MRS B ARMSTRONG v BOOTS THE CHEMIST LTD [2002] UKEAT 1047_01_1902

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1047_01_1902Case No Appeal No. EAT/1047/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS B ARMSTRONGAPPELLANTBOOTS THE CHEMIST LTDRESPONDENT
Before
His Honour Judge A WilkieDate 19 February 2002
[1]APPEARANCES For the Appellant MR DECLAN O'DEMPSEY (of Counsel) Instructed by: TLT Solicitors Bush House 72 Prince Street Bristol BS99 7JZ HIS HONOUR JUDGE A WILKIE QC This is an appeal by Mrs Armstrong against the Decision of the Employment Tribunal held at Bristol on 21, 22 and 31 May last year, the outcome of which was that the Tribunal dismissed applications by Mrs Armstrong against Boots the Chemist, which she had made alleging sex discrimination, breach of contract, unfair dismissal and victimisation, she having complained earlier of sex discrimination.[2]The appeal is contained in a Notice of Appeal, received on 28 August last year, and is brought on a number of specific grounds, and in addition, Mr O'Dempsey has sought permission to add two further grounds.[3]The first ground focuses on the issue whether, notwithstanding the finding of the Tribunal, in paragraph 30, that there was a potentially indirectly discriminatory requirement that the Applicant worked until 5 pm, her claim would not succeed unless she showed that the requirement was one with which she could not comply. In addressing that question, the Tribunal first posed for itself a question derived from the House of Lords decision in Mandla -v- Lee , a race discrimination case, namely:
" that "cannot comply" means according to the "current usual behaviour of women …. as observed in practice"."
[4]The test put in that way drew from a sex discrimination case, namely Price -v- Civil Service Commission [1978] ICR 27 , where a formulation similar to that was used in connection with the initial question, namely that of disproportionate impact. Notwithstanding his best endeavours to persuade us that the Tribunal was in error in adopting that test, it is our judgment that quite clearly the Tribunal was directing itself to the right test in that the formulation in Mandla -v- Lee is equally applicable to cases of sex discrimination, as it is in relation to race discrimination, and it seems to us that it is not arguable that the contrary is the case.[5]The Tribunal went on, however, in addressing the test to remind itself that by reason of Section 3 of the Human Rights Act 1998 :
"We must also import into that concept "having regard to respect for her family life" in accordance with Article 8 of the European Convention on Human Rights."
Mr O'Dempsey seeks permission to add to the Notice of Appeal a further ground that the Tribunal erred in law in that it misapplied section 3 of the Human Rights Act 1998 in its approach to the construction of section 1(1)(b)(ii) of the Sex Discrimination Act 1975. The Tribunal, in applying that test, and in particular addressing the impact of Article 8 upon the application of that test, dealt with it in paragraph 33 of its Decision where, having made certain findings to which we will return, they say as follows:
"While we fully respect the applicant's desire to make time for her children in her busy schedule we cannot find that the 5 pm requirement was one which she could not comply with in the light of normal conditions and respect for family life."
[6]Once again, notwithstanding Mr O'Dempsey's efforts to persuade us that the Tribunal either failed to adopt Article 8 as part of its test, and/or failed to apply Article 8 in the course of reaching its conclusion, we find that this Tribunal plainly did import Article 8 as an integral part of the test. It remembered to have regard to that additional aspect of the test, in coming to the conclusion which it did in paragraph 33. We therefore do not agree with Mr O'Dempsey that there is any arguable case that in this respect, the Tribunal erred in its approach, and therefore we do not give him permission to add that ground of appeal.[7]The second ground of appeal was that the Tribunal misapplied the law in concluding that the Applicant could comply by reason of her commitment to ongoing education undertaking public duties. This is not an argument or a ground which Mr O'Dempsey has pursued with any vigour at all in oral argument, and we are of the view that there is nothing in this Decision touching on those aspects of the matter which demonstrates an error of approach and, therefore, our conclusion is that that ground is unarguable, and should be dismissed at this stage.[8]Ground 6.3, however does, in our judgment, raise an issue which is just arguable, and should be ventilated at a full hearing. Having set themselves the test on the question whether the Applicant cannot comply with the requirement in paragraph 30, the Tribunal then went on in paragraph 31 to summarise the evidence on the arrangements which were available for her to make, in order to comply with the requirement up to the relevant date, which was 1 August 2000. In paragraph 32, they set out, briefly, the Applicant's case on why it was that she could not, in the light of the proper test, comply.[9]In paragraph 33, the Tribunal addressed the question whether she could or could not comply with the requirement. In so doing, they started off by recording that it was common ground that:
" working mothers (and fathers) have to strike a balance between their working lives and their commitment to their children" and that responsible employers, like the Respondents, make allowances for many choosing part-time working or job-sharing or career breaks. They go on, two sentences later to say that: "
Equally women with children who work full-time may well find themselves unable to comply with extended or variable hours." Then appears this sentence:
"However, 5 pm is the traditional time to end the working day. Schools and nurseries have adapted to ensure that mothers can work these hours."
