London Borough Of Greenwich v Robinson [1995] UKEAT 745_94_2111

EAT
London Borough Of Greenwich v Robinson
[1995] UKEAT 745_94_2111 · 1995-11-21
MR JUSTICE KEENE : This is an appeal from a decision of an Industrial Tribunal sitting at Ashford dated 17 June 1994. The decision was a majority decision, the Chairman dissenting.The Tribunal held that the then Applicant, now the Respondent, was unfairly dismissed from her job with the London Borough of Greenwich. The majority also held that the Respondent was unlawfully discriminated against on the grounds of her sex. The London Borough of Greenwich now appeals against those decisions.The facts of the case are these. The Respondent was employed as a psychiatric social worker within the Child Guidance Unit of the London Borough of Greenwich. She was highly qualified within her particular field, holding degrees from the State University of New York and from Columbia University, together with a certificate in social work. She also had considerable experience as a social worker before joining the Child Guidance Unit of the Appellant Council.The Respondent had been undertaking from about November 1991 courses of infertility treatment. The first of those courses began in November 1991. It unfortunately resulted in her having a miscarriage in December 1991. There then followed a second course of infertility treatment in June 1992. This was unsuccessful. At the end of January 1993, which was after her dismissal from her employment, she underwent further infertility treatment and on this occasion the treatment was successful and in due course resulted in the birth of a child.However, during the course of 1991/1992 the Respondent had had sickness absence amounting to 52.5 working days. For the purposes of the sickness record, which was compiled when a redundancy situation arose, some 12 days were deducted from that figure because they were ones following the miscarriage in December 1991. That left a total of some 40.5 days of sickness absence, which the Respondent had taken from her employment during the course of those two years. Of that total, some 27 were related to the infertility treatment. This treatment was that known as IVF and the Industrial Tribunal had before it a document entitled "IVF at a Glance", which set out a number of the particulars involved in such a course of treatment.The principal officer in the Child Guidance Service for the London Borough of Greenwich was a Miss Vivian Kirwan. Miss Kirwan was in charge of the education staff but she was also the line manager for eight psychiatric social workers, one teacher and two secretaries. One of those psychiatric social workers was the present Respondent.Towards the end of 1992, the Appellant Council was suffering severe financial restrictions and, in consequence, it decided that there would have to be substantial reductions in its budget. As part of that it was determined that there would have to be a reduction in the workforce employed by the Council. The Child Guidance Unit, it was decided, would have to experience cuts of about £40,000 which, in turn, would necessitate a reduction of 1.5 members of staff. The sequence of events, in more detail, which took place was as follows. On 22 October 1992, the Chief Executive of the Council spoke to all employees of the Authority, telling them of the situation and calling for volunteers for redundancy. The Council had decided that subject to the necessary finance being available they would pay a redundancy package to volunteers which would result in those volunteers receiving twice as much money as they might otherwise have done under the statutory redundancy payment scheme. In the case of the Respondent, the voluntary redundancy package amounted to almost £10,600 as against the statutory payment of just under £5,300.There was then a letter which was sent out by the Director of Education, dated 23 October 1992. That, in essence, was informing those within that Department of the anticipated restrictions and loss of jobs which was going to follow from the budgetary problems faced by the Authority and it emphasized the desirability of some voluntary redundancies being achieved.On 13 November 1992 the Director of Education gave formal notification to the Unions of the proposed redundancies. That was the start of the formal consultation period. In the course of that letter the Director of Education set out the proposed method of selection. That indicated that the first step would be the calling for volunteers for redundancy. That would be followed by the selection of those to be made redundant from amongst the voluntary applications. Thirdly, if there were insufficient volunteers, selection for compulsory redundancy would have to take place. The letter went on to indicate that that selection would normally be through management decision following clear, reasonable and justifiable selection criteria. The letter set out certain criteria for selection, as they were described, though we have to comment that those clearly were proposed selection criteria, because the letter also indicated that there was an opportunity to make comment on those proposals by 25 November.The criteria for selection, as they were proposed, were as follows:
"1. Skills, abilities, and experience of the relevant employees with regard to the particular needs of the service.
