United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr D B Stevenson, Solicitor Of- Messrs Thompsons Solicitors 16-18 Castle Street EDINBURGH EH2 3AT
For the Respondent	Mr D L Murray, Solicitor Of- Messrs Morton Fraser Solicitors Litigation Division 30-31 Queen Street EDINBURGH EH2 1JX

SUMMARY
SEX DISCRIMINATION

Detriment

SDA – ET did not err when it found as a fact, correctly directing itself in accordance with Jeremiah v Shamoon that Claimant did not suffer a detriment.


 


HIS HONOUR JUDGE McMULLEN QC:

1. This case is about the application of the test for detriment in the definition of sex discrimination. The judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent.

Introduction

2. It is an appeal by the Claimant in those proceedings against a reserved judgment of an the Employment Tribunal sitting over four days and a day in Chambers at Dundee, Chairman Mr A Worthington, registered with reasons on 1 February 2005. The Claimant was represented there by a trainee solicitor, Ms Fox and by Mr Stevenson, solicitor; the Respondent there and here by Mr Murray, solicitor.
3. The Claimant claimed indirect discrimination taking the form of a requirement that she work full-time. We will return in more detail to the precise way in which that claim is put. The Respondent contended that it did not discriminate against her, but if it did, its actions were justified.

The issues

4. The essential issues were defined by the Employment Tribunal and its answers to them in paragraphs 31 to 33, 36 to 38 of its judgment about which we will say more. The Tribunal decided, partly in favour of the Claimant but dismissed certain essential elements of her case for the purposes of the Sex Discrimination Act 1975. She appeals against that decision. Directions sending this appeal to a full hearing were given in Chambers by Mr Justice Wilkie, as he now is. We decided at the outset that the correct order in which to approach this appeal was as suggested by Mr Murray in his written skeleton. That is, first, detriment, then disparate impact and pool. It is common ground that the Claimant must succeed in overturning the Employment Tribunal judgment on detriment if she is to succeed in this appeal. As it developed, we have decided to dismiss this ground of appeal and so it is unnecessary for us to take time on disparate impact and pool. This issue is to be heard in the Inner House in December 2005 in a case also involving Mr Murray and the MoD, Ministry of Defence v McMillan EATS/0003/04 decided by Lord Johnston and members on 22 September 2004, and in the House of Lords on appeal from the Court of Appeal in England in Rutherford v Secretary of State for Trade and Industry No.2 [2004] IRLR 892, at some stage we think, later this year. We will not add to the burden of either Court by adding a further judgment of ours, which would only be necessary if we and the Employment Tribunal in this case are wrong on detriment.

The legislation

5. The relevant provisions of the legislation werer accurately summarised as follow:-

"30. In this case, it is the claimant's position that she was discriminated against by the respondents in terms of section 1 (2)(b) and 6(2)(b) of the Sex Discrimination Act 1975 (as amended). Section 1(2)(b) of that Act provides:-

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

(iii) which is to her detriment."

Section 6(2)(b) of the Act then 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 —

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

6. The Tribunal directed itself by reference to those provisions, in particular it cited in full section 1(2)(b) and noted the change which occurred on 12 October 2001 from the previous provision. It also cited what we hold to be the relevant authorities (see paragraph 14 which we do not need to reproduce). It set out at length the submissions of the representatives which it heard over one day following the oral evidence.

The facts

7. We will gratefully adopt Mr Stevenson's brief summary of the facts as necessary for the sole issue now engaged in this appeal.

"1. The appellant, Mrs Susanne Finnigan, was employed as a Police Officer with the Ministry of Defence Police from 22^nd June 1987 until 14^th November 2003 when she was deemed to have resigned from her employment.

2. In 1998 the appellant commenced a career break to facilitate her husband's transfer to the MoD base at Glencarse, Perthshire. The appellant relocated to Scotland and between 20^th January 2000 and 14^th November 2003 she made a number of applications to return to work as a police officer in the MoD Scottish Region.

3. The appellant' s first child was born on 16^th April 2002 and the family resided near her husband's base in Perthshire.

