Furber v Wirral Borough Council [1997] UKEAT 1141_96_0207

EAT
Furber v Wirral Borough Council
[1997] UKEAT 1141_96_0207 · 1997-07-02

JUDGE PETER CLARK :

This is an appeal by the Applicant employee before the Liverpool Industrial Tribunal, Ms Furber, against that Tribunal's decision by a majority to dismiss her complaint of unlawful sex discrimination against her employer, Wirrall Borough Council (the Respondent). Extended Reasons for that decision are dated 4 September 1996.

The Complaint

For the purpose of this appeal the Appellant's complaint is as follows. Her employment with the Respondent began as a full-time employee on 11 January 1988. At the relevant time, in July 1995, she was a part-time Grade 4 Housing Assistant, sharing a post. A full-time vacancy arose as a G4 Housing Assistant, Beechwood. She wished to apply for a transfer to that post.It is common ground that had she been a full-time employee at that time, all other things being equal, she could have transferred to the post without going through an interviewing process. Because she was not a full-timer it was necessary for her, under the Respondent's policy, to apply for the post and attend an interview in competition with other employees from lower grades.Following interview she was unsuccessful and the post went to another employee.She contended that she was indirectly discriminated against on the grounds of her sex.A further complaint concerning the conduct of the interview is not pursued by way of appeal.

The Industrial Tribunal Decision

The majority found that the policy applied by the Respondent was justified, and anyway, there was no indirect discrimination. Their findings on both aspects are, so far as is material, set out in paragraph 7 of the reasons thus:
"The view and finding of the majority of the Tribunal is that the applicant's claim fails. The authority has detailed and well-considered Equal Opportunities Policies. The majority accept that, although not spelled out in detail documentarily, the practice was that, irrespective of whether full-time or part-time, men and women have the right to be considered for transfer on a basis of 'all things being equal'. The letter at page 72 of Exhibit R1, from UNISON to the Authority, in the view of the majority represents proper justification under Section 1(1)(b)(ii) of the Act, even if discrimination did, in fact, exist. Would the action in question be 'acceptable to right thinking people as sound and tolerable?' If so then the employer's actions would be justified. Ojutiku - v - Manpower Services Commission (1982) ICR 661 CA. In Bilka Kaufhaus GmbH - v - Weber von Hartz (1987) ICR 110 a test propounded by the European Court of Justice in relation to a discriminatory requirement or condition was that an employer must show that 'the means chosen for achieving that objective correspond to a real need on the part of the undertaking, are appropriate to achieving the objective in question and are necessary to that end'. In that context the majority of the Tribunal is satisfied that any discriminatory factor which might have existed was justified in the sense that the policy followed represented a reasonable and responsible management decision. Beyond that, however, the majority does not, in fact, accept that the two specific matters complained of were discriminatory in themselves."
And later:
"As to the requirement for application and interview, had the applicant been in a 'like for like' situation that is to say a full-timer seeking a full-time post, at a different location, that the accepted practice of the Authority was to 'facilitate' such a move i.e. not necessarily to seek a formal application and interview. This, however, was not a 'like for like' situation (unlike the examples referred to in evidence) because a part-time job would have been left."

The Appeal

Having considered the submissions of Mr Davies for the Appellant and Mr Elias QC for the Respondent, we have reached the conclusion that this decision cannot stand and must be set aside. The whole matter will be remitted to a fresh Industrial Tribunal for rehearing. Our reasons for so doing are as follows:

Adverse Impact

(1) The majority's reason for finding that there was no discriminatory treatment appears to be that the Appellant was not comparing 'like with like'. Had she been a full-timer she could have transferred to the vacant full-time post without application and interview. However this was not a like for like situation because a part-time job would have been left. If the Industrial Tribunal are here saying that the Appellant was not making a true comparison, for the purposes of Section 5(3) of the Sex Discrimination Act 1975 , then we think they have fallen into error. It was the requirement that an employee should be full-time which is the discriminatory condition complained of. That must be left out of account in making the necessary comparison.(2) The Correct Approach .Section 1(1)(b) of the Act required the Tribunal to consider the following questions, none of which appear to have been addressed in the majority's reasons: (i) Did the Respondent apply a requirement or condition to the transfer with which the Appellant could not comply?Here, the Appellant says that the relevant requirement for automatic transfer, all things being equal, was full-time employment status.(ii) was the proportion of women who could comply with that condition, if it was imposed, considerably smaller than the proportion of men who could comply with it?The answer to that question will depend first on selecting the appropriate pool. As to that question there is an issue between the parties, which has not been resolved by the Tribunal. The Appellant contends for a pool consisting of G4 Housing Assistants employed by the Respondent; the Respondent argues that the pool should include all those employees eligible to apply for the post.Only when the question of the pool is resolved can the Tribunal go on to consider the question of proportionality.(iii) Has the Appellant shown that she has suffered a detriment? Again, there is no finding by the Industrial Tribunal on that issue.In our judgment these issues call for findings of fact which are the province of the Industrial Tribunal. In the absence of such findings the majority decision that there was no discriminatory treatment must be set aside, and the matter investigated by a fresh fact-finding tribunal.

Justification

Mr Elias sought to argue that even if the Tribunal majority were wrong in their approach to the question of discriminatory treatment, their decision may be upheld on the basis of their finding as to justification. The difficulty with that submission is that, in our judgment, the Tribunal's approach to the question of justification is flawed in the following respects:(1) The majority first directed themselves in accordance with the test adumbrated by Eveleigh LJ in Ojutiku v Manpower Services Commission [1982] ICR 661, 668B. That test has since been superseded by the test laid down by Balcombe LJ in Hampson v Department of Education and Science [1989] ICR 179, 192 F, namely:
" ... 'justifiable' requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition."
See Webb v EMO Air Cargo Ltd [1993] ICR 175 , 183A, per Lord Keith.Insofar as they applied the Ojutiku test, the majority fell into error.(2) However, the majority then referred to the European Court of Justice judgment in Bilka Kaufhaus [1987] ICR 110 , which was reflected by Balcombe LJ in his approach set out in Hampson . Had the majority in fact applied the Bilka Kaufhaus test, they would have correctly directed themselves in law. However, in our judgment they did not in that:(a) they do not appear to have asked themselves whether the Respondent had shown a real need on the part of its undertaking, objectively justified, for the policy which it applied.(b) they did not carry out the necessary balancing exercise between the discriminatory effect of the relevant condition on the Appellant and the reasonable needs of the Respondent.(c) they appear to have judged the question of justification by considering whether the policy represented a reasonable and responsible management decision. That is not the test.For all these reasons we have reached the conclusion indicated earlier, that is that the majority's decision must be set aside and the case remitted to a fresh Industrial Tribunal for rehearing.