Hillerton v Berkshire County Council [1997] UKEAT 762_97_0311

EAT

Hillerton v Berkshire County Council

[1997] UKEAT 762_97_0311 · 1997-11-03

MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether Ms Hillerton has any arguable point of law in relation to an Industrial Tribunal decision which followed a hearing at Reading in March 1997. By their decision the Industrial Tribunal concluded that Mrs Hillerton had not been unfairly dismissed by her former employers, the Berkshire Education Authority, and that she had not been discriminated against contrary to the Sex Discrimination Act 1975 .

A Notice of Appeal was filed in this case. It would appear that the real complaint made is in relation to the complaint of unfair dismissal. It is said that the Industrial Tribunal have erred in law in the way in which they dealt with that aspect of her complaint.

The facts underlying the decision of the Industrial Tribunal may be shortly stated. Ms Hillerton commenced her job as a school teacher at the Brimpton C E Primary School on 1st September 1991 on a part-time basis, 2½ days a week.

In 1995 the Governors of the School decided to reduce staffing levels. The proposal was that the applicant should have her hours reduced so that she was working 3/10ths of the time as opposed to half-time.

There were various other developments which took place after that initial proposal. There was a head teacher who was working half-time. There was a Stage 1 full-time teacher and there was the applicant who was working Stage 2 part-time.

Unfortunately for the school, the full-timer resigned with effect from 14th April 1996. There was now a vacancy for a full-time teacher. There was also a change in the identity of the Head Teacher, and she took the opportunity of reviewing the teacher requirements for the school. The key Stage 1 full-time post was advertised, but the chosen candidate withdrew. So the question arose as to how the school should meet the teaching requirements thereafter.

The conclusion which was arrived at was that there should now be a full-time teacher at key Stage 2; that there was a requirement that the school should have at least one full-time teaching post; and the applicant should work either the full-time position which she was offered, or accept a reduction in her hours to .3 as had been in contemplation at the outset.

That proposition was unacceptable on both counts to the applicant. She was not able to work full-time for understandable reasons and she was not prepared to accept a post which paid her as little as she would be getting if she worked on a 3/10ths basis.

Her employment was therefore brought to an end as at 31st August 1996. In evidence she stated that she had decided not to pursue an appeal process, because at the time she could see the arguments for the need to save money and she could see that the process the respondents had adopted was quite reasonable. It was her belief, nonetheless, that somehow or another there should not have been a full-time teacher employed in the school, but that the new person and herself should operate on a job sharing basis.

Eventually she produced a complaint alleging unfair dismissal and unlawful discrimination on the grounds of sex. The basis of her complaint of unlawful discrimination on the grounds of sex was indirect discrimination. She said that because the respondents were insisting on a full-time post when the previous full-time teacher resigned in April 1996, she was indirectly discriminated against. She was unable to take on full-time teaching because of family responsibilities and this was the situation generally more women than men. The tribunal noted that no statistical evidence or indeed any other evidence to this effect was adduced at the hearing. The person appointed to the post was female and all teaching staff at the school were female. They noted that it was for the applicant on the balance of probabilities to make out her case of unlawful discrimination. They went on as follows:

"20. ... We have to say that in our view the complaint was a make weight to the principal thrust of her complaint, namely one of unfair dismissal. There was no evidence of discrimination produced at the hearing and we quickly dispose of this complaint on the grounds that not only has it not been made out it does not get off the ground. ..."

When considering the aspect of unfair dismissal the tribunal came to the conclusion, based partly on the acceptance by the applicant in her evidence that the process which had gone through was reasonable, that there was nothing unreasonable in the new Head Teacher's decision that there had to be at least one full-time teacher working at the school. They noted that she, the applicant, had been offered this post, and offered a reduced part-time teaching post. They concluded that in all respects the respondents had acted reasonably and that the decision to dismiss her as a result of this reorganisation, was within the range of reasonable responses.

There has been no skeleton argument lodged in support of an appeal in this case. The grounds of appeal simply assert that there was evidence before the tribunal that the appellant's difficulties in taking full-time employment related to her commitments as a woman, and an assertion that the tribunal had material on which they could have concluded that there was unlawful discrimination.

We do not agree that there is any cause for believing that the tribunal's approach to this question has been legally flawed.

Secondly, there is a complaint that the tribunal erred in failing to require the respondents to justify their decision taken in relation to the appellant, for reasons irrespective of the gender of the appellant. We understand that to be an assertion that the Industrial Tribunal did not go on to decide that the indirect discrimination was justified. As we read their decision, they were of the view that the allegation of sex discrimination had not passed the first hurdle.

Thirdly, it is said that the tribunal should have found the appellant to have been unfairly dismissed, her dismissal having been a direct consequent of an act unlawful discrimination without justification. It seems to us that that is an assertion which depends upon the premises contained within it, neither of which is made out. Accordingly, it has not weight.

It seems to us, therefore, that there is no suggestion of an arguable point of law fit to go before a full hearing, and accordingly, the appeal will be dismissed.