Byers v Historic Buildings & Monuments Commission [1991] UKEAT 558_89_0210

EAT
Byers v Historic Buildings & Monuments Commission
[1991] UKEAT 558_89_0210 · 1991-10-02
MR JUSTICE WOOD (PRESIDENT): By an Originating Application which was dated 24th June 1989, Mr Byers complained of unlawful sex discrimination against the Historic Buildings and Monuments Commission for England, known normally as "English Heritage".As his ground of complaint was expressed in that broad way it was the first duty of the Industrial Tribunal, which heard his case on the 6th September 1989, to discover precisely what his case was.No particulars had been sought and the learned Regional Chairman, Mr David Powell, no doubt set about finding out what it was that was being complained about.The case being put forward is set out in paragraph 1 of the Reasons. Mr Byers had seen an advertisement in a newspaper, and in March 1989, had applied for the position of a part-time Custodian at Goodrich Castle, which is near Ross-on-Wye, in Herefordshire. He was complaining that at least he should have been short-listed, and the failure to do so was a blatant disregard of the merits of his case from which there should be an inference of sexual bias and sexual discrimination. That, as so stated, was clearly an act of direct discrimination under Section 1(1)(a) of the Sex Discrimination Act 1975.The Respondents had in fact short-listed two men and two women. There had been a number of applications and the first point that was made, no doubt to the Industrial Tribunal, was that the documentation which would have shown the identity and the qualifications of each of the applicants, had been destroyed shortly after the appointment had been made. For this they were severely criticised by the Industrial Tribunal and, of course, as was recognised by the Tribunal, it made the task of Mr Byers somewhat more difficult. However, in order to try to balance that situation the Tribunal did approach the problems before it by assuming that Mr Byers was better qualified than the two men who were selected for interview.The custodian posts at Goodrich Castle were three in number. One was permanent and full-time, at the time of the application in March 1989 that was already filled and no criticism was made of that selection. The third was a part-time and seasonal post, which was occupied during the summer months and usually the same person occupied it. The second post was permanent but part-time, two days a week in the summer; one day a week in the winter; plus holiday and sickness cover, and that was the post for which Mr Byers applied.The appointment to the position was in the hands of the Area Custodian, Mr Springett, whereas the permanent appointments were made by the Regional Administrator, in consultation with a personnel officer and the Area Custodian.The position, had at one time, been occupied by a relation of one of the custodians, and there was severe criticism by Mr Byers for that. The result of that appointment was that all three positions at Goodrich Castle were held by women. This was the criticism and the basis of Mr Byers' complaint.The Tribunal looked at the overall picture across the country of the employment of women by the Respondents; they found that at roughly 150 sites there were 424 custodians of whom slightly more than half were male. The Tribunal say this:
"With that figure in mind we cannot reasonably infer that the failure to short-list Mr Byers was due to any general preference for female custodians."
The complaint was confined to Goodrich Castle and given that general parity of men and women the Tribunal were anxious to find out why it was that Mr Byers was suggesting that there was this preference or bias. The reason he put forward, stated by the Tribunal to be:

"admittedly in the last resort"

