LONDON UNGERGROUND LIMITED v MRS S P EDWARDS [1997] UKEAT 16_96_1301

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1997] UKEAT 16_96_1301

Case No Appeal No. EAT/16/96

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

LONDON UNGERGROUND LIMITEDAPPELLANT

MRS S P EDWARDSRESPONDENT

Before

Mr Justice Morison

Date 13 January 1997

MR JUSTICE MORISON (PRESIDENT): This is an appeal by London Underground against a decision of an Industrial Tribunal that they had unlawfully discriminated against one of their former employees, Ms Edwards, on the grounds of her sex.

This was the second time that Ms Edwards' complaint had been heard and determined by an Industrial Tribunal, and the second time that it has been before the EAT. We are not directly concerned with the first set of proceedings. On that occasion, the EAT had ruled that the first Tribunal had erred in law as to the pool of people with whom Ms Edwards was to be compared.

The facts

Ms Edwards started her employment with London Underground in September 1983. She became a train operator [driver] in 1987 and, in the same year, she became the mother of a child. The rostering arrangements which were in force until the end of 1992 were based on a three shift per day system. Although staff were allocated to the roster they were able to swap shifts. There were extra payments for work during unsocial hours. In order to accommodate her life style, Ms Edwards was able, by making the necessary swaps, to organise for herself a shift pattern which involved her working from 0800 to 1600 hrs or 0830 to 1630 hrs during the weekdays, and one shift on alternate Sundays. The Tribunal found that:

"As a result she was able, as single parent to do her job and be at home to look after her child. She however suffered a financial penalty in working these shifts as these shifts were the ones that did not attract a bonus payment [an unsocial hours payment]."

During the 1990s London Underground sought to reduce costs and over-manning, and improve their efficiency. In their judgment there were too many shifts of short duration, and by altering the shift pattern it was possible to reduce manning levels. A voluntary severance scheme was introduced, and compulsory redundancies were avoided.

The new flexible shift patterns involved an average working week of 38½ hours, spread over a four week period, including Saturday and Sunday working. Shifts varied in length between 4 hours minimum and 8¾ hours maximum. The shorter shifts were at the beginning and end of the day, whereas the longer shifts were in the middle of the day. There are regulations which govern the number of hours during which a driver may be on duty, and which provide for minimum breaks between duties. The working of the shift pattern might involve a driver working on 11 consecutive days. The salary was fixed, with no unsocial hours payments.

London Underground had contemplated introducing a scheme called the 'Single Parent Link' which would involve isolating 11 separate shifts, at either end of the line, from the general roster. Those special shifts "would only be during social hours" [paragraph 2(7) of the Decision]. This proposal was rejected by the Trade Unions, who proposed a crèche arrangement. The idea was apparently abandoned at the beginning of September 1992.

In November 1992, Ms Edwards was given a letter from her employers asking her to work the new roster. She asked for an assurance that she would not have to work the roster as it then stood. There was some evidence before the Industrial Tribunal that she would have been entitled to swap her shifts after the introduction of the new roster, but we understand the Industrial Tribunal to have found as a fact that by seeking to impose this new roster on her they "made it impossible for her to continue in her employment" [paragraph 14 of the Decision] and that she was faced with the alternative of either signing an acceptance of the new roster or facing dismissal [paragraph 2(8) of the Decision]. As a compromise, the parties agreed that she should sign as accepting the new roster but then accept voluntary severance. This she did, and, therefore, her employment with London Underground ceased on 19 December 1992.

Ms Edwards' complaint is that she has been indirectly discriminated against on the grounds of her sex, contrary to section 1(1)(b) of the Sex Discrimination Act 1975, as amended: namely that London Underground have applied to her a requirement or condition which applied equally to men but it was:

"(i) 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 [London Underground] 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."

The Industrial Tribunal correctly directed themselves as to the four questions which they had to consider:

"(a) What was the relevant "requirement or condition" which was applied to [Ms Edwards]? (b) Could she comply with it? (c) If not, was it one which "a considerably smaller proportion of female train operators than male train operators could comply"? (d) If so, was it justifiable?"

The First Question

Their answer to the first question was: 'the new rostering arrangement which was imposed upon her' [paragraph 7 of the Decision].

The Second Question

Their answer to the second question was: 'no' [paragraph 8 of the Decision].

