Bullock v The Alice Ottley School [1991] UKEAT 540_89_3004

EAT

Bullock v The Alice Ottley School

[1991] UKEAT 540_89_3004 · 1991-04-30

MR JUSTICE WOOD (PRESIDENT) By an Originating Application dated 22nd May 1989 the Appellant, Mrs Bullock brought proceedings against her former employers, the Alice Ottley School, alleging sex discrimination. The particulars of her complaint were, " sex discrimination" - and in greater detail, "I had worked for the School for 16 years as a Pantry Assistant. On 23rd March I was compulsorily retired (at 61) solely on grounds of age. Male colleagues are allowed to continue working to 65. I believe that this unlawful sex discrimination ."

By its Notice of Appearance the School denied discrimination on the grounds of sex and stated,

"The Applicant's statement is NOT correct. The School Council reviewed retirement policy in the light of the Sex Discrimination Act 1986 and decided there should be a common retirement age for groups of staff regardless of sex . These ages were laid down as follows:(a) for all teaching staff - age 60

(b) for all administrative and domestic staff - age 60

Pursuant to the provisions of S.74 of the Sex Discrimination Act 1975 a questionnaire was served on the Applicant's behalf, which was answered in a document dated 7th June 1989.

At the hearing before the Industrial Tribunal on 7th July 1989 the Applicant who was born on 4th March 1928, was represented by Mr Jones from the Citizens' Advice Bureau and he School by its solicitor. Evidence was given by Mrs Bullock and Brigadier Dunand, the School Bursar.

The Appellant began her employment with the School in September 1973 and was finally dismissed on 23rd March 1989. During the whole of that period she had, as a pantry assistant, performed duties which included serving lunches to pupils, setting out and preparing the tables at lunchtime and also helping with afternoon teas and in the kitchen. Her duties had never changed.

This was an all girls School with some 680 pupils of whom 40 were boarders. The domestic staff numbered 70, most of whom were part-time, as was the Applicant, but some were full-time. Included amongst the domestic staff was a caretaker, Mr Price. The teaching staff also numbered approximately 70, all but two of whom were female and most of whom were full-time. The domestic staff would not work during the holidays but were paid a retaining fee. There was a third group of employees, four gardeners and three maintenance men. They were employed throughout the year and were in fact all male, although there was no reason why a woman should not have applied for those appointments. They were regarded as having special skills since they carried out work of repair and maintenance. They were competent as electricians,carpenters and French-polishers.

In the light of the provisions of the Sex Discrimination Act 1986 the School amended its policy on retirement. Prior to that time all women had retired at 60 and all men at 65. As a result of considering the situation it was decided that all teaching staff should retire at 60 as should domestic staff and this was irrespective of sex. However at the request of the Bursar, Brigadier Dunand, the gardeners and maintenance personnel were given a retirement age of 65. The Brigadier's particular reason for this was the difficulty in obtaining such personnel and the need to keep them in employment for as long as possible. It was in this way he differentiated between this group and the teaching and domestic personnel.

In her correspondence prior to bringing her proceedings, Mrs Bullock had been told that the caretaker, Mr Price, who counted among the domestic staff, was not required to retire until age 65. Her case therefore was to treat him as her comparator and secondly, to compare herself with the group of maintenance employees who were all men. At the hearing it became evident that the information given to her about Mr Price was inaccurate and his retirement age was also 60. The Tribunal were critical of the Respondents for this error but in fact it meant that Mrs Bullock's case using Mr Price as the comparator was ineffective.

It was therefore the case against the maintenance group which had to be considered. This was referred to as the 'special category'.

The Tribunal make their finding on this issue in paragraph 16 which reads:-

"We come to the question of comparison with the maintenance men and gardeners. We accept that there is some skill in acting as a domestic. We find however we must agree there is greater skill in carrying out the various duties required of the gardeners and maintenance personnel. We feel this point has not been argued as strenuously as the first point and that it is, so to speak, a second string of the applicant's bow. We are satisfied the applicant has been unable to show she was holding the position or similar or comparable position to gardeners and maintenance personnel. We accept the respondents evidence that there were completely different duties, that those duties involved some special skills and that such personnel worked throughout the year. These differences put them in a different category. Using the Employment Protection (Consolidation) Act 1978 - Section 64(1)(b) as amended by the Sex Discrimination Act 1986 a normal retiring age applied to all persons irrespective of sex holding similar positions.

The Industrial Tribunal continue in paragraph 17 as follows:-

"The applicant points to the fact that all personnel in that group were men. This is accepted by the respondents but we have the evidence of Brigadier Dunnand there was no reason why women should not be recruited if they were to apply and the normal retirement age for that group of 65 would have applied to men and women. No evidence has been produced suggesting the contrary. One of the difficulties facing the applicant is that she has not been able to point to any persons in any of the groups who have been retained beyond the retirement age she reached. We have heard from Brigadier Dunnand the reasons why such personnel were put into a different category at his request. This was a matter for the respondents to consider and provided they did not discriminate directly or indirectly between men and women and the fact the applicant was not regarded as being within that category is not evidence of discrimination on the grounds of sex unless she could satisfy us she was in comparable employment. We find she has not been able to do so. ......In this case we find the applicant not to be in the same category as gardeners and maintenance personnel. The Sex Discrimination Act as amended allows for normal retiring age provisions and comparable employment and therefore it is not discriminatory to have differing retirement ages for persons in different groups provided it is applied irrespective of sex."

