THE CHIEF CONSTABLE OF THE BEDFORDSHIRE CONSTABULARY v MS M GRAHAM [2001] UKEAT 1061_00_2609

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1061_00_2609Case No Appeal No. EAT/1061/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE CHIEF CONSTABLE OF THE BEDFORDSHIRE CONSTABULARYAPPELLANTMS M GRAHAMRESPONDENT
Before
Mr Justice Douglas Brown Mr B V FitzgeraldDate 26 September 2001
[1]APPEARANCES For the Appellant MISS B LANG QC (of Counsel) Instructed By: Mr Nigel Bennett Managing Solicitor Bedfordshire County Council County Hall Bedford MK42 9AP For the Respondent MR D OUDKERK (of Counsel) Instructed By: Russell Jones & Walker Swinton House 324 Gray's Inn Road London W1X 8DH MR JUSTICE DOUGLAS BROWN: This is an appeal from the Employment Tribunal at Bedford (Chairman Mr G Plenderleath) whose extended reasons were sent on 30th June 2000. The Appellant is the Chief Constable of Bedfordshire and the Respondent is Margaret Graham who is an Inspector with the Bedfordshire Force. In April 1998 she married a Chief Superintendent in the same force, Mr Minihane. Mr Minihane was Divisional Commander of D Division. On 10th May 1999 Inspector Graham applied for the post of Area Inspector at Houghton Regis in D Division and on 20th May she was appointed to that post.[2]On 11th June 1999 she was seen by Mr O'Byrne the Chief Constable who told her that her appointment had been rescinded. He told her that due to her relationship with the Divisional Commander i.e. her husband he did not feel it was appropriate for her to take up the post.[3]He gave three reasons for this decision:a. As the spouse of a serving officer she should not work in the same division because she would not be a competent and compellable witness against her spouse in any criminal proceedings.b. It will be difficult for officers under her supervision to make a complaint or take a grievance against her knowing of her relationship with a Divisional Commander.c. It would be more difficult to deal with any possible problems relating to underperformance by her because of her relationship with a Divisional Commander.[4]After an interval of some months when she was otherwise employed in the Force she was posted to be an Area Inspector in B Division. In the interval she lost neither pay nor status.[5]In September 1999 she lodged her originating application claiming that she had been discriminated against directly and indirectly on the ground of her sex and on the ground of her marital status in breach of the Sex Discrimination Act 1975.[6]The Tribunal found that the allegation that she had been directly discriminated against under Section 1(1)(a) of the Act was not made out.[7]Her complaints that she had been discriminated against contrary to Section 1(1)(b) (indirect sexual discrimination) and Section 3(1)(a) direct marital discrimination and Section 3(1)(b) indirect marital discrimination were well founded.[8]The relevant Sections of the Act are:- "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: (a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or (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.(2) If a person treats or would treat a man differently according to the man's marital status, his treatment of a woman is for the purposes of subsection (1)(a) to be compared to his treatment of a man having the like marital status. 3. Discrimination against married persons in Employment field. (1) A person discriminates against a married person of either sex in any circumstances relevant for the purposes of any provisions of Part II if: (a) on the ground of his or her marital status he treats that person less favourably than he treats or would treat an unmarried person of the same sex, or (b) he applies to that person a requirement or condition which he applies or would apply equally to an unmarried person but: (i) which is such that the proportion of married persons who can comply with it is considerably smaller than the proportion of unmarried persons of the same sex who can comply with it, and (ii) Which he cannot show to be justifiable irrespective of the marital status of the person to whom it is applied, and (iii) which is to that person's detriment because he cannot comply with it. (2) For the purposes of subsection (i), a provision of Part II framed with reference to discrimination against women shall be treated as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite."[9]There are four broad grounds of appeal.a. The Tribunal erred in law in failing to identify precisely the "condition or requirement" which the Chief Constable applied to Inspector Graham when he rescinded her appointment.b. The Tribunal selected the wrong pool when looking for comparisons between different officers in the Force.c. The Tribunal failed to give full and adequate reasons for its decision on justification under Section 1(1)(b)(ii) and Section 3(1)(b)(iii).d. The Tribunal erred in law in failing to find there was no discrimination on grounds of marital status because the reason for the treatment was not that Inspector Graham was married, but because of the post occupied by the person she was married to.[10]It can be seen that the provisions of Section 1 are repeated with appropriate adjustments in Section 3 and the grounds of appeal except for the last are intended to cover both kinds of discrimination found by the Tribunal.[11]In each case it was conceded on behalf of the Chief Constable that his action in rescinding her appointment was to her detriment.[12]The hearing lasted for two days in February 2000 and two days in June 2000. The Tribunal heard a number of witnesses and had for consideration 600 pages of documents. They had the advantage as we had of hearing Mr Oudkerk as counsel for Inspector Graham and Miss Lang QC for the Chief Constable.