This criterion will have primacy.2. a) Disciplinary record

b) Sickness record

... In any case, sickness record will only be considered where an employee has a total of more than 16 days' absence over the previous two years and/or where there have been at least two periods of absence. Pregnancy-related absence will not be included for consideration."The letter also indicated that it was anticipated that any compulsory redundancies would take effect as early as possible between 12 February 1993 and 31 March 1993.At that time, around October and November 1992, the voluntary redundancy scheme was expected to remain open for acceptance until 31 December 1992, although the Council did reserve the right to bring that date forward. The closing date was, in the event, brought forward to the end of November 1992. Miss Kirwan, the line manager in respect of the Respondent, learned about that on 17 November 1992.It appears that, in fact, the final criteria for selection were agreed by the Unions by 22 December 1992 and a letter was sent out on that date. Within the procedure there agreed, there was provision for appeals.Going back, however, to the events in November 1992, there was a meeting which took place on 12 November between Miss Kirwan and the staff of the Child Guidance Unit, including the Respondent. Miss Kirwan informed the staff of the proposed financial cuts and the proposed redundancy within that Unit of 1.5 workers. There was very great concern by all at the meeting and great concern expressed also about the impact of the cuts on the children in question. Miss Kirwan had obtained some information on the selection criteria and she informed the group about this. At the specific request of the social workers she agreed to go away and undertake an informal exercise to try to give some indication to her group as to who might be liable to be made redundant, should the selection criteria remain the same. The group unanimously agreed that this exercise should be carried out. They were all highly qualified and experienced therapists, who had worked closely together for some time and they were anxious to support each other and anxious that there should be no secrecy surrounding the selection process. They were particularly concerned to know the situation, bearing in mind the impact of the voluntary redundancy scheme and the fact that the scheme had only a limited time to run and, therefore, only a limited time in which applications for voluntary redundancy and the enhanced financial package could be made.On 17 November 1992, Miss Kirwan wrote to all the psychiatric social workers notifying them that the voluntary redundancy scheme had been brought forward so as to finish at the end of November 1992. In the course of that letter she said this:
"There are less than 2 weeks to the end of the month. So if you wish to retain the OPTION of voluntary redundancy, you need to enquire immediately. You will not be bound by the enquiry and it will not affect any decision which I may be required to make.
I strongly advise everyone to complete an application for consideration within the next couple of days, and to send it by external post.I am aware that you find the prospect of redundancy intolerable, but you should not disqualify yourselves from any options at this point."On the following day, 18 November 1992, the Respondent applied for voluntary redundancy. The application form which she completed and signed said on it this:
"I wish to be considered for Voluntary Redundancy. I understand that this enquiry does not commit either myself or the Council to proceed with the matter and that the benefits are only available until 31st December, 1992, and may be withdrawn at an earlier date."
As had been requested by the psychiatric social workers, Miss Kirwan carried out her informal redundancy exercise. She was not experienced in redundancy matters. It seems that she had been told by the Personnel Department that it was not necessary to rank them on ability and experience.There was then a further staff meeting on 19 November. The matters raised in Miss Kirwan's document, which she had sent out to her staff, were discussed. It was her view, expressed in a document to which we will come, that since the psychiatric social workers were all highly qualified and experienced therapists, she ought not to have regard to criterion 1, that being the criterion concerning skills, abilities and experience. The meeting, including, it seems, the Respondent, agreed that the people that were likely to be made redundant should be named and also accepted that Miss Kirwan should not have regard to that first criterion. No one within the group had any disciplinary record. That left, of course, simply the criterion of absence through sickness, the sickness record. Miss Kirwan told that meeting on 19 November that of the full-time staff the Respondent had the worst sickness record, and there was then a comment on the part-time staff situation. At that stage there was no procedure for appeal although, as we have noted, one was introduced later in December.Following that meeting on 19 November the Respondent informed Miss Kirwan that she had made an application for voluntary redundancy but indicated that she was not happy about this. She was equally not happy that the IVF infertility treatment had been counted as sickness for those purposes and Miss Kirwan promised to make some further enquiries.On that same day but after the meeting, the Respondent, having had details of the money available to her through voluntary redundancy, confirmed that she wished to proceed with her application for voluntary redundancy.On the following day, 20 November, Miss Kirwan reported to the Respondent that the view of the Personnel Department was that IVF infertility treatment could not be classed as pregnancy-related because it did not result from pregnancy and because the treatment was given to both men and women. It, therefore, did not fall within the exception from the sickness record criterion, which was contained within the proposed criteria.The Respondent sought assistance from several chief officers. She went on holiday in late November, returning