PRICE v 1) CIVIL SERVICE COMMISSION ) 2) THE SOCIETY OF CIVIL AND 3) PUBLIC SERVANTS) [1977] UKEAT 1_77_1507

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1977] UKEAT 1_77_1507

Case No Appeal No. UKEAT/1/77

Between

PRICEAPPELLANT

1) CIVIL SERVICE COMMISSION ) 2) THE SOCIETY OF CIVIL AND 3) PUBLIC SERVANTS)RESPONDENTS

Before

The Hon. Mr. Justice Phillips (P)

Mr. B. Alderton JP

Mrs. A. L. T. Taylor MSB

Date 15 July 1977

[1]MR. JUSTICE PHILLIPS; Miss Price complains that the Civil Service Commission have unlawfully discriminated against her, within the Sex Discrimination Act 1975, by imposing a discriminatory condition of eligibility for appointment as an Executive Officer in the Civil Service. An Industrial Tribunal sitting in London on the 28th October and the 4th November 1976, by a Decision entered on the 24th November 1976, dismissed her complaint. Prom that Decision she has appealed. Since the Decision of the Industrial Tribunal, the Society of Civil and Public Servants have been added as Respondents by order of the Registrar as having an interest in the outcome of the Appeal. Miss Price was born on the 26th August 1940. She joined the Civil Service as a Clerical Officer when she was 17, and served for two years. At the age of 20 she married, and has since had two children and has done various work, mostly part-time. Towards the end of 1975 Miss Price saw an advertisement in the Guardian (page 22) inviting applications for appointment in the Civil Service as Executive Officer. No mention was made there of any age limits. In response to her application she received a booklet setting out in detail the conditions of the appointment, and learnt that candidates "should be at least 17-r and under 28 years of age on the 31st December 1976", a condition with which she could not comply. It is this age range which she contends to be discriminatory. She complains that women have greater difficulty in complying with it - particularly the upper age limit of 28 - than do men. Many women in their twenties are having children, or looking after children, or both and are thus prevented from applying. By the time they feel able to do so, say in the mid-thirties, it is too late because of the 28-year bar. Part I of the Sex Discrimination Act 1975 defines "discrimination to which the Act applies." The following parts render unlawful the specified acts of discrimination in particular fields: thus Part II relates to "discrimination in the employment field". There seems to "be no doubt that if the Civil Service Commission have discriminated against Miss Price, as defined in Part I, the act is unlawful under Section 6. The question is whether they have discriminated within Part I.

(b) , which provides as follows:

"(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."

Section 1(l)(b) deals with indirect discrimination. The scheme is to define in sub-paragraph (i) in fairly wide terms activities which are prima facie discriminatory, and in effect to provide that they are to constitute discrimination unless the person acting can within sub-paragraph (ii) show that they are justifiable irrespective of the sex of the person discriminated against. Thus sub-paragraph (i) proscribes a wide range of activity but permits the party acting to justify it. The test is whether the condition 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. Examples usually given are of physical attributes such as height or strength or weight. But the sub-paragraph goes much further than that, and would extend to educational or professional qualifications, if they are of a kind which few women but many men possess. Thus an advertisement which required as a condition for appointment to a post of degree in engineering, or the status of a barrister-at-law, would seem to be prima facie discriminatory in that the proportion of women who can comply with the condition is considerably smaller than the proportion of men who can comply with it. No doubt in those and other similar cases the advertiser would have no difficulty in showing the condition to Toe justifiable. Accordingly such cases are not brought in practice because it is known that though they might pass the test of sub-paragraph (1) they will fail at that of sub-paragraph (2) Thus it by no means follows that because a claimant can satisfy sub-paragraph (1) he or she will eventually be able to establish an act of discrimination. Miss Price failed to persuade the Industrial Tribunal that she could satisfy sub-paragraph (1). Thus the case has not yet been determined upon the merits, and we have not had the benefit of hearing the evidence and arguments relevant to the question whether the conditions can be shown to be justifiable. The case has not got beyond the preliminary point. The Industrial Tribunal's main ground of decision is narrowly based. They accepted a submission at the end of Miss Price's case that the Civil Service Commission had no case to answer. It had been submitted on behalf of the Civil Service Commission that the words "can comply" should be strictly construed and that it must be said of a woman that she can comply with a condition if it is physically possible for her to do so. The Industrial Tribunal accepted this submission. The argument went further, and was that since the number of women and the number of men in the population is not widely different it was impossible to say that the proportion of women who can comply with the age condition was considerably smaller than the proportion of men, because all men and all women had equal opportunity to comply with it. In paragraph 11 of the Decision the Industrial Tribunal put it like this:

"We have unanimously decided that Mr. Howard's submission on behalf of the respondent must be upheld on both grounds. .We are of the view that the only requirement or condition was that applicants should be between the specified age groups. Since the applicant conceded that the proportion of women within these groups was not considerably smaller than the proportion of men we are of the view that this concession is fatal to her case. In so far as the statistics are concerned, as Mr, Howard submitted, no one can really say whether these women with children really wanted a job or chose to stay at home. If one takes the up to date statistics provided by the respondent we find that indeed more women than men applied for posts of Executive Officer posts than men. If they could apply for those posts then it follows that they could have applied for any other kind of job. It is also worthwhile recording that during 1976 53.7% of women were accepted as against 46.3% of men."

The Appeal Tribunal are not in agreement. Mr. Alderton accepts this conclusion, and would dismiss the appeal. The majority take a different view, which is set out in the remainder of this judgment and which is theirs alone. The Industrial Tribunal further decided that the statistics produced in evidence did not establish to their satisfaction why it was that fewer women applied for posts than men, and whether it was not that they chose not to do so, rather than that they were prevented from doing so. They were also impressed by the fact that during 1976, according to statistics produced of applications for executive officers, of those accepted 53.7% were women as against 46.3% who were men. We do not regard this last point as significant, since the complaint is not that over the whole range of appointment between 17½ and 28 years fewer women were successful than men, but that the age bar at 28 was more disadvantageous to women than to men. Experience shows that when considering Section l(1)(b) it is necessary to define with some precision the requirement or condition which is called in question. Even when the facts are not in dispute it is possible to formulate the requirement or condition, usually at all events, in more than one way; the precise formulation is important when considering sub-paragraph (i) (ii) and (iii). A fair way of putting it in the present case seems to be that candidates for the post of Executive Officer must not be over 28 years of age. We do not accept the submission of counsel for the Civil Service Commission that the words "can comply" must "be construed narrowly, and we think that the Industrial Tribunal were wrong to accept this submission. In one sense it can be said that any female applicant can comply with the condition. She is not obliged to marry, or to have children, or to mind children; she may find somebody to look after them, and as a last resort she may put them into care. In this sense no doubt counsel for the Civil Service Commission is right in saying that any female applicant can comply with the condition. Such a construction appears to us to be wholly out of sympathy with the spirit and intent of the Act. Further, it should be repeated that compliance with sub-paragraph (i) is only a preliminary step, which does not lead to a finding that an act is one of discrimination unless the person acting fails to show that it is justifiable, "Can" is defined (Shorter Oxford English Dictionary) "to be able: to have the power or capacity." It is a word with many shades of meaning, and we are satisfied that it should not be too narrowly - nor too broadly - construed in its context in Section l(l)(b)(i). It should not be said that a person "can" do something merely because it is theoretically possible for him to do so: it is necessary to see whether he can do so in practice. Applying this approach to the circumstances of this case, it is relevant in determining whether women can comply with the condition to take into account the current usual behaviour of women in this respect, as observed in practice, putting on one side behaviour and responses which are unusual or extreme. Knowledge and experience suggest that a considerable number of women-between the mid-twenties and the mid-thirties are engaged in bearing children and in minding children, and that while many find it possible to take up employment many others, while desiring to do so, find it impossible, and that many of the latter as their children get older find that they can follow their wish and seek employment. This knowledge and experience is confirmed by some of the statistical evidence produced to the Industrial Tribunal (and by certain additional statistical evidence put in by consent of the parties on the hearing of the appeal: for example, Appendix A1.) This demonstrates clearly that the economic activity of women with at least one 'A' Level falls off markedly about the age of 23» reaching a bottom at about the age of 33 when it climbs gradually to a plateau at about 45. Basing ourselves on this and other evidence, we should have no hesitation in concluding that our own knowledge and experience is confirmed, and that it is safe to say that the condition is one which it is in practice harder for women to comply with than it is for men. We should be inclined to go further and say that there are undoubtedly women of whom it may be properly said in the terms of Section 1(l)(b)(i) that they "cannot" comply with the condition, because they are women; that is to say because of their involvement with their children. But this is not enough to enable Miss Price to satisfy the requirements of sub-paragraph (i), The difficulty we have is in saying whether the proportion of women who can comply with the condition is considerably smaller than the proportion of men who can comply with it. It follows from what we have said earlier that we do not agree with the approach of the Industrial Tribunal