was related to the toilet facilities. This was rejected by the Tribunal.The Tribunal also go on to point out that the short-listed candidates were two women and two men, and indicate that perhaps that did not help Mr Byers to establish direct discrimination.The qualifications of Mr Byers and the other candidates were considered, and it was also pointed out that the Respondents were carrying out a broad policy of trying to change the image of custodians from that of the uniformed security guard to the more welcoming and perhaps, less formal image of the custodian one of whose main and important functions was "over-the-counter" sales of souvenirs; tickets and helping in other ways.The Tribunal were not satisfied that Mr Byers had established that the reason for his failure to be short-listed was on the grounds of his sex and they dismissed his application.Before appealing to this Court Mr Byers sought a Review. He sought a Review because of the explanation as part of the reasoning of the policy of the employers in changing the image of what they would call possibly, the "old fashioned custodian" who was often ex-police or security firm material.He did so by two applications. The matter is dealt with by the learned Regional Chairman in a Decision, which was promulgated on the 18th October 1989. We need only refer to the second paragraph of the Review Decision, this reads:
"On 24 September, still well within the 14 days, Mr Byers wrote again, this time taking the point that the respondents' reference for applicants with no security career in the background imposed a detriment on a significantly larger proportion of make applicants, to which the applicant was himself liable, so as to constitute a case of indirect discrimination under s.1(1)(b). If this point had been taken before us, no doubt we would have held that this was not the application of a requirement or condition. The paragraph refers to the application of an absolute bar to appointments etc: Meer v. Tower Hamlet LBC 1988 IRLR 399 (C.A.). The evidence in this case, subject as it may be to many of the criticisms which the applicant makes about the policy itself, negatived any operation of direct sexual preferences. A mere preference for a certain positive or negative qualification significantly less likely to be found in one sex than the other is not caught by the Act. In any event, however, this point also falls outside the scope of r.10(1)(e), on which Mr Byers is driven to rely."
That application for Review, therefore, failed.The matter came before a different Division of this Court on the 20th November 1990. That Division was presided over by Mr Justice Knox. This Court was there considering whether the matter merited argument before a full Court and a short Judgment was given in which it was suggested that the Notice of Appeal should be amended and that argument should proceed only on the form of the amended notice of Appeal.The two grounds therefore, which are argued before us today can be stated thus:
"(1) That the Industrial Tribunal erred in law in finding that the Respondents' policy of getting away from the image of old-fashioned custodian who was often ex police and security firm material was an effective answer to the Appellant's complaint of unlawful discrimination contrary to Section 6(1)(a) of the Sex Discrimination Act 1975 in that the great majority of ex police and security firm material is male and that the implementation of such a policy therefore constituted such discrimination.
(2) That the Industrial Tribunal erred in law in finding as a conclusive answer to the Appellant's claim that the Respondents' motives were free of sexual preferences in that the true issue before the Industrial Tribunal related to the treatment of the Appellant by the Respondent and no to the Respondents' motivation".May we deal with the second point first, it is correct that on two occasions in the Reasons, namely at the end of paragraph 10 and the beginning of paragraph 11 the question of motive is referred to.The law on discrimination has developed as the years have passed by and when considering direct discrimination, of course, there can be an intention to discriminate, and the motive and the intention would then be relevant, but also, secondly, there can be direct discrimination even though there is no intention or motive to do so. Therefore one can look at it from two points of view. The latter, second approach is exemplified by the case of James v. Eastleigh Borough Council [1990] ICR 554 in the House of Lords, and it is true that there may be a condition, such as the payment of an entry fee linked to retirement ages, which may of itself amount to a discrimination which is direct.The Tribunal here were considering the first form of direct discrimination because of the way in which Mr Byers was putting his case. He was saying "there was a direct intention" and the motive was said to be because of the problems of the sanitation.Clearly, the earlier Division of this Court wanted a full argument on whether there was a stipulation or condition, such that Mr Byers was automatically disadvantaged.We have looked at the Reasons again and we are quite satisfied that the issue of motivation was only directed at the first type of direct discrimination.So far as the second type is concerned that there was no stipulation, there was no requirement that as Mr Byers put it the Applicant must be ex-security. This was simply part of the overall reasoning, it was not even a criteria of itself but it was part of the reasoning and the approach. Thus Mr Byers fails also upon his first ground of appeal.In our judgment, on both grounds the Appeal must fail.However, Mr Byers sought before us to argue in a third way, namely that this was properly considered as a case of indirect discrimination; that is put forward by him in his application for Review. It seems to us clear that the Industrial Tribunal on the facts found and on the evidence before it was not satisfied that there was here a requirement or condition under s.1(1)(b) and therefore that that matter failed.The point however, is made by Mr Bird for the Respondent employer that Mr Byers was seeking to raise a totally different case on Appeal. The case that he had put to the Industrial Tribunal, so submits Mr Bird was that "I am a man and the employers wished only to employ women". He says that was the case that he had to meet on behalf of the Respondents, he met it with success and that Mr Byers should not be allowed to raise a fresh point.He basis his submission on two Authorities the first is the case of Kumchyk v. Derby City Council [1978] ICR 1116 and that was a Decision of this Court presided over by Mr Justice Arnold, as he then was. The headnote, gives a sufficient indication of the Decision and the principles involved. The Appeal was dismissed, there was an attempt to take a new point and the headnote reads:
"dismissing the appeal, that section 88 of the Employment Protection Act 1975 did not exclude the consideration of a point of law not taken before the industrial tribunal but that it would only be just to consider an argument not presented below in limited circumstances, for example, where a party had been prevented from arguing a point by deception; that it would not be enough that the omission to argue a particular point was due to the lack of skill of the advocate or that the omission could have been rectified by the industrial tribunal taking the point themselves; and moreover, that, since the industrial tribunal would have to make further findings of fact before it could be decided whether there was an implied terms as to the type of car park in which the employee could be required to work, it would be wrong to hear submissions on that point and the industrial tribunal's decision would be upheld."
That case was followed very recently in this Court in a case Dimtsu v. Westminster City Council before Mr Justice Knox and Others reported in "The Times" of 12th February 1991.Mr Byers submits that he was misled because there was an inaccurate answer to his questionnaire in one particular aspect. That matter was examined by the Industrial Tribunal.They were not satisfied that he had been disadvantaged in that way and in any event it seems to us that that point was not taken below.Lastly, Mr Bird submits that in support of the contention that there was no requirement or condition that the evidence given by the Personnel Officer was only explaining part of the background to what the Respondent employers were seeking to achieve in the very broadest sense and that it did not dominate the decision of the employers in any way.That explanation seems to us on the evidence that we have seen, to be well founded and it was clearly so found by the Industrial Tribunal.Mr Byers took before us, the point on the questionnaire, which we have already dealt with; the point on the documentation which we have already dealt with, he alleged that there was a condition that the Applicant must not be ex-security and that was clearly found against him and then he argued on indirect discrimination, but that is based on the finding of the term "a requirement or condition" and that was also found against him.An Appeal to this Court is only possible if there is an error of law. Reading all these documents as a whole it seems to us that on the evidence before the Tribunal, and on the facts found and the approach which it took there is no error of law which undermines the finding that there was no direct discrimination and no indirect discrimination, whether on the basis originally put, or on the basis suggested by the Order of this Court of the 20th November 1990 before Mr Justice Knox.It follows therefore, that this Appeal is dismissed.