[13]We have not had to refer to anything like that amount of documentation and because of the skilful advocacy of counsel the issues have been narrowed. We need only refer to the evidence and submissions in summary.[14]Mr O'Byrne agreed in evidence that in June 1999 when he rescinded the appointment there was no Force policy covering that or any similar situation. He regarded the decision to rescind the appointment as being a matter of principle, and it was a principle that he had held for many years having put it into effect in another Force he had served in.[15]In December 1999 he put out for consultation draft guidelines on conflicts of interests involving partnerships/relationships. That consultation has now been put on hold pending the result of this litigation.[16]In the Section headed "avoiding conflict of interest" the guidelines say "in order to avoid conflicts of interest etc. the Force will reserve the right to move, transfer or refuse to place two people in a position where there is a concern this may occur. This decision will not be made lightly and is more likely to be made in the following circumstances;(1) there will be direct supervision or line management of a partner by another(2) one of the staff in the partnership is a Chief Superintendent/Superintendent or higher or civilian equivalent. In those situations the Force will avoid moving someone from an existing post. The sitting tenant will have priority and the person seeking a move to a position where a conflict is created will be the subject of scrutiny. Any decision not to allow two people in partnerships to work together to avoid such conflicts must be justified and agreed by the Chief Inspector Career Development."[17]The guidelines then made provision for an appeal.[18]The Chief Constable made it clear both in reply to the questionnaire served under Section 74(1)(a) of the Act and in evidence that his first and major reason for his decision to rescind was the fact that neither Inspector Graham nor her husband would be compellable as a witness for the Prosecution in criminal proceedings against the other spouse. He confirmed the two other reasons given on 11th June and in further justification of his decision he referred to the following matters:(i) The vital importance of the issue of perception of the public to the Police Service and in support of that referred in detail to a report by HM Inspectorate of Constabulary on Police Integrity.(ii) He stressed the importance of dealing with complaints from the public by way of informal resolution and said that where officers had a close relationship it was highly probable that the member of the public making the complaint would have considerably less confidence in the efficacy of that process.(iii) Considerable problems arise because of the duties given to Superintendents and Inspectors under the provisions of the Police and Criminal Evidence Act 1984 where the Superintendent acts in a quasi judicial role deciding on applications by an Inspector e.g. for the taking of intimate samples or for prolonged detention.(iv) The probability that a posting to her husband's Division would significantly disadvantage Inspector Graham because any decisions which her husband took to support her in terms of operational or personnel decisions would not be accepted on their face value by other officers: it was highly probable she would not be given all the career development opportunities she should receive because of the risk of misinterpretation of favouritism: it was possible difficulties would arise in terms of welfare and managerial support.[19]Bedfordshire Police Federation asked other Federation secretaries whether a similar policy operated in their force. Twenty six police forces responded to the enquiry; five police forces had policies similar to Bedfordshire's and twenty did not. Many forces had married officers and couples working together at all ranks and some forces encouraged couples to work together.[20]A former Detective Superintendent in the Bedfordshire Force, Mr Aylott, called as a witness on behalf of Inspector Graham in cross-examination agreed that conflicts of interest could potentially arise in the circumstances set out in the draft guidelines.[21]Only one Force (Warwickshire) provided a specific example of difficulties which arose when an officer was directly supervised by her husband.[22]The Chief Constable's evidence was that he would have treated a man in precisely the same way as he treated Inspector Graham. The Tribunal accepted that evidence and in consequence dismissed her claim of direct discrimination under Section 1(1)(a).[23]The Tribunal did not in terms identify a requirement or condition applied by the Chief Constable. They said this:
"the Respondent concedes that he has applied a requirement or condition and he also conceded that such a condition is to the detriment of the Applicant"