4. In summary the appellant was first offered a full-time post at either RNAD Coulport or HMNB Clyde in the West Coast of Scotland. When she was unable to accept these full-time posts she was offered part-time work at the same bases in the West Coast. She was unable to accept part-time work in the West Coast and continued to request a post within travelling distance of her home. In August 2003 the appellant was offered a full-time post at RNSE Caledonia in the East Coast. However she was unable to accept this post on a full-time basis and requested that she be allowed to undertake this post at Caledonia part-time. This request was refused and the appellant was deemed to have resigned as of 14^th November 2003."

8. The job of the Claimant is plainly a difficult job in the current terrorist crisis and the Claimant could have been deployed to any of the UK's bases in order to do a job which she obviously does well and conscientiously.
9. The Tribunal found according to the issues which we have alluded to above in the following ways, taking an analytic approach to five elements in the legislation. First, it decided in the Claimant's favour that there was a provision, criterion or practice and in doing so it paid particular attention to the change in the language of the section. The practice adopted by the Respondent was identified:

"In our view, it is clear that historically, Caledonia and the other East Coast bases had never had part-time working and we consider that the claimant has established that this was a "practice" which at least potentially disadvantaged her (although we shall consider later whether the potential disadvantage was an actual detriment)."

10. It then turned to the second question which was whether or not the practice had been applied equally to men and women and held it was.
11. The third element described by the Employment Tribunal is whether it was established by the Claimant that the proportion of the Claimant's sex who could comply with the provision criterion or practice was considerably smaller than the proportion of men who can comply.
12. It is common ground that that and its later appearance at the end of paragraph 36 where the words "it would appear that the proportion of men who can comply with the practice is not disproportionate to the number of women who can comply." is an error of law. The error is that it reflects the old language, not the new.
13. The conclusion of the Tribunal, therefore, was bound to take account of the pool which it had decided was appropriate in this case. The Tribunal looked at a number of propositions advanced on behalf of the Claimant as constituting the relevant pool and decided that the logical pool, as it put it, ought to include all MOD police officers, both male and female, at all bases policed by the Respondent in the UK. That that was to choose between a number of options put by and on behalf of the Claimant.
14. As we have indicated, it is not necessary for us to decide whether that was correct or not, but in its judgment about that, the Tribunal reflected both the contractual mobility clause, which was that the Claimant could be deployed as she accepted anywhere at the behest of the Respondent, and it also reflected the misdirection, not only in those two passages which we have cited, but also in its further formulation in paragraph 36 where it is said that the pool should not be defined simply by reference to those who can or cannot comply.
15. The fourth issue was whether or not the burden of proof, would on the basis of the previous material, shift to the Respondent and, if so, whether it could establish justification. On this the Claimant succeeded for the Tribunal rejected the Respondent's justification for the practice and that is not the subject of an appeal.
16. Finally, fifthly, the Tribunal decided the issue of detriment and in and important passage said this:-

