA

Kording v Senator Fur Finanzen [1997] IRLR 710, ECJ

London Underground v Edwards [1995] IRLR 355, EAT; [1998] IRLR 364, CA

London Underground v Edwards (No.2) [1998] IRLR 364, CA

Marshall v Southampton & South West Hampshire Area Health Authority (Teaching) [1986] IRLR 140, ECJ

Ministry of Defence v Armstrong [2004] IRLR 672, EAT

O'Flynn v Adjudication Officer ECJ, 23 May 1996

Perera v (1) Civil Service Commission and (2) The Department of Customs and Excise [1982] IRLR 147, EAT

R v Secretary of State for Defence & the Defence Council ex parte

Leale & Lane HCQB 17 December 1991

Rutherford v Sec. of State for Trade and Industry 3rd September 2004, CA [2004] EWCA Civ 1186

Sirdar v Army Board and Secretary of State for Defence [2000] IRLR 47, ECJ

United Distillers v Susan Gordon EAT/12/97, 23 May 1997

University of Manchester v Jones [1993] IRLR 218, CA

10. Both to the Tribunal and to ourselves, the parties made lengthy submissions which are set out in turn at length by the Tribunal. Their conclusions were as follows:-

"Conclusion

In relation to the applicant's complaint of indirect discrimination the Tribunal considered first whether the applicant was entitled, as she maintained, to rely on the new, that is, the current definition set out in Section 1(2)(b) of the 1975 Act. The Tribunal concluded that the applicant is entitled to rely on the current definition. It did so on the basis submitted by Ms Porter that the respondents are an emanation of the state and as such the Burden of Proof Directive 97/80/EC is directly binding on them. The Tribunal was satisfied that the applicant is entitled to rely on the Directive for the -period from 22 July 2001 until 12 October 2001 when the Regulations took effect. As the Tribunal understood it, the respondents had effectively conceded the point in relation to this period. Before 22 July 2001, that is for the period from 26 March 2001 the former definition in Section 1(1)(b) applied.

The Tribunal then considered what was the "provision, criterion or practice" which was applied by the respondents. This was identified by the applicant as being the requirement to work full-time, (Production AI/3). For the applicant it was also submitted that the practice was the respondents' policy to require all serving personnel to work on a full-time basis.

The Tribunal preferred the respondents' submission that the actual requirement was that the applicant should work HMS Gannet's normal working hours, that is from 0800 to 1630 Mondays to Thursdays inclusive and 0800 to 1530 on Fridays, (Production 2R12/2). The Tribunal was satisfied that the requirement to work those hours amounted to a "provision, criterion or practice". The Tribunal's remit is to consider the particular circumstances arising in the applicant's situation.

It was accepted on behalf of the applicant that she must show that the "provision, criterion or practice" operates "to the detriment of a considerably larger proportion of women than of men". The Tribunal was invited to find that a practice of banning part-time work will inevitably disadvantage a higher proportion of women than men given that women still tend to take the role of primary carers and are much more likely than men to work part-time.

The applicant maintains that the new definition means that she no longer needs to identify those men and women who can and cannot comply with the requirement, nor indeed that it is specifically to her detriment because she cannot comply with it but that the practice is one which in general terms will disadvantage a larger proportion of women than men. It was also argued for the applicant that the ECJ's decision in Kording (above) at paragraph 16 supports the proposition that the identification of specific pools for comparison is not required while the respondents contend that the paragraph in Kording was quoted out of context. There is nothing in the statute to indicate that section 5(3) is dispensed with and Mr McCreadie quoted the reference in Butterworth's Discrimination Law, 2002, at paragraph 303 which states that whether one uses the 'disparate impact' test in Section 1(1)(b) or Section 1(2)(b):-

"The starting point on either analysis is to define the pool for comparison".

While the approach adopted by the applicant has some force the Tribunal was not persuaded that simply saying that using the UK work-force as a whole was sufficient to establish the appropriate pool in this case. While accepting as a matter of judicial knowledge that women are still the primary carers of children and the statistics set out in support of the applicant's position, the Tribunal considered that it was nonetheless necessary to look at the pool proposed by the respondents. The Tribunal did so because there was no evidence before it to persuade it that the entire working population of the United Kingdom would be eligible or indeed might wish to serve in the respondents' organisation.

According to Mr McCreadie the logical pool was to include all daymen, male and female, at HMS Gannet. The respondents conceded that it would be appropriate to extend this to all existing and potential daymen at the respondents' 16 shore establishments within the United Kingdom. Captain Macdonald explained that the applicant is one of only 347 personnel all women, who remain non seagoing. All other men and women are seagoing although some may at any time serve for a specified period at a shore establishment. The pool actually proposed by the respondents was all 37,847 male and all 3,600 female personnel in the Royal Navy, including the 347 female non sea-going personnel. There was no evidence before the Tribunal to say that of the entire complement of the respondents' personnel all would have the requisite qualifications to serve in a similar capacity to the applicant. It was argued by the respondents that no female serving member of their personnel apart from the applicant, had made any claim of indirect discrimination relating to the requirement to work full-time. The applicant did not offer any evidence that there were any other individuals, male or female, who could not comply with the requirement to work either HMS Gannet's core hours or those applying at any other shore establishments. Nonetheless, the Tribunal was faced with a situation where the applicant has maintained since November 2000, following the birth of her second child earlier that summer, that the respondents' requirement that she work full-time was unsatisfactory, (Production AI2/1). While noting the points made by the respondents that the choice of the pool must be logical, (see Allonby and Barry above) the Tribunal required to take into account the actual circumstances which arise in this particular case.

