MISS S BURCH v TESCO STORES LTD [2000] UKEAT 793_99_1906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 793_99_1906Case No Appeal No. EAT/793/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS S BURCHAPPELLANTTESCO STORES LTDRESPONDENT
Before
His Honour Judge Wilcox Mr A D TuffinDate 19 June 2000
[1]APPEARANCES For the Appellant KARON MONAGHAM (of Counsel) Legal Officer USDAW Oakley, 188 Wilmslow Road Fallowfield Manchester M14 6LJ For the Respondent JONATHAN SWIFT (of Counsel) Messrs Dibb Lupton Alsop Windsor House Temple Row Birmingham B2 5LF JUDGE WILCOX This is an appeal against the decision of an Employment Tribunal sitting in Brighton sent to the parties on 12 May 1999 dismissing the Appellants complaints of sex discrimination and unfair dismissal.[2]The Respondents employed the Appellant as a Store Manager in their Langley store in Eastbourne. That employment commenced on 17 July 1989 and ended when she resigned without notice on 24 July 1998. The Respondents retail stores graded from 6 – 9 according to size and status.[3]The Appellant is a single parent with two small children. She was employed as the Personnel Manager at the Langley store at Eastbourne a category 6 store, working 32 hours per week. She had earlier experience with the Respondent working in a category 8 store as a Personnel Manager from 1991 to 1993, a temporary secondment to a category 7 store at Uckfield working 3 days per week and then finally the category 6 store at Eastbourne as I have already made mention of.[4]After a period of maternity leave from February 1996 to September 1996 she was offered and excepted a return to Eastboune 1, initially upon 24 hour week contract on a permanent basis. Sadly during her second pregnancy, her husband left her and when she did return to Eastbourne her hours were increased to 28 per week and ultimately to 32 hours.[5]This is an appeal, which relates to the Appellants suitability for promotion The Tribunal found that she was suitable for promotion to a larger store, that is category 8 or 9 and that she was ambitious to proceed to such a larger store. The Respondents in relation to the proposed promotion required greater flexibility and long hours than the Appellant was able to commit because of her family responsibilities. There was some criticism by the Tribunal as to the final stage in the grievance procedure by the Regional Human Resources, Officer, Mr Longhurst. We will deal with that separately.[6]As to the first complaint the Tribunal had to direct their minds to s 1.1(b) Sex Discrimination Act of 1975 "(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(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 her detriment because she cannot comply with it. For the purposes of this appeal we are considering the criteria under Section 1(b)(ii), because the live issues in this part of the appeal do not relate to the other requirements because it is now accepted that there are a number of classes of persons who are affected by this policy. It is also accepted that it is to their detriment in terms of affecting their promotion prospects within this company to senior levels including levels 7, 8 and 9. In paragraph 23 of their findings the Tribunal looked at the statistical evidence for pools of employees for comparison purposes and sets out how they evaluated the comparisons and assessed the detriment to the people there found to be comparators. Between the Appellant and Respondent, there is no real issue as to the validity of that exercise and how the Tribunal applied it in quantitative terms. Equally it is accepted by necessary inference that there is detriment.[7]The issue between the parties is whether the employer, the Respondent, has established a justifiable condition. In Hampson –v- Department of Education (1989) ICR 179 where in the judgment of Balcombe LJ at page 191F the test is set out. "In my judgment 'justifiable' requires an objective balance to be struck between the discriminatory effect of the requirement as condition and the reasonable needs of the party who applies it." That test must be applied by the Tribunal by conducting an objective balancing exercise on the evidence. It is not sufficient for the employer to establish that he considered his reasons adequate. The same approach but differently in process is contained in the judgment of Wood J in Clymo –v- Wandsworth London Borough Council (1989) ICR . At page 267 paragraph G:- "If a Tribunal is satisfied up to stage then it must carry out a broad and objective balancing exercise taking into account all the circumstances of the case by giving due emphasis to the disadvantage caused by the condition or requirement against the achievement of the object sought" The Tribunal must then decide whether the Respondent has proved his defence. The well known phrase comes to mind: there is no need to use a sledgehammer to crack a nut. This in our judgment is to express in extenso the process which the common lawyer in this jurisdiction is so often called upon to follow when deciding an issue of reasonableness.