"38. The final issue, which is once more for the claimant to establish, is that the practice to which we have referred, was to her detriment. As we have set out earlier in these reasons, the claimant, like other police officers employed by the respondents, was subject to a mobility clause which says that she is liable to be transferred compulsorily from one station to another in accordance with the exigencies of the service. When the claimant was asked whether she was bound by such a provision, we understood her position to be that she was and, in particular, she said, in the course of her cross-examination that the document at page 88 of the productions which is dated 30 November 1997 and which granted the claimant her initial two year career break reinforced, at paragraph 2g the concept of mobility. The claimant added, according to the Chairman's notes "I couldn't select the station I wanted to go to". The only other witness who gave evidence about the mobility provision was Chief Inspector Milton — he said that it was an operational requirement — as establishments closed down, there was a need to move people. The document at page 254 of the productions headed "Transfers" then gives a variety of reasons which may result in the compulsory transfer from one station to another of an officer including promotion, to fill vacancies existing elsewhere, in the interests of career development, reduction in complement, and closure of an establishment at which the officer is serving. We find that not in the least surprising — it appeared to us to be wholly appropriate for the respondents to include such a mobility or transfer provision in their contracts of employment for police officers and it follows that, in our view, the respondents were justified in its inclusion in such contracts. All that being so, and since it is clear that the claimant was offered both part and full-time work at Clyde and Coulport and full-time employment at Caledonia, it is difficult to understand just how the claimant considers that by refusing her part-time work at Caledonia, or another East Coast base, that amounted to a "practice" which disadvantaged her. We agree with Mr Murray's submission that the claimant's position has altered from that set out in the originating application. There, in paragraph 11.13 of the paper apart, the claimant avers that she had suffered indirect sex discrimination "…..as a consequence of the requirement to work full time." In the event, that was never the case since it is clear that the claimant was offered the opportunity of working part-time at either Clyde or Coulport and according to the Chairman's notes, the claimant told us that she simply did not explore that offer. Then, in terms of "The Questions Procedure" and, in particular, the "Questionnaire of Person Aggrieved…." (see page 17 of productions), the claimant noted that the act of discrimination was "….your refusal to facilitate my return to work at RSNE Caledonia on a part-time basis." During the course of the present hearing, the claimant widened that to include other East Coast bases, particularly that at Crombie. Having so said, we think it reasonably clear that, from the outset, the claimant's position has effectively been that the failure of the respondents to offer her part-time work at Caledonia, was always to be the issue in this case. That being so, we are inclined to agree with Mr Murray that the fact that the claimant did not get what she wanted, did not amount to a detriment within the meaning of the Act. Whatever the claimant's preference, the fact is, as she has accepted, that she is subject to a mobility clause and the practice about which the claimant complains is not, in our view, one which placed the claimant at a disadvantage. In that connection, we also bear in mind that the child care arrangements which the claimant would have had to make had she been offered part-time work at Caledonia would have been the same as the child care arrangements which would have been required had she accepted part-time work at either Clyde or Coulport, namely assistance from her husband (who clearly would have been regularly available), her mother and her sister-in-law. The only difference would have been that the claimant's journey time to either of the two bases in the West of Scotland would have been approximately two hours per day longer than would have been the case if she had required to travel to Caledonia. That, we concede, might well have been disadvantageous had the claimant wanted full-time work. However, as we have set out earlier in these reasons, part-time work at any of the respondents' bases, at least on a half time basis, would only have required the claimant to have worked for seven days out of twenty-eight and by arrangement, the claimant could have worked even less if she had so chosen. Moreover although we had no evidence as to the extent of holidays for half-timers it is clear that the number of holidays would reduce the number of occasions the claimant would require to attend her work with the result that in any given year the claimant would only have required to work for some ninety-one days less her annual holiday entitlement. Since it is clear that in considering whether, in any given case, there is disadvantage or detriment, the employment tribunal has to take account of all the circumstances of the case we do not consider that in the present circumstances, any detriment can be said to have existed. In that connection, we note the observation of Lord Justice Brightman in the case of Jeremiah to which we were referred on behalf of the respondents, to the effect:

"I think a detriment exists if a reasonable worker would or might take the view that the duty was in all the circumstances to his detriment." (the emphasis is ours).

That observation was endorsed by Lord Hope in the case of Shamoon to which we were also referred by the respondents where, at paragraph 35 of the House of Lords judgment, Lord Hope says:

"But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry ofDefence -v- Jeremiah…. one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to 'detriment': Barkers Bank Plc -v- Kapur & Others (No.2) 1995 IRLR 87..."

In our opinion, the claimant in the present case had an unjustified sense of grievance and looking at matters in the round, as we require to do, we are unable to hold that the claimant was subjected to any detriment. That being the case, the claim of indirect sex discrimination must fail."

17. Those then were the five issues and it will be seen that the Claimant had enlisted the Sex Discrimination Act successfully, at least in part. The Tribunal went on to reflect, gratuitously, but obviously with well-meaning intent, that if it were wrong and if the claim fell to be decided at a remedy hearing, she would receive little or no compensation in practical terms.
18. We think the Tribunal there was indicating to the Claimant, who would have been disappointed by the final outcome, that her claim may not have been worth very much in monetary terms, but it does in our judgment overlook the importance in a discrimination claim of any sort, of an award of injury to feelings and of a simple declaration that there has been discrimination by, as here, the state. Anyway, nothing further turns upon that reflection at this stage of the proceedings.