"We are satisfied from the evidence that she was unable to comply with the condition that was imposed upon her. It is clear from the evidence that no reassurance was given to her, and we are not satisfied from the evidence that we heard that the swapping arrangements which would enable her to continue with her work would continue in the way that were [sic] satisfactory. As a single parent she was torn between the need to do her job and the need to care for her child and these new rostering arrangements in the new company plan did not satisfy her needs."

On this Appeal, London Underground did not seek to argue that the Industrial Tribunal erred in law in the answers given to the first two questions. In other words, it is no longer in issue that the employers applied to Ms Edwards a condition or requirement with which she could not comply. However, it was submitted by Mr Bean, to whom we are grateful, on behalf of London Underground, that the Industrial Tribunal erred in law their answers to the third and fourth questions.

The Third Question

The Industrial Tribunal made their findings in relation to the third question at paragraphs 9 & 10.

"9. The third requirement is whether it was a requirement or condition with which a considerably smaller proportion of female train operators could comply as compared with male train operators. We have heard from the evidence before us, and it was accepted by Mr Bean, that all the 2,023 male operators complied with this condition of the new rostering. We heard evidence from the Applicant that out of 21 female train operators she was the only one who positively complained that she could not comply with the new rostering arrangement. However, the Respondent's witnesses confirmed that there was a Mrs Quinlan who had also applied for the Single Parent Link arrangement when it was proposed but she had signed the contract and had worked for two or three weeks under the new rostering system. It was accepted that she was then moved because it was said that she had a bad back as she was pregnant and eventually she took a career break. She is apparently still employed by the Respondents but she was not called as a witness by either the Respondents or the Applicant and we can only conclude from the evidence that we heard that, out of the 21 female train operators, two of them did not continue with the new rostering a month after it came into operation. The Respondents have argued that the Applicant should have tried the new rostering arrangement to see if it could have worked out. However, an employee faced with a choice between working a new roster and if it did not prove satisfactory having to leave or being dismissed for breach of contract, and the alternative of an enhanced voluntary severance package, could reasonably not risk working the roster when they were quite clear in their own mind that they would not be able to do so for very long.

10. We now have to consider whether the one or possibly two train drivers out of 21 female train drivers as compared to the 2,023 male train operators can be considered a "considerably smaller" proportion of the whole which we consider are the train operators as a whole. We were referred by Mr Bean to Staffordshire County Council -v- Black [1995] IRLR, where it was held that a proportion of 89.5 per cent of females compared with 97 per cent of male teachers was not a "considerably smaller" proportion within the meaning of Section 1(1)(b) of the Sex Discrimination Act. Mr Bean has argued that this proportion in this case is less than a 5 per cent difference and therefore was not a big enough proportion to come into this category and to be classified as "considerably smaller". It is clearly established from the case law that this is a question of fact for the Tribunal to decide, and we find that taking into account the number of male train operators as compared to the very few female train operators (2,023 to 21) and the fact that only one person, the Applicant, could not comply and also added to the fact that it is common knowledge that females are more likely to be single parents and caring for a child than males, it is clear that this was a condition or requirement that a "considerably smaller" number of females could comply with."

It was common ground that the proper comparison to be made is the proportionate impact of the condition on women train operators compared with its impact on male train operators. The question, therefore is whether the Industrial Tribunal were entitled to conclude that the proportion of female train operators who could comply with the condition was "considerably smaller" than the proportion of men who could do so.

In R v Secretary of State ex p. Seymour-Smith [1995] ICR , the Court of Appeal has given some guidance on what is meant by "considerably smaller".

Having reviewed a number of decisions of the European Court, the Court of Appeal, through

Lord Justice Neill who was giving the judgment of the whole court, said, at page 949/50 & 952:

"In every case the Court of Justice referred not to a simple difference between the number or percentage of women and the number and percentage of me within a particular group but to "a considerably smaller or larger percentage" or to "a much larger or lower number". Counsel for the parties provided us with a useful summary in the form of an agreed note comparing the French and English text of the judgments in the eight cases to which we have just referred and also in Enderby v Frenchay Health Authority

[1994] ICR 112

. It is noteworthy that in a majority of these cases the French term which is used to describe the disparity is "un nombre beaucoup plus élevé" ......

In these circumstances we would accept the submission made on behalf of the Secretary of State that before a presumption of indirect discrimination on the ground of sex arises there must be a considerable difference in the number or percentage of one sex in the advantaged or disadvantaged group as against the other sex and not simply a difference which is more than de minimis . ...

