Whiffen v Milham Ford Girls School & Anor [1998] UKEAT 864_97_1202

EAT
Whiffen v Milham Ford Girls School & Anor
[1998] UKEAT 864_97_1202 · 1998-01-20
MR JUSTICE KIRKWOOD : This is an appeal by an employee against the decision of an Industrial Tribunal sitting at Reading on 6th May 1997 as to the appropriate pool to be taken for comparison in adjudicating a complaint under the Sex Discrimination Act 1975 .The Industrial Tribunal decided that the appropriate pool should consist of the basic grade teachers employed at the School at which the appellant had worked. The extended reasons for the Industrial Tribunal's decision were promulgated on 11th June 1997.The appellant contends that that decision was wrong; the Industrial Tribunal should have found the appropriate pool to consist of all the teachers employed at the basic grade in the Education Authority of Oxfordshire County Council.The appellant, Mrs Whiffen, was employed as a teacher of Modern Languages at Milham Ford Girls School in Oxfordshire. That is a school with a delegated budget. Mrs Whiffen was employed there, initially for two terms from April 1991, but then on a series of fixed-term contracts from year to year.In 1993 the Education Department of the County Council revised its policy on the use of fixed-term contracts.

"USE OF FIXED-TERM (TEMPORARY) CONTRACTS

A. Why use a Fixed-term Contract?A.1 There are six reasons which the County Council and the teacher unions have agreed as being valid and which should stand up to challenge at an industrial tribunal.(i) To cover for maternity or sick leave.(ii) To cover for secondment or leave of absence.(iii) Interim arrangements pending the arrival of permanent staff.(iv) Temporary increase in pupil numbers.(v) Projected fall in pupil numbers (leading to a budget reduction within the next 12 months).(vi) Post dependent on external funding.A.2 It is not advisable or appropriate to use them in the following circumstances:(i) In order to create a "trial period". This can be dealt with adequately under existing procedures.(ii) Because of anxiety about future budgets which is not clearly well-founded.(iii) As a matter of course for all part-timers simply because they are part-times (to do so could constitute indirect sex discrimination).A.3 Creating fixed term contracts may be an attractive option if a governing body is genuinely concerned about its budget. However, there are several disadvantages to recruiting staff on a temporary basis:"The document then sets out three perceived disadvantages to such method of recruitment and concludes:
"However, if the Governors do consider it to be appropriate to appoint of a fixed-term basis they should consult their Divisional Office, about the best way to proceed."
There was also in place in the County, and adopted by the majority of its delegated budget schools, a model redundancy policy applicable to school employees. That policy contemplated, inter alia, the non-renewal of temporary fixed-term contracts.In 1996 the Governors of Milham Ford Girls School perceived a need to reduce overheads and staff costs for the 1996/97 Academic Year. The appellant, being on a fixed-term contract, was selected for redundancy. Her contract was not renewed. Her representations were unsuccessful as was her appeal to the panel of Governors.The appellant complained to the Industrial Tribunal that she had been discriminated against by reason of her gender. The identification of the appropriate pool for comparison was dealt with as a preliminary issue. The rival contentions were as I have outlined. In order to inform its decision, the Industrial Tribunal heard much, though not all, of the appellant's evidence. It reminded itself of the relevant law. It plainly gave the matter careful and thorough consideration. The Industrial Tribunal found:
"18 Cases involving pools for comparison may perhaps be said to fall, broadly, into two main groups. First of all, there may be that group in which an applicant complains of indirect sex discrimination when he or she has failed to have his or her job application considered as in the Jones case. In such a case it would undoubtedly be appropriate to consider a fairly wide pool of potential applicants. In the Jones case the pool was concerned with the number of female graduates who would comply with an age requirement specified in a job advertisement. In such a situation it is difficult to see how the situation could ever arise whereby the pool be limited to existing employees. The second group of cases may be those in which an employer may wish to make changes to his existing work force whether by redeployment, change in working pattern, selection for redundancy or howsoever. The cases are of infinite variety and it may be, in some instances, that the appropriate pool would be the entirety of the work force. In other cases if there were a need for streamlining in, say, the administrative department for the pool to be limited to administrative and clerical employees, but excluding manual production workers, warehouse staff, canteen staff, etc. In such a case it is very difficult to see how the pool could justifiably be widened to include consideration of administrative staff employed at a separate factory owned and operated by a wholly different and independent company. This is, perhaps, not such a clear case as that. Whilst we accept Mr Boland's observation to us that the redundancy policy was initially reduced by the second respondent and tendered to governing bodies for adoption, an important feature of this case is that having adopted it, the Governors then applied the policy to the applicant. They did not seek to apply it to any teacher outside their own school nor would it have been within their power to do so. In our judgment, bearing in mind the wording of Section 6(2), the appropriate pool for comparative purposes in this case must be the pool of teachers employed by the Governors. Furthermore, we are of the view that the pool should consist not only of all the teachers, but those teachers who were employed at basic grade, that is to say the same grade as the applicant."
Sex Discrimination Act 1975 :