. The Tribunal then went to consider sub-sections (b)(i) and (ii) and continued: "the Tribunal therefore has to decide whether the requirement or condition 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 whether the requirement or condition is justifiable irrespective of the sex of the person to whom it is applied".[24]Dealing with 1(1)(b)(i) they accepted the submissions and statistical approach of Mr Oudkerk. He submitted the Chief Constable accepted that he was seeking to apply his restrictive policy across the board and therefore the appropriate pool to which the Tribunal was entitled to have regard was the whole of the work force. His first submission was that the proportion of women who could comply with the requirement was 88% and that was considerably smaller than the proportion of men who could comply with it (97%). Those percentage figures were made up in this way: Total male officers in Bedfordshire Police 856 Male officers who can comply (i.e. of equal rank to partners or without partners) 832 832 expressed as a percentage of 856 is 97% Total female officers 199 Female officers who can comply 175 175 expressed as a percentage of 199 is 88%[25]The Tribunal however preferred Mr Oudkerk's alternative approach. In considering whether or not there was unlawful discrimination the Tribunal was entitled to have regard to the fact that a condition which restricts officers married to each other or who are in relationships with each other will be more likely to effect women with men. A requirement based on relationships between officers is far more likely to effect female officers as many of them are in relationships with male officers (32.7%).[26]In paragraph 13 of the reasons the Tribunal said:
"in consequence we find that the requirement or condition effects 32.7% of women in the Bedfordshire Force but only 6.6% of the men and in these circumstances we find that the proportion of women who can comply with the requirement or condition is considerably smaller than the proportion of men who can comply with it."
[27]Miss Lang submitted that the Tribunal's analysis was internally inconsistent and flawed and amounted to an error of law. The Tribunal's approach could only have been correct if the requirement or condition was that the Applicant should not be married or co-habiting with another officer in the Force wherever he was posted. This however was not the requirement or condition contended for by either party nor was it the finding of the Tribunal.[28]It failed to take into account the post held by Inspector Graham's partner and simply assumed that the existence of a married or co-habiting relationship with another officer would debar the Applicant from the post. Whereas it was common ground the Applicant would only be debarred if upon appointment she would be working directly with her partner in a supervisor/supervisee relationship. Further it failed to take into account the Tribunal's own findings that the restriction was not just limited to spouses and male/female co-habitees.[29]A pool of the whole work force would be appropriate if the policy was under attack but it is incorrect when considering recruitment for this post. The pool must comprise those who are eligible for the post save for the requirement or condition which is under attack. In this case no officer of a rank other than Inspector could have applied for this job since they would not meet the criteria.[30]Mr Oudkerk prefaced his submissions by referring as the Tribunal did in paragraph 9 of their reasons to the definition of partnership in the draft guidelines: "A relationship where it is known that both people live together, share property, rent, mortgage or other financial commitments or where the couple are married or are in what is generally known as a common law relationship, or are close blood relatives (siblings, parents, grandparents or children) or where the partner or member of the partner's staff is dependent by virtue of age, disability or illness".[31]Mr Oudkerk equated the principle identified in paragraph 9 of the reasons with "requirement or condition". He submitted the Tribunal correctly concluded that the appropriate pool was the whole of the work force as the whole of the work force was even on the Chief Constable's case "affected or potentially affected".[32]In our view the Tribunal was fully entitled to come to the decision it did on this aspect of the case. In London Underground Ltd -v- Edwards (2) 1999 ICR 494 Simon Brown LJ encouraged departure from what he described as "the purely mechanistic approach contended for by the employer".[33]We remind ourselves of the words of Potter LJ at 505 in the same case:
"an industrial Tribunal does not sit in blinkers. Its members are selected in order to have a degree of knowledge and expertise in the industrial field generally."
[34]We also think that useful guidance can be obtained from Potter LJ's judgment at paragraph 28:
"In many respects, no doubt, it would be useful to lay down in relation to section 1(1)(b) a rule of thumb or to draw a line defining the margin within, or threshold beyond which, in relation to small percentage differences, the lower percentage should not reasonably be regarded as "considerably smaller" than the higher percentage. However, it does not seem to me appropriate to do so. For the various reasons discussed in this judgment, and because of the wide field and variety of situations in which the provisions of the section are to be applied, the circumstances and arguments before the adjudicating tribunal are bound to differ as to what in a particular case amounts to a proportion which is "considerably smaller" for the purposes of determining the discriminatory or potentially discriminatory nature of a particular requirement or condition. If a figure were to be selected in the field of employment, it would be likely to vary according to the context, and in particular as between a case where the requirement or condition is applied on a national scale in respect of which reliable supporting statistics are available and those where it is applied in relation to a small firm or an unbalanced workforce where the decision may have to be made on far less certain evidence and to a large degree upon the basis of the industrial tribunal's own experience and assessment as applied to such figures as are available. The difficulties are well illustrated by this case."
