MRS R A SIBLEY v THE GIRLS’ DAY SCHOOL TRUST, NORWICH HIGH SCHOOL FOR GIRLS [2003] UKEAT 1368_01_2005

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1368_01_2005Case No Appeal No. EAT/1368/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS R A SIBLEYAPPELLANTTHE GIRLS’ DAY SCHOOL TRUST, NORWICH HIGH SCHOOL FOR GIRLSRESPONDENT
Before
His Honour Judge J BurkeDate 20 May 2003
[1]APPEARANCES For the Appellant Mr G Clayton Messrs Graham Clayton Solicitors Hamilton House Mabledon Place London WC1H 9BD For the Respondent Mrs Hazel Stuart The Girls Day School Trust Norwich High School for Girls 100 Rochester Row London SW1P 1JP HIS HONOUR JUDGE J BURKE QC The facts This appeal raises a point of some importance, not only to the parties but on a wider basis. Mrs Sibley, the Appellant, was employed at the Norwich High School for Girls, which is part of the Girls Public Day School Trust as a teacher. She had additional responsibilities as a Form Tutor and as Science Co-ordinator. Form tutors had responsibilities beyond those of teaching their subject or subjects to children as the Tribunal found and as is not disputed, Form Tutors had the additional function of being available to the children in each class of the relevant year, on a continuous basis, in order to be able to counsel and support them, offer them pastoral care and apply a consistent level of discipline and support throughout the year. No one could reasonably take any view other than that the role of the Form Tutor was an important and, indeed, vital part of the provision of good quality education. Mrs Sibley was the Form Tutor to year 7, i.e. to twelve year olds.[2]In 1999, Mrs Sibley became pregnant; her child was due in March 2000; before going on maternity leave, she gave appropriate notice of her intention to return to work in June 2000. Later, the date of her return was changed to 3 July. She asked, when this change of date was sought, whether it would be possible for her to return on a part-time basis or on a basis of job-sharing. There was substantial correspondence and discussion about her request; but the school ultimately rejected it. They were happy that Mrs Sibley should return to work on a part-time basis, if a