on 10 December 1992 and on her return she again endeavoured to have her grievances dealt with but to no avail. On 10 December she signed a further voluntary redundancy form stating that she wished to be released from Council service under the current voluntary redundancy arrangement. On 23 December she agreed to the date of termination as being 14 January 1993.It was agreed that in relation to the sickness records for the years 1991 and 1992 this Respondent had had 40.5 sick days, of which 29 were in respect of IVF infertility treatment but that if those days were discounted, she would have a net sickness record of 11.5 days. The Appellant Council agreed before the Tribunal that there was one male employee within the group who had had a total of 16 days sickness absence during that period. In other words, the inclusion of the IVF infertility treatment made the difference as to who amongst their number had the worst sickness record.So far as the claim for unfair dismissal was concerned, the majority of the Industrial Tribunal found that the dismissal by reason of redundancy was unfair. Their reasoning was that in dealing with the selection of this Respondent for redundancy, the Council's own selection criteria had not been properly applied and, in particular, Miss Kirwan was at fault in dealing with the selection in not taking into account the selection criterion 1, which dealt with skills, abilities and experience. They found that in selecting the Respondent for redundancy solely on the basis of her sickness record, Miss Kirwan acted unfairly and the dismissal was, therefore, unfair. They seem to have taken the view that this Respondent only applied for voluntary redundancy because on 19 November 1992 she had been officially identified as someone who would be made compulsorily redundant because of her sickness record if she did not seek voluntary redundancy.The Chairman, who was in the minority, stressed the initial volunteering for redundancy by Ms Robinson on 18 November 1992 and also the fact that on 19 November 1992 the final criteria for selection had not been agreed with the Union.On behalf of the Appellant, it is contended first and foremost that there was no selection of the Respondent by the Appellant Council. It is argued that the dismissal of the Respondent came about through her voluntary application for redundancy. Mr Baxter relies on the various documents emanating from the Respondent applying for voluntary redundancy. He stresses also that the exercise that was carried out by Miss Kirwan was an informal exercise and, in consequence, contends in effect that that should not be seen as pressure on the Respondent to seek voluntary redundancy as the only alternative to compulsory redundancy. That is put forward on behalf of the Appellant as the primary point relating to unfair dismissal.The secondary argument which is advanced is that the Tribunal's finding of unfairness was at odds with their findings of fact. In particular, it is emphasized that at the meeting which took place of the Child Guidance Group on 19 November 1992 the Respondent was amongst those who had agreed that regard should not be had to the first criterion proposed by the employing Council. It is not contended by Mr Baxter that that agreement by the Respondent should be seen as conclusive; he simply says that that is a relevant consideration; but it is then argued that it was wrong for the Tribunal to have found Miss Kirwan was at fault and that even if she had been at fault it would not follow that the dismissal of the Respondent was unfair.On behalf of the Respondent the contention being advanced is essentially that she was forced into "voluntary" redundancy because it was clear to her that the only alternative was likely to be that she would face compulsory redundancy. The unfairness of the process of selection which was carried out on behalf of the Appellant Council is said to be the fact that that process was not done in accordance with the published criteria. It is argued that Miss Kirwan, who was part of the management, rode roughshod through the published criteria for the selection of those who should be made redundant.As to whether it was open to the Tribunal to find that there was a selection of the Respondent rather than a voluntary application by her, we take the view that a Tribunal, in such a case as this, should have regard to the realities of the situation rather than to the mere form. In form, it is true that the Respondent had volunteered for redundancy and had done so more than once. We set little store, we should say, by the application of 18 November 1992 because as the facts we have already referred to make clear, that letter followed on the letter from Miss Kirwan of 17 November expressly indicating that no applicant would be bound by an application at that stage and that it was important to keep one's options open. Moreover, the terms of the actual application of 18 November also make it clear that that was not to be seen as a binding application on the part of the Respondent and it is clear to us that that was the Respondent, at that stage, simply keeping her options open.By the time that she made all the subsequent applications to that of 18 November, the Respondent was in the position where she had been told by her line manager, Miss Kirwan, that the latter was not going to apply criterion 1 to her group and the Respondent had also discovered that she was the most likely candidate for compulsory redundancy if the criterion of absence for sickness had to be applied effectively by itself.We say that Miss Kirwan had made it clear that she was not proposing to apply criterion 1 because on 18 November Miss Kirwan had written to all the psychiatric social workers within her group in these terms:
"Criterion 1, regards skills, abilities and experience. This is not for internal competition, ie for me to choose who within our group holds the best skills, abilities and experience. In my judgment, the whole staff group fulfils the requirements under this criterion and, should the situation resort to compulsory redundancies, I will not be using this to inform my decision making."
