United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr John Falkenstein (of Counsel) Instructed by: Croner Consulting Croner House Wheatfield Way Hinckley Leicestershire LE10 1YG
For the Respondent	Mr Brian Heaney (of Counsel) Instructed by: Messrs Thompsons Solicitors 16-18 Castle Street Edinburgh EH2 3AT


 


Summary

Sex discrimination - Comparison

When a male manager entered the women's toilets and shouted at a woman on her break, the correct question which should be asked is this: would the Respondent, in the form of a female manager, with the same robust management style as this manager, treat a male cleaner having the same sensitivity as the Claimant, believed to be skiving, in the same way as he treated the Claimant.

The Employment Tribunal failed to construct the correct comparator. EAT substituted its Judgment and set aside the finding of sex discrimination.


 


HIS HONOUR JUDGE McMULLEN QC

1. Skiving is an Old Norse term for slicing or pairing leather but it has come down through the ages to mean what is known to workers, soldiers and scholars alike as not working when you should be. Skiving in the toilets is a familiar practice. This case is about the treatment said to be discriminatory of a female worker suspected by her male manager of doing just that when she was in fact having a comfort break. The judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against a judgment of an Employment Tribunal sitting at Dundee, Chairman Mr A McArthur, registered with reasons on 18 November 2005. The long delay in the course of this hearing is fully explained by the Employment Tribunal and is not an issue. The Claimant was represented by an official of USDAW and today by Mr Brian Heaney, advocate. The Respondent was today represented by Mr John Falkenstein of Counsel. The Claimant claimed sex discrimination in four incidents. The Respondent denied them. The Employment Tribunal decided against her on three and in favour of her on one of the claims. It awarded her £1750 plus interest, for injury to feelings. The Respondent appeals on liability but not on compensation. Directions sending this appeal to a full hearing were given in chambers by the Honourable Lady Smith.

The legislation

3. The relevant provisions of the legislation as in force before changes in 2004 are the Sex Discrimination Act 1975 sections 1(1)(a) and section 5(3):-

"1 Direct and indirect discrimination against women

(1) In any circumstances relevant for the purposes of any provision of this Act, other that a provision to which subsection (2) 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

5 Interpretation

(3) Each of the following comparisons, that is-

(a) a comparison of the cases of persons of different sex under section 1(1) or (2),

must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

The Tribunal directed itself by reference to what is accepted to be s1 but did not cite section 5(3) and that is the substance of the appeal.

The facts

4. The Respondent is engaged in the processing, packaging and distribution of fruit and vegetables in Fife. It currently employs 880 staff. The Claimant is employed as a cleaner at the factory where she is required to clean the toilets and the foyer. The manager of the cleaning department is Mr Gowans. He was appointed in March 2004. There is a supervisor between her and Mr Gowans.
5. There is somewhat of a history between them. So far as is relevant to the appeal the incident which the Claimant complained of as being discriminatory was in the Tribunal's finding in these terms:-

"13. … she had been in the women's' toilets. She was intending to go into one of the cubicles. She was waiting for a lady to come out of the cubicle. She then noticed Mr Gowans in the toilets beside the sinks. The claimant said that she was not undressed at the time. Mr Gowans had roared to her. He said "You'll not hide in here". The claimant said that she had turned and said to him "You shouldn't be in here'. Mr Gowans had responded that he could go anywhere in the factory.

14. Mr Gowans had then left the toilets."

6. The Tribunal addressed itself to that and the other incidents citing correctly from section 1(1)(a) of the Sex Discrimination Act and directing itself in this way:-

"74. We accept entirely that Mr Gowans had a poor view of the Claimant as a worker. It is however for the Claimant to demonstrate that such treatment as she received from Mr Gowans was meted out to her because she was a woman and that that treatment that she did receive would not, in the same circumstances, have been meted out to a man. The Claimant has in our view, failed to discharge that burden."