Neither counsel appearing before us appeared before the Industrial Tribunal. From the pre-trial documents on the file it is impossible to discern the precise way in which the Applicant's case was being put nor does it appear clearly from the Decision quite what the issues were. The problems facing applicants in discrimination cases are well recognised hence the provisions for questionnaires and orders frequently made for discovery. It is also understandable that in discrimination cases feelings can run high. It is therefore perhaps even more important than in some other cases, that issues should be carefully analysed, if only to obviate misunderstandings, which can give rise to frustration and disappointment. Such analysis is also helpful to appellate courts. This should at least be always possible where the parties are represented.

A fair comment is made that facts can sometimes come to light during a hearing. True, but if after due consideration an Industrial Tribunal allows a fresh point to be made, let some amendment or careful note be taken of precisely how the fresh issue was defined. Where necessary, an adjournment can be considered.

Industrial Tribunals are masters of their own procedures. In general this informality and an understanding approach are their hallmarks. We do not suggest otherwise, but careful analysis of issues must help towards an understanding of their reasoning.

Miss Monica Carss-Frissk has put her case on S.1(1)(a) and S.4(2)(c) of the 1975 Act. She also submits that the evidence shows that there is indirect discrimination within S.1(1)(b). She relies on paragraph 17 of the Decision.

We will return later to the question of indirect discrimination. For the present let us examine the position under S.1(1)(a).

Since the hearing before the Industrial Tribunal the provisions of S.1 of the 1975 Act dealing with direct discrimination have been considered by the House of Lords in James v. Eastleigh Borough Council

[1990] ICR 555

. In that case the plaintiff, Mr James and his wife, both of whom were aged 61, visited a leisure centre managed by the Council. His wife was admitted free of charge but he had to pay an admission fee as the Council only provided free admittance, inter alia, to people who had reached "State Pension Age". That in the case of a man was 65 and in the case of a woman, 60. In County Court proceedings Mr James alleged unlawful sex discrimination contrary to S.29 of the 1975 Act and claimed a declaration and damages. The judge found for the Council and the Court of Appeal dismissed the plaintiff's appeal.

The Appeal to the House of Lords was allowed by a majority. Lord Bridge of Harwich, Lord Ackner and Lord Goff of Chieveley found for Mr James and Lord Griffiths and Lord Lowry dissented. The view of the majority was that since S.1(1)(a) was concerned to promote equality of treatment of men and women, the adoption of a gender based criterion was unlawful; that the test to be applied under that sub-section was objective and if, applying an objective test, the answer would have been that the complainant would have received the same treatment as the defendant but for his or her sex, there was direct discrimination; that the words " on the grounds of sex " did not refer to the subjective reason for the differential treatment of the two sexes and such a reason, albeit with a benign motive, was irrelevant. In that case the expression " pensionable age" was a gender based criterion.

In the present case there has been no criterion applied, there has simply been the expressed ages of 60 and 65. We note what Lord Bridge said at p.566G -

". .. The expression "pensionable age" is no more than a convenient shorthand expression which refers to the age of 60 in a woman and to the age of 65 in a man. In considering whether there has been discrimination against a man "on the ground of his sex" it cannot possibly make any difference whether the alleged discriminator uses the shorthand expression or spells out its full meaning."

The majority expressed clear views that the correct approach was the objective approach and that intention, motive or reason were not part of any appropriate test. Two passages from the speech of Lord Goff of Chieveley are pertinent to the reasoning of the House.

"574D I turn to that part of the Vice-Chancellor's reasoning which is based upon the wording of section 1(1)(a). The problem in the present case can be reduced to the simple question - did the defendant council, on the ground of sex, treat the plaintiff less favourably than it treated or would treat a woman? As a matter of impression, it seems to me that, without doing any violence to the words used in the subsection, it can properly be said that, by applying to the plaintiff a gender-based criterion, unfavourable to men, which it has adopted as the basis for a concession of free entry to its swimming pool, it did on the ground of sex treat him less favourably than it treated women of the same age, and in particular Mrs James. In other words, I do not read the words "on the ground of sex" as necessarily referring only to the reason why the defendant acted as he did, but as embracing cases in which a gender-based criterion is the basis upon which the complainant has been selected for the relevant treatment. Of couse, there may be cases where the defendant's reason for his action may bring the case within the subsection, as when the defendant is motivated by an animus against persons of the complainant's sex, or otherwise selects the complainant for the relevant treatment because of his or her sex. But it does not follow that the words "on the ground of sex" refer only to cases where the defendant's reason for his action is the sex of the complainant; and, in my opinion, the application by the defendant to the complainant of a gender-based criterion which favours the opposite sex is just as much a case of unfavourable treatment on the ground of sex. Such a conclusion seems to me to be consistent with the policy of the Act, which is the active promotion of equal treatment of men and women. ..."