It is clear that, in saying that, the line manager was not saying that she regarded all those within her group as having equal skills, abilities and experience but rather that she took the view that she was not going to decide who had the best (or worst) skills, abilities and experience. In that respect, it is our view that she was departing from the published criteria that had been publicised by the Appellant Council.In the circumstances to which we have referred and, in particular, the discovery by the Respondent that she was the most likely candidate for compulsory redundancy were the approach being adopted by her line manager to be applied, the Tribunal, in our view, was entitled to come to the conclusion that the Respondent was pushed into voluntary redundancy because of the more limited selection criterion being proposed and that, in those circumstances, she was in truth being selected for redundancy rather than genuinely volunteering.That then takes one back to the underlying basis for the Respondent being told that she was the most likely candidate for redundancy. That was done solely on the basis of absence from work because of sickness. The Industrial Tribunal emphasized the fact that this represented a departure from the published criteria. The Appellant contends that the Respondent agreed to this although, as we have indicated, it acknowledges that that is not conclusive. It is, in fact, quite clear on the documents that the initiative on this came in forceful terms and, indeed, in writing from Miss Kirwan as part of the management. Then there was the meeting at which the staff agreed to this being done. That does not seem to us necessarily to absolve the employer from its responsibilities. Had the line manager not already spelled out her position so clearly, the meeting of the psychiatric social workers might have taken a different view. The immediate management had already indicated that it was not proposing to apply the published criteria.In those circumstances we have reached the conclusion that it was open to the Industrial Tribunal who dealt with this matter to take the view that the selection of the Respondent was unfair. This departure from the full criteria was a course of action initiated by management and even though those criteria were still provisional when the Respondent applied for voluntary redundancy, one cannot say that the Industrial Tribunal could not properly regard the departure from the published criteria as unfair in the sense of falling outside the range of conduct which a reasonable employer would have adopted.It follows that the Industrial Tribunal could properly conclude that the dismissal was unfair and that part of this appeal is, therefore, dismissed.We turn then to the other part of this appeal which concerns the finding by the majority of the Tribunal that the Respondent was unlawfully discriminated against on the grounds of her sex. In respect of this, the majority found that the Respondent was treated less favourably than would have been a man. That is intended clearly to be a finding of direct discrimination. They then went on immediately afterwards to say this:
"The majority find that the applicant suffered indirect discrimination under section 1(1)(b) of the Sex Discrimination Act 1975. The majority find that a `condition' had been imposed upon all employees (male and female) receiving IVF or Infertility Treatment, namely, that any absence incurred would be regarded as sickness and included in the sickness records. Because of the nature of the treatment and the time required or involved, this would discriminate against women. Because of the decision in the CGU, to disregard all the criteria laid down by the Council and to take into consideration only the sickness record when deciding upon the employees to be made redundant, the majority view was that this discriminated against the applicant on the grounds of her sex. The majority find that the condition applied in this case meant that a woman receiving IVF Treatment could not be treated equally with a man receiving Infertility Treatment and, as a consequence, the applicant had been treated less favourably than a man would have been in similar circumstances."
The Chairman again dissented from that, finding that the direct discrimination against the present Respondent was not on the grounds of her sex but on her sickness record. He found that there was no indirect discrimination under section 1(1)(b) of the 1975 Act because the Appellant did not impose such a requirement or condition as is referred to in that paragraph and, therefore, there had been no indirect discrimination against the Respondent.Section 1(1) of the Sex Discrimination Act 1975 reads as follows:
"A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if - (a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or (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."

