MRS D GREENAWAY v NOTTINGHAMSHIRE FIRE & RESCUE SERVICE [2001] UKEAT 0761_00_0103
EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0761_00_0103Case No Appeal No. EAT/0761/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS D GREENAWAYAPPELLANTNOTTINGHAMSHIRE FIRE & RESCUE SERVICERESPONDENT
Before
His Honour Judge Peter ClarkLord Davies of CoityDate 1 March 2001
[1]APPEARANCES For the Appellant MR MARK WHITCOMBE (of Counsel) Instructed By: Messrs Thompsons Solicitors Price House 37 Stoney Street Lace Market Nottinghamshire NG1 1NF HIS HONOUR JUDGE PETER CLARK : This is an appeal by Mrs Greenaway, the Applicant before an Employment Tribunal sitting at Nottingham chaired by Mr C J Goodchild, against that Tribunal's decision promulgated with Extended Reasons on the 11 May 2000, dismissing her complaint of unlawful sex discrimination brought against her employer, Notts Fire & Rescue Service. She had been employed by the Respondent as a Fire Control Operator for nearly five years working regularly on a shift system. That was a system which suited her due to her domestic arrangements. She further enjoyed being part of a team, which resulted from the working pattern in which she was engaged.[2]When she became pregnant, a manager referred to advice from the Home Office which he believed applied to her although she was not a Fire Fighter as such. He believed the effect of that advice was that working variable shifts alone might damage the Applicant and her unborn child, leading to lower birth weight. As a result of that genuine view, as the Tribunal found and without consulting the Applicant, the manager, Mr Radoniya took a decision to transfer the Applicant to permanent day work. She was unhappy with that decision and raised an internal grievance. In the course of that grievance further investigation was carried out, as a result of which it was decided that the risk to her health and that of her unborn child was negligible and consequently she was allowed to return to her shift system.[3]On her complaint of unlawful sex discrimination the Tribunal unanimously found that the reason why the manager had acted in the way he did by transferring the Applicant to permanent days related to her sex, however two further questions arose. First, whether or not that action was to her detriment and secondly, whether or not the Respondent succeeded in relying on the statutory defence afforded by Section 51 of the Sex Discrimination Act 1975.[4]By a majority, the Chairman dissenting, the Tribunal found that she had not suffered a detriment. That disposed of the Application, but for completeness the Tribunal went on to consider whether or not the statutory defence succeeded. They unanimously found that it did. In these circumstances the complaint failed.[5]In this appeal, Mr Whitcombe on behalf of the Applicant challenges both findings. First he submits that the majority reached a perverse conclusion in holding that being moved from a shift system to permanent days, the Applicant had not suffered a detriment within the meaning of Section 6(2) (b) of the 1975 Act. We have considered carefully that submission bearing in mind the high hurdle placed on an Appellant relying on the perversity ground. Having considered the reasoning of the majority set out in paragraph 10 of the reasons, coupled with the different view taken by the Chairman and expressed at paragraph 11, we have reached the conclusion that both views fell within the range of decision making reasonably open to an Employment Tribunal. In these circumstances we are unable to find that the perversity ground enjoys any real prospect of success at a further full appeal hearing and for this reason, the appeal fails.[6]However, in deference to the further argument addressed by Mr Whitcombe on the question of the statutory defence, we shall deal with that also. Section 51(1)(ii) provides that the effective provisions of the Act are negated where it was necessary for the employer to do an act in order to comply with the requirement of a relevant statutory provision and it was done by that person for the purpose of the protection of the woman in question. The Tribunal deals with this aspect of the case at paragraph 12 of their Reasons. They found that the action taken by the manager was necessary in the sense that a proper investigation was held resulting in the Applicant's shifts being reinstated but, pending the outcome of that investigation, it was necessary to take her off shift work until that determination. The second point taken by Mr Whitcombe is whether the Tribunal has properly identified the relevant statutory provision for the purpose of Section 51(1)(ii). Looking at the Tribunal's reasons as a whole, and their reference to a statutory duty, we think it is implicit in their reasons that they had in mind the general duty under Section 2(1) of the Health and Safety at Work Act 1974 which provides, "it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees". In these circumstances we have concluded that first, the Tribunal reached a permissible conclusion in finding that the statutory defence under Section 51 was made out and secondly, that although not spelt out in their reasons, they implicitly had in mind the relevant statutory duty to which we have referred and, in that sense, the reasons were adequate for the purpose of the test propounded by Bingham LJ in Meek v City of Birmingham [1987] IRLR 250 page 251. For these reasons this appeal must be dismissed.