Nelson v Chesterfield Law Centre [1996] UKEAT 1359_95_2606

EAT
Nelson v Chesterfield Law Centre
[1996] UKEAT 1359_95_2606 · 1996-06-26

JUDGE PETER CLARK :

This is an appeal by Ms Hilary Nelson against a majority decision of the Sheffield Industrial Tribunal sitting on 30th June and 1st and 28th September 1995, dismissing her complaint of unlawful sex discrimination. Extended reasons for the Industrial Tribunal's reserved decision are dated 7th November 1995.

The Complaint

It was the appellant's case that she was indirectly discriminated against on the grounds of her sex when her application for the post "Co-ordinator (Development Work)" ["the job"] in September 1994 was rejected by the respondent Law Centre on the ground that she was unable to offer full-time working. Due to child-care responsibilities she was available only for part-time work or job-sharing.

The Issue

Section 1(1)(b) of the Sex Discrimination Act 1975 ["the Act"] provides:

"1 Sex discrimination against women

(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if-...(b) he applies to her a requirement or condition which he applied 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."

By Section 6(1) of the Act:

"6 Discrimination against applicants and employees

(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman-...

(b) in the terms on which he offers her that employment"

For the respondents it was conceded below:(1) that by applying a requirement that the holder of the job should be a full-time worker and not part-time or job-sharing a considerably smaller proportion of women could comply with the requirement than the proportion of men who could comply with it (adverse impact), and(2) that the appellant could not comply with the requirement and thereby suffered a detriment.It was further common ground that Section 6(1)(b) of the Act applied to the job.Accordingly, the sole issue before the tribunal was whether the respondent was able to justify the requirement of full-time working in the job.

The Facts

The respondent law centre is based in Chesterfield. It operated in North-East Derbyshire. At the relevant time it employed three qualified solicitors, one advice worker and a part-timer who worked four hours per week. Those employees worked collectively and were responsible to a management committee. One of the solicitors, Ms Lodder, held the post of Co-ordinator. Her role was two-fold. First, she liaised with and served the management committee and other sub-committees. She attended the various meetings and kept the minutes. Secondly, she was responsible for development work, the production of legal information and advice and for campaigning on legal issues. Individual case work was left to her colleagues.In 1994 the North-East Derbyshire District Council decided to provide assistance in funding the Law Centre. A sum of £20,000 was provided for the financial year 1994/95. There was no commitment to further funding in subsequent years; that depended upon the quality of service offered by the Law Centre to the people of North-East Derbyshire in that first year. There was debate within the Law Centre as to how the staff organisation should be restructured to provide the new service. The workers' group recommended that Ms Lodder's job should be split so that she concentrated on development work whilst a new office manager would take over her administration work. That suggestion was rejected by the management committee, which decided that Ms Lodder should absorb the bulk of the new duties and share her work with a new legally qualified recruit who was to have the title "Co-ordinator (Development Work)".A draft job description for the new post was approved by the personnel sub-committee on 11th August 1994. The specific duties of the post included, in conjunction with Ms Lodder, being responsible for financial administration and fund raising of the centre and promoting the work of the Law Centre by undertaking talks to interested groups and use of the media.An advertisement was placed in the press for the new position. It indicated the salary scale. No specific mention was made of the post being full-time only.The respondent received a total of 31 applications, including one from the appellant, a solicitor well qualified for the job. With her application she sent a covering letter explaining that she was not able to work full-time due to child-care responsibilities but would like to be considered for part-time work or job-share.On 12th September 1994 the personnel sub-committee met for the purpose of short-listing. In light of the appellant's letter accompanying her application the question of job-sharing was specifically raised. It was pointed out that the management committee had earlier decided that this was to be a full-time job, sharing a number of duties with Ms Lodder. Further it was suggested that it would be hard enough for one person to establish a good relationship with North East Derbyshire District Council, let alone two people. Finally, it was resolved unanimously that the job would only be open to applicants who would work full-time. Accordingly, the appellant's application form was removed from the pile of applications to be considered.Having not been selected for interview the appellant wrote to the respondent on 27th September 1994, stating that she had been told that she was not short-listed because she wished to be considered for job-share. She asked for an explanation and requested a copy of the respondents' equal opportunities policy and that on job-sharing.Darrell Alvey, Chair of the selection panel, replied on behalf of the respondent on 3rd October 1994. She gave two reasons as to why the job was to be full-time only:
"1. This post is sharing tasks and responsibility for tasks with the current co-ordinator and it is envisaged that the two post holders will jointly undertake tasks and allocate tasks between them. The two post holders will have to work very closely together and it was felt that it would be more difficult to achieve this level of co-operation between the posts if the new post was split.
2. The new post will be working within a geographical area not previously served by the Law Centre. A vital part of the development work is to establish links with agencies, groups, politicians and other workers in the area. The success of this work will depend on the new post holder developing links within the area and extending those links to other Law Centre workers. That process already requires a high level of co-ordination and was again a consideration when deciding whether this job could be split."Following rejection of her application she presented her complaint to the Industrial Tribunal on 21st December 1994. That was followed by the Section 74 Questionnaire procedure. There was some delay in the respondent replying to the questionnaire, but the tribunal drew no adverse inferences against the respondent by reason of that delay.