The respondents invited the Tribunal to find that the applicant had failed to provide a valid comparison between her group of non sea-going personnel and male personnel or, alternatively, even if there could be a comparison with a hypothetical group of non sea-going group males, she had failed to produce evidence of disparate impact. The respondents' position was that the present situation can be distinguished from London Underground v Edwards since there was no evidence here of practical non compliance.

The applicant referred to the decision in Price v Civil Service Commission [1977] IRLR 291 at page 293. The applicant also referred to Greencroft Social Club v Mullan [1985] ICR 796 where the EAT held that it would be contrary to the spirit of the 1975 Act if a condition, which otherwise fell within Section 1(1) (b), because a negligible proportion of women as against men could comply, was held to lie outside the legislation if the proportion was so negligible as to amount to no women at all. The Tribunal was referred to page 802 of the decision in that regard. The applicant contends that given the respondents' policy of having a universal requirement of full-time working this would result in no finding of disparate impact which must be contrary to the spirit of the legislation, as was held by the EAT in Greencroft. If there is an absolute rule requiring full-time working and only employees of that employer are considered then it is axiomatic that the pool will not feature anyone who cannot comply with that requirement. After considerable debate on the whole issue of what would constitute an appropriate pool the Tribunal concluded that the argument advanced by the applicant had merit. The fact that the applicant was unable to find any other individuals in the same situation as herself could not, as a matter of common sense, mean that the applicant's claim could not be looked at in isolation. There was no doubt from the evidence that the applicant first challenged the issue of the respondents' requirement of full-time working at an early stage, shortly after the birth of her second child in the winter of 2000. On her return to work after maternity leave in late 2000 she was based at Faslane where her request to have flexibility was accommodated. That assisted the applicant "hugely" since it meant that she could take the children directly to the childminder for 8a.m. en route to work at Faslane where she generally arrived at approximately 9a.m. apart from two days each week when she was required to be in attendance by 8a.m. in order to prepare for the presentation of briefings soon afterwards. The applicant did not appear to have any difficulty in complying with that in contrast to the situation in which she found herself when she transferred to HMS Gannet in March 2001.

Turning to the question of disproportionate adverse impact and applying the current definition in Section 1 (2)(b) of the 1975 Act, the issue before the Tribunal was whether the requirement was such that it would be to the detriment of a considerably larger proportion of women than men. While the applicant maintained that women are discouraged from entering or remaining in the Navy because of the full time requirement and are therefore proportionately disadvantaged, no evidence was led on this issue. The Tribunal was not satisfied that it could be considered to be a matter of judicial knowledge that the reason or, the sole reason, why 70% of all female personnel engaged by the respondents leave after a period of maternity leave was a direct consequence of the requirement that all service personnel work full-time.

The Tribunal accepted that the respondents were correct in maintaining that the applicant had failed to produce evidence of a comparator of any kind within their organisation. However, the Tribunal concluded given the nature of the requirement and the fact that the applicant as a woman has primary childcare responsibilities and since women are still as a majority primary childcarers, the requirement was such that it would be to the detriment of a considerably larger proportion of women than of men to comply with the working requirements at HMS Gannet. This is particularly so standing the respondents' requirement that the applicant be in attendance each day at 8a.m. and that her request for flexible working which she had enjoyed at Faslane was refused by the respondents.

In United Distillers v Gordon (EAT/12/97) where an applicant resigned from her employment following a refusal by her employers to grant her request to job-share following the birth of her child, Lord Johnston at page 6 of the decision stated:-"In our opinion, when the reason that explains the conduct of an employee, i.e. in this case the need to look after a child, leads to a request to go part-time, which is refused by the employer as here, that is one aspect of discrimination against women, always assuming that the reason for their position is one which enables them to say they cannot comply with the requirement. This takes out of the equation, accordingly, situations where the request is made by the employee to go part-time for personal or whimsical reasons.

Accordingly, in our opinion, the finding in fact made by the Industrial Tribunal with regard to the imposition of the condition that employment must be full-time, to the effect that it constituted a requirement within the meaning of the legislation, was one which they were entitled to make in accordance with the law. We consider that Clymo supra is isolated, and correctly so."

Turning to the issue of detriment to the applicant herself, the question of what constitutes detriment was considered in Jeremiah v MOD [1979] IRLR 436 where the expression; "subjecting to any other detriment" was held to mean nothing more than "putting under a disadvantage".

On the question of what constitutes detriment, in United Distillers the EAT held that since the applicant resigned as a direct result of being unable to work part-time, in accordance with her request that was "obviously detrimental to her interests".

