Wright v Southampton City Council [1996] UKEAT 449_95_0902

EAT
Wright v Southampton City Council
[1996] UKEAT 449_95_0902 · 1996-02-09
MR JUSTICE MUMMERY (P): This is the preliminary hearing of an appeal by Mr J.M. Wright against the decision of the Industrial Tribunal held at Southampton on 24 April 1995.The Tribunal explained, in the extended reasons sent to the parties on 26 April, why they dismissed Mr Wright's complaint of sex discrimination against the Southampton City Council. That complaint was made in relation to a job application for employment as a Legal Assistant. Mr Wright appealed against the decision. His Notice of Appeal was served on 1 May. The appeal was listed as a preliminary hearing because it was not clear from the Notice of Appeal what arguable questions of law arose on the appeal.The preliminary hearing came before this Tribunal first on 17 October when Mr Wright appeared in person. The Tribunal adjourned the preliminary hearing, gave leave to Mr Wright to serve an amended Notice of Appeal incorporating all the points on which he intends to rely. It was also directed that, on receipt of the amended Notice of Appeal, the Industrial Tribunal Chairman should be invited to make any comments that he wished to on the allegations made on the appeal relating to the conduct at the hearing before the Tribunal.Mr Wright served his amended Notice of Appeal. The Chairman of the Tribunal submitted his comments on the relevant paragraphs. His comments were dated 17 November. This is the adjourned hearing of the preliminary investigation into whether Mr Wright has a reasonably arguable point of law. If he does not, then the appeal will be dismissed because this Tribunal's jurisdiction is limited to appeals on questions of law. If he does have any reasonably arguable point it will not be decided today. It will be dealt with at the full hearing.In order to decide whether there is a point of law in the appeal we must look at the decision to find the facts which the Tribunal set out helpfully in paragraph 5 of their decision. At the hearing Mr Wright argued his case in person. He gave evidence. He placed before the Tribunal a bundle of documents. The Tribunal also had a bundle of documents from the Council. On that material the Tribunal found these facts.
"5(a) The respondent [the Council] advertised in the local press on 8 September 1994 for a Legal Assistant (job-share). It was for a legal assistant in the contentious section of the respondent's Legal Services Division for 18½ hours, being Wednesday afternoon, Thursday and Friday. The advertisement continued:-
`Applicants should have a sound legal background and a good working knowledge of the County Court procedures. Past experience of debt recovery procedures, preferably by the use of computerised recover system, is an essential requirement of the post.'"Mr Wright phoned in for an application form. He said in his evidence that they failed to provide him with a form until he got in touch with a Councillor, who in turn got in touch with the Council. The Tribunal did not accept that that was correct. They made certain findings in relation to the allegations about the contact with the Councillor and the telephone call by the Councillor. Those need not be examined in detail by us. The crucial point is that Mr Wright did complete an application form which set out his education and employment history. It appeared that from September 1989 until June 1990 he had attended Eastleigh College and from September 1990 until June 1994 he attended the Southampton Institute and he obtained an LLB Honours Degree. He also became a student of the Inner Temple. They referred to the account of his employment history in his application form which gave details of his employment from 1960 to 1974, but no further details after 1974. The Applicant expressed interest in the position because, he said, it was a job-share position and this would allow him to pursue his studies for a part-time Masters Degree which he was taking from 3 October 1994. He said he had relevant experience of pursuing claims in the County Court; that he knows some of the County Court District Judges in Southampton, though he does not make any mention of experience of debt collecting or operating computers and provided no references.On 28 September, Mr Wright received a letter informing him that he was not selected for interview. Correspondence followed. The upshot was that on 29 November he presented an Originating Application to the Industrial Tribunal complaining of a breach of the Sex Discrimination Act 1975 . He alleged that that discrimination occurred on 30 September 1994. The details of his complaint alleged that the Council, as a potential employer, had indirectly discriminated against him and his application on the ground of sex by:(a) Refusing to send him an application form when he first requested one and(b) The potential employer did so only after the intervention of his Councillor who later discovered that the date of his application had been altered by the staff in the Legal Department to show an earlier date.He alleged other acts of indirect discrimination, namely the applying of a requirement or condition of job share, that is a part-time vacancy, when the Council were aware that about 90 per cent of the UK's part-time workforce is female, many of whom are able to manage the financial commitments on part-time earnings. He alleged that such an advertisement places males at a detriment, many of them are unable to manage their financial commitments on part-time earnings. He referred specifically to Section 1(1) and Section 6(1) of the 1975 Act. He also referred to Section 38 which he accepts is not of assistance to him in bringing this case.He said that the facts were that the present occupier of the job-share is female; there were nine written applications for the job; eight were female, he was the only male; six females were interviewed. He was not interviewed, despite the fact that he has a recent law degree and relevant experience to do the job. He complained that discrimination was evidenced by the fact that there are 11.4% females working part-time for the Council and only 1.4% males so employed part-time. He submitted that, by virtue of its recruitment policy and procedures, the Council acted contrary to the 1975 Act which was intended to provide equality of opportunity.The Council contested the case. The Tribunal concluded that the claim was misconceived and should be dismissed. The extended reasons made it clear that during the course of the hearing the Tribunal had gathered from Mr Wright that his complaint was only for indirect discrimination, not direct discrimination. His case was that job sharing itself was discriminatory or was used by the Council in a discriminatory fashion and that that was not objectively justified.He argued that the imposition was of a requirement or condition, namely that of job sharing. That satisfied Section 1(1)(b), the provision relating to indirect discrimination. That provides, when read with Section 2, that:
"A person discriminates against a man in any circumstances relevant for any provision of this Act if - (b) he applies to him a requirement or condition which applies or would apply equally to a woman but - (i) which is such the proportion of men who can comply with it is considerably smaller than the proportion of women 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 his detriment because he cannot comply with it."

