MINISTRY OF DEFENCE v MRS H M WILLIAMS [2003] UKEAT 0833_02_0810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0833_02_0810Case No Appeal No. EAT/0833/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MINISTRY OF DEFENCEAPPELLANTMRS H M WILLIAMSRESPONDENT
Before
His Honour Judge Peter Clark Mr D J JenkinsDate 8 October 2003
[1]APPEARANCES For the Appellant MISS J EADY (of Counsel) Instructed By: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS For the Respondent MS D ROSE (of Counsel) Instructed By: Messrs Paris Smith & Randall Solicitors 1 London Road Southampton Hampshire SO15 2AE HIS HONOUR JUDGE PETER CLARK This is an appeal by the Ministry of Defence, the Respondent before an Employment Tribunal sitting at Southampton chaired by Mr M P Kolanko, against that Tribunal's decision, promulgated with extended reasons on 20 June 2002, upholding the Applicant, Mrs Williams' complaint of unlawful sex discrimination. We shall use the same description of the parties as below. Specifically, the Tribunal held that:(1) In not pre-selecting the Applicant for an Advanced Pre-Employment Training ("APET") course in September 2001 after she had been unable to attend an APET course for which she had previously been selected in September 2000 due to pregnancy, the Respondent directly discriminated against the Applicant on grounds of her sex, and(2) In requiring her to return to full duties notwithstanding the fact that she was breast-feeding her child after her ordinary maternity leave (OML) had expired the Respondent discriminated against the Applicant directly, alternatively indirectly, contrary to section 1 of the Sex Discrimination Act 1975 .[2]Having considered the detailed and careful submissions of experienced counsel appearing before us, neither of whom appeared below, we have concluded that the appeal fails in respect of the first finding by the Tribunal and succeeds in respect of the second findings. Our reasons for that conclusion are as follows. Pre-selection for APET[3]The material facts found by the Tribunal were that the Applicant, who joined the RAF in September 1989, was a highly regarded and competent Engineering Officer who attained the substantive rank of Flight Lieutenant in January 1996. In her appraisal report for 1999 she expressed the desire to undertake APET, leading to the substantive rank of Squadron Leader. Her appraisal assessed her as a strong candidate for APET and she was recommended for promotion.[4]In September 1999 she attended an APET Board achieving joint top score. She was informed that she was eligible to take up APET training in September 2000, leading to a starred, or designated appointment as acting Squadron Leader in London commencing in September 2001.[5]In January 2000 the Applicant discovered that she was pregnant and her expected week of confinement coincided with the APET course scheduled for September 2000.[6]She informed both her Desk Officer, responsible for her career path and her Personnel Management Agency that she would be unable to attend the course in September 2000. It was her expectation and that of her line manager, Wing Commander Barker, that she would, as a consequence of her pregnancy, be pre-selected for an APET course in September 2001.[7]She commenced maternity leave on 27 August 2000 and her child was born on 3 October 2000. In the event she was not pre-selected for the 2001 APET course. Instead her name was submitted to an APET Board in November 2000 but she was not selected to attend the 2001 APET course.[8]Following a grievance taken out by the Applicant the RAF formally amended its Promotion Board Procedures on 1 February 2002 to provide that, if an officer withdraws from an APET appointment because of pregnancy, she is to be advised that if she returns to the Service after maternity leave and still wishes to undertake an ATET appointment she will be pre-selected on a subsequent APET Board, should a suitable appointment be available.[9]That amended procedure came too late for the Applicant, who had accepted discharge from the Service on pregnancy grounds on 16 March 2001, effective on 21 April 2001. During her employment the relevant procedure provided that any officer who, following selection, withdraws from an APET for unforeseen circumstances is to be presented to the APET Board the following year. No provision was made for pre-selection where a suitable appointment was available.[10]The Tribunal found, critically we think in this particular case, that there would have been no practical problems in placing the Applicant on an APET course subsequently in view of her expertise and qualifications (Tribunal's reasons paragraph 21). That finding was based on the evidence of Group Captain Samuel, President of the Promotions Selection Board and the APET Selection Board, recorded at paragraph 5(y) of the Tribunal's reasons.[11]On these facts the Tribunal concluded, applying the Webb v EMO principle, that as pregnancy was the causative factor of her being deprived of the September 2000 APET course, that not being a circumstance which could apply to a man, in not being offered pre-selection for the 2001 course (having found that pre-selection would cause no practical problems in her particular case) the Applicant had suffered direct discrimination. In so finding the Tribunal expressly rejected a submission advanced on behalf of the Respondent below that to so find would amount to impermissible positive discrimination (Tribunal's reasons paragraphs 20-21).[12]In this part of the appeal Ms Eady's clients are, it seems to us, in danger of elevating the findings of this Employment Tribunal on the facts of the particular case to a statement of principle of general application, namely that in every case where an officer is unable to attend an APET course due to pregnancy she must be pre-selected for a course the following year. The point is made that each year different designated three year appointments flow from that particular year's course. If so, then that is positive discrimination in favour of pregnant women, contrary to the judgment of the European Court of Justice in Kalanke v Freie Hansestadt Bremen [1996] ICR 314 .