. .............................................

There is this further consideration. It is true that the test, as laid down by the European Court of Justice, is whether a "considerable difference" exists. But the underlying principle is equal treatment. It will be remembered that by article 2(1) of the Equal Treatment Directive the principle of equal treatment means that "there shall be no discrimination whatsoever on grounds of sex". Accordingly, the weight to be attached to the word "considerable" must not be exaggerated."

We were referred to two other cases in which consideration had been given to the application of the principle to the facts of those cases: Staffordshire County Council v Black

[1995] IRLR 234

, a decision of the EAT; and R v Secretary of State ex p. Unison

[1996] IRLR 438

. In the latter case, in something of an aside, the Divisional Court said that if there were now only a 4% disparity between male and females who could satisfy the two year qualifying period requirement for bringing an unfair dismissal complaint, the Court was inclined to the view that this would fall within the de minimis exception.

The arguments addressed to us on behalf of London Underground may be summarised in this way. The Industrial Tribunal misdirected itself in a number of respects:

They failed to make a finding that the percentage of women drivers who could comply [95.2%, on the basis of 20 women out of 21] as opposed to the 100% of men who could comply was considerably smaller. It was suggested that in the last two sentences of paragraph 10 of the Decision the Industrial Tribunal were looking at some wider picture, namely all men and all women.

In arriving at their conclusion, the Industrial Tribunal identified three matters which they took into account [Paragraph 10 of the Decision], none of which supported their conclusion:

(a) the numbers of male train operators as compared with the number of women train operators;

(b) the fact that only one woman could not comply, namely the applicant;

As to (a), the relative numbers are irrelevant; it is the relative proportions which are relevant. As to (b), the fact that only one woman could not comply negatived their conclusion rather than supported it. As to (c), what the picture is amongst the general population is irrelevant.

It seems to us that these criticisms of the Industrial Tribunal's Decision are not justified.

We echo what the Court of Appeal has said about the purpose of the Directive, namely to eliminate all sex discrimination in the employment field. Equality of treatment is the paramount consideration. Accordingly, as a matter of principle, it seems to us that, when weighing the extent of the disproportionate effect that a condition has upon men and women in the relevant pool, the Tribunal can properly have regard to the number of women train operators as against the number of male train operators. The Industrial Tribunal is entitled to have regard to the possibility that, where the number of women as against the number of men is, in percentage terms, very slight, some kind of generalised assumption may exist at the workplace that the particular type of work concerned is 'mens' and not 'womens' work. Further, the Tribunal is also entitled to consider whether the number of women drivers is so small as to be statistically unreliable. They are required to judge the proportionate impact on a very small number. The impact is, we think, to be assessed as at the date of the complaint. But in assessing the extent of the disproportionate effect, the tribunal is entitled to take account of a wider perspective. It is for this reason that statistics showing the percentage of women in employment who have primary care responsibility for a child, in contrast to the percentage of men in that position, are relevant. The disproportionate impact of the condition may be assessed by looking both at the picture as it was at the time, and as it may be, had the small pool of women been larger and statistically significant.

In our judgment, therefore, the Industrial Tribunal were entitled to have regard to the numbers of men relative to the numbers of women; and to their common knowledge about the proportionately larger number of women than men in employment who have child care responsibilities.

Further, it seems to us, and it is conceded, that the Tribunal have correctly identified the relevant pool [see paragraph 5(c) of the Decision]. We are not prepared to accept the contention that, having correctly directed themselves, they, thereafter, had regard to a different pool. The last few lines of paragraph 10 of their Decision show no more, we think, than that they considered both the pool as it stood and their wider experience.

What is a considerably smaller proportion is a question of fact for the Industrial Tribunal. It would be a misuse of authority to take one proportion from one case and then use it as a yardstick or marker in another. The absolute numbers of persons in the male and female pools will have a bearing, as will the nature of the employment.

The evidence about the second woman, who might have been affected by the new roster was inconclusive. Although the Tribunal was correct to find, as a fact, that Ms Edwards was the only woman of whom it could be said that she could not comply, in reaching their conclusion on impact they were entitled to consider what their conclusion would have been had the other person been unable to comply. With such a small pool, the Tribunal were right to recognise that the percentage proportion would be substantially larger if just one more woman were unable to comply with the requirement due to temporary or permanent child care responsibilities.

In our view the Decision they reached was open to them on the evidence.