"1 Sex Discrimination against women

(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if-. ..(b) he applies to her a requirement or condition which he applies or would apply equally to a man but- (i) which is 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 ...5 Interpretation. ..(3) A comparison of the cases of persons of different sex or marital status under section 1(1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."In considering this appeal we have in our minds the words of Waite J in Kidd v DRG (UK) Ltd [1985] ICR 405 . At page 409B the learned

judge said:

"The concept of indirect discrimination was one which clearly needed to be framed from the outset with the maximum flexibility if it was fully to encompass the mischief at which the anti-discrimination laws are directed. Flexibility has been achieved, however, at some cost in loss of precision of language. There is an inherent imprecision, for example, in defining indirect discrimination by means of a formula under which it has to be established whether the proportions of persons of one sex or status capable of complying with the impugned requirement predominate "considerably" over persons of the other. The question how large a proportion must be before it can properly be called "considerable" is very much a matter of personal opinion on which views are liable to vary over a wide field. Then there is the further requirement of the Act that for the purposes of the statutory comparison, like must be compared with like in a context appropriate to the case under review. The consequence is that the particular section of the members of the public upon whose lives the impact of the relevant requirement or condition has to be measured is liable to vary from case to case - ranging from the population as a whole at one end of the scale to employees of a single work-place at the other: and there is liable also to be ample scope for debate in many instances as to which section of the public within that range is the right one to choose for a particular case. Finally, there is the entirely free hand allowed by the Act to the industrial tribunals regarding the evidence, if any, upon which they are required to act when weighing up numerical proportions of the public for the purposes of the statutory comparison: such freedom is bound inevitably to involve wide variations of view between one tribunal and another as to which patterns of social and working life are sufficiently well known to be safely taken for granted (and judicially assumed without proof); and which they should insist upon having proved strictly - by statistical evidence if necessary.In thus taking note of the element of imprecision within the statutory concept of indirect discrimination, we intend no criticism of Parliament: on the contrary, the legislation reflects both a courageous determination to keep the concept flexible and also a well-placed confidence in the ability of the industrial tribunals to interpret it wisely and with good sense as each case comes up for review upon its merits. ..."At page 415C:
"... We reject the argument that the choice of section of the population required to give effect to section 5(3) of the Act is a question of law; ... The choice of an appropriate section of the population is in our judgment an issue of fact (or perhaps strictly a matter of discretion to be exercised in the course of discharging an exclusively fact-finding function) entrusted by Parliament to the good sense of the tribunals, whose selection will be influenced by the need to fit it as closely as possible to the varying circumstances of each case. Of course in those exceptional cases where it can be shown that good sense has not prevailed, and the tribunal has chosen to make the proportionate comparison within an area of society so irrationally inappropriate as to put it outside the range of selection for any reasonable tribunal, then the tribunal would have fallen into an error of law which could be corrected in the appellate jurisdiction."
In the first skeleton argument advanced on behalf of the appellant, it is said, with reference to the words of Waite J ( supra ) that "though it should not suggested that the tribunal in this case erred in terms so harshly expressed, the appellant nevertheless seeks to argue that the decision to which the tribunal came is one which, if widely applied, would disguise much indirect discrimination rather than reveal it and is for that reason irrational".The endeavour of Mr Clayton, on behalf of the appellant, is, as it seems to us, to divert from the treatment of the appellant in the context of redundancy to what is said to be discrimination in the use of the fixed-term contract.The argument is two-fold. First, that recruitment