to this question, and it follows that there has never been a finding of fact based upon the evidence correctly approached and interpreted. At one stage of the hearing we thought that it might be in order for us to make a finding ourselves on the basis of the evidence given to the Industrial Tribunal, together with that put in by consent on the hearing of the appeal. At the end of the day we have come to the conclusion that we ought not to do so. The difficulty is that most of the evidence is statistical, and is of a kind which needs to be analysed and interpreted, since it is designed for other purposes, and it is not entirely easy to draw relevant conclusions. We think it does confirm the likelihood that women are put into difficulties by the condition, and that there are women who would wish to apply to be an executive officer and could do so in (say) their thirties, but cannot do so in their late twenties. The difficulty is to quantify this in the terms of a "considerably smaller" result. We find that it would be unsafe for us to reach a conclusion without having had the benefit of hearing the statistician give evidence and be subjected to cross-examination upon the proper analysis and inferences to be drawn from the statistics. Accordingly we propose to allow the appeal and to remit the case to be heard afresh, bearing in mind the terms of this judgment and such guidance as we have been able to give. It may perhaps be helpful to mention one other matter. The Industrial Tribunal, in paragraph 12, rightly point out that when considering Section l(l)(b)(i) and considering the proportion of women and the proportion of men, it may be proper to consider as the "pool" of women or men available for the purpose something less than total female and male population. We agree with that, though, as we have pointed out, the Industrial Tribunal itself in the present case proceeded on the footing that it was appropriate to take into account the whole population, male and female respectively. We doubt whether that was the right approach, though we do not wish to lay down a proposition binding upon the Industrial Tribunal which will hear the remitted case. It seems to us, as at present advised, there would be a good deal in the present case for saying that the appropriate "pool" is that of qualified men and qualified women as the case may be. In this connection it is worth, remarking, as indicating how widely Section 1(l)(b)(i) may operate, that if Miss Price's case had been limited to the proposition that there was prima facie discrimination in that an educational qualification was demanded of two 'A' levels, it would "be likely to succeed inasmuch as the proportion of women with two 'A' Levels to all women is considerably smaller than the proportion of men with two 'A' Levels to all men. Such a way of putting the case would have achieved nothing because the Civil Service Commission would have had little difficulty, if the attack had been limited in that way, in establishing that the condition was justifiable within sub-paragraph (ii). We think that it is desirable that the case should be remitted to be heard by a differently constituted Industrial Tribunal, not because there is any criticism of the Tribunal which heard the present case, but because on the whole it is probably desirable that it should be approached afresh. The Order is the Appeal be allowed, the Decision of the Industrial Tribunal be set aside, and the case be remitted to be re-heard by a differently constituted Industrial Tribunal. Leave to Appeal. MR. JUSTICE PHILLIPS; Miss Price complains that the Civil Service Commission have unlawfully discriminated against her, within the Sex Discrimination Act 1975, by imposing a discriminatory condition of eligibility for appointment as an Executive Officer in the Civil Service. An Industrial Tribunal sitting in London on the 28th October and the 4th November 1976, by a Decision entered on the 24th November 1976, dismissed her complaint. Prom that Decision she has appealed. Since the Decision of the Industrial Tribunal, the Society of Civil and Public Servants have been added as Respondents by order of the Registrar as having an interest in the outcome of the Appeal. Miss Price was born on the 26th August 1940. She joined the Civil Service as a Clerical Officer when she was 17, and served for two years. At the age of 20 she married, and has since had two children and has done various work, mostly part-time. Towards the end of 1975 Miss Price saw an advertisement in the Guardian (page 22) inviting applications for appointment in the Civil Service as Executive Officer. No mention was made there of any age limits. In response to her application she received a booklet setting out in detail the conditions of the appointment, and learnt that candidates "should be at least 17-r and under 28 years of age on the 31st December 1976", a condition with which she could not comply. It is this age range which she contends to be discriminatory. She complains that women have greater difficulty in complying with it - particularly the upper age limit of 28 - than do men. Many women in their twenties are having children, or looking after children, or both and are thus prevented from applying. By the time they feel able to do so, say in the mid-thirties, it is too late because of the 28-year bar.

[2]Part I of the Sex Discrimination Act 1975 defines "discrimination to which the Act applies." The following parts render unlawful the specified acts of discrimination in particular fields: thus Part II relates to "discrimination in the employment field". There seems to "be no doubt that if the Civil Service Commission have discriminated against Miss Price, as defined in Part I, the act is unlawful under Section 6. The question is whether they have discriminated within Part I.

(b) , which provides as follows:

"(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."