The Tribunal Decision

Although appearing in person, the appellant is a qualified solicitor. She was assisted throughout by Mrs Ruth Kaplan, formerly employed at the Sheffield Law Centre. The respondents were represented by Counsel experienced in the discrimination field, Ms Vivienne Gay. Both sides prepared careful written submissions which were placed before the Industrial Tribunal, and which we have read.There was and is no dispute as to the correct legal test to be applied when considering justification. At paragraph 16 of their reasons the tribunal directed themselves in accordance with the test formulated by Balcombe LJ in Hampson v Department of Education [1989] ICR 179 , 191:
"In my judgment "justifiable" requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition."
Further, they reminded themselves of the guidance to be found in the judgment of Ralph Gibson LJ in Jones v University of Manchester [1993] ICR 474 , where he said at page 497G-H:
"For my part I cannot find any real assistance in the concept of subjective or objective assessment of the discriminatory effect of the requirement in a case of this nature. The IT is required to determine the discriminatory effect of the requirements. That seems to me to require the IT to ascertain both the quantitative effect i.e. how many men and women will or are likely to suffer in consequence of the discriminatory effect and also what is the qualitative effect of the requirement upon those effected by it i.e. how much damage or disappointment may it do or cause and how lasting or final is that damage."
The majority then set out their reasoning at paragraphs 17-20 of the reasons in this way:"17. We start by considering the discriminatory effect of the imposition of the condition. The quantitative effect was by any standards small. There was nothing in the original advertisement to deter potential part-timers or job-sharers yet only the applicant herself applied. There were in fact 30 other applicants all of whom offered work full-time. It could be argued that a job share inevitably involves a second person but in fact no such person has been identified. The qualitative effect must take account of the particular hardship suffered by the applicant. She had responsibility for a child and it has been accepted by the respondents that she could not work full-time. Although she said in her application for the job that she was then employed as a part-time lecturer she did not in fact have any assurance that her contract was to be renewed in September 1994. She suffered no humiliation in that she was not rejected on her merits and she had qualifications which fitted her for many other part-time jobs. On the other hand she was entitled to think that she was very well suited and qualified to work in a law centre which was confirmed subsequently by the fact that she now has a job at Sheffield Law Centre. We also note that from he covering letter (quoted above) the applicant appears to have been deliberately "setting up" the respondents for this present application and to that extent we do not think that she was surprised by her rejection. We conclude that the discriminatory effect was by any standards at the lower end of the scale.18. The reasonable needs of the respondents presents greater difficulty. If the respondents had accepted Miss Lodder's original proposal and divided her responsibilities into 2 there would have been an opportunity for part-time or job-share which would have been hard to resist. However, the respondents are entitled to make their own management decisions and it is not appropriate for us to impose our ideas as to how their business should be run. They decided that Miss Lodder's job should in effect be shared with the new appointee. Having made that decision they say, with some justification, that it would be unreasonable for Miss Lodder to be obliged to share with 2 other people. They also argued that in the sensitive "political" relationship with North East Derbyshire District Council it was important to have one person whom the Councillors and Council officers could contact so that the chances of a renewal of the financial support could be maximised.19. We have to balance these 2 arguments and decide whether or not the respondents were justified. We bear in mind that it is always easy for an organisation to raise objections to job-share although in our experience once a decision to adopt job-share has been taken, the previous objections often turn out to be groundless. We think that job-share could have been accepted in the present case and we think it would have probably worked satisfactorily. Nevertheless, that is not the proper basis for our decision and we have to remind ourselves of the tests set out above.20. The majority of us accept that the respondents gave consideration to the question of job-share although we are conscious that nobody attempted to persuade them to adopt the idea. However, the majority of us feel that the respondents were justified in their decision to insist on a full-time employee. It seems to that the respondents were entitled to have regard to the fact that the job was to be shared with Miss Lodder and that a further division of responsibility would be unsatisfactory. Faced with the situation where only one of the applicants for the job suggested job-share we think that the short list selection committee were equally justified in rejecting the application when the alternative would have meant starting the selection process again and re-advertising with all the delay that that would have involved. The majority of us conclude that the respondents have justified the imposition of the condition and accordingly this complaint must be rejected."The minority member's views are then expressed at paragraph 21:
"21. The minority takes a different view although he recognises that the decision in finely balance. He is concerned that the respondents did not have a properly formulated equal opportunities policy and in particular that they did not follow what he understands to be the local authority's guidelines on job-share. In his experience local authorities insist that whenever practicable all jobs should be offered for job-share and he feels that a law centre that is publicly funded should adopt that practice themselves as an example to other employers. He thinks that in the present case the respondents were not justified in imposing the conditions."