[8]The civil lawyer of Europe would no doubt describe it as applying the principle of proportionality. The balancing exercise by its phraseology is not a question of considering absolutes it is a matter of balance and none of the language shown allow extremes to be urged on one side or the other just as justification is no more than of convenience, so need does not mean necessity. "In approaching the Extended Reasons of the Employment Tribunal we must remember that it is not appropriate to consider whether the Tribunal dotted every i or crossed every t. " See the observations of Waite LJ in giving its reasons in Jones –v- Mid Glamorgan County Council (1997) ICR 815 in the passage starting on page 826.(L) "The guiding principle, when it comes to construing the reasons of an Industrial Tribunal and at appellate levels must be that if the Tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence the use in other passages of its reasons of language inappropriate to the direction it has properly given itself, should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law."[9]Following the setting out the requirements of Section 1, the Tribunal identifies the Extended Reasons they set out in Section 1, the requirements or condition to be justified. The requirement or condition the Applicant alleges was that she should be a full-time employee and should be sufficiently flexible so that the hours she worked would cover early starts, late finishes and the occasional visit to the store at night so that she will be working on equal terms with other members of the management team. The test in law therefore they set themselves, is clearly the appropriate test. It could be said that they could have gone on and made reference to the passage in Hampson, but we ask ourselves is there, looking at that Extended Reasons as a whole, anything which shows us that they did not consider the appropriate criteria.[10]The Tribunal, in the course of its findings recited the history of the Appellants employment and her fitness for promotion, and noted her reservation that she was tired of baby-sitting store General Managers on their first appointment, which tended to be the case in a category 6 store. They referred to the evidence that Susan Husband the Retail Development Manager, encouraged her to seek promotion and that in fact she did seek promotion and in early 1998 was told that a Personnel vacancy in a category 8 store was imminent.[11]There were discussions and interviews between the Appellant and Mrs Susan Husband and her Superior, the Retail Trade Director Mr Clark whereby the condition as to hours, was clearly laid down. We confine ourselves to the issue of justification and the application of the appropriate test criteria to this limited issue. At paragraph 13 it becomes apparent that the Applicants case by 15 May was that is was not necessary to work full-time to be a Personnel Manager in a category 8 or 9 store, and that even with her commitment to 32 hours, with constraints arising from the need to have time off, and work anti social hours, nevertheless it was possible for her to do the job. This realistically was the factual dispute between the Applicant and Respondent. At 14, the Tribunal find on the evidence presented to it and in particular the evidence of Mr Clark, Ms Husband and Deborah Haworth, the Personnel Manager at the Shoreham category 9 store, that the requirement for full-time working together with the flexibility to cover anti social hours with the other members of the Management team was for the purposes of Section 1 of the Act, a requirement or condition which was to be justified irrespective of the sex of the person to whom it is applied.[12]They went on to find that realistically it was not possible for a member of the management team in category 8 or category 9 to contribute fully and fairly to the activities of the management team unless he or she worked full-time and offered the same degree of flexibility as other members of the team. The employer is a large employer, the number of staff employed in the United Kingdom is 167,768 and there is an established scheme for appraising and identifying employees for promotion. There is a structured management system and in the larger stores the requirement is often for 24 hours opening as is referred to in paragraph 9 of the finding, and the necessity for a Personnel Manager to be accessible on a flexible basis to accommodate these hours of opening and or course, very often 7 day a week opening in most of the large branches.[13]The criticism made of those findings by the Appellant through her Counsel is that Tribunal only looked at the evidence of Mr Clark, Ms Husband, Deborah Haworth the Personnel Manager of the category 9 store. We do not draw that inference from the findings. The Tribunal considered all of the matters that had to be put into the balance and found as a matter of fact that having noted the Appellants contentions and those of the Respondent the test of justification was satisfied.