[3]Section 1(l)(b) deals with indirect discrimination. The scheme is to define in sub-paragraph (i) in fairly wide terms activities which are prima facie discriminatory, and in effect to provide that they are to constitute discrimination unless the person acting can within sub-paragraph (ii) show that they are justifiable irrespective of the sex of the person discriminated against. Thus sub-paragraph (i) proscribes a wide range of activity but permits the party acting to justify it. The test is whether the condition 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. Examples usually given are of physical attributes such as height or strength or weight. But the sub-paragraph goes much further than that, and would extend to educational or professional qualifications, if they are of a kind which few women but many men possess. Thus an advertisement which required as a condition for appointment to a post of degree in engineering, or the status of a barrister-at-law, would seem to be prima facie discriminatory in that the proportion of women who can comply with the condition is considerably smaller than the proportion of men who can comply with it. No doubt in those and other similar cases the advertiser would have no difficulty in showing the condition to Toe justifiable. Accordingly such cases are not brought in practice because it is known that though they might pass the test of sub-paragraph (1) they will fail at that of sub-paragraph (2) Thus it by no means follows that because a claimant can satisfy sub-paragraph (1) he or she will eventually be able to establish an act of discrimination. Miss Price failed to persuade the Industrial Tribunal that she could satisfy sub-paragraph (1). Thus the case has not yet been determined upon the merits, and we have not had the benefit of hearing the evidence and arguments relevant to the question whether the conditions can be shown to be justifiable. The case has not got beyond the preliminary point.

[4]The Industrial Tribunal's main ground of decision is narrowly based. They accepted a submission at the end of Miss Price's case that the Civil Service Commission had no case to answer. It had been submitted on behalf of the Civil Service Commission that the words "can comply" should be strictly construed and that it must be said of a woman that she can comply with a condition if it is physically possible for her to do so. The Industrial Tribunal accepted this submission. The argument went further, and was that since the number of women and the number of men in the population is not widely different it was impossible to say that the proportion of women who can comply with the age condition was considerably smaller than the proportion of men, because all men and all women had equal opportunity to comply with it. In paragraph 11 of the Decision the Industrial Tribunal put it like this:

"We have unanimously decided that Mr. Howard's submission on behalf of the respondent must be upheld on both grounds. .We are of the view that the only requirement or condition was that applicants should be between the specified age groups. Since the applicant conceded that the proportion of women within these groups was not considerably smaller than the proportion of men we are of the view that this concession is fatal to her case. In so far as the statistics are concerned, as Mr, Howard submitted, no one can really say whether these women with children really wanted a job or chose to stay at home. If one takes the up to date statistics provided by the respondent we find that indeed more women than men applied for posts of Executive Officer posts than men. If they could apply for those posts then it follows that they could have applied for any other kind of job. It is also worthwhile recording that during 1976 53.7% of women were accepted as against 46.3% of men."

[5]The Appeal Tribunal are not in agreement. Mr. Alderton accepts this conclusion, and would dismiss the appeal. The majority take a different view, which is set out in the remainder of this judgment and which is theirs alone.

[6]The Industrial Tribunal further decided that the statistics produced in evidence did not establish to their satisfaction why it was that fewer women applied for posts than men, and whether it was not that they chose not to do so, rather than that they were prevented from doing so. They were also impressed by the fact that during 1976, according to statistics produced of applications for executive officers, of those accepted 53.7% were women as against 46.3% who were men. We do not regard this last point as significant, since the complaint is not that over the whole range of appointment between 17½ and 28 years fewer women were successful than men, but that the age bar at 28 was more disadvantageous to women than to men.

[7]Experience shows that when considering Section l(1)(b) it is necessary to define with some precision the requirement or condition which is called in question. Even when the facts are not in dispute it is possible to formulate the requirement or condition, usually at all events, in more than one way; the precise formulation is important when considering sub-paragraph (i) (ii) and (iii). A fair way of putting it in the present case seems to be that candidates for the post of Executive Officer must not be over 28 years of age. We do not accept the submission of counsel for the Civil Service Commission that the words "can comply" must "be construed narrowly, and we think that the Industrial Tribunal were wrong to accept this submission. In one sense it can be said that any female applicant can comply with the condition. She is not obliged to marry, or to have children, or to mind children; she may find somebody to look after them, and as a last resort she may put them into care. In this sense no doubt counsel for the Civil Service Commission is right in saying that any female applicant can comply with the condition. Such a construction appears to us to be wholly out of sympathy with the spirit and intent of the Act. Further, it should be repeated that compliance with sub-paragraph (i) is only a preliminary step, which does not lead to a finding that an act is one of discrimination unless the person acting fails to show that it is justifiable, "Can" is defined (Shorter Oxford English Dictionary) "to be able: to have the power or capacity." It is a word with many shades of meaning, and we are satisfied that it should not be too narrowly - nor too broadly - construed in its context in Section l(l)(b)(i). It should not be said that a person "can" do something merely because it is theoretically possible for him to do so: it is necessary to see whether he can do so in practice. Applying this approach to the circumstances of this case, it is relevant in determining whether women can comply with the condition to take into account the current usual behaviour of women in this respect, as observed in practice, putting on one side behaviour and responses which are unusual or extreme.

