MRS D FOX v BETESH FOX & CO SOLICITORS (A FIRM) [2002] UKEAT 0363_01_0710

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0363_01_0710Case No Appeal No. EAT/0363/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS D FOXAPPELLANTBETESH FOX & CO SOLICITORS (A FIRM)RESPONDENT
Before
His Honour Judge Peter Clark Ms G Mills Mr J C ShrigleyDate 7 October 2002
[1]APPEARANCES For the Appellant MS TESS GILL (of Counsel) Oldham Law Centre First Floor Archway House Bridge Street Oldham For the Respondent MR JAMES BOYD (of Counsel) Betesh Fox & Co Solicitors (A Firm) 1617 Ralli Court West Riverside Manchester M3 3FT HIS HONOUR JUDGE PETER CLARK This is an appeal by the Applicant, Mrs Fox, before the Manchester Employment Tribunal, against that Tribunal's decision, promulgated with Extended Reasons on 26 January 2002, dismissing her complaints of unfair constructive dismissal and indirect sex discrimination brought against her former employer, the Respondent firm of solicitors, Betesh Fox & Co.[2]The Appellant commenced her employment with the Respondent as a full-time legal secretary in their personal injury litigation department on 22 July 1996. In October 1999 she left on maternity leave. Her child, Molly, was born on 15 December 1999. In January 2000 she telephoned Mr Flynn, the practice manager, asking whether she could return to work on a part-time basis, that is four instead of five days per week. The Respondent took the view that such a course was impracticable. They required secretaries to work full-time in the personal injury department in order to support full-time fee earners. Mr Flynn relayed this decision to the Appellant. On 2 February she informed him that she would return to work full-time on 15 April but on 28 February she wrote to Mr Flynn asking for written reasons as to why she could not return on reduced hours following the birth of her baby. On 3 March he replied, saying that her working four days a week would place an undue burden on other members of staff and the business as a whole and that the firm could not accommodate it. He set out detailed reasons for that view.[3]On 4 March the Appellant responded, referring to her need to make child-care arrangements and the difficulties this would cause in commuting to and from work. She said that she would prefer to work part-time and would be prepared to job-share on a two and a half or three day a week basis. She also offered to work evenings, or five shorter days finishing at 3.30pm. Mr Flynn discussed these proposals with the partners but they were unacceptable. He so informed her. The Respondent's objections to employing secretaries other than on a full-time basis are set out at paragraph 24 of the Tribunal's reasons.[4]Impasse having been reached the Appellant tendered her resignation on 15 March 2000, which was accepted by the Respondent the following day. Thereafter, although not recorded by the Tribunal in their reasons, it appears that she was thrown onto State Benefits whilst looking for other work.[5]The Tribunal found unanimously that the Respondent was not in repudiatory breach of contract. There was no constructive unfair dismissal. Further, and by a majority, the Tribunal recorded the Respondent's concession that the Appellant had suffered prima facie indirect discrimination on grounds of her sex in not being permitted to return to work on a part-time basis but held that such discrimination was justified. Their findings on justification are set out at paragraph 36 of their reasons thus:
"In respect of the applicant's complaint of sex discrimination, the Tribunal noted that the applicant's complaint was based upon indirect sex discrimination and that it was conceded by the respondent that the ingredients of indirect sex discrimination were satisfied but for the question of justification. Accordingly, the Tribunal focused upon the requirement of justification in section 1(1)(b)(ii) of the 1995 Act [sic]. The question of whether the respondent's requirement that the applicant return to full-time working (and its refusal to allow her to return on a flexible working basis) is to be decided objectively by reference to why the respondent decided to impose the requirement in question. The majority of the Tribunal is satisfied that the applicant's position as a legal secretary involved considerably more than her evaluation of her position (as being 97% audio typing). The majority of the Tribunal is satisfied that the respondent required its legal secretaries to be engaged in full-time positions because of its need to ensure that there was adequate secretarial support for fee-earners and proper continuity in the servicing of clients and files. Having objectively balanced the discriminatory effects of the respondent's requirement and the reasonable needs of the respondent in applying that requirement, the majority finds that the respondent's requirement that the applicant's return as a full-time legal secretary corresponded to a real need on the part of the respondent's undertaking, was appropriate with a view to achieving the objectives being pursued and was necessary to that end. Taking account of the size of the respondent's undertaking, the number of staff it employed, the type of work which the applicant did and how the work was organised, the majority is satisfied that the respondent was justified in insisting that she return on a full-time basis. The minority member was not satisfied that the respondent had demonstrated objective justification in those terms. It follows that the applicant's complaint of sex discrimination is not well-founded and that complaint is also dismissed."