On the issue of practical non-compliance, the Tribunal noted that the applicant had worked the normal full-time working hours for HMS Gannet since March 2001, shortly after she arrived there. While the applicant had a considerable number of absences as a result of her using her entitlement to re-engagement leave, in addition to her entitlement to annual leave and certain periods of absence through sickness or study leave the Tribunal was nonetheless satisfied that the applicant was effectively working full time at HMS Gannet. There was no evidence from the applicant that there were any occasions when she was, in practice, unable to comply with the requirement that she attend work full-time. While the Tribunal was not satisfied that the applicant had demonstrated any non-compliance in practice it was clearly the applicant's position that having to work full-time was having an adverse effect on her. The Tribunal asked itself whether this was purely as a result of the applicant's personal circumstances and the fact that she and her husband had made a conscious decision to settle in the Stirling area where their family was already based. The situation which arose in London Underground when the employers imposed a change to their rostering which resulted in one of 21 female train operators being unable to comply with the new rotas was referred to in detail by both parties. In that case the individual affected was a female single parent. The circumstances here are very different indeed. The applicant and her husband enjoy a high standard of living when their joint incomes are taken into account. It was clear from Mr MacMillan's evidence that he provides considerable support and assistance with the couple's childcare arrangements. Indeed_, because of his shift pattern he is quite often available on his days off during the course of a working week to spend time with their children. The applicant and her husband also have a great deal of support from the applicant's mother who is willing to provide such support on an ongoing basis. There was no suggestion that the applicant would be unable to finance extra external assistance should this be necessary. The applicant and her husband have employed the same childminder to look after both children over a long period of time and are apparently happy with that childminder. The elder child, Gregor, has now reached school age and so he no longer attends nursery. His sister continues to attend nursery three days each week. On the remaining two days she goes to the childminder. The Tribunal was therefore satisfied that the personal circumstances of the applicant are such that the applicant was, only with the considerable assistance provided to her by others, such as her mother, the childminder and her husband, able in practice to comply with the requirement to work normal hours at HMS Gannet. In reaching this conclusion the Tribunal took into account that while Mr MacMillan plays an active part in the children's childcare arrangements, primary responsibility for making the day to day practical arrangements falls on the applicant. In that sense she is the primary carer. The Tribunal also took into consideration the fact that the applicant has throughout maintained that she would be unable to continue indefinitely in attending HMS Gannet on a full-time basis in accordance with their need for her presence during the core hours every weekday. It was suggested by the respondents that in deciding whether there is a detriment or disadvantage the question is whether a reasonable worker would or might take the view that the provision was, in the circumstances, to his or her detriment. While it is not necessary to demonstrate some physical or economic consequence the decision in Ministry of Defence v Jeremiah supports the respondents' contention that an unjustified sense of grievance alone cannot amount to detriment. It was clear that the applicant decided that she wished to work part-time and that her desire to do so dates from at least the birth of her second child in June 2000.

Driving 120 miles each day from her home to HMS Gannet and back caused the applicant to feel "physically and mentally exhausted to the point of nausea", as she put it, both in her evidence and in her correspondence with the respondents. The Tribunal was particularly struck by the evidence given by the applicant's husband. He was very clear in his evidence that anyone would be tired by the amount of driving involved. The Tribunal found his evidence particularly compelling given that he is a serving police officer, assigned to the Traffic Division. Although he had only very recently joined the Traffic Division of Central Police he had previously been deployed in the Traffic Division of Hampshire Police. The Tribunal also noted Lt. Cdr. McDermott's position was that when he discussed the issue of travelling with the applicant she appeared to retract from her position that driving left her "physically and mentally exhausted". The Tribunal had no hesitation in concluding that the daily commuting distance involved each day was considerable and in itself was a significant cause of the stress which the applicant claimed to suffer. The applicant's own position was that it was not driving that was the problem but working five days that was the cause. The Tribunal then asked itself the question, "Would the applicant have been equally tired had she lived closer to her work?" The Tribunal's impression was that she probably would not have been. The Tribunal found it impossible to ignore the physical distance and mental strain, coupled with the time away from home that was necessarily involved in driving such distances each day although the applicant appeared to suggest that this aspect was irrelevant. The impression the Tribunal formed was that the applicant was being somewhat disingenuous in maintaining that her lengthy commuting did not play a significant part in her becoming mentally and physically exhausted by the end of the working week. In other respects the Tribunal did not find the applicant to be entirely reliable in her account of matters. She appeared to discount quite deliberately the fact her husband plays an active part in their child care arrangements. She tended to obfuscate the picture in some of her correspondence with the respondents, particularly in her letter of 25 April 2001, (Production AI6/1) where she indicated that her husband had no input, which was inaccurate.

The issue of daily long distance commuting was raised by Mr McCreadie during his cross-examination of the applicant, as being something that is undertaken by many women as well as men in various parts of the United Kingdom and is not in itself discriminatory which the applicant appeared to accept. The applicant did not agree that the lengthy commute was a significant cause of the stress and exhaustion she felt. Clearly, the applicant knew when she applied to be stationed at HMS Gannet at a time when she was already settled and living in the Stirling area that her husband had decided, with her agreement that he did not wish to transfer to another Police Force within Scotland. Relocating was not something that she would contemplate in order to serve at HMS Gannet. She must have realised that by transferring to HMS Gannet she would add considerably to the length of her daily journey thereby lengthening her working day. It was more than a little surprising that the applicant did not seek to clarify what her actual hours would be until after she arrived at HMS Gannet. The applicant appeared to think that it would be sufficient to sort out the question of her hours once she started working there. She did not make any enquiries in advance as to whether she might continue to enjoy the flexible starting time which had been afforded to her at Faslane.