of fixed-term or temporary employment is generally limited to those seeking employment from a position of not being employed; that group will be made up of(a) newly qualified potential recruits, and(b) women returning to work after raising children. Thus, the requirement or condition applied (S.1(1)(b)) - namely being in permanent employment - is such that the proportion of women who can comply is considerably smaller than the proportion of men who can comply.The second limb to the argument is that the employer is the County Council through its Education Department and not the Governors of the School. So it is the whole body of basic grade employees in the County that provide the appropriate pool for comparison.The second limb to the argument has involved, in this appeal, an examination of relevant statutory provisions. It is clear from them, argues Mr Clayton, that the County Council is the employer. But those provisions in fact confer on school Governors in a case such as this wide powers as to the selection and recommendation for appointment of staff, disciplinary matters, and determination as to discontinuance of employment; and those provisions limit the role of the Education Authority chiefly to formal matters in relation to the contract of employment.Reference has also been necessary to the Education (Modification of Enactments relating to Employment) Order 1989 which provides:
"3. General modifications of employment enactments (1) In their application to governing bodies with delegated budgets, the enactments set out in the Schedule hereto shall have effect as if-
( a ) any reference (however expressed) to an employer , a person by whom employment is offered, or a principal included a reference to the governing body acting in the exercise of their employment powers and as if that governing body had all material times been such an employer, person or principal;( b ) in relation to the exercise of the governing body's employment powers, employment by the local education authority at a school or institution where employment by the governing body of that school or institution;( c ) ...( d ) references to dismissal by an employer included references to dismissal by the local education authority following notification of a determination by a governing body under paragraph 8(1) of Schedule 3 to, or section 148(6) of, the Act; ..."The Schedule referred to includes the Sex Discrimination Act 1975 .The purpose of that provision is to ensure that, so far as the unfair dismissal and sex discrimination legislation is concerned and other matters, the employment is to be deemed to be employment by the governing body and not by the Local Education Authority.Nor, in our judgment, does that state of affairs distract from important practical considerations in the instant case. It was a matter for the governing body and not for the Education Authority to decide the extent to which the policy guidance on fixed-term contracts was followed; it was for the governing body to decide to what extent to adopt the model redundancy policy, and if adopted, how to apply it.There is a range of answers that were possibly open to the Industrial Tribunal in ascertaining the appropriate pool for comparison. Taking basic grade teachers together with comparable temporary or fixed-term teachers, there is the National pool or the Oxfordshire pool. Addressing "like for like", should not the pool be confined to teachers in all girls schools? Or, perhaps, to all girls schools who have adopted the fixed-term employment and model redundancy policies of Oxfordshire County Council? The options are various: it is for the Industrial Tribunal to decide.There has been put before us, as there was put before the Industrial Tribunal, a schedule analysing the employment of teachers in Oxfordshire for the years 1995/95, 1995/96 and 1996/97. Taking a comparison between basic grade teachers and comparable temporary teachers, it shows a disparity as between men and women of 8.7%. But we were told that in respect of the pool in fact identified by the Industrial Tribunal, the proportion is not very different. In terms of proportion it makes very little difference to the case. The smaller pool is, in fact, marginally in favour of the appellant.It seems to us, therefore, that not only has the Industrial Tribunal not erred in its approach, but that it has wisely selected a pool for comparison which meets both the requirements of the Act and the justice of the case. The Industrial Tribunal has it well in mind that it is the merits of Mrs Whiffen's case that it must determine and that any broader issues between Oxfordshire Council and the Union will impinge only to the extent they are relevant.It is our unanimous decision that this appeal be dismissed.