[35]Turning to the question of justification the Tribunal addressed it by first setting out the principal arguments advanced by the Chief Constable which we have already described. The Tribunal summarised these fully and fairly.[36]They then pointed out that the Chief Constable had not given any example of the perceived problems to which he referred and they regarded his concerns as speculative. They referred to the report of HM Inspectorate of Constabulary on police integrity on which the Chief Constable placed considerable reliance and pointed out that no where in that document was there any reference to the possibility of difficulties arising when husband and wives and others in close relationships were allowed to work in close proximity with one another. They said "if the Chief Constable's concerns are justified we find this omission surprising given that the purpose of the exercise is securing and maintaining of public confidence and that the document was prepared following formal inspections within twenty police forces and two national police training centres chosen on the basis of geography, size, democratic spread, policing performance and known integrity issues. Included in the inspection were forces which had a policy similar to that which the respondent seeks to introduce and others which did not have such a policy".[37]The Tribunal then referred to the evidence obtained from other forces, which we have already summarised. This material was in bundle C.[38]The Tribunal went on to say that the Chief Constable in his evidence, was dismissive of the results of this survey on two grounds. First of all he said the letter sent did not accurately state his proposed policy and secondly that the responses were from members of the Police Federation and not from the management of the forces concerned and a response from the management might have produced a different result.[39]They continued: "We find the Chief Constable's criticisms surprising in view of the fact that he himself annexed to a supplemental witness statement prepared before Bundle C was introduced and produced in evidence before the Tribunal, five of the responses received by the Bedfordshire Police Federation which were broadly supportive of his proposed policy".[40]The Chief Constable had, before the hearing adjourned in February, referred to these five supportive responses without reservation and that prompted those advising Inspector Graham to produce Bundle C which contained the whole of the research information.[41]The Tribunal stated their conclusion in this way:
"We have also in mind the need to strike an objective balance between the discriminatory effects of the requirement or condition and the reasonable needs of the person who applies it"
. Here they referred to Greater Manchester Police Authority v. Lea 1990 IRLR 372. "We find that the discriminatory effect on requirement of the condition is disproportionate to the reasonable needs of the respondent. The perceived problems could, in our view, be readily overcome by ensuring when for example, a disciplinary issue arises an officer other than the spouse of the officer immediately concerned or his or her partner as defined by the respondent's proposed policy, deals with the situation. This must surely happen in cases where conflict of interest, not based on marital status or close personal relationships occur in practice".[42]The Tribunal then found that the Chief Constable had not discharged the burden of justifying his policy and in the result found that he had discriminated against Inspector Graham contrary to section 1(b) of the Act.[43]Miss Lang submitted that the Tribunal had failed to give full and adequate reasons for it's conclusion just referred to. She referred to Hampson v. The Department of Education 1989 ICR 179 where at 194 Balcombe LJ said:
"When an Industrial Tribunal is required to give full reasons for its decision it should, as Bingham LJ said in Meek v. City of Birmingham District Council, give reasons sufficient to explain to the party why they have won or lost"
. We will refer to the Meek case shortly.[44]Miss Lang submitted that the Tribunal should have given reasons in respect of the concerns raised by the Chief Constable in ten separate paragraphs of his witness statement, amplified in oral evidence, and in a supplementary note which he provided headed "Chief Superintendent - Inspector Contact". These concerns should have been weighed in the balance and not just the one which the Tribunal did refer to involving a disciplinary issue in paragraph 17 which we have quoted.[45]Miss Lang also submitted that the Tribunal were wrong to dismiss the Chief Constable's concerns as speculative. That was not a test or restriction to be found anywhere in the statute or in case law.[46]Miss Lang criticised the comments of the Tribunal in paragraph 16 where they found that the Chief Constable's criticism of the survey results, although he had used them selectively and uncritically himself. She submitted that there was no impropriety in what he had done.[47]Mr Oudkerk drew attention to the length of the hearing and the volume of documentation. He submitted that a Tribunal, faced with bulky material and considerable oral evidence, need not address each and every point raised by the parties. He submitted that the Tribunal had reviewed the material and arrived at a decision in an exemplary fashion. He submitted that the Chief Constable had not raised any arguable ground of appeal and was merely seeking to reopen a question of fact of which he had not succeeded. He submitted that the Tribunal had done more than was necessary in explaining their reasons to comply with the guidelines in Meek v. City of Birmingham District Council 1987 IRLR 250 .