[14]At paragraph 24 of the findings where the comparators evidence was considered. "The Tribunal, however, would consider that it would be more realistic to look at a wider pool to ascertain the ability of women to progress to management posts within the Company from that tier of management from which promotion almost inevitably comes, that is to say the Section Managers, who are one step below the retail store management teams. In that context there are 9 male part-time (0.43%) and 590 female (16.67%) and of the senior team, 27 are part-time (1.3%) and no men while the proportion of men to women reveals that 41.69% are female 58.31% are male. As a caveat to all calculations, there may be modest inaccuracies because the figures supplied by the respondent at page 97 of the bundle do not always reconcile. It is not therefore difficult to deduce that the prospects for promotion from Departmental Manger to management team is not only dependent upon being able to work full-time, but that there is a much greater possibility of men progressing to the management team than women." At Paragraph 25 the Tribunal returns to the principles set out at the beginning of its Extended Reasons. In respect to Section 1(b)(ii) the Tribunal indicate in paragraph 14 that they find that the requirement or condition is justified and in so far as sub paragraph 3 is concerned is found that the Applicant, in her position as a single parent with two small children not yet at school age, would inevitably suffer detriment, together with the class of comparators that they had to consider as well. Had the Tribunal stopped there then the reasons would have been adequate and not the subject of substantial criticism.[15]But at paragraph 26 of the Extended Reasons they said "it remains to be considered whether the Respondent was in a position allowing the requirement and condition, to further the Applicants career and did they take reasonable steps to do so, did they discriminate against the Applicant contrary to the provisions of Section 6 of the Sex Discrimination Act, in particular Section 2(a)" That is a route which they need not have gone down[16]In the course of going down that route they came to the findings of fact on a majority two to one basis, namely that she gave her employer no opportunity to adjust and devise some scheme whereby a progression might be achieved. They referred to invitations to meet, to talk issued by Ms Husband and Mr Clark, which the Applicant declined, and found that the Applicant had made it an issue of principle that she should be able to work 32 hours a week with her restrictions, and this placed the employer in an impossible position. For those reasons the majority of the Tribunal took the view that the employer was not given a reasonable opportunity to investigate the matter in the hope that the problem would be resolved. Those are findings of fact not necessary to the decision. They do not contradict the basis of the decision earlier made. See Jones –v-v Mid Glamorgan Council.[17]At paragraph 27 the minority view was expressed in the first sentence of paragraph 27. "An employer in these circumstances should be looking again at the number of personnel available and should be prepared to make significant concessions in order to enable carers in the position of the Applicant to progress their careers unprejudiced by the number of hours they might be able to work. In this context, the minority find that the Respondent did not take these steps and were therefore in breach of Section 6." Here the minority considered matters that were not relevant and did not touch upon the principal finding. At paragraph 28, is a curious, finding. I set it out in detail. It may be explained by earlier majority and minority conclusions and a need to produce a consensus "The unanimous recommendation would be that in a company employing so many people and which makes considerable demands upon their management teams, greater imagination and constructive thinking should be applied to this problem. In terms of the financial turnover in category 8 or 9 store, which according to Mr Clark will in the case of a category 8 store be £750,000 to £900,000 per week, in the case of a category 9 store £900,000 plus per week, a contribution to the child-care cost to the employee would seem insignificant more constructively the possibility of a crèche at the larger stores would seem viable."[18]What the Tribunal appear to be saying is that the employer had not exercised sufficient imagination and constructive thinking as they ought and had they done so they would have considered crèches or a contribution to the child-care costs. They are canvassing alternatives that a prudent employer would perhaps consider. It is submitted on behalf of the Appellant that when the Tribunal is considering other considerations and alternatives that that fundamentally undermines the finding that they made at paragraph 14 and confirm in their finding at paragraph 25.[19]It is submitted on behalf of the Respondent that this is not a finding of fact at all; it is a recommendation, it is couched in terms of recommendation and the Tribunal was making a recommendation of good practice as to the future, that it was not necessary to make, neither was it an essential part of the decision. We accept that argument and the construction of the Appellant. We then asked ourselves the vital question, applying the considerations in Jones –v- Mid Glamorgan .[20]Given that construction (the most beneficial in favour of the Appellant) do those words read together with paragraphs 14 and 28 admitted no explanation, save an error of law? This is not where the earlier finding of fact and the later finding of fact (b) contradict. They are matters that can logically sit together. A Tribunal looking at all the facts and properly directing itself upon the law with the onus on the employer to show justification, could well have canvassed these alternatives in coming to a consideration as to what was justifiable for the purpose of Section 1 of the Act.