The Claimant's case

19. The Claimant submitted that the Tribunal had erred in law in its approach to detriment in two respects: first, the self-direction, which is accepted to be an error of law, which we have referred to above, and secondly, the invocation of the mobility clause during this part of its judgment.
20. The Tribunal had decided that the Claimant's case that she had had to travel an extra two hours a day on top of a 12 hour shift, was not in all the circumstances a detriment. This was a perverse decision. The approach of the Tribunal acknowledging the mobility clause was a red herring. The Tribunal had imposed too high a hurdle upon the Claimant in satisfying it as to whether or not there was a detriment. Reliance was placed on Article 8 of the European Convention on Human Rights scheduled to the Human Rights Act 1998 indicating matters relevant to the Respondent's defence of justification. It was contended that the Claimant had moved from England to Scotland in order to be close to her father-in-law for whom she and her husband, who is also a police officer in the MOD, had joint responsibility.

The Respondent's case

21. On behalf of the Respondent it was contended that the claim was doomed to fail if the Tribunal's judgment that she held an unjustified sense of grievance was upheld. The Tribunal had indicated in its observations on remedy a sceptical approach to the Claimant's case. The fact as was ventilated to us that there was a possibility of another person, Mrs Bryson, sharing a full-time equivalent job had been mentioned to the Tribunal but there were no findings about it, and, indeed, she had by the time of these proceedings started looking for work elsewhere and her case, we understand from Mr Stevenson, is now sisted, presumably attendant upon this.
22. The proper approach to this case was to look at the way in which it was formulated, which was not as a claim of detriment by way of dismissal, but a claim of indirect discrimination. Any other approach was a further variant on the tortured nature of the claim as Mr Murray suggested by reference to the number of formulations which had been put forward for the appropriate pool.
23. The Claimant had failed to establish what the practice was and that it was a discriminatory practice. The fact that the Tribunal has erred in law in one aspect of its judgment does not infect its other aspects. The Tribunal applied correctly the judgment of the House of Lords in Shamoon v Chief Constable of the Ulster Constabulary [2003] UKHL 11, to the issue of detriment. The decision did not reach the high standard required for a Claimant to overturn a judgment of an Employment Tribunal on the grounds of perversity.

The legal principles

24. The legal principles to be applied in this case appear to us to be as follow. The Claimant must set out what is the criterion or practice which is the subject of criticism (see Allonby v Accrington and Rossendale College [2001] ICR 119 CA at paragraph 12):-

"It is for the applicant to identify the requirement or condition which she seeks to impugn. These words are not terms of art: they are overlapping concepts and are not to be narrowly construed: see Clarke v Eley (IMI) Kynoch Ltd [1983] ICR 165, 170—171. If the applicant can realistically identify a requirement or condition capable of supporting her case, as Mrs Allonby did here to the employment tribunal's satisfaction, it is nothing to the point that her employer can with equal cogency derive from the facts a different and unobjectionable requirement or condition. The employment tribunal's focus moves directly to the question of unequal impact."

25. The approach to detriment has been fully set out by the House of Lords in Shamoon (above) and, in particular the speech of Lord Hope, at paragraph 34:-

"34. The statutory cause of action which the appellant has invoked in this case is discrimination in the field of employment. So the first requirement, if the disadvantage is to qualify as a "detriment" within the meaning of article 8(2)(b), is that it has arisen in that field. The various acts and omissions mentioned in article 8(2)(a) are all of that character and so are the words "by dismissing her" in section 8(2)(b). The word "detriment" draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated. Res noscitur a sociis. As May L J put it in De Souza v Automobile Association [1986] ICR 514, 522G, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.

35. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah [1980] QB 87, 104B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to "detriment": Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87.

It is clear from Lord Hope's formulation that the first requirement of a Claimant is that detriment or disadvantage must be shown, and so we should adopt that approach to the order of argument before us today.

26. In a case where a Tribunal has made an error, it will not necessarily infect the whole of the judgment (see Jones v Mid-Glamorgan County Council [1997] IRLR 685 CA paragraph 30 per Lord Justice Waite, with whom Lord Justice Kennedy and Mr Justice McCullough agreed as follows:-

"The guiding principle, when it comes to construing the reasons of an industrial tribunal at an appellate level, must be that if the tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law."

27. Before a claim for perversity can succeed, an overwhelming case must be made that the Tribunal has erred in its approach to the facts (see Yeboah v Crofton [2002] IRLR 634 CA per Lord Justice Mummery). In respect of the application of the European Convention on Human Rights the approach to the application of the Convention in employment law is regulated by the judgment of the Court of Appeal given by Lord Justice Mummery in X v Y [2004] EWCA Civ 662.

