James v Bank Of England [1994] UKEAT 226_94_1304

EAT
James v Bank Of England
[1994] UKEAT 226_94_1304 · 1994-04-13
MR JUSTICE MORISON: The applicant, Mr James, is employed by the Bank of England at its offices in Gloucester. He commenced employment in March 1991 on a three year fixed term contract due to expire on 3 March 1994, which has subsequently been renewed for a year. He made a complaint to an Industrial Tribunal of direct unlawful discrimination contrary to Section 1(1)(a) of the 1975 Act , as amended. He also made a claim under the equal pay legislation. At a directions hearing on 6 October 1993, the two cases were separated and the Sex Discrimination Act claim was tried first, and determined by an Industrial Tribunal held at Bristol who, by a decision dated and entered in the Register on 11 January 1994 unanimously dismissed his application.There were two matters before us today. In the first place Mr James wishes to appeal against the dismissal of his claim for sexual discrimination. To do so he must persuade us that he has an arguable point of law on such an appeal and the issue before us on this matter is whether he has satisfied us that there is such a point. The second matter related to the Equal Pay Act claim, which is fixed for a five day hearing starting on 25 April. Mr James made an application that that case be adjourned; such application was refused and he wishes to appeal against that refusal.In the event, for reasons which do not need to be elaborated in the course of this judgment, that second application is no longer live. The parties have managed to come to terms in the sense that the case will start on 25th April and the Applicant will be given time-off from his employment, with pay, for a period of 3 days next week and the Applicant himself will take four days of his contractual holiday entitlement during next week. So that, throughout the whole of next week the Applicant will have all his time available to devote himself to the preparation for the trial of the Equal Pay Act claim which is due, as I say, to start on 25th April. We are satisfied that in the light of what has transpired between the parties that that is a reasonable disposal of the dispute between the parties as to whether the claim should start on that date or should be otherwise adjourned. We shall therefore turn -to the question of the Sex Discrimination Act 1975 claim.The allegation made by Mr James related to the way in which the Bank's dress code for it employees was interpreted. The code, as set out in the Staff Handbook says that its staff must "present a neat and business-like appearance avoiding extremes of dress". Mr James accepts that this statement is lawful and unobjectionable. However, it is the way the policy was interpreted that gives rise to his complaint. In a memorandum, dated 21st May 1992, the policy was interpreted to mean that a man must wear a suit whereas women were given a wider choice of clothing. The wording of the memorandum is as follows:
"While officer manage have and retain discretion in determining what constitutes a `neat and business-like appearance avoiding extremes of dress' as a senior manager exercising judgment about their use of that discretion I would not generally expect to see staff wearing clothing which was unduly revealing, distracting or provocative (and I might have added that it should of course be practical). For mean this means a suit . For women I would expect managers to persuade staff that the following could not normally be regarded as business-like:-
Hems on dresses, skirts or culottes which were too far above the knee.Jeans or shorts.

Tee shirts and vests

but what really matters is performance not appearance."

At the Tribunal Mr James gave some evidence as to the cost of meeting the requirement for a suit, which the Tribunal considered exaggerated. He said he had seen women who were wearing quite casual attire; however the Tribunal accepted that the dress code was enforced for women whenever a woman appeared to depart from the guidelines. The Tribunal concluded that much of Mr James' evidence was exaggerated, as they put it, and unsubstantiated and accepted against his evidence that given on behalf of the Bank, including evidence from a Mr Mawby, who they describe as the Union representative, that the enforcement of the dress code as between men and women was done without distinction or discrimination save only that men were required to wear suits whereas women were not.They concluded that that requirement was not discriminatory and did not, in any event, amount to less favourable treatment because they did not believe that the requirement to wear a suit was any more expensive than the cost consequential upon women having to dress to the required standard. Finally they concluded that the Bank had a wide discretion to decide how its employees should be dressed.As was his right, the appellant asked the Tribunal to review its decision. On 2 February 1994, they refused to accede to his application because in their view it was groundless.The appellant submitted a notice of appeal which has been referred to us to consider whether there are any grounds for an appeal on a point of law - which is the limit of our jurisdiction. If there are we would allow the appeal to proceed; otherwise we would order it to be dismissed without the need for a full hearing.Mr James makes the following points: firstly, for women, there were no specifics as to what might or might not be worn. If there had been then he would have made no complaint of unlawfulness, even if the range of suitable clothes for women was more extensive than for men. In other words, because the memorandum was expressed in the negative, so far as women's clothing was concerned, the memorandum was objectionable. Secondly, he says that there is an unlawful distinction between the words "for men this means a suit" which is mandatory, whereas, in relation to women the memorandum expects managers to "persuade staff" that the following could not normally be regarded as business-like.In support of his first argument he relies on the case of Mallalieu v. Drummond (Inspector of Taxes) [1983] 3WLR page 409. That case was concerned with the question whether a barrister was entitled to deduct from her gross earnings before tax the cost of acquiring, laundering and cleaning her court clothes. He points out, rightly, that the Rules as to dress appropriate for use in Court were modified in 1968 to take account of the entry of women barristers into the profession and that the dress code is positive in form in that it specifies for women the need to wear a dress or blouse of a particular colour and design.We do not consider that it is possible to argue that because the code for dress in Court is expressed positively, and presumably is lawful, that it follows that a dress code which is negatively expressed is thereby unlawful. We think that it is merely a matter of language how the code is expressed and we would be unhappy if we had thought it arguable that a mere matter of language made the difference between a requirement being lawful or unlawful, Therefore, we consider that there is nothing in the first point which was raised, namely, that the memorandum was expressed in the negative so far as women's clothing was concerned, whereas for men it was expressed positively.As to the second point, that mean are required to wear suits whereas women are merely encouraged to wear clothes which are not inappropriate, again, we think there is no arguable point. As we see the matter, the basic requirement relating to dress is contained in the Handbook which the appellant accepts is lawful. The memorandum is a gloss on that and recognises that whereas the requirement is fulfilled in relation to men by the wearing of suits there is greater flexibility for women in their choice of clothes. We think that the explanation for the words "expect managers to persuade staff" reflects the expectation that because of their range of choice, and possibly also because it may be thought that many women are more concerned about their appearance than many men, it was anticipated that the enforcement of the code would require persuasion in their case. The important point, in our judgment, is how the code was interpreted in practice. If the code had been interpreted with more laxity for women than for men that would, in our judgment, have been objectionable. Whether or not that was so depended entirely upon the evidence. Mr James led evidence that there was discrimination in practice; that was rejected by the Tribunal of fact and against that finding there is no appeal.Accordingly, we are forced to reject the arguments of Mr James. We are satisfied that, having looked at the case with care, he has no arguable appeal against the decision of the Industrial Tribunal and, accordingly, we dismiss it. But before leaving the case we would all like to pay tribute to the skill with which Mr James presented his arguments. We quite understand the pressures upon any individual engaged in litigation, and making all due allowances for the strain and stress of litigation, we consider, and would like to record that Mr James' conduct before us was exemplary.Having said that we do not need to deal with a matter which was raised by Mr James in relation to the conduct of certain industrial tribunal officials leading up to the events of today. We say that we do not need to deal with it because once this Tribunal had had the opportunity of going through those matters with Mr James, it became quite plain that he was prepared to accept that there was room for a different interpretation to that which he had up until then placed upon the events of which he was making complaint. We are glad that we have taken the time to go through the matter with Mr James and we are particularly pleased that he has responded to the matters which we raised with him during the course of that exercise in such a positive and favourable manner. Accordingly, we wish to say no more about any of those matters and therefore the case can rest in that way.