J Sainsbury Plc & Anor v Flexon [1996] UKEAT 232_95_2810

EAT

J Sainsbury Plc & Anor v Flexon

[1996] UKEAT 232_95_2810 · 1996-10-28

JUDGE BYRT QC:

This is an appeal from a decision of the Industrial Tribunal sitting at Bedford on 11 January 1995. Before that Tribunal there were four Respondents. At a pre-hearing review, the Tribunal discharged the second and the fourth Respondents and there has been no appeal against that decision. The Tribunal further directed the case to proceed against the first and the third Respondents, Mr Marshall and Sainsbury Plc respectively. Those two Respondents now appeal that decision.

The Applicant, Ms Flexon, now the present Respondent, has not attended nor has she been represented before us or before the Industrial Tribunal. As a result, the Tribunal has been assisted by Mr Jay of Counsel as amicus curiae.

The facts of the matter are quite shortly stated. The Respondent was employed by Manpower Plc under a contract of service and was supplied as a contract driver to Albany Transport. Then there was a contract for supply of labour between Albany Transport and Sainsbury Plc. The alleged offence is that Sainsbury's asked Albany Transport not to supply the Respondent to them as a driver. Ms Flexon contends, by her application, that that request was an act of discrimination on the grounds of gender. Sainsbury's have contended they had good reasons for making the request. That is not the issue before this Tribunal.

The applicability of Section 9 of the Sex Discrimination Act 1975 is the issue. That section relates to discrimination against contract workers. Section 9 reads as follows:

"(1) This section applies to any work for person ("the principal") which is available for doing by individuals ("contract workers") who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal."

The Industrial Tribunal rejected the Appellant's interpretation of that section, to the effect that the contract made with the principal has to be a contract between the principal and the employer of the contract worker. The Industrial Tribunal held that there was no such limiting words in the section. They said the purpose of the section was that it should cover, as in this instance, the position of a contract worker supplied under a contract with the principal, notwithstanding that her contract of employment is one stage further removed from the principal, that is, not with Albany Transport but with Manpower Plc who supplied her to Albany Transport. Accordingly, the Industrial Tribunal found that it was appropriate Sainsbury's and Mr Marshall should remain as Respondents to Ms Flexon's claim.

The Appellant's have argued that that construction was wrong. It was clearly Parliament's intention to cover a three-party situation, the three parties being the contract worker, the principal and the contract worker's employer. It was clear from the wording that it was not intended to cover a four or more party arrangement. In his Skeleton Argument, Mr Sheldon says the question for the Industrial Tribunal to have asked was: did Manpower Plc supply Sainsbury's a contract worker under a contract made with Sainsbury? The answer must be no. Another way of putting it: did it supply the contract worker? Again the answer has to be no. Accordingly, the Appellants ask that this appeal be allowed and their discharge ordered.

Mr Jay has also submitted a Skeleton Argument in which, after carefully considering all aspects of the case, he has accepted that the Appellants' argument is the correct one. He says that Section 9(1) requires that there be a contractual nexus between the employer and the contract worker and the principal.

There was a couple of authorities cited before the Industrial Tribunal BP Chemicals v(1) Gillick and

(2) Roevin Management Services Ltd and Rice v Fon-A-Car . Both Counsel before us accept that neither of those decisions really help in this matter at all.

The Industrial Tribunal quite plainly were troubled by the fact that the distinction between dealing with a contract worker who was engaged in a three-party arrangement as opposed to a contract worker in a four-party arrangement, was artificial. The Industrial Tribunal's conclusion was that the purpose behind the Act was that contract workers should be protected against discrimination on grounds of gender, whether their employer was in direct contract with the principal or at one stage further removed.

We have considerable sympathy with the Industrial Tribunal in the sentiments they expressed, but we think that the arguments of the Appellant and the amicus curiae are correct, notwithstanding the fact that their interpretation of the section does give rise to a curiously anomalous position. We, however, take the view that the construction of the statute must be in accordance with the English canons of interpretation. The words of the Section are clear and it is not for us to write in additional words in order to give it an enlarged and enhanced application. If that is necessary or desirable, it is for Parliament to do and not for us.

Accordingly, we see that we have no alternative but to allow the appeal with the necessary implication that it be ordered that the first and third Respondents be discharged from the application.