Conclusions

28. We prefer the argument of the Respondent in deciding that the appeal should be dismissed. First we start with the nature of the claim. Having examined most carefully the Originating Application and the documents associated with it, together with the explanation given by the Tribunal of the way in which the claim was put and developed before it, this was a claim of direct discrimination in that the Respondent did not offer part-time work to the Claimant. It was not about dismissal; thus it was put as a detriment in a sense which is distinguished from a dismissal. That is clear from the approach of the Tribunal and from its findings. As Mr Stevenson himself put it in his skeleton argument, this was a claim of indirect discrimination in the way that we have suggested.
29. There is no challenge to the Tribunal's approach to the burden of proof.
30. The Tribunal did make an error of law as is conceded by Mr Murray. But applying the judgment of the Court of Appeal in Jones above, we hold that it did not affect its judgment on detriment. This is because all of those references to the incorrect statutory provision occur in the treatment by the Tribunal of the third issue (disparate impact and pool). Quite separate is its approach to detriment which does not depend upon the particular wording of section 1(1) and (now) 1(2).
31. As it happens, a similar error was committed by an Employment Tribunal in a case which is now known as British Airways plc v Grundy UKEAT/0676/04 at paragraph 26, but in that case leading Counsel appearing for all of the parties accepted that there was in substance no change in the law between the pre and post October 2001 provisions. We have not needed to be addressed on this matter since the approach we have taken isolates that error in the third issue, and, as we hold, does not spread into the Tribunal's approach to detriment.
32. The Tribunal, it will be recalled, actually cited the correct provision and, on a number of occasions, does deal with the language of provision criterion or practice and, although it took its eye off that provision in its approach to the third issue, it is not to be condemned when it approached the issue of detriment.
33. Looking then at detriment, it appears to us that this is entirely a matter of fact and degree. As the citation from Lord Hope, above, indicates these are issues of materiality. The test is what a reasonable worker might take to be a detriment. That is objective. That objective view is taken of course in the circumstances facing such a reasonable worker. The test of reasonableness is for the Tribunal to apply to the facts.
34. It has to be said that considerable headway was made by the Claimant in establishing that the additional two hours' travel was a disadvantage but since the Tribunal correctly directed itself by reference to all the circumstances, it had to consider whether or not the position was as bleak as the first impression might indicate. It held that it was not. There were compensations, which are set out in paragraph 38, such as less attendances. Since the Tribunal was invited to consider all the circumstances it cannot be criticised for its judgment upon them. Having to work long hours and having to travel a long distance against a background of childcare, is potentially disadvantageous. But the Tribunal was there to make a judgment on the circumstances as it saw it as whole, tested against the standard of a reasonable worker. It is evaluative approach is based on evidence and facts including the evidence of other aspects that would affect a part-time worker.
35. We reject the submission that the mobility clause was irrelevant. The Claimant had herself given evidence about this. It formed part of the background to the relationship between the Respondent and the Claimant as she herself acknowledged. It cannot be said that the Tribunal erred in law in considering an irrelevant factor. She conceded that the Respondent could tell her where to work and that she had applied unsuccessfully to have this provision waived. These were matters of evidence. The Tribunal gave a reasoned judgment for rejecting the Claimant's case on detriment. It came to a permissible finding. We cannot support the contention that its judgment was perverse. The Claimant has not made out the overwhelming case necessary to disturb an Employment Tribunal judgment on appeal, guided as we are by Yeboah v Crofton.
36. Finally, we turn to the complaint based upon the Convention. We had some difficulty in understanding both the jurisdictional and the practical way in which we would intervene in this case on this ground. Article 8 deals with respect for family life. There is no freestanding right under the Convention. This argument was not developed by Mr Stevenson with any force, and we fail to understand how a breach of the convention has occurred here. Mr Murray, in his written skeleton, contends that there is no additional right on which the Employment Appeal Tribunal can adjudicate and we agree. Allusion has been made to the Equal Treatment Directive but that adds nothing to the present arguments.
37. The interpretative obligation imposed upon the EAT by the Human Rights Act in respect of the right to family life, does not seem to us to assist. We have not had detailed arguments on this issue.
38. We would very much like to thank Mr Stevenson assisted today by Ms Fox for their helpful submissions and to Mr Murray for his, too. This appeal will be dismissed.