[13]On our reading of the Tribunal's reasons they were, permissibly in our view, dealing with the particular facts of this case. Those facts included the concession by Group Captain Samuel to which we have referred. Her case fell squarely within the Respondent's own revised procedure.[14]In these circumstances we are unable to detect any error of law in the Tribunal's approach, which is entirely consistent with Webb v EMO principles. This part of the appeal therefore fails. Breast-feeding policy[15]In addition to raising a grievance concerning her non pre-selection for the 2001 APET course the Applicant also raised this complaint. In about March 2000 the Applicant received a Defence Council Instruction (DCI JS 35 2000) dealing with maternity arrangements for Service women in the regular armed forces. Under the heading "Breast-feeding" paragraph 37 read:
"Service women who wish to breast-feed their child should bear in mind that on their return to duty they are liable to undertake their full range of duties . Local circumstances may permit a return to duty whilst still breast-feeding, however, service women have no right to this and will be expected to go on exercise, take part in operational deployments, be drafted to seas service (if so liable), and undertake unaccompanied or emergency tours. It is, of course, up to the individual service woman to decide whether to breast-feed, and, if so, when to stop. The Department of Health currently recommends four to six months for exclusive breast-feeding. After that there is 'little benefit'. However, service women who wish to be certain of being able to breast-feed beyond their eighteen weeks' OML period should take advantage of OMA [occupational maternity absence] to cover this period."
[16]The Tribunal refer to that provision in their reasons and also to a Guide published by the Department of Health which states:
" ... the scientific evidence indicates that the longer a woman continues breast-feeding ... the greater the ongoing health benefits for her and her baby, at least until her baby is twelve months old."
In her grievance presented on 22 January 2001 she complained that the Respondent's breast-feeding policy was itself discriminatory. Direct discrimination[17]The Tribunal concluded, reasons paragraph 23, that a breast-feeding mother was entitled to "free-standing protection" beyond the period afforded by ordinary maternity leave (OML). Detrimental treatment in these circumstances amounted to direct discrimination on grounds of sex.[18]Ms Rose does not seek to uphold that proposition. She accepts the statement of law advanced by Ms Eady. In short, protection afforded to women following child-birth is limited either to the maternity leave period or to circumstances where Health and Safety issues arise. The former had been passed; the latter was not considered by the Tribunal. In these circumstances this part of the decision cannot stand. Indirect discrimination[19]Ms Eady contended that the alternative claim based on indirect discrimination (the same set of facts cannot give rise to both direct and indirect discrimination) was not before the Tribunal. We reject that submission. It was trailed by the Applicant's solicitor in correspondence and was specifically dealt with in written closing submissions below by Mr Fox, then appearing on behalf of the Respondent.[20]As to the Tribunal's findings on indirect discrimination, again Ms Rose does not espouse the Tribunal's reasoning at paragraph 28 of their reasons. Rather she submits that he real question for the Tribunal was whether the Respondent imposed a requirement on the Applicant, during pregnancy, that upon her return to work she would be liable to undertake the full range of duties; that that was a requirement with which she could not comply; that such a requirement had an adverse impact on women; that she suffered detriment in that she left the service; and that there was no justification for the prima facie discrimination advanced by the Respondent.[21]Whilst we accept that that way of putting the case below may just be discerned from the material before us, it was far from clear. We have concluded that whilst both the findings of direct and indirect discrimination under this head of the Applicant's case must be set aside, before any remitted hearing the Applicant's case on indirect discrimination must be fully pleaded. DISPOSAL[22]It follows that the appeal will be allowed to the extent that the claim of both direct and, in the alternative, indirect discrimination arising from the breast-feeding policy complaint will be remitted for rehearing.[23]A question arose as to whether that remitted hearing ought to take place before the same or a different Tribunal. The complication is that the original Tribunal hearing the liability issue cannot now be reconvened. The Respondent has consented to a substitute member for the purposes of a remedies hearing but not, it is submitted by Ms Eady, for the purposes of a remitted liability hearing. Ms Rose disputes that proposition.[24]That issue is, however, rendered moot. We have concluded that the proper course is to remit the matter to a wholly new Tribunal. Whilst that may result in additional expense, the original two members of the first Tribunal have formed a view as to the merits of this part of the case such that the Respondent may feel, if unsuccessful, that the majority of the Tribunal at least gives the appearance of partiality. In these circumstances the breast-feeding issue will be remitted to a fresh Tribunal for rehearing.