Mr Wright argued to the Tribunal and argues to us that the imposition of the requirement or condition is in the statement that it is a job sharing position. The Tribunal accepted that it was a condition or requirement. The post was only for 18½ hours.He argued that it was a requirement or condition which was such that the proportion of men who could comply with it was considerably smaller than the proportion of women. He produced statistics to show that most job share posts were occupied by females because a male has to be a breadwinner, pay the mortgage, run a car and so on.The Tribunal rejected these arguments and said that they were completely misconceived. They said this in paragraph 8:
"8. ... The point usually taken in this type of case is that it is a full-time post and less women are able to meet that requirement than men. The fact is the applicant has to concede (subject to his economic argument) that all males can comply with a requirement for job-share."
For that reason the Tribunal did not hear any evidence or argument about whether job sharing was justifiable irrespective of sex. In our view, it was not necessary for them to do that. They were right in refusing to deal with objective justification, if they were right in their view that this was not a case of indirect discrimination. If there is no indirect discrimination, there is nothing which requires objective justification.The Tribunal said in paragraph 11 that there was a complete obstacle to his case and:
"11. ... Even if he can argue that there was a condition or requirement which was itself one that a less proportion of males could comply with than females, the fact is that it is not to his detriment because he cannot comply with it, as is required by Section 1(1)(b)(iii). On his own admission, in evidence to us, and on his application form, he could and wished to comply with it. It suited him. ..."
As already mentioned, it would fit in with his intentions to pursue his studies for a Masters degree.The Tribunal said that not only could he comply with the requirement or condition, but it was not to his detriment. In fact, it was to his advantage. For all those reasons the Tribunal threw out the application as misconceived.We have to ask ourselves, what is legally wrong with that decision? In the Notice of Appeal, as elaborated in the amendments made following the first day of the preliminary hearing here, Mr Wright makes these points.First, the Tribunal had made an error of law in failing to observe or give effect to the rule of natural justice. He complained that during the hearing he was not given an opportunity to examine the Council's case or question witnesses. That led to a premature and arbitrary judgment by the Tribunal, based on incomplete evidence and legal issues. The whole hearing was terminated by the lunch adjournment.On that argument we have heard from Mr Wright his complaint which repeats, in different words, the same points. They come down to this. He did not have a proper opportunity to present all his facts and arguments. He said specifically that his bundle of documents were not referred to by the Tribunal. The way in which they conducted the case led them to have a one-sided view of it.We have had the benefit of the Chairman's comments on these allegations. We are satisfied that there was no breach of the rules of natural justice. Mr Wright was allowed to give evidence. It was for the Tribunal to decide which of the documents put before them were relevant to his claim. The Tribunal were right in deciding that it was unnecessary for them to consider the evidence of the Council, either relating to discrimination or to objective justification.The Tribunal were legally entitled, having heard Mr Wright's evidence and argument, to consider whether he had made out a case of indirect discrimination. The rules of natural justice do not require a Tribunal to listen to everything that a complainant wishes to say. It only requires them to listen to and consider what is relevant.If the Tribunal formed the view that the Applicant has not made out a case of the kind he is complaining of in his Originating Application, the rules of natural justice do not require the Tribunal to insist that the Respondent to such a case should come forward with documents, oral evidence and argument to rebut something which the Tribunal think has not been established, accepting all the facts which have been given in evidence by the Applicant.The second ground of appeal is that the decision was hasty, emotive, long, confused, rambling and failed to give due and adequate consideration to Section 6(1) of the 1975 Act. That was a critical provision of the Act central to Mr Wright's case. He has repeated that argument to us. He said that there was an error of law in not considering Section 6.It is quite correct for Mr Wright to say that the Tribunal did not deal with Section 6 in their decision. They concentrated on the provisions of Section 1(1)(b), the indirect discrimination provisions. Mr Wright places great emphasis on Section 6(1) which is in Part II of the 1975 Act which deals with discrimination in the employment field.