[21]We do not think that construing the finding at paragraph 28 in the most favourable way towards the Appellant, leads us to the conclusion that the finding is either perverse or there is an error in law. It is right to say that in considering this question, we have had difficulties which would not have occurred had the reasons for the Tribunal been structured in a clearer way and had not they gone down what I will call the 'Section 6 Route' which was not necessary in all the circumstances. But in going down 'Section 6 Route' we do not find that any disadvantage accrued to the Appellant in consequence. We do observe in passing that many of the findings therein the consideration of Section 6 are in fact in her favour. We have come to the conclusion, unanimously therefore, that this is an appeal that we must, on this ground dismiss.[22]The second part of this appeal, relates to the allegation of unfair dismissal. This mainly arises out of the conduct of the grievance procedure by Mr Longhurst. When one goes to various findings in the appeal Tribunal's extended reasons, one can see that in the operation of the grievance procedure, that officers of the company, Mr Longhurst in particular acted not as investigators looking into the procedures with a degree of objectivity but as advocates pressing a case. This applies to Mr Longhurst but may also to Mr Clark and his assistant, and Ms Husband. At paragraph 12 as to the 11 May meeting with Mr McCrossen in attendance they found that Mr Clarke and Mr McCrossen stressed the need for full time working in a larger store. That is a matter that finds an echo throughout, and is a complaint that is made by Ms Burch, that Mr Longhurst was emphasising that requirement. The Tribunal found that attention as to the operation of the grievance procedure by Mr Longhurst, seems to be focused, primarily upon the procedural aspects, rather than the content aspect of the procedure. The admission of the Appellant herself, as to her lack of knowledge of the procedure in her letter of resignation is remarkable. But is astounding that somebody in the position, however of Mr Longhurst in the company of this size, should have been ignorant of such an important part of the grievance procedure and in consequence failed to remind her of her right of appeal.[23]However, it is not merely the lack of his knowledge as to procedure, although his failure to do his homework that is significant, but the effect of the letter that he wrote on 20 July stating to the Appellant that:
"In my summation of the above and all the investigations into the issues raised it is my view that there are no grounds for your grievance against indirect sex discrimination nor failure to offer equal opportunities."
Followed by "Therefore it would not be my intention to consider the option of an amicable resolution" And "This decision is final within the Company Grievance and Disciplinary Procedures, and if you wish to pursue this issue further you will need to seek the advice of your USDAW representative."[24]It provoked the response in Ms Burch letter 24 July in the penultimate paragraph:
"You put me in an untenable situation. Chas Longhurst's letter does not leave me with the feeling that you wish me to return and does not offer any steps forward."
We can wholly understand a conclusion like that in the light of the uncompromising and brick wall stance taken by Mr Longhurst in his letter, and the role he assumed in stressing the need for the requirement of flexibility. Mr Clarke in his letter of 28 July 1998 said that " you can come and talk ." but in the same curt letter, he says:
"You will be paid up to and including Saturday 1 st .August and as soon as your P.45 and monies due are available you will be informed."
[25]The ground of perversity is a very difficult one to sustain and we have considered with very great care the guidance in the dicta of the President Mummery J as he then was in Stewart v Cleveland Guest [1994] IRLR 443. We remind and warn ourselves that we must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because we would have reached a different conclusion on the evidence, or think that an Industrial Tribunal would have reached a different conclusion on the evidence and an appeal should not be allowed on this ground, simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal and the justice of the result, the merits of the case or the interpretation of the facts.[26]This Tribunal should only interfere with the decision of the Employment Tribunal where the conclusion of that Tribunal on the evidence where it is irrational, offends reason, is certainly wrong, clearly wrong, must be wrong, or plainly wrong as not a permissible option.[27]We think this Tribunal was clearly wrong. We think that it failed to have regard to Mr Longhurst's approach, which is reflected in his 'brick wall letter', 20 July sent to the Appellant with its uncompromising words. "The decision is final and that it would not be my intention to consider the option of an amicable resolution." We therefore find for the Appellant in relation to the unfair dismissal matter. It clearly must be remitted to a fresh Tribunal.