In looking at the issue of detriment to the applicant the Tribunal took into consideration the fact that once she arrived at HMS Gannet it was made clear that she required to be present by 8a.m. each day since her request for a later starting time was not considered feasible by the respondents. The practical effect of this was that the applicant was no longer able to deliver her children directly to the childminder. Instead, she had to make arrangements to take them to her parents' home to stay overnight on those occasions when her husband would not be available because of his shift pattern to attend to them at the family home the next morning. The Tribunal was therefore persuaded that the respondents' reaction in refusing to allow the applicant to continue to have the flexibility that she had enjoyed was to her detriment since she could no longer deposit her children directly with the childminder. The applicant's working day also increased since she required to leave home much earlier than before in order to arrive at HMS Gannet by 8a.m. The Tribunal concluded that the applicant did suffer a detriment as a result of full-time working and it could not say that this arose only because she was driving such long distances every day. The Tribunal found it necessary to take into account the fact the applicant was affected by the travelling but also by the increased length in her working day and the impact on her family life, particularly as she frequently leaves the children with their maternal grandparents overnight.

In addition to her request for part-time working, ideally the applicant's choice would be to work three days a week with the additional benefit of flexible hours, that is starting at 10 a.m. and finishing at 6 p.m. The applicant's position appeared to be that had part-time work, say working three days each week, been acceptable to the respondents then, if necessary, she would have worked the full core hours, that is from 8a.m to 4.30p.m. on Mondays to Thursdays and from 8.30a.m to 3.30p.m. on Fridays. The applicant rejected the respondents' offer to work part-time as a member of the Full-Time Reserve Forces, set out in their letter dated 29 November 2002, (Production R11). The Tribunal was not asked to consider the issue of the terms of that offer but it was abundantly clear that the applicant was understandably unwilling to agree to such an offer given it would have resulted in the reduction of her pay in terms of the X factor being reduced to 5% rather than the 13% payable to her as a regular member of the Forces. She would also have lost her existing pension entitlement, albeit there would apparently have been some form of pensionable entitlement with the FTRS although that was not disclosed to the applicant in November 2002 and was only confirmed to be the case on the last day of the Tribunal hearing.

While the Tribunal was initially inclined to accept that the distance involved in the applicant's daily commuting was the real cause of her difficulties rather than the respondents' requirement for her to work full time, on careful reflection it concluded that the fact she was travelling and working every week day in circumstances where she had to leave her children overnight on many occasions with their grandparents; was an additional and significant cause of her exhaustion. Common sense alone dictates that the effects of the lengthy commuting would be mitigated considerably if the travelling were to be undertaken on three rather than five days each week.

As indicated above, the Tribunal also considered what the position would have been had the applicant lived much closer to her place of work. The Tribunal concluded that the couple's desire to settle in the Stirling area close to family and friends was understandable given they are the parents of a young family. The presence of her family in the locality assisted the applicant by the very fact that they were readily available to assist in the child-care arrangements. While Mr MacMillan had in the past been willing to transfer from one Police Force to another and in doing so had loyally followed his wife around according to her placements, it was hardly surprising that the couple had decided that a settled base would be better for them. It was not suggested for the applicant that she was indirectly discriminated against by the respondents as a result of her being subject to an enforced mobility clause. Indeed, the applicant accepted that her underlying commitment to the respondents was such that she could be required to transfer to another operational base at little notice although she would plead "grief and hardship" had this arisen in practice.

While the Tribunal was not satisfied that there was sufficient evidence of practical non-compliance in terms of Section 1 (b)(i) of the Act it went on to consider whether the applicant satisfied the criterion set out in Section 1(2)(b)(i). In the whole circumstances, the Tribunal concluded that there was evidence that the provision obliging her to work full-time at HMS Gannet was to the applicant's detriment. In doing so it took into account the fact that the applicant had sought part-time work over a considerable period of time. Unlike the position in Gordon the applicant did not resign as a result of the respondents' refusal to grant her request. Her explanation for moving to HMS Gannet was that it was the only post available in Scotland at the time for a CPO. The Tribunal found that on balance the applicant could be said to be suffering from a detriment taking account of the fact that she now had a longer journey but more importantly the need to be at work by 8a.m. affected adversely the arrangements that had been in place for depositing her children directly with the childminder en route to Faslane. The Tribunal concluded that the applicant suffered a detriment as a result and this was compounded by the need to work full-time that is from Mondays to Fridays inclusive.

Section 6(2) (b) of the 1975 Act provides:

"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)…..

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

In terms of Section 63A (2) of the Act:-

"Where on the hearing of a complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent-

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2, or

(b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act."

The Tribunal found that the applicant had proved facts from which it could conclude in the absence of an adequate explanation from the respondents that they had committed an act of sex discrimination against her. The respondents refused her request to continue working flexible hours after she arrived at HMS Gannet. They also refused her request for part-time work.

The Tribunal next considered the issue of whether the respondents had proved objective justification in terms of Section 1(1)(b)(ii) and 1(2)(b)(ii). The Tribunal had difficulty in accepting the respondents' submission of objective justification given their offer to the applicant that she could work on a part-time basis but only as a member of their Full-time Reserve Service. On this point, the Tribunal preferred the applicant's submission that the respondents had effectively conceded that her job could be carried out on a part-time basis. Nor was the Tribunal satisfied that the respondents carried out an adequate investigation into the possibility of the applicant job-sharing with, for example, Mr Hackston.

On the question of operational requirements the respondents indicated in the course of their submissions at the hearing on 23 May 2003 that they were no longer relying on the combat effectiveness defence in terms of Section 85(4) of the Act.