Before us the Appellant has argued today that both the Tribunal's findings of direct and indirect discrimination are legally flawed. On direct discrimination the Appellant draws attention to the fact that the reasoning of the Tribunal in relation to this is extremely brief, consisting on the face of it of no more than one sentence. That contends, Mr Baxter, is quite inadequate as a finding. He also argues that there is no evidence of direct discrimination because the criterion which was applied in this case was simply absence because of sickness subject to the exclusion of pregnancy-related illness. It is not argued before this Appellate Tribunal that the IVF treatment amounted to pregnancy-related illness. Therefore, contends Mr Baxter, men and women were treated equally in respect of the absence for reasons of sickness or, to put it another way, the days lost through sickness as a criterion is neutral as between the sexes.So far as the finding of indirect discrimination is concerned, it is contended for the Appellant, first of all, that there was no requirement or condition in this case. In support of that, reliance is placed upon the decision of the Court of Appeal in Perera v Civil Service Commission [1983] ICR 428 , and in particular, on the part of that decision which emphasizes that a requirement or condition has to be something which has got to be complied with by the individual, that is to say, it is a "must". That decision was followed in the case of Meer v London Borough of Tower Hamlets [1988] IRLR 399 . Mr Baxter submits that there was no condition here that one must not undergo IVF or accumulate points through IVF treatment. He also makes the point that it would lead to an absurdity if an employer had to distinguish between the different reasons for sickness leave being taken and to consider whether those were specific to men or to women. He illustrates this by saying that certain forms of cancer are peculiar to one sex or the other and, indeed, certain other forms of illness likewise may be peculiar to one sex. That is, in effect, saying that insofar as there was a condition or requirement being imposed here, it could only relate to absence for sickness in general and not relate to the specific illnesses or specific forms of treatment that go to make up the sickness and go to bring about the time taken away from work for that sickness to be dealt with. It is also said on behalf of the Appellant that any applicant before a Tribunal has to go on to show that the proportion of women who can comply with any requirement or condition is considerably smaller than the proportion of men who could comply with it. Mr Baxter submits that there is no evidence in this particular case that the absence for reasons of sickness had a disproportionate effect on women as compared to men and he also, indeed, goes so far as to say that there was no evidence beyond the document to which we have referred, dealing with IVF, which relates to the same point, even if the condition were to be construed as embodying some specific reference to IVF treatment.The Respondent, so far as direct discrimination is concerned, accepts that to use a criterion relating to days off work because of sickness, is not in itself directly discriminatory but Miss Morgan submits that one cannot stop at that point and must go further and look at the nature of the sickness itself. It is argued that the Council was saying here that IVF treatment is to be regarded as treatment for a sickness for the purposes of redundancy calculations and that, she contends, is wrong. That is contrasted, on behalf of the Respondent, with the position had the Respondent gone into hospital because she had a blocked fallopian tube, which had then to be dealt with. The concession is made that if that had been the situation, that would have been perfectly properly taken into account as time off for reasons of sickness. That appears to us to be an acceptance of the proposition that where one has a criterion relating to time taken off for sickness, it is right to include all sicknesses, whether they are peculiar to one sex or another.But, argues Miss Morgan, this was not a sickness at all. What was happening here, it is contended, was a process of seeking to make the Respondent pregnant and that is not a pathological condition. Somewhat surprisingly, to our mind, Miss Morgan would not accept that if a man were to go into hospital to have a vasectomy, then that likewise on her argument would not be a sickness. She contends that that would, in fact, be a sickness in the sort of terms being used here. Nonetheless, it is argued, that once it is established that this particular time off was not for dealing with a sickness, then that becomes discriminatory on grounds of sex because although both men and women can have IVF treatment, very different amounts of time are required for IVF treatment in the case of women as compared to such treatment in the case of men.We were also referred to the case of Webb v Emo Air Cargo (U.K.) Ltd [1994] ICR 770 and, in particular, to that part of the judgment of the European Court of Justice at page 798, paragraph 24 where, in effect, they were finding that pregnancy is not to be compared with a pathological condition. In reliance upon that basic approach and upon the other arguments to which we have referred, it is contended on behalf of the Respondent that there was here direct discrimination.As far as indirect discrimination goes, the submission is that the approach of the local authority here did involve the imposition of a requirement or a condition. The emphasis is particularly put upon the word "condition", though nothing to our mind especially turns on that. The condition is said to be that the Respondent had to come within that percentage of staff within the Child Guidance Unit keeping their posts, taking into account days taken off for IVF treatment. It is then said that fewer women than men will be capable of coming within that percentage once one applies that approach. Therefore, it is argued, there is a case which falls within section 1(1)(b) of the Act.So far as direct discrimination is concerned, there is no dispute that the application of the criterion based on the numbers of days leave taken for sickness is not in itself discriminatory. What the Respondent attacks, as effectively did the Industrial Tribunal majority, is the inclusion of sickness leave taken for IVF treatment within the calculation for redundancy purposes. That takes Miss Morgan to her argument that this treatment was not dealing within a pathological condition at all and could not properly be included by the Council within the calculation of sickness leave.To our mind, she has to adopt that approach since she recognizes the force of the argument that it would not be discriminatory as such to take into account sickness leave, even when taken for a disease or medical problem that only affects women, such as breast cancer or cervical cancer. A number of diseases or medical problems, as both sides today have recognized, arise only in relation to men or to women. In the cases of men, one may think of testicular cancer, prostate cancer or benign prostate problems generally. The inclusion within the calculation of sickness leave of one-sex illnesses is not in itself discriminatory and there is authority for that in the decision of Brook v London Borough of Haringey [1992] IRLR 478 . As we have made clear, no party before us today has sought to contend otherwise.Hence, the Respondent's assertion that IVF treatment could not be categorized as treating a sickness. That really amounts to saying, as Miss Morgan agreed, that no employer could properly have regarded the time taken off for IVF treatment as part of sickness leave and so there is direct discrimination. We find that impossible to accept. The need for such treatment in this particular case stems from the Respondent's inability to conceive in the normal way. There was here a medical problem which was being dealt with by medically-qualified staff, at some stages involving the use of anaesthetics, and the treatment for which also rendered the Respondent unfit for work at certain stages. She claimed, and there is no dispute about this, sickness leave for the time required both for the treatment itself and for the after effects. It seems to us that the employer Council could, in those circumstances, properly regard this time so taken off as absence for sickness without being found to be directly discriminatory. It was not treating her less favourably than it would treat a man once it is recognized that it was open to the Appellant to regard such time taken off for IVF treatment as sickness leave as, indeed, it had been claimed in reality at those times when the Respondent wished to have such treatment.This is not the situation dealt with in Webb v Emo Air Cargo . We are not dealing, in the present case, with pregnancy. We are dealing rather with time required for treatment because of a failure to become pregnant in the normal way. The treatment is because the Respondent had not been able to become pregnant in the conventional way and it seems to us that this was capable of being categorized, therefore, as medical treatment and the time taken off for it as time taken off for sickness.We can see no basis on which the Industrial Tribunal majority could properly have concluded that this was direct discrimination.We turn to consider the finding of indirect discrimination by the majority of the Tribunal. It is established that the qualification used to discover who is immune from redundancy may amount to a requirement or condition within the meaning of section 1(1)(b). See in particular the decision in(1) Clarke v Eley (IMI) Kynoch Ltd(2) Eley (IMI) Kynoch Ltd v Powell [1982] IRLR 482 . It was said in that case that the words "requirement" or "condition" are not to be narrowly construed. We take the view that the criterion of time taken off for sickness leave was a requirement or condition and we are, on that aspect of the argument, against the present Appellant. If that criterion as such had a disproportionate effect on women in the Council's employment, as compared to men, that would amount to indirect discrimination. There was, however, no evidence to the effect that a criterion in those terms would have that consequence.The Respondent today relies upon constructing a condition that is somewhat more complex than the way we have just put it. The condition, as contended for on behalf of the Respondent, is that she had to come within a percentage of the staff in the Unit keeping their posts, taking into account the days taken off for IVF treatment. That, indeed, was the construction which commended itself to the majority of the Industrial Tribunal. That does not seem to us to be the proper interpretation of the facts of this case, when applying section 1(1)(b). Applying that paragraph, the condition imposed in the present case was simply that time actually taken off by an employee as sick leave other than for pregnancy or confinement would be regarded as absence for sickness for the purposes of the redundancy criterion.It is to our mind wrong to seek to construct a condition by going beneath the expressed criterion as to sickness leave and seeking to look at particular forms of sickness for which time was taken off. The argument tends to have some similarity to that on direct discrimination. In our view, the Industrial Tribunal went wrong in applying section 1(1)(b) in the very specific way that it did, confining its gaze to the unequal effects of IVF treatment. That was not a proper approach. Once it is recognised that the condition was one of time off work for sickness, then there was no evidence before the Tribunal that such a condition expressed in those terms would have any discriminatory effect in the terms of paragraph (b) of subsection 1(1).In those circumstances, it must follow that the appeal against the decision on unlawful sex discrimination must be allowed.