The Fourth Question

We have considerable sympathy with the position in which the Industrial Tribunal found themselves. When the matter was last before the EAT, [reported at [ 1995] IRLR 356 ], this Court held as follows, at paragraph 25:

"We do not accept that the tribunal's conclusion [on justification] was perverse. We agree with Ms Edwards that it was for London Underground to satisfy the tribunal that the requirement was justifiable. That was an issue of fact and degree which cannot be disturbed on appeal if the tribunal directed themselves, as they did, to the correct test and came to a conclusion for which there was some evidence. There was evidence before the tribunal as to London Underground's proposal for a single parent link scheme. In our view, the tribunal were entitled to come to the conclusion on that evidence that it was feasible to cater for single parents or those with primary care of children who were only able to work social hours, without significant detriment to the objectives of London Underground to achieve savings. The Tribunal took account of the need of London Underground to make savings and found there was no significant detriment. In our view, there was no error of law in the tribunal's treatment of this issue."

London Underground's appeal succeeded on the question of the pool and this Court remitted the whole matter back to another tribunal for a re-hearing. Accordingly, the present Industrial Tribunal was faced with the fact that a previous Industrial Tribunal had decided the justification issue against London Underground, and that that part of the decision had, effectively, been upheld. Nonetheless, we are satisfied that they addressed themselves to the issue, afresh.

The way they dealt with justification was as follows:

"11. We then come to the question of justification.

12. We were referred to Hampson -v- The Department of Education in the Court of Appeal by Mr Bean and from the judgment of Balcombe LJ:

"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."

We have to consider the needs of the Respondents and their objectives to save money and to be more efficient and on the other hand the discriminatory effect it had on the Applicant and others who were single parent carers. We find from these facts that the Respondents could have easily, without losing the objectives of their plan and reorganisation, have accommodated the Applicant who was a long-serving employee. They were aware of her particular difficulties quite early on and after the failure of the Single Parent Link in September 1991, she had set out her misgivings and her difficulties in writing to the management. They did not address themselves to these issues and therefore we find that they have not justified this act of discrimination."

It seems to us that they have correctly directed themselves as to the issues and have applied the law to the facts, as they found them. In those circumstances, we have no hesitation in rejecting the appeal on this ground. There was evidence to justify the conclusion that London Underground could and, we would add, should, have accommodated Ms Edwards' personal requirements. She had been working for them for nearly ten years. Her family demands were of a temporary nature. There were no complaints about her work, which she appeared to enjoy. London Underground were, we think, probably fully justified in rejecting the idea of a crèche which would be unsuitable as a solution for a parent working unsocial hours. But, as on the earlier occasion, there was good evidence that London Underground could have made arrangements which would not have been damaging to their business plans but which would have accommodated the reasonable demands of their employees. It may be that London Underground would have wished to implement the Single Parent Link but gave in to pressure from their predominantly male workforce.

We would wish to add three observations.

In the first place, employers should recognise the need to take a reasonably flexible attitude to accommodating the particular needs of their employees. In a case such as this, had it been obvious that London Underground could have accommodated Ms Edwards' needs, without any difficulty or expense, there might have been a case for alleging direct discrimination. Changing the roster in a way which they must have appreciated would cause her a detriment might have justifiably led to an inference that they had treated her less well than they would have treated male train operators who had been in a similar position. In other words, the more clear it is that the employers unreasonably failed to show flexibility in their employment practices, the more willing the Tribunal should be to make a finding or unlawful discrimination. Although we accept that the Tribunal had to concern itself with the four questions referred to above, they are all linked, in the sense that the tribunal is asking whether there has been sex discrimination in the employment field. The question of justification and the substantial proportion question cannot be looked at in isolation. Although there is no direct correlation between the two, we would anticipate that, in accordance with the purpose of the Equal Treatment Directive of eliminating discrimination between the sexes in the employment field, the less justification London Underground had for the way they treated Ms Edwards, the less likely it is that a Tribunal will conclude that she has failed to show that the disproportionate effect of the condition was considerable.

Second, in many cases, an employer will be able, readily, to justify a roster system, even if people with child care responsibilities could not sensibly be accommodated within it. But the lesson from this case is that employers should carefully consider the impact which a new roster might have on a section of their workforce.

Third, nothing we have said in this Judgment should be construed as favouring positive discrimination. Such discrimination is unlawful, and for what it is worth, none of the members of this Court would wish the position to be otherwise.

Accordingly, this appeal is dismissed.