[48]Mr Oudkerk submitted that the responses from the other forces which the Tribunal was entitled to take into account provided compelling evidence that there was no objective need for the policy imposed by the Chief Constable in that the vast majority of police forces did not operate such a policy and some encouraged married officers to work together. It could be seen from Bilka-Kaufhaus GmbH v. Von Hartz 1987 ICR 110 (ECJ) that an employer must show objectively justified grounds. Around the country officers married and unmarried were working with their partners on a day to day basis. All the matters which the Tribunal in their reasons said they had taken into account all they were fully entitled to consider and they had demonstrated a balanced approach.[49]We consider that the Tribunal adequately explained their reasons for coming to the conclusion on justification which they did. At paragraph 8 in Meek v. City of Birmingham, Bingham LJ said:
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate and formalistic product of refined legal draftsmanship but it must contain an outline of the story which is given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and the reasoning to enable the EAT or on further appeal, this court to see whether any question of law arises: and it is highly desirable that the decision of an Industrial Tribunal should give guidance to both employers and trade unions as to practices which should or should not be adopted"
. Later at paragraph 11 he quoted with approval from the judgment of Lord Justice Donaldson in Martin v. Glynwed Distribution Ltd 1983 IRLR 198 at 202: "The duty of an Industrial Tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned it is helpful for the parties to give some explanation of them but it is not obligatory. So far as the questions of law are concerned the reasons should show expressly or by implication what were the questions to which the Industrial Tribunal addressed its mind and why it reached the conclusions it did but the way it does so is entirely a matter for the Industrial Tribunal".[50]Miss Lang sought to argue that both Meek and Glynwed and other cases referred to in Bingham LJ's judgment were decided before the change in procedure which resulted in extended reasons in writing being prepared and were directed at the contemporaneous delivery of judgment by Tribunal chairman. That is correct as a statement of fact but it does not in our view undermine the weight which should be attached to Bingham LJ's remarks. Meek v. City of Birmingham is frequently cited in the Employment Appeal Tribunal and no more recent decision modifying it or qualifying it in the light of the change of practise has come to notice. We regard Meek v. City of Birmingham as still representing the correct approach. Applying it to the circumstances of this appeal in our view the Tribunal having reminded itself of the principal arguments of the Chief Constable went on to decide the issue in an easily understandable way. Mr Oudkerk is right when he submitted that this was an attempt to reopen the question of fact on which the Chief Constable was not successful without any arguable basis for it.[51]We would only add in the light of Miss Lang's criticism of the Tribunal's expression of surprise that the Chief Constable used responses from the replies from other Forces and then sought to criticise the methodology of those involved in the research, that in our view, those comments were entirely justified. There was no suggestion from Mr Oudkerk and none from the Tribunal that there had been any impropriety on the part of the Chief Constable. This was a legitimate comment on the weight which should be attached to the Chief Constable's evidence. The word "surprising" was an entirely appropriate description of what had happened.[52]Next the Tribunal found that the Chief Constable had, on the grounds of Inspector Graham's marital status, treated her less favourably than he had treated or would treat an unmarried person of the same sex. In paragraph 19 of their reasons the Tribunal first reminded themselves that the Chief Constable had throughout asserted that his principal reason for his decision not to allow Inspector Graham to take up the post of Inspector at Houghton Regis was that as the spouse of a serving officer she would not be allowed to work in the same division due to issues of competency and compellability of spouses within the judicial system. In his response to the questionnaire he said he had regarded this as the first major reason for his decision and confirmed that in evidence.[53]The Tribunal went on to say that the issue of competence and compellability can only arise between people who are married to each other and it cannot affect any other relationship. They concluded "it is therefore marriage specific and we find that the Respondent has on the grounds of the Applicant's marital status treated her less favourably than he treats or would treat an unmarried woman of the same sex".[54]Miss Lang's submission before the Tribunal and before us was that that approach was flawed. The evidence was that the reason for the decision was not that Inspector Graham was married, but that she was married to the Divisional Commander for D Division and that this could potentially undermine the objectivity and integrity of the service. If she had been married to someone else who was not working directly with her that would not have represented any obstacle to her taking up the post. An unmarried officer would have been treated in exactly the same way.[55]Miss Lang referred to Glanvill v. The Secretary of State for Social Sciences and another, an unreported decision in the High Court for which no transcript is available. It is however referred to in John v. Neath Borough Council, a decision of the Industrial Tribunal of 27 June 1990. The decision in Glanvill v. the Secretary of State is summarised in this way:
"there was no marital discrimination. The real and substantial reason for the treatment was not because the Plaintiff was married but because she was married to Dr Glanvill. The Sex Discrimination Act limits discrimination to that which is on the ground of marital status not by reason of being married to any particular person"
. A similar conclusion was reached by the Industrial Tribunal in the case of Neath.[56]Mr Oudkerk's response is straight forward. Neath and Glanvill are easily distinguished in both it was accepted that the decision was not marriage based. In the instant case the Tribunal accepted that the major reason for the decision was marriage based, namely the law of evidence as to compellability. That criterion could not possibly be applied to persons who were not married.[57]It is clear that the major reason for the decision to rescind the appointment was based on the fact of marriage.[58]In our view the Tribunal was plainly right. The Chief Constable may have advanced other reasons both at the time of the rescission and later which were not marriage specific but his first and primary reason was that:
"she would not be a competent and compellable witness against her spouse in any criminal proceedings"
. It is very doubtful that he was right in his reference to competency but the statement as to compellability is a correct statement of the law for most situations. There is no doubt that the Tribunal were entitled to look for and act on a major reason for the decision. We were referred by Mr Oudkerk to Owen and Briggs v. James 1982 ICR 618 where at 626 Stephenson LJ cited with approval part of the judgment of Slynn J giving judgment in the Employment Appeal Tribunal in that case "if the Tribunal finds that a substantial reason for what has happened is that a candidate has not been considered for a post or has been refused an appointment because of his or her race then it seems to us that the Tribunal is entitled to say there has been a breach of the legislation. If there are other grounds put forward which may also have been a factor it is for the Tribunal to say whether at the end the candidate has because of discrimination lost the chance of or lost the appointment". Even without the guidance to be obtained from that citation we would have concluded the Tribunal were fully justified in identifying and acting upon the major reason for the decision not to allow Inspector Graham to take up this post.[59]Finally we turn to the finding that Inspector Graham was indirectly discriminated against as a married person.[60]The Tribunal again preferred Mr Oudkerk's argument as to the proportion of married officers to unmarried officers of the same sex who could comply with the requirement or condition. That percentage was 65.9% compared with 94.2% and they found as a fact that the proportion of married persons who could comply with the requirement or condition is considerably smaller than the proportion of unmarried officers of the same sex who could comply with it.[61]Miss Lang repeated her submissions as to the lack of identification of a requirement or condition and her arguments on justification. She criticised the Tribunal for providing no information to justify the selection of the percentages referred to.[62]Mr Oudkerk submitted that the information was known to the parties and readily identifiable from his closing submissions before the Tribunal which the Tribunal had plainly adopted. The percentages arose in this way:- Total married officers in Bedfordshire Police 88 Married officers who can comply with the requirement (i.e. 29 couples of the same rank) 58 Percentage of married officers who can comply 65.9% Total unmarried female officers 155 Total unmarried female officers who can comply (155 less 9 who work on separate divisions) 146 Percentage of unmarried female officers who can comply 94.2%[63]The Tribunal were entitled to accept Mr Oudkerk's argument and statistical approach. We need not refer again to the citation of authority earlier in this judgment. The pool contended for on behalf of the Chief Constable, namely the six women Inspectors in the Force, a 100% of them unmarried Inspectors could comply with the requirement and condition whereas only 75% of the married officers could. The Chief Constable conceded before the Tribunal that:
"on these figures a considerably smaller proportion of the married officers (25%) can comply"
. That is a quotation from Miss Lang's outline submissions. Although the 25% was represented in fact by Inspector Graham herself even on that alternative basis the Tribunal was entitled to conclude that the requirement was one with which a considerably smaller proportion of married officers and unmarried officers of the same sex could comply with.[64]In the result the attack on behalf of the Chief Constable on the decisions of the Employment Tribunal explained in their careful and thorough extended reasons must fail. As we announced at the end of the hearing this appeal is dismissed.