(a) as follows:

"6(1) It is unlawful for a person in relation to employment by him at an establishment in Great Britain to discriminate against [and I substitute man because of Section 2] a man - (a) in the arrangements he makes for purpose of determining who should be offered that employment ..."
Mr Wright argues that his complaint concerns the arrangements made by the Council for determining who should be offered employment i.e. the arrangements to fill the vacancy of a Legal Assistant on a job sharing basis.We have point out to Mr Wright that Section 6(1)(a) cannot be read on its own. It only makes arrangements for the purposes of who should be offered employment unlawful, if they discriminate against a man or a woman. In order to decide whether they discriminate against a man or a woman, as the case may be, it is necessary to refer to Section 1 which deals with sex discrimination against women and in this case to Section 2 which deals with sex discrimination against men. There are then two kinds of discrimination.Mr Wright made it clear in his Originating Application and to the Tribunal that he was only complaining of indirect discrimination contrary to Section 1(1)(b). He said to us that he was complaining of direct sex discrimination in his reliance on Section 6, but Section 6 on its own is not concerned with direct discrimination. It is concerned with both direct and indirect. You have to decide, if you are making a complaint, whether you are complaining of direct or indirect discrimination contrary to Section 1(1)(a) or Section 1(1)(b). Mr Wright has, at all times, made it clear, that this was a case of indirect discrimination. His argument was against the condition or requirement applied by the Council in the form of job sharing.In our view, there is no error of law in the Tribunal's failure to deal with arguments based on Section 6(1)(a). Mr Wright never gets as far as an argument under Section 6(1)(a), if he cannot show a case of indirect discrimination under 1(1)(b). For the reasons given by the Tribunal he was not able to show that.The further arguments on the third and fourth ground of his grounds of appeal do not take the matter any further. Paragraph (iii) of his Notice of Appeal invokes European Union law, The Equal Treatment Directive and Articles of the Treaty of Rome which require Member States to give effect to the equality principle. There is no legal argument on this point. The condition or requirement of which he makes complaint applies equally to men and women. For the reasons explained by the Tribunal there is no inequality in its effect because Mr Wright was not able to show that the condition or requirement is such that the proportion of men who can comply with it is considerably smaller than the proportion of women who can comply with it. In other words, he is not able to show that the condition or requirement of job sharing has a disparate effect or impact on men. As the Tribunal said, all men can comply with it.His final point is a re-hash of the earlier points. He says that the Tribunal erred in law in mixing together and interpreting Sections 1(1)(b) and (6)(1) to be read as one section of the Act rather than as discrete sections to be read as applying to specific and distinct categories of sex discrimination in the way that Parliament intended. That point is (with respect) a misreading of the Act. As already explained, Section 6 is not a discrete section creating a particular kind of discrimination. Section 6(1) describes certain factual circumstances, such as arrangements in relation to offers of employment, in which discrimination may occur in the employment field. It describes the field in which the discrimination may occur, but you have to refer back to Part 1 of the Act to find out what is discrimination against a man or a woman, as the case may be.The fourth point is a legal error by Mr Wright, not by the Tribunal, as to the way in which the sections inter-relate. In brief, contrary to what Mr Wright submits, the Act requires that Section 1(1)(b) and Section 6(1) must be read together, not discretely or separately. These arguments are amplified by reference to case law in the amended Notice of Appeal, particular reliance being placed on a number of cases such as Barnes v BPC 10 ITR 110. There is also a fuller reference to the provisions of the Equal Treatment Directive and decisions of the European Court of Justice in the amended Notice of Appeal. It is not necessary for us to examine the details of the cases or the directives.In our view, the Tribunal made no legal error in dismissing this application. We agree with the Tribunal that the application is misconceived, both in its reliance on the provisions of Section 6(1) of The 1975 Sex Discrimination Act and on its reliance on the principle of equality in European law.For those reasons, although Mr Wright may feel, as he told us, that he has received rough justice in this case, we are satisfied that it is justice in accordance with the law. It is justice without any breach of the procedural rules which apply to Industrial Tribunals in hearing complaints against people accused of sex discrimination.For all those reasons, there is no arguable point in this case which deserves a full hearing. We therefore dismiss the appeal.