That disposed of three of the four incidents. But the Tribunal concentrated on the toilets incident and made this finding:-

"75. … we take the view that that incident is in a different category. There is no doubt that Mr Gowans did enter the women's toilets. We have no doubt that he did so because of his belief that the claimant was "skiving". We have no doubt at all that the exchanges which took place in the ladles' toilets were as the claimant described. We also have no doubt that the claimant was upset by what had transpired in the women's toilets.

76. When a male person enters a women's toilets in the circumstances as the claimant described, that is in our view plainly an act of sex discrimination."

7. On that basis the award was made in the Claimant's favour.

The submissions

8. The Respondent contended that the central issue in this case was the nature of the comparator which ought to have been applied by the Tribunal. It is accepted by Mr Heaney that the way in which the Tribunal approached this issue was 'not perfect'. It is common ground that the Tribunal was required to carry out an exercise in locating a relevant hypothetical comparator. The dispute between the parties is that the Respondent says it did not and the Claimant says it did do that. Mr Falkenstein's argument is that there must be transposition in making the relevant comparison. There must be substitution of female for male and of all the relevant circumstances. The Tribunal's finding is based upon the fact that the Claimant was in the women's toilets and was upbraided by the male manager and thus gender is a very relevant factor in the circumstances to be considered under section 5(3). There was no evidence that the Tribunal had conducted such a gender related approach to these circumstances. Mr Falkenstein accepted on behalf of his client that the impact of the Tribunal's judgment was that there was an affront to the Claimant's dignity by her being upbraided while she was on a comfort break in the toilets. The fact that she was a cleaner is actually irrelevant. The finding not challenged here is that she was legitimately in the toilets.
9. On behalf of the Claimant it is contended that the gender of the discriminator is immutable when the characteristics for the purposes of section 5(3) are to be compared. There has been no case in 30 years when the gender of the discriminator has been transposed. The correct comparator is a man who has gone into the men's toilets to shout at a man.
10. Mr Heaney accepts that the Tribunal did not ask this question which he contends is correct: 'was the woman Claimant, upbraided by a male manager in the women's toilets, treated less favourably than a man, upbraided by a male manager in the men's toilets, would have been?' It can be seen from the formulation of that question that there are two features. The first is that the gender of the complainant changes, that is from female to male as it must, but the discriminator's does not; and the second is that the location changes from a women's to a men's toilets.

The legal principles

11. The legal principles to be applied in this case appear to us to emerge from the following authorities. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, Lord Nicholls said this:-

"8. No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.

9. The present case is a good example. … Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counseling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference."

12. Lord Hope in Shamoon at paragraph 39 said this:-

"39. The obvious questions with these provisions are: with whom should the comparison be made and which circumstances are to be considered as relevant: see Daniel Peylon, Sex and Race Discrimination IP 271 para 3.2.5. But these issues are by no means straightforward. As Sandra Fredman Discrimination Law (2002) pp 96-99, has explained, the need for a comparator has been one of the most problematic and limiting aspects of direct discrimination as defined in the legislation about discrimination on grounds of sex and race. The requirement is less harsh than in the legislation about equal pay, as the provisions about discrimination on grounds of sex and race permit a 'hypothetical' comparison, based — in a sex case, for example — on the question of how the woman 'would' be treated if it is not possible to find an actual comparator. Nevertheless, the choice of comparator requires that a judgment must be made as to which of the differences between any two individuals are relevant and which are irrelevant. The choice of characteristics may itself be determinative of the outcome: see Secretary of State for Defence v. MacDonald 120011 IRLR 431 and Pearce v. Governing Body of Mayfield Secondary School 120011 EWCA Civ 1347, 120011 IRLR 669. This suggests that care must be taken not to approach this issue in a way that will defeat the purpose of the legislation, which is to eliminate discrimination against women on the ground of their sex in all the areas in which it deals".