[6]In support of the appeal against the Tribunal's finding on justification for the purposes of Section 1(1)(b)(ii) of the Sex Discrimination Act 1975 , Ms Gill submits, without dissent from Mr Boyd, that the correct approach to that question is clearly set out in the Court of Appeal decisions of Jones v University of Manchester [1993] IRLR 218 and Allonby v Accrington College [2001] ICR 1189 .[7]In Jones , Ralph Gibson LJ said at paragraphs 61-63:
"61 For my part, I cannot find any real assistance in the concept of subjective or objective assessment of the discriminatory effect of the requirement in a case of this nature. The IT [Industrial Tribunal] is required to determine the discriminatory effect of the requirement. That seems to me to require the IT to ascertain both the quantitative effect, ie how many men and how many women will or are likely to suffer in consequence of the discriminatory effect; and, also, what is the qualitative effect of the requirement upon those affected by it, ie how much damage or disappointment may it do or cause and how lasting or final is that damage? 62 I therefore do not agree that it is improper in the balancing exercise to take into account the particular hardships which have lain in the way of the particular applicant, provided that proper attention is paid to the question of how typical they are of any other men and women adversely affected by the requirement. That, I think, is what the IT did. I have cited the passage from the IT judgment in full as set out above. 63 Nevertheless, in my judgment, the IT did misdirect itself in carrying out the balancing exercise. As against the reasonable needs of the University, the IT must set the discriminatory effect of the application by the University of the requirement to Miss Jones and any others excluded by it."
In Allonby, Sedley LJ said at paragraph 29:
"In this situation it is not enough that the tribunal should have posed, as they did, the statutory questions "whether the decision taken by the college was justifiable irrespective of the sex of the person or persons to whom it applied"
. In what are extended reasons running to 15 closely-typed pages, there has to be some evidence that the tribunal understood the process by which a now formidable body of authority requires the task of answering the question to be carried out, and some evidence that it has in fact carried it out. Once a finding of a condition having a disparate and adverse impact on women had been made, what was required was at the minimum a critical evaluation of whether the college's reasons demonstrated a real need to dismiss the applicant; if there was such a need, consideration of the seriousness of the disparate impact of the dismissal on women including the applicant; and an evaluation of whether the former were sufficient to outweigh the latter. There is no sign of this process in the tribunal's extended reasons."[8]We accept that those passages represent the law to be applied. Neither case is referred to in the Tribunal's reasons, Allonby having been decided subsequently. Has this Tribunal demonstrated, particularly in paragraph 36 of their reasons, that it has adopted that approach in reaching its divided opinion? In our judgment it has not.[9]First, there is nothing to indicate that the Tribunal has considered the quantitative and qualitative effect of the requirement for full-time legal secretaries in the Respondent's personal injury department on women, including Mrs Fox, affected by it. That is a pre-requisite for the necessary balancing exercise, taking into account also the needs of the Respondent which is, by contrast, fully set out in the Tribunal's reasons.[10]Secondly, no attempt is made to explain how the minority member reached his or her dissenting opinion. We adopt the observations of Phillips J (President) in Parkers Bakeries Ltd v Palmer [1977] IRLR 215 paragraph 11, where he said this:
"First of all, where there is a majority decision it is very desirable that the views of the majority and those of the minority should be set out clearly and distinctly in separate paragraphs. Unless that is done neither the parties nor the Appeal Tribunal can really get a clear idea of precisely what are the views of the majority and the minority respectively."
Palmer was a comparatively straightforward unfair dismissal case. We think that the desirability of the majority and minority views being clearly and fully expressed in the Tribunal reasons is, if anything, greater in a case such as the present where the Tribunal is required to carry out a careful balancing exercise between the extent of the detriment to employees on the one hand and the needs of the employer's business on the other.[11]In these circumstances we have concluded that the Tribunal's decision on justification, as expressed in their reasons, cannot stand and must be set aside.[12]The question then is what is to be done with this case? Mr Boyd invites us to remit the matter on the issue of justification only to the same Tribunal chaired by Mr Brian Doyle and to allow the decision on constructive dismissal to stand. We decline both invitations.[13]First, we think it undesirable, purely from the point of view of the Appellant's perception, to remit this issue to the same Tribunal which has, by a majority, found against her. This is doubly so where the members of the Tribunal disagreed. Secondly, we think that the fresh Tribunal's conclusion on the issue of justification in the context of indirect sex discrimination may inform their decision on constructive dismissal.[14]In these circumstances, we shall allow this appeal and remit the whole case to a fresh Employment Tribunal for rehearing.