The Grounds of Appeal

In support of the appeal Ms Mountfield, on behalf of the appellant, advances three separate lines of argument; each of which, she submits, demonstrates an error of law on the part of the Industrial Tribunal majority. She contends that the majority:"(1) acted in breach of natural justice by relying on a ground of justification not advanced by the respondent without having given the appellant a chance to comment up it ("ground 1: the natural justice point");(2) failed to apply the proper test as to whether the discriminatory requirement could be justified as being appropriate and necessary to meet the respondent's real needs ("ground 2: the Bilkha-Kaufhaus point");(3) failed to apply the correct "balancing exercise in weighing the respondent's real needs against the discrimination caused by the requirement ("ground 3: the proportionality point")."We shall consider each point in turn.

The natural justice point

Ms Mountfield's submission here focuses on paragraph 20 of the reasons.First, she says that the respondent did not rely upon any question of re-advertising the job, with the delay which that would entail, in seeking to justify the full-time working requirement. That is correct.Secondly, there was no evidence before the tribunal that re-advertising was the only option open to the respondent if it had decided to consider the appellant's application to job-share or work part-time in the new job. Again, that is right. In a letter from the Chairman's staff to the Registrar dated 26th February 1996 he states:
"I can find no reference to the question of [ re-advertising ] in my notes of the oral evidence. I assume that the observation in paragraph 20 of the decision arose as a necessary inference from the facts set out earlier in that paragraph."
Thus, says Ms Mountfield, the tribunal's finding is perverse, in the sense that it is a finding unsupported by evidence. See Piggott Brothers & Co Ltd v Jackson [1992] ICR 85 , 92D. per Lord Donaldson MR.Thirdly, no opportunity was afforded to the appellant to consider the point and address argument to the tribunal on it. That is a failure of natural justice. Ms Gay accepts that the parties were not given an opportunity to deal with the point during the hearing. It therefore appears to have occurred to the tribunal after they had concluded the hearing and reserved their decision.We think that the submissions made by Ms Mountfield are unanswerable, subject to one question. Was the finding as to the need to re-advertise a necessary part of the majority's reasoning on the issue of justification? It is here that Ms Mountfield's first ground of appeal fails, in our judgment. The majority's reasoning is contained in the sentences:
"However, the majority of us feel that the respondents were justified in their decision to insist on the full-time employee. It seems to (us) that the respondents were entitled to have regard to the fact that the job was to be shared with Miss Lodder and that a further division of responsibility would be unsatisfactory."
What then follows would, in the view of the majority equally justify the imposition of the full-time requirement. That finding was not a necessary part of the majority's primary finding as to justification. Accordingly, we cannot accept Ms Mountfield's first submission.

The Bilkha-Kaufhaus point

Ms Mountfield accepts that the correct test for establishing justification is set out in paragraph 16 of the reasons. However she submits that the majority did not in fact apply that test. Instead they approached the question in the way that the Court of Appeal did in Ojutiku v Manpower Services Commission [1982] ICR 661 . In particular, the approach of Eveleigh LJ, when he said at page 668B:
"If a person produced a reason for doing something which would be acceptable to right-thinking people as a sound and tolerable reason for doing so then he has justified his conduct."
That approach was disapproved by the House of Lords in Webb v EMO [1993] ICR 179 , 183B, per Lord Keith, as being at odds with the approach of the European Court of Justice in Bilkha-Kaufhaus v Weber von Harz [1987] ICR 110 , see paragraph 36 of the Court's decision.This submission focuses on paragraphs 19 and 20 of the reasons. She relies upon the tribunal's observation that in their view job-share could have been accepted in the present case and would probably have worked satisfactorily, and submits that in applying the Bilkha-Kaufhaus test, as adopted in Hampson , the tribunal ought to have applied its own view that the full-time requirement was not objectively necessary, instead of considering whether the employer was entitled to conclude that a full-timer was needed. On this analysis, submits Ms Mountfield, the tribunal have applied the incorrect Ojutiku test.In response, Ms Gay points out that the tribunal was fully aware of the correct test, and submits that they correctly applied it. The issue of justification cannot be answered by the tribunal's subjective view of what could be achieved, but whether the measures chosen, engaging a full-time employee, correspond to a real need on the part of the business, when viewed objectively.In our judgment there is nothing in paragraphs 19-20 of the reasons to suggest that the majority misapplied the true test of justification, or departed from the test which it set itself in paragraph 16 of the reasons. It was entitled to conclude that the two reasons advanced by the respondent justified the requirement, subject to the question of proportionality.

The proportionality point

Ms Mountfield accepts that in the absence of a misdirection in law the question of justification is essentially a question of fact for the tribunal.She accepts that the tribunal carried out a balancing exercise, weighing the discriminatory effect of the requirement on the appellant against the reasonable business needs of the respondent. However, she submits that the Industrial Tribunal misdirected itself in considering both sides of the equation. She developed that submission in detail, both in her helpful outline written submissions and in oral argument.Having considered those contentions, we have concluded that no error of law has been demonstrated in the majority's approach to the question of proportionality. Nor can it be said that their overall conclusion was an `impermissible option'. In short, notwithstanding the careful argument addressed to us by Ms Mountfield, we can see no grounds for interfering with the tribunal's decision. The appeal is dismissed.