13. The question of whether there is a single or a two stage question is often resolved when there is a dispute as to the identity by asking the single question. In Macdonald v Ministry of Defence [2003] ICR 937 the approach to what had been described as gender specific allegations was dealt with by Lord Rodger of Earlsferry in the context of sexual harassment and comparators at paragraph 184 for he said this:-

"184 Classic cases of sexual harassment, where the motivation of the conduct is sexual, fit easily into the legislation. If, for example, a male manager pursues a female member of staff and, despite her objections, fondles her, tries to kiss her and makes suggestive remarks to her, then he subjects her to detriment in terms of section 6(2)(b). Moreover, in doing so, in most cases at least, it can be said that he discriminates against her because he treats her less favourably on the ground of her sex than he treats or would treat male members of staff: section 1(1)(a). Since the manager is not sexually attracted to the men on the staff, he would not treat them in the same way. This is a straightforward application of the terms of the legislation: in particular, the manager's treatment of the woman is compared with his treatment of the men on his staff and is found to be less favourable. The comparison may be self-evident - because the manager is exclusively heterosexual and is driven by his attraction to the female employee-but it is none the less real."

14. The only case which has been cited to us where there appears to be recognition that it is necessary in certain circumstances to transpose the gender of the comparator and complainant is The Home Office v Saunders UKEAT/0260/05 a judgment of HHJ Birtles and members. The EAT in that case, having examined the speech of Lord Hope in Shamoon (above), cited with approval the approach of the Employment Tribunal in Saunders where it said this:-

"44. We consider that the correct comparator is that of a male prison officer conducting a rub-down search on a female. We have considered this issue with great care, knowing that the characteristics of the comparator are likely to be determinative of the outcome. If we accept the comparator suggested by the respondent, that leaves out of account the material factor of searching a person of the opposite gender. A man searching a man will have quite different feelings about the process -and will receive a quite different response from the inmate -from a man searching a woman. It is we think much easier for most people searching a person of the same gender to maintain an entirely professional approach and to distance themselves from any sexual self consciousness. It may well be that many women, by exercising strength of mind, will be able to carry out a cross gender search. A man however is not required by the prison service to exercise that strength of mind. He is entirely protected from the possible feelings of inappropriate self-consciousness, from the innuendo and possible allegations of misconduct that might arise because the prison system forbids him from carrying out a search on a woman.

The EAT considered the speeches in Macdonald and came to this conclusion:-

"9. It is quite clear in this case that the Respondent at the Employment Tribunal relied upon a hypothetical comparator and not an actual comparator. She was entitled to do so: Sex Discrimination Act 1975, sl(1)(a) and Balamoody v UK Central Council for Nursing Midwifery & Health Visiting [2002] IRLR 288. Such a hypothetical comparator satisfies the requirement of s5(3) of the Sex Discrimination Act 1975. It seems to us that the Employment Tribunal were entitled to find that the hypothetical comparator in this case was a male prison officer who was required to conduct a rub-down search on a female: Judgment paragraph 44. In other words the over-arching principle here is the requirement for a prison officer to conduct a rub-down search of a prisoner of the opposite sex. Such a search is prohibited in a case Of a male prison officer conducting a rub-down search of a female prisoner by Home Office Circular Instruction No. 49/92: Judgment paragraph 12. It follows that Mrs Saunders was subject to direct sex discrimination in being required to carry out a rub-down search of a male prisoner when a male colleague was specifically prohibited from carrying out a rub-down search of a female prisoner. To hold otherwise would be to "defeat the purpose of the legislation, which is to eliminate discrimination against women on the ground of their sex in all the areas with which it deals": per Lord Hope in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 at paragraph 39.