[8]Knowledge and experience suggest that a considerable number of women-between the mid-twenties and the mid-thirties are engaged in bearing children and in minding children, and that while many find it possible to take up employment many others, while desiring to do so, find it impossible, and that many of the latter as their children get older find that they can follow their wish and seek employment. This knowledge and experience is confirmed by some of the statistical evidence produced to the Industrial Tribunal (and by certain additional statistical evidence put in by consent of the parties on the hearing of the appeal: for example, Appendix A1.) This demonstrates clearly that the economic activity of women with at least one 'A' Level falls off markedly about the age of 23» reaching a bottom at about the age of 33 when it climbs gradually to a plateau at about 45.

[9]Basing ourselves on this and other evidence, we should have no hesitation in concluding that our own knowledge and experience is confirmed, and that it is safe to say that the condition is one which it is in practice harder for women to comply with than it is for men. We should be inclined to go further and say that there are undoubtedly women of whom it may be properly said in the terms of Section 1(l)(b)(i) that they "cannot" comply with the condition, because they are women; that is to say because of their involvement with their children. But this is not enough to enable Miss Price to satisfy the requirements of sub-paragraph (i), The difficulty we have is in saying whether the proportion of women who can comply with the condition is considerably smaller than the proportion of men who can comply with it. It follows from what we have said earlier that we do not agree with the approach of the Industrial Tribunal to this question, and it follows that there has never been a finding of fact based upon the evidence correctly approached and interpreted.

[10]At one stage of the hearing we thought that it might be in order for us to make a finding ourselves on the basis of the evidence given to the Industrial Tribunal, together with that put in by consent on the hearing of the appeal. At the end of the day we have come to the conclusion that we ought not to do so. The difficulty is that most of the evidence is statistical, and is of a kind which needs to be analysed and interpreted, since it is designed for other purposes, and it is not entirely easy to draw relevant conclusions. We think it does confirm the likelihood that women are put into difficulties by the condition, and that there are women who would wish to apply to be an executive officer and could do so in (say) their thirties, but cannot do so in their late twenties. The difficulty is to quantify this in the terms of a "considerably smaller" result. We find that it would be unsafe for us to reach a conclusion without having had the benefit of hearing the statistician give evidence and be subjected to cross-examination upon the proper analysis and inferences to be drawn from the statistics.

[11]Accordingly we propose to allow the appeal and to remit the case to be heard afresh, bearing in mind the terms of this judgment and such guidance as we have been able to give. It may perhaps be helpful to mention one other matter. The Industrial Tribunal, in paragraph 12, rightly point out that when considering Section l(l)(b)(i) and considering the proportion of women and the proportion of men, it may be proper to consider as the "pool" of women or men available for the purpose something less than total female and male population. We agree with that, though, as we have pointed out, the Industrial Tribunal itself in the present case proceeded on the footing that it was appropriate to take into account the whole population, male and female respectively. We doubt whether that was the right approach, though we do not wish to lay down a proposition binding upon the Industrial Tribunal which will hear the remitted case. It seems to us, as at present advised, there would be a good deal in the present case for saying that the appropriate "pool" is that of qualified men and qualified women as the case may be.

[12]In this connection it is worth, remarking, as indicating how widely Section 1(l)(b)(i) may operate, that if Miss Price's case had been limited to the proposition that there was prima facie discrimination in that an educational qualification was demanded of two 'A' levels, it would "be likely to succeed inasmuch as the proportion of women with two 'A' Levels to all women is considerably smaller than the proportion of men with two 'A' Levels to all men. Such a way of putting the case would have achieved nothing because the Civil Service Commission would have had little difficulty, if the attack had been limited in that way, in establishing that the condition was justifiable within sub-paragraph (ii).

[13]We think that it is desirable that the case should be remitted to be heard by a differently constituted Industrial Tribunal, not because there is any criticism of the Tribunal which heard the present case, but because on the whole it is probably desirable that it should be approached afresh.

[14]The Order is the Appeal be allowed, the Decision of the Industrial Tribunal be set aside, and the case be remitted to be re-heard by a differently constituted Industrial Tribunal.

[15]Leave to Appeal.