MISS S FERBER v CAROL TALBOT T/A BLUEBELL STUDIOS [2001] UKEAT 0368_01_1209

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0368_01_1209Case No Appeal No. EAT/0368/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS S FERBERAPPELLANTCAROL TALBOT T/A BLUEBELL STUDIOSRESPONDENT
Before
Mr Recorder LangstaffDate 12 September 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR RECORDER LANGSTAFF QC In this Preliminary Hearing from an Employment Tribunal sitting at Liverpool the Appellant has not appeared to pursue her appeal. We have therefore determined to hear and determine it upon its merits.[2]We note in our decision to do so that on 5 September 2001 there was a letter from a firm of solicitors to this Tribunal saying they had been instructed by the Appellant but advising that legal aid funding had not been made available. The Registrar refused however, to postpone the hearing and referred the Appellant to the possibility that she might wish to take advantage of the Employment Law Appeals Advice Scheme. That she has not done. Accordingly, it seems to us, that she had the option of being here, either personally to advance her appeal, or of being here to advance her appeal through an experienced advocate and has declined that opportunity.[3]In Extended Reasons promulgated on 24 January 2001 the Employment Tribunal held that the Respondent did not discriminate against the Appellant on the ground of sex.[4]In brief, the facts were. That the Appellant worked with considerable flexibility of hours at a dance studio, fitness centre and nursery, known as the Bluebell Studios. She fell pregnant. At a time when she was pregnant her hours were reduced. Those hours were instead to be worked by another employee, a Miss Locke. The Tribunal concluded at paragraph 5(h) of its decision that the respondent had offered Miss Locke the Monday hours in order to make employment with them more attractive to her. They commented that this was reasonable enough. That, it seems to us, was a view to which they were entitled to come having heard the evidence and which we cannot say demonstrates any error of law. They went on to say that they had to decide the issue as to sex discrimination by asking, first, whether the Respondent subjected the Applicant to a detriment. They there concluded that the Respondent had done so by reducing her hours. Secondly, they asked whether there was a difference of sex. They then said this:
"Had the respondents reduced her hours because she was pregnant, then her detriment would have been for a gender-specific reason and thereby discriminatory. But the respondent did not reduce her hours because she was pregnant: they did so for defensible reasons that were unaffected by the applicant's sex."
[5]The appeal against that decision indicated by the Notice of Appeal is that the Employment Tribunal asked itself the wrong question in deciding whether the Appellant had been discriminated against on the grounds of sex. It argues that it only considered the question, whether the Respondent treated the Appellant less favourably because she was pregnant, rather than asking itself whether the less favourable treatment was for a reason related to her pregnancy.[6]That ground seems to us to disclose no arguable prospect of success given that the Employment Tribunal had decided what was the reason for the reduction in hours. The reason was that the hours were to go to another employee. The reasons why that was so were connected, so the Tribunal found, entirely with the need to please that new employee with a view to furthering the Respondent's business interests, and had no connection whatsoever with the pregnancy of the Appellant, at least in the view of the majority of the Tribunal. It is of course the majority view to which we have to have regard.[7]The second ground taken by the Notice of Appeal is that in any event the Employment Tribunal failed properly to address the issue of causation. It argues that having made a finding, that the Appellant was attending antenatal classes on Mondays, and having found that reducing her hours on a Monday constituted a detriment, it should have gone on to consider whether the Appellant's attendance at antenatal classes was an operative cause of the reduction in hours. We do not think this discloses any arguable case either.[8]Whereas a Tribunal might well have gone on to consider the relationship between the Appellant's attendance at antenatal classes and the reduction in hours, we do not consider that it was incumbent upon it to do so, because it had actually found what was the reason for the reduction in hours.

(c) in which they record that:

"…. the applicant did not attack the respondent for reducing her hours but for depriving her of work on Monday. On Mondays, it might be argued it was more convenient to her to have her hours reduced, if they had to be reduced at all because that would end the conflict between attending the clinic and outstanding work. Effecting a non-discriminatory reduction on a Monday was not a detriment."
Although this on the face of it may seem to contradict the earlier finding at paragraph 7(a), the effect of it, as we understand it, is that the Tribunal were here saying that the Applicant's hours had to be reduced in order to provide another employee with more hours. That was because of the needs of the other employee and the needs of the business and not for any reason relating to the pregnancy. The actual hours upon which that reduction fell may have been related to the need of the Appellant to attend antenatal classes but that was a reason for the timing of the cut and not for the cut itself. Accordingly there could be no proper complaint there of discrimination on the ground of sex.[9]For those reasons, we do not think there is any arguable point of law in this appeal and it must stand dismissed.