and secondly

" 576C ... However, taking the case of direct discrimination under section 1(1)(a) of the Act, I incline to the opinion that, if it were necessary to identity the requisite intention of the defendant, that intention is simply an intention to perform the relevant act of less favourable treatment. Whether or not the treatment is less favourable in the relevant sense, ie on the ground of sex, may derive either from the application of a gender-based criterion to the complainant, or from selection by the defendant of the complainant because of his or her sex; but, in either event, it is not saved from constituting unlawful discrimination by the fact that the defendant acted from a benign motive. However, in the majority of cases, I doubt if it is necessary to focus upon the intention or motive of the defendant in this way. ..."

In the present case the act of discrimination was the insistence by the School that Mrs Bullock retired at 60. Mr Dudley for the School argues that what the School council decided was to give the maintenance group a later retirement age and for good reasons. This argument, it seems to us, can no longer stand in the light of the decision in JAMES .

Secondly, he relies upon the provisions of S.5(3) of the 1975 Act which reads:-

"5(3) A comparison of the cases of persons of different sex or marital status under S.1(1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other".

He submits that the relevant circumstances here are first, that there was a need or justification for the later age in the maintenance group, and secondly, that the very existence of separate groups within the staff of the School requires the "like with like" comparison to be limited to that group.

The answer to the first part of this submission must again rest in the JAMES decision and as to the second, that where retirement ages are concerned, the relevant undertaking in the present case is the School and the whole of the staff. It may have been that in paragraph 16 of its Decision the Industrial Tribunal was referring to the use of the word "undertaking" in S.64 of the Employment Protection (Consolidation) Act 1978. To allow staff to be sub-divided into small groups or pools for this purpose would undermine the whole object of these provisions.

What then is the meaning to be given to the word "relevant" in S.5(3) once the notions of intention, motive and reason are removed from the S.1(1)(a) objective test? The effect must be very limited indeed. The "relevant circumstances" are those relevant to the act of discrimination itself of which complaint is made. This stresses once more the importance of analysis. The act here is the requirement for Mrs Bullock to retire age 60. It is not the decision to allow the maintenance group to retire at the later age of 65.

If this is the correct approach, then as required in JAMES what happens to the maintenance group and why is irrelevant. Can there be any relevant circumstances? It is difficult to think of any, but during argument it was suggested that a possibility might be in the case of airline pilots who might be required to retire earlier than ground staff in circumstances relevant to their capacity to carry out the work itself. Even this however might be excluded by the reasoning in JAMES .

If then the provisions of S.1(1)(a) are virtually absolute, the rhetorical question is put what can a responsible employer with the best of motives do in the best interests of his staff and his undertakings? The only answer can be that retiring ages must be the same and any problems arising at or near that age must be dealt with in consultation. See BROOKS v. BRITISH TELECOMMUNICATION Plc

[1991] ICR 286

Our conclusion therefore is that upon the facts found by the Industrial Tribunal which are not in dispute, the only conclusion to which the Industrial Tribunal could have come is that Mrs Bullock had established her case on direct discrimination.

We therefore turn to the issue of indirect discrimination under S.1(1)(b). Whether it was raised or not before the Industrial Tribunal is still unclear. Miss Carss-Frisk submits that the term or condition was either based on stereotyping in that employers might not appoint a woman or a woman might not apply, or alternatively, on the comparison between part-time and full-time workers and the established understanding that for the most part it is women who do the part-time work. Thus women will be less able to comply with either of those conditions than men. This submission may indeed be well-founded but the only reference is in paragraph 17 of the Decision and on reading that paragraph we are not satisfied that this Industrial Tribunal did consider this issue independently. It would have needed to consider each of the sub-paragraphs of S.1(1)(b). Having found in favour of Mrs Bullock on direct discrimination, we do not think it right to allow indirect discrimination to be raised on this appeal. If we had, the position would have been sufficiently unsatisfactory for us to remit the issue and not to have decided it ourselves.

The last matter for our decision is whether to allow a re-amendment of the Notice of Appeal to permit Mrs Bullock to name Brigadier Dunand as her comparator. He joined the staff at the age of 55 - presumably with an army pension - and his retirement age was 65. The School could have given him a 10 year contract, but decided not to deal with his case in that way. The circumstances governing his terms of employment did not emerge until the hearing before the Industrial Tribunal. There was no application to adjourn or to amend from the Applicant's representative and we think that it is too late for such an amendment. In any event the arguments are likely to have been the same as in the case of the maintenance group.

For the reasons we have given therefore, this appeal must be allowed and there must be a declaration that Mrs Bullock has been the subject of sex discrimination and the matter must be remitted for calculation of compensation.