Conclusion

15. Applying those principles to the present appeal we uphold the submissions of the Respondent and will allow the appeal.
16. The question which should have been asked by the Employment Tribunal is this: would the Respondent, in the form of a female manager, with the same robust management style as Mr Gowans, treat a male cleaner having the same sensitivity as the Claimant, believed to be skiving, in the same way as Mr Gowans treated the Claimant. In our judgment, it is necessary under section 5(3) to give effect to the central offence in this case which is that the activity complained of took place in the women's toilets when the Claimant was confronted by a male manager.
17. The central finding by the Tribunal in paragraph 76 of its reasons above is exclusively based upon the entry by the manager into the women's toilets. The distinction which the Tribunal drew between the three dismissed incidents and the one upheld includes, in what we hold to be a significant part, a reference to the women's toilets. It may not be the only distinction but it must be borne in mind that the other three incidents of behaviour, said to be bullying by the Respondent through its manager Mr Gowans, all took place in areas where there was no exclusivity by gender, for example in the car park. Thus the fact that the incident took place in the women's toilets was a very relevant circumstance in this case.
18. The proposition advanced by Mr Heaney (para 10 above) fails to give attention to that important circumstance. But even so, it does recognise that it was necessary to change the venue from the women's to the men's toilets. If that is correct, in order for the comparison to have any meaning at all, it is necessary to change the gender of the manager so that context is given to the cross-gender comparison. For section 5(3) to work, so that the construct is of circumstances not materially different, it is necessary to envisage invasion of the space reserved for the opposite sex. This is consistent with the approach of the EAT in Saunders which was a finding of discrimination because women were required to do body searches of men (a detriment) when men were banned i.e. protected from doing searches of women.
19. Let us suppose in this case that the entry of a man into the women's toilets would be met with the same disapproval because each is an area exclusively for one sex or the other. The only way in which effect can be given to section 5(3) is to pose the question as we have done. Similarly, this is a case falling within Lord Nicholls' primary category where a single question must be posed and answered as cited above. There is no actual comparator. There is no agreement on a hypothetical comparator. There is a dispute about whether gender mattered and so it is appropriate to ask the single question posed by his Lordship.
20. We also have considered the actual response of the Respondent in this case. When the Claimant raised grievances about her treatment to (female) managers each upheld the Claimant's account and Mr Gowans was moved off management of the cleaning function and was replaced by another line manager. Extra training had to be put in place for him. The Claimant continues to be employed there. The conduct was inappropriate, at least, surely because of the entry by a man into the women's toilets. .
21. The Tribunal failed to construct a proper hypothetical comparison. The comparison exercise has not been done at all. The highest it is put by Mr Heaney is "it must be implicit" in the Judgment, but we disagree. While the Tribunal directed itself correctly in accordance with section 1(1)(a) it paid no attention to section 5(3), a fatal flaw.
22. The question which we raised was what should happen if we were in favour of the Respondent's case. Should this matter be remitted? Mr Heaney contends that remission would be appropriate to the same Employment Tribunal for it to be directed in accordance with our interpretation of the law. Mr Falkenstein contends in simplicity itself that this is a pure question of law which would result in the Tribunal's Judgment being overturned and our answering the question. We have decided that if this were to be remitted, Mr Heaney is correct applying the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763 EAT. It could not be said that the parties have lost confidence, nor have we, in the professionalism of this Tribunal to make a judgment according to a direction from us on the law. It has, after all, found in favour of the Respondent on three of the incidents about which there has been no appeal. There is no substantial delay and it is proportionate that this case, which took two days of the Employment Tribunal, could be dealt with by the same Employment Tribunal now answering this specific question. We say that lest we are wrong on our first approach which is that we are in as good a position as the Employment Tribunal to answer that question. No additional evidence is necessary to construct the hypothetical comparison. Mr Gowans was a robust manager. He had no compunction in approaching his staff and roaring at them in front of others when they were on a break in the canteen or in the toilets. A female Mr Gowans would have treated a male cleaner in the same way. The male cleaner sharing the same distaste as the Claimant for being approached in the toilets would have reacted in the same way. It being open to us on the submission of Mr Falkenstein to substitute our view, we would answer the question we have posed positively. Even if we are quite wrong to pose the question in that way, and Mr Heaney is correct, the answer is the same: Mr Gowans would have treated a man no differently. There is no utility in the case being remitted and we will make the finding that the Respondent did not discriminate against the Claimant on the ground of her sex.
23. We would very much like to thank both Mr Falkenstein and Mr Heaney for their submissions to us today. The appeal is allowed and the Judgment set aside.