There then follows the sentence to which we have already referred, and the conclusion that the requirement was not one with which she could not comply.[10]Mr O'Dempsey criticises the passage to which we have just referred as being the application by the Tribunal of preconceived notions, unsupported by any evidence, and therefore evidencing an incorrect approach to this question. It is this issue which we think is arguable, and it is the issue which is succinctly put in paragraph 6.3 and 6.3.1 of the Notice of Appeal.[11]This Tribunal had received an amount of statistical evidence on the prior issue of whether the requirement impacted disproportionately on women, as opposed to men, and found that it did. However, that statistical evidence also revealed that throughout the whole of the workforce, and indeed, the particular pool within the workforce, whether men or women, a substantial majority of each did work at least until 5 pm. It will be a question, no doubt, for the Tribunal hearing this full appeal whether the Employment Tribunal might be thought to have had that material in mind in making the statement that they did in paragraph 33, and if so, whether they were acting on the basis of knowledge and belief, supported by statistical evidence, or whether, as Mr O'Dempsey contends, they were simply imposing their preconceived notions, without any evidence in support, in an area where preconceived notions have been said to be dangerous, and their inappropriate application to be avoided. That, of course, is not a matter for us today, but we acknowledge that this is an arguable point.[12]The next ground of appeal attacks the Tribunal's conclusion that the discriminatory requirement, if she could not comply with it, was justified. That is contained in paragraph 35. The ground of appeal suggests that the Tribunal erred in concluding that the Respondent was justified because they were asking no more of the Applicant than is asked of women who work full or part-time, and what Mr O'Dempsey argues is that in doing so, they are posing themselves the wrong question, namely not focusing on the discriminatory impact on the Applicant. In the course of argument, he has also sought to assert a number of other difficulties with the formulation of paragraph 35 which, in effect, amounts to a wholesale perversity argument. In our judgment, there is nothing in paragraph 35 which discloses an error of approach or a perverse conclusion. It is plain to us that the way in which the Tribunal have addressed the question by reference to what is asked of women who work part-time is not addressing the wrong question, but is addressing the right question, namely what is its impact on this Applicant, and in assessing that correctly having regard to general experience of the world of work, in order to assess how much this requirement would have impacted on this Applicant. We can see no error of approach there. Therefore, in our judgment, that is a ground which is not reasonably arguable, and therefore should not proceed to a full hearing.[13]There is, in addition, permission sought to add a ground of appeal that the Tribunal's treatment of the victimisation claim really is so truncated that it fails to address the correct question: namely whether but for her making an allegation of sex discrimination, she would have been dismissed, and/or dismissed when she was dismissed.[14]The Tribunal dealt with the victimisation claim, but briefly, at the tail end of its Decision, at paragraph 43 in which they say:
"It follows from our above findings that we find nothing to indicate that the respondents' actions were prompted by her sex discrimination claim"
In our judgment, there is nothing wrong with that approach. It is not obligatory to use the word "but for" and we can see that "prompted" is really no more than an alternative way of saying "but for". Had this been all that there was, then, of course, Mr O'Dempsey's complaints would have been well founded. The paragraph refers specifically, however, to the "above findings", which were comprehensive and wholly inconsistent with any question of victimisation being the cause of the dismissal, and therefore we find that that is not a reasonably arguable point for appeal, and therefore we refuse permission.[15]There remains paragraph 6.2 which addresses the Tribunal's treatment of the fact that during the course of the history of her employment, the Appellant's husband died. He was involved in a car accident on 9 October and on 18 October he died without regaining consciousness. The Appellant's employment was not terminated until after a meeting held on 29 January following that October.[16]Mr O'Dempsey argues that the Tribunal erred in failing to give due consideration to the Applicant's change of circumstances following the death of her husband, both in respect of her ability to comply with the potentially indirectly discriminatory requirement and/or on the question of unfair dismissal. As to the former, the difficulty with Mr O'Dempsey faces is that the relevant date for the requirement was 1 August 2000 which was, of course, prior to the death of the Appellant's husband and therefore the fact that the Tribunal, in addressing the question, made reference to arrangements at weekends which involved her husband, did not disclose any error of law because he was alive during the whole of the period with which they were concerned.[17]The question whether they failed to have regard to the fact of his recent decease in considering the unfair dismissal claim has to be seen in the light of the Tribunal's findings and reasoning from paragraph 17 onward, and in particular, in paragraphs 18, 19, 20 and 21 where there is an account of the events in sequence following his death. It is perfectly obvious to us that his death was the dominant fact that everybody was trying to address and struggle with, and the contention that the Tribunal has failed to have regard to that fact is one which is simply unarguable.[18]Furthermore, in paragraph 41 where they deal with the substance of their conclusion that the Applicant was not unfairly dismissed, the Tribunal make specific reference to the way in which the Respondents dealt with the bereavement issue. Therefore our conclusion is that there is no reasonably arguable point of appeal in respect of the unfair dismissal conclusion, as set out in paragraph 6.2 of the Notice of Appeal.[19]It therefore follows that we dismiss all grounds of appeal, save for 6.3 and 6.3.1, which we would normally permit to go through to a full hearing. However, even were the Appellant to succeed on that point at the full hearing of the appeal, by reason of the fact that we have found that there is no arguable appeal on the grounds of justifiability, then the Tribunal would be bound to dismiss the appeal because no practical effect could flow from its Decision.[20]That being the case therefore, logically we ought, today, to dismiss the whole appeal. This is not because none of it is arguable, but because that part of it which is arguable could not possibly affect the outcome, even if it was successful, having regard to our conclusion on justification.[21]Mr O'Dempsey has sought leave to appeal against our decision on this appeal. We refuse that leave.