“In any circumstances relevant for the purposes of a provision to which this sub-section 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 … (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 …” (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 …”
“On26 February 2001 the applicant was employed by the respondent as a retail recruitment manager (“RRM”). At the time the applicant had one daughter then aged 5. The job involved the recruitment of managers, assistant mangers and trainee managers of the managed public houses owned by the respondent. It also involved the recruitment of tenants for tenanted public houses. The role was supported by a recruitment and training administrator. At the material time the respondent operated approximately 87 managed houses and 166 tenancies. It employed approximately 2100 people including 160 staff at its head office. On the tenanted side, it employed area managers whose main role was to collect debts from and negotiate rents for the tenants. They had also been responsible for recruiting tenants prior to the creation of the RRM role held by the applicant. After her appointment they retained their recruitment role in that they ultimately decided which tenants to appoint. On the tenanted side, when a vacancy arose the applicant used to prepare an internal advertisement which was sent by her administrative assistant to prospective tenants on a “talent bank”
“However, the tribunal decided that the TSM job could have been done by two job sharers or by two part-time workers. It did not accept that the TSM job comprised certain functions which were incapable of being split between two job sharers”
“The respondent’s objections 10. The respondent’s objections to job share could be summarized as follows:- (a) both job sharers would either have to interview each candidate on the “talent bank” and be familiar with each vacancy or detailed handover notes would have to be prepared by one and handed over to the other. Each would have to meet the outgoing tenant and the remaining staff. Mr Webster likened the situation to that of buying a house. There was a real risk that good tenants would be missed and that tenants would not be properly matched (b) it was important for the RRM to visit the public house, see the job applicant and to meet the staff. Detailed handover notes would not resolve the problem. There was no substitute for meeting the people and seeing the premises for oneself (c) there were regular meetings which both job sharers had to attend. This would lead to duplication of time and effort. There was a monthly communications meeting on the tenanted side which the applicant used to attend for about half an hour. There was also a monthly team meeting between Mr Godson and his BDMs which she did not attend but for which she provided relevant recruitment information. On the managed estate side, there was a monthly meeting which the applicant used to attend. Mr Crabbe also used to have informal monthly review meetings with the applicant. (d) there was no obvious way of splitting the workload as the recruitment requirements varied so much from week to week. 11. The tribunal decided that the respondent’s objections were overstated. At the outset it found that its witnesses greatly exaggerated their evidence in relation to the alleged disadvantages to the job being done on a job share or part time basis. They disregarded the respondent’s stated intention to be flexible. Mr Webster did not even tell Mr Godson and Mr Crabbe about the respondent’s willingness to work flexibly. Their objections were made in ignorance of this fact. Mr Webster, in particular, failed to explore with the respondent what she meant by flexible working. He closed his mind to potential solutions. Indeed he told the Tribunal that he did not want to waste time where the problems were “insurmountable”
“I turn to the question of objective justification. In Bilka-Kaufaus G.m.b.H. v Weber von Hartz (Case 170/84) [1987] I.C.R. 110 a department store pursued a policy of excluding part-time workers, mostly women, from an occupational pension scheme. The employer’s case was that the exclusion of part-time workers was intended to discourage part-time work, since part-time workers generally refused to work in the later afternoon or on Saturday. The Court of Justice held, at p.126, para. 36, it was for the national court to determine whether and to what extent the ground put forward by the employer might be regarded as an objectively justified economic ground. The court added: “If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women then men is not sufficient to show that they constitute an infringement of article 119 [of the Treaty].”
“In my judgment “justifiable” requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.”
“[In Bilka … para 37, the European Court of Justice] held that the employer could exclude part-time workers from the pension scheme on the ground that it sought to employ as few part-time workers as possible only where it was found that ‘the means chosen for achieving that objective correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objective in question and are necessary to that end.’ In our judgment it would be wrong to extrapolate from those words written in that context that an employer can never justify discrimination in a redundancy payment scheme unless the form of the scheme is shown to be necessary as the only possible scheme. One must first consider whether the objective of the scheme is legitimate. If so, then one goes on to consider whether the means used are appropriate to achieve that objective and are reasonably necessary for that end.”
“26. In my judgment, the employment tribunal has failed to apply the scrutiny which the law requires when a discriminatory condition is said to be justifiable. Moreover, such reasons as it gives do not stand up in law. 27. The major error, which by itself vitiates the decision, is that nowhere, either in terms or in substance, did the tribunal seek to weigh the justification against its discriminatory effect. On the contrary, by accepting that “any decision taken for sound business reasons would inevitably affect one group more than another group” it fell into the same error as the appeal tribunal in the Brook case[1992] IRLR 478 and the Enderby case[1991] ICR 382 and disabled itself from making the comparison. 28. Secondly, the tribunal accepted uncritically the college’s reasons for the dismissals. They did not, for example, ask the obvious question why departments could not be prevented from overspending on part-time hourly-paid teachers without dismissing them. They did not consider other fairly obvious measures short of dismissal which had been canvassed and which could well have matched the anticipated saving of£13,000 a year. In consequence they made no attempt to evaluate objectively whether the dismissals were reasonably necessary – a test which while of course not demanding indispensability, requires proof of a real need. 29. In this situation it is not enough that the tribunal should have posed, as they did, the statutory question “whether the decision taken by the college was justifiable irrespective of the sex of the person or persons to whom it applied”
“Secondly, was the application of that requirement or condition justifiable? I confess that I have wavered considerably over deciding whether this court could interfere with the tribunal’s decision that the steps taken by the college were objectively justifiable. My hesitation sprang from my chastened reticence to assume that a specialist tribunal like this, having been referred to the relevant authorities, did not know how to perform its function and which matters it should and should not take into account in reaching its conclusion. To subject a decision of the court or tribunal below to too narrow a textual analysis is a besetting sin for the appellate court. Sedley LJ has, however, subjected it to more penetrating analysis than that. He has raised a number of very pertinent questions which the employment tribunal properly addressing the problem ought to have posed and ought to have answered in the extended reasons which it is their duty to give.”
“When the disparate impact on men and women of the college’s action is as serious as it is for Mrs Allonby, there must, in my judgment, be a cogent explanation of what the objective justification is for implementing that action. No sufficiently cogent explanation appears in the decision as enables me now to be sure that the tribunal can be assumed to have directed themselves properly along the lines Sedley LJ has set out and properly taken the appropriate factors into account in striking their balance. I am now left in doubt why Mrs Allonby lost and, for that reason alone, I would allow her appeal.”
“Was it necessary ?”
“Although one should not approach the decision of an employment tribunal as if one were construing a statute, and although it is always incumbent upon an appeal court to resist a pedantic approach, we consider that there is force in this criticism. The test does not require the employer to establish that the measure complained of was ‘necessary’ in the sense of being the only course open to him. That is plain from Barry. The language used by the employment tribunal in paragraph 31 does suggest that it was looking for ‘necessity’ in the sense of there being no alternative course. The difference between ‘necessary’ and ‘reasonably necessary’ is a significant one and, in our judgment, paragraph 31 contains a misdirection.”
“What was lacking was what Sedley LJ has referred to as “the minimum … critical evaluation” (See Allonby at paragraph 29). Although in some cases it is possible to make deductions or even assumptions by reading between the lines of the decision that an appropriately rigorous approach has been carried out, in our judgment it is not possible in this case”
“basic – how dress – feeding across is unworkable”
“shortest can be 1½ hours. Infrequent – probably two a year”
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