The Tribunal considered the parties' submissions regarding the applicant's contention that she is entitled to rely on the Human Rights Act 1998 and, in particular, to Article 8 of the European Convention, the right to family life. There is no doubt that for the reasons stated by the applicant she is entitled to rely on the application of the 1998 Act. The applicant relied upon the decisions of the European Court of Human Rights in Marckx, O!sen and B v UK. However, the Tribunal was not persuaded that in the circumstances of her employment at HMS Gannet and domestic life in Stirling that the applicant's right to family life had been impacted in a way that prevented her from leading "a normal family life" (see Marckx).

It follows that since the Tribunal found that the applicant had been adversely affected by the respondents' refusal to allow her to work part-time she was indirectly discriminated against by the respondents, contrary to Section 1(2) (b) and Section 6 (2) (b) of the 1975 Act. She is entitled to a declarator to that effect.

On the issue of an order under Section 65(1) (b) of compensation for injury to feelings the Tribunal concluded that the applicant was entitled to compensation in terms of Section 66(4), The discrimination continued over a number of years and to an extent was compounded by the respondents' failure to progress the applicant's grievance to the final level of their internal appeals process. No explanation was provided by the respondents for this delay. Mr McCreadie advised the Tribunal that his instructions were that there was no prospect of a decision being reached in the foreseeable future by the respondents. While the Tribunal noted that all three Armed Forces are in the course of carrying out a review of their practices, including the issues of part-time and flexible working, it was most surprising indeed that the respondents appear to be able to complete the appeal process in this particular case. There is, of course, no provision in Scots law for aggravated damages and in reaching its decision the Tribunal had in mind that the purpose of awarding compensation is to compensate an applicant for injury to feelings. The Tribunal concluded that it would be appropriate to award a sum at the lower end of the middle band suggested by the Court of Appeal in Vento v Chief Constable of Yorkshire Police (No 20) [2003]. It concluded that an award of £7,500 was just and equitable in the circumstances. In doing so, it took into account the fact that the applicant has suffered as a result of continuing to work full-time, particularly after the flexibility in hours which she had been allowed while based at Faslane was removed, following her arrival at HMS Gannet.

The applicant seeks a recommendation in terms of section 65(1)(c) of the 1975Act:- "a recommendation that the respondent take within a specified period of time action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates."

The recommendation sought was that the applicant should be offered a part-time employment in the regular navy for the remainder of her period of employment at HMS Gannet on pro-rated terms and conditions.

The Tribunal was satisfied that the applicant should have been offered a part-time engagement in the regular navy for the remainder of her time at HMS Gannet on pro-rated terms and conditions. However, the Tribunal was advised that the applicant's term at HMS Gannet would end in mid September 2003 so any such recommendation is impractical. The Tribunal was not persuaded that it would be competent for it to make a similar recommendation for the applicant's placement at Faslane since the post to which she would be deployed was not known as at date of the conclusion of the Tribunal hearing. The applicant appeared to recognise this in the subsequent correspondence from her agents following the conclusion of the hearing itself. The Tribunal can do no more than indicate that it is hoped that the respondents will consider any further application made by the applicant for part-time working in her new post at Faslane, including any request for flexible hours.

Nor was the Tribunal satisfied that it was competent for it to make the second of the recommendations sought, namely that the respondents should introduce a general part-time working policy within 6 months of its decision, in conjunction with the Equal Opportunities Commission. The circumstances of this case were unusual, indeed in the words of the applicant herself they were "unique". The Tribunal is restricted, as was pointed out by Mr McCreadie, to making a recommendation in terms of Section 65 (1) (c) to one that would obviate or reduce the adverse effect on the applicant. Although neither party addressed the Tribunal on the question of interest, the Tribunal required to consider it. The Tribunal's conclusion was that in the circumstances it would be appropriate to award interest on the award of injury to feelings and to do so from the date of the applicant's initial complaint, that is from 26 March 2001 when the respondents removed the flexibility previously enjoyed by the applicant in her working hours. Under the Employment Tribunals (interest on Awards in Discrimination Cases) Regulations 1996 interest is due at 8% on the award of £7,500 for injury to feelings from 26 March 2001 to 7 November 2003, a period of 136 weeks. Interest on that award therefore amounts to £1569.44. The total award is therefore £9069.44 inclusive of interest to 7. November 2003.

Finally, the Tribunal wishes to record its gratitude to both Counsel for their helpful and extremely detailed submissions."

11. It is immediately to be noted that the Tribunal, although it initially concerns itself with the issue of compliance which features in the original legislation and is removed by the amendments, in fact, at the outset of their conclusions, the Tribunal accepted the submission on the part of the now respondent, that the new definitions as set out in section 1(2)(b) was relevant and binding having regard to the fact that until the Regulations actually came in, the Directive in question could be enforced against the Ministry of Defence as an emanation of the State from 22 July 2001. It also has to be noted that there was the cross-appeal, the essential argument of which was that in addition to that Directive, the now respondent was entitled to rely on the Equal Treatment Directive for the period from March 2001 to July 2001 for the same reason, and, thus, the decision of the Tribunal to award interest back to that period was correct. Be that as it may, we intend to concentrate in our considerations on the claim now focussed by the new legislation which requires there to be, in respect of indirect discrimination, less favourable treatment and a provision criterion or practice which would apply equally to a man but which is such that it would be to the detriment of a considerably larger proportion of women than men, which cannot be justified and is to her detriment.
12. In opening before us, the Advocate General, appearing for the appellants, accepted the framework of the legislation that we have set out, particularly with reference to the new legislation and the effect of the Directives. She also accepted that the obligation to work at HMS Gannet for normal full working hours for what was called "day-men" applied, as being a requirement or provision for the purposes of both aspects of the legislation. It was noted that the Tribunal had accepted that the respondent had been effectively working full-time at HMS Gannet, and, that in passing, having dealt with the issue of non-compliance, the Tribunal had not been satisfied that there was sufficient evidence for the purposes of a decision to that effect. As we have indicated, we have put that aspect of the matter to one side.
13. The starting point for the Advocate General, in relation to grounds 3, 4 and 1 of the appeal, related to the question of the relevant pool and the evidence relating thereanent. It was the fundamental submission of the Advocate General that there had to be a pool, properly defined by the evidence, in order to determine the issue of less favourable treatment, and, indeed, detriment with regard to the issue as between proportions of men and women. This contrasted with the respondent's position that she did not need to advance a specific pool for comparison beyond the general pool of the UK workforce. Reference in this respect was made to Kording and Edwards (No.2).
14. The Advocate General went on to criticise the reasoning of the Tribunal as being at best difficult to follow and at worst incoherent. She submitted that the Tribunal appeared to recognise that a pool had to be identified and it apparently also rejected the appellant's submission that the UK workforce was the appropriate pool, however, events seem to suggest that the approach of the now appellants before the Tribunal was the correct one, where the pool could be regarded as the whole workforce within the Royal Navy. She criticised a finding that apparently the Tribunal were not concerned that the applicant was unable to find any other individuals in the same situation as herself, thus preventing the applicant's claim from being looked at in isolation. Her essential submission was that there was absolutely no evidence at all that any other person, male or female, had suffered the problems that were being alleged by the respondent in relation to having to work full-time. As a pure issue of evidence, therefore, whatever may be the appropriate pool, there could be no evidence of less favourable treatment, not least to the detriment of the considerably larger proportion of women rather than men. While it might have been difficult, the exercise at least required the now respondent to produce evidence of other employees who were both female and were suffering similar problems, or, at least, detrimental problems by reason of the policy. Although not now relevant, it was confusing that the Tribunal had found discrimination in the relevant context, however they defined the pool, without any evidence as such, but at the same time found earlier that the issue of non-compliance required to be decided against the respondent for lack of evidence. The Tribunal had found that the now appellants were correct in maintaining that the now respondent had failed to produce evidence of a comparator of any kind. It follows that even if the now respondent had suffered a detriment, it had to be shown that the detriment to her could be said to be to the detriment of a considerably large proportion of women rather than men. In substance, the Tribunal's reasoning was impossible to follow, but, in any event, the decision that must be flawed in law in the absence of any evidence of actual detriment being caused to other women which was not caused to men.
15. The Advocate General went on to concentrate on the issue of detriment against the finding of the Tribunal, which she had already attacked, to the effect that the requirement to full-time working was to the detriment of a considerably larger proportion of women than of men.
16. Here again, it was submitted, that the Tribunal had confused the issue of compliance under the old law with the question of detriment under the amended provisions. While, at some stage in this respect, they had concentrated on the fact that she had child-minding responsibilities they also seemed to concentrate on the fact that the lengthy commuting, having to be done on a daily basis, constituted a detriment, by reason of her travel arrangements, which was said to be compounded by the need to work full-time Mondays to Fridays. In essence, what the Advocate General was submitting was that this was a self-imposed problem, i.e., the travelling, which could have been avoided by this particular employee moving to the base where the child-minding problems would not arise. Thus, she submitted, the Tribunal had not found properly, that, even if there was less favourable treatment which could be to the detriment of more women than men, this particular employee had not, in fact, proved a relevant detriment.
17. Finally, on this aspect of the case, we should add that the Advocate General also submitted, as a matter of fact, having regard to the admitted fact that daymen, being required to work full-time whether on shore or at sea, received an uplift of salary, that by seeking to go part-time and remain a dayman, the now respondent was going to obtain an advantage over her fellow employees, inasmuch, that she was maintaining the privilege without earning it on a full-time basis. It has also to be noted that the appellants did offer to put the respondent onto a part-time basis but that would have involved her having to translate to the Reserve List which had consequences that she was not prepared to accept. This, it was submitted, compounded the fact that the demands being made on behalf, or by, the now respondent, were not curing a detriment but giving her an advantage.
18. The Advocate General then turned to another wholly separate issue, namely, that of justification. In this respect she referred us to the lengthy submissions made by her predecessor, Mr MCreadie, before the Tribunal, on the whole question of background to the policy in the Navy of full-time working, in turn, related to deployability, and extensive submissions as to the requirements that the service personnel in the Navy were required to meet.
19. The principal and simple complaint by the Advocate General in this respect, was that assuming discrimination had been made out so far, the Tribunal had made no findings, both as to whether or not the applicant was prepared to maintain the underlying commitment, but, also, that, in any event, the policy decision would be justified. Here again, she renewed the point she had already made about the offer on the Reserve List and the alleged advantage being maintained, which would accrue to the appellant if she retained the salary advantage. On both the broad and narrow issue accordingly, the Tribunal's reasoning was defective and the whole matter would have to be reconsidered if relevant.
20. Finally, in respect of ground of appeal (9), the Advocate General maintained that the figure of £7,500 was not warranted by the evidence in respect of compensation and she referred back to the original question about interest from March 2001.
21. Mr Napier, Q.C., on behalf of the now respondent, opened his submissions by some general observations to what he submitted this case was not about, namely, general rules. But, he submitted, that the amendments brought about by the new Regulations were nothing more than a reflection of what the European Court had been developing as employment jurisprudence over a number of years. This led him immediately to the most important part of his submissions to the effect that the need for a pool to establish unfavourable treatment proportionally to the detriment of women, was not an essential part of the exercise. The foundation for this submission to the effect that if the measures taken could be intrinsically liable to affect women more than men, that would be enough, without need to prove in practice that a substantially higher proportion of women than men were affected, (O'Flynn supra supported by Bossa supra and Chew supra). The pool may be useful but what mattered was evidence of disparate impact. In any event, he submitted, that it was both wrong to regard the entire United Kingdom as the workforce for the relevant pool, and, even more so, merely personnel in the Navy because it was the inescapable fact that all Naval personnel, who were regarded as daymen, were affected by the full-time requirement. Essentially, the opportunity to work part-time on the full personnel list, was not there. Following Edwards No.2 and Jones supra, he submitted that the real pool, which had to be hypothetical, was not only Naval personnel, but also any person being female who would have applied for the relevant job in the Navy with the appropriate qualifications but was deterred by the fact that it would be full-time. If that affected more women than men, then the pool showed disparate impact. He, therefore, while accepting that the approach to the Tribunal to the pool issue was somewhat confused, he submitted, that, at the end of the day, he could succeed if the findings of disparate impact were established. He referred to Barry supra as a further example of which aimed the question at a particular group in the same set of circumstances, not necessarily comprising the whole part of the employer's workforce. It was immaterial that there may be in a particular group comprising more men than women or vice versa. What mattered was simply whether there was a disparate impact so that proportionally more men than women were affected by what was proposed or vice versa. Accordingly, the acceptance by him that the respondent's inability or failure to produce persuasive statistical backing for her claim, did not prejudice or destroy her position or that of the Tribunal in respect of the finding of indirect discrimination. Perara supported that position, as indeed, did a proper understanding of Enderby. He laid particular emphasis on various passages from this case as showing that there were a number of different ways in which a prima facie case of indirect discrimination could be established under European law. Merely because Enderby was concerned with equal pay, did not mean a similar approach could not be extended to equal treatment Directive (Bhudi supra).
22. Mr Napier went on to emphasise that, at the end of the day, against that background, a Tribunal was entitled as a matter of fact to discover evidence and therefore a conclusion of disparate impact, even if the statistical evidence was not present. It can be done by reference to judicial knowledge simply based on the disparate impact on the running of family life, as between a man and a woman. He sought support for the case of Kording, which the Tribunal had prayed in aid. This Tribunal should therefore support the finding of the Employment Tribunal.
23. Turning to the question of detriment, Mr Napier submitted that the fundamental source of such was the disruption of family life. The fact that the travelling added to her problem, was nothing to the point.
24. Mr Napier dealt quite shortly with the issue of justification, saying, essentially, it was a question of fact, albeit it was only briefly discussed as a matter of conclusion by the Tribunal.
25. On the issue of compensation he simply submitted the matter was generally a question for the Tribunal to determine and not to be interfered by this one.
26. His cross-appeal dealt equally with the issue which we have already considered, namely, the extension back to March 2001 of the relevant period by reference to the Equal Treatment Directive, we need go no further.
27. In seeking to resolve this matter, we would venture two general comments.
28. In the first place, with no disrespect to the excellent arguments presented on both sides, we are not satisfied that this case is as complicated as it would appear, both, from the findings of the Tribunal and from those arguments. It seems to us to be dealing with a particular set of circumstances involving a particular type of individual, which need not have any necessary long-term implications however the case is decided.
29. Secondly, as we have indicated, we propose to determine the matter under reference to the amended legislation as being the relevant surrounding circumstances, not least since the finding of compliance or lack of it as far as the Tribunal is concerned was under the old legislation. In our opinion, what therefore is the important issue is that of disparate effect, coupled with the issue of detriment. The issue of justification does not arise unless both those questions are decided in favour of the respondent, there being no dispute that the requirement to work full-time is a relevant provision in terms of the legislation
30. We recognise the importance of Mr Napier's submission that a pool is not necessary in essential terms to establish disparate treatment, although, in many cases, it may be the only way of so doing. We say not necessary because the case of O'Flynn, to our mind, is a clear example of where, to use the word "intrinsic", the very circumstances surrounding the case support the relevant conclusion. The determination by the British Government only to pay the relevant allowance to workers being buried within the United Kingdom, is bound to have a disparate effect on migrant workers by reason of the simple proposition, that, in most cases, there would be an understandable wish on behalf of the family of the deceased, for the person to be buried in his or her country of origin. There does not need to be evidence to establish that fact and O'Flynn is, therefore, totally understandable. In most of the other cases that we have considered, however, there has to be identified a core of workers, whether called pool or not, to which the relevant comparison can be made as between men and women's disparate treatment. This is clear from Barry and both Edwards cases. The case of Chew seems to us to be somewhat unusual but can again support that position.
31. The general conclusion we therefore draw, is that for disparate treatment to be established in the form of indirect discrimination as between men and women in the context of the relevant provision, the evidence must support it and lead directly to the necessary inference.
32. In this respect, we do not find the approach by the Tribunal to the issue of a pool to be coherent, or even consistent. At one point reference was made to the UK workforce as a whole and at another to RN personnel. It is clear to us that the latter cannot be an appropriate pool since everybody within it is affected by the blanket demand to work full-time. Equally, the UK workforce as a whole goes far beyond what would be a reasonable assumption to make. We recognise, the, at least, superficial attraction of Mr Napier's submission, that the pool should include persons outwith the Navy who would have qualified for the job but have not applied by reason of the policy, which, in turn, would suggest, as he submits, more women would be affected than men. However, we consider that to be an entirely hypothetical exercise which must yield some form of positive evidence if discrimination is to be based upon it. However, in practical terms, how such persons, outwith the Navy, who may have taken the relevant decision in the appropriate context, namely, being suitably qualified, can be discovered or ascertained and even more thereafter that a comparison between men and women in such categories can be made so as to achieve a disparate effect, is virtually, if not completely, impossible. This is a good example, therefore, of where the pool may not work in that context.
33. However, that does not mean that evidence is not required, and, we therefore accept the submission of the Advocate General, that the failure on the part of the respondent as applicant, to lead any evidence of any nature which would suggest other women in full-time employment in the Navy were suffering the same or equivalent detriments that she claims, leaves her in a category of one as a matter of evidence, and, not, therefore, creating a situation which enables even an inference of discrimination to be drawn such as could be done in O'Flynn. We can only speculate as to how the applicant might have been able to surmount this hurdle, but, at the very least, evidence of women working within the Navy, claiming or said to be suffering disparate treatment by reference to detriment, would have been necessary. Even then, the question of proportionality in the sense of whether it was a greater proportion of men than women, would require to be investigated. We do not think it is appropriate, as the Tribunal on one view appears to have done, simply to assume that full-time working mothers suffered disparate treatment from men, per se.
34. On this comparatively simple ground, in relation to this particular case, we therefore consider that the application for indirect discrimination fails by the absence of relevant and competent evidence, yielding such inferences as could be drawn, for example, in O'Flynn.
35. Even if we are wrong about this approach, however, we consider the issue of detriment is even more difficult for the applicant respondent. We are not impressed by the approach of the Tribunal in this respect. We do not consider that some blanket declaration that working mothers are disparately affected compared with men per se to be an appropriate determination of detriment. It is clear to us, that the real problem in this case is the travelling, and the effect it is bound to have on the respondent's health and way of life. It is axiomatic that detriment cannot be self-inflicted. We completely understand why the applicant chose not to move house, given the position of her husband, but, it was in no way part of the requirement to work full-time, that she had to travel 120 miles a day. What she was really seeking in this case, in our view, is a deviation of this self-imposed problem not by being taking up the offer to live on the base, but rather to work less days in the week. We do recognise in this respect, that on one view, she was thus seeking an advantage over her co-employees, since, while being apparently agreeable on the question of deployability, she was still claiming the higher factor in her salary without offering to work for it on the same terms and conditions as everybody else. We consider the offer to go onto the Reserve List is nothing to the point, although, of course, as a matter of fact, it would have achieved the necessary alleviation. In the context of disability discrimination, that might have seemed to be a reasonable adjustment being offered by the employer. In the context of the policy of the appellants in the present case, it seems to us to be a neutral factor.
36. We therefore conclude that, upon the evidence, the Tribunal was not entitled to hold that, in fact, the respondent was suffering a detriment arising from less favourable treatment which ex hypothesi in this argument, disproportionally affected more women than men.
37. These findings are sufficient for us to dispose of the appeal because we consider that the Tribunal has seriously misdirected themselves on both issues, and, that upon the evidence, this Tribunal is entitled to reach the opposite conclusions. However, there remains the main issue of justification.
38. We would simply offer a view in this respect, which is to the effect, that, we do not consider the Tribunal remotely set about addressing the real issue of justification, on the basis they had found indirect discrimination prima facie to exist to the detriment of the respondent. Even the most cursory glance of the submissions made on behalf of the appellants to the Tribunal below, indicate quite clearly substantial policy issues that applied, and, even Counsel before us, accepted that there could not be a blanket entitlement to part-time working, particularly, in combat and sea conditions. All that we will therefore say on this point is that the matter was not properly investigated by the Tribunal, in respect of findings in fact, and, if we had been otherwise favouring the respondent's position, we would have remitted the matter, probably to another Tribunal, to determine anew the whole question of justification by both evidence and submissions.
39. On the main appeal, there remains the subsidiary issues of compensation and interest. Suffice it to say in this respect, that we do not consider that the award made by the Tribunal exceeds the band within which require us to interfere, and we equally accept that interest should run from the original period by reference to the Equal Treatment Directive which could be brought into play by the respondent over the March to July period.
40. With regard to the cross-appeal, for the same reasons to which we have just made reference, it would have been allowed, if relevant. Observing, in fairness to the Tribunal that the Equal Treatment point was not taken before them, nevertheless, the result they achieved is, in our view, correct on the question of interest.
41. For all these reasons we shall determine that the evidence does not justify a finding of indirect sex discrimination against the respondent applicant in terms of the legislation, that is to say, as amended by the 2001 Regulations. We find, in any event, that she did not suffer a relevant detriment, and, accordingly, the decision of the Employment Tribunal must be quashed. That being so, the finding of this Tribunal is that the appeal is allowed and the application should be dismissed, there being no reason to remit for a fresh hearing to another Tribunal, given the extent of the evidence currently before this Tribunal. To do so would simply be giving the respondent another chance to achieve an evidential conclusion that she failed to do on the first occasion, and, which we doubt she can ever in fact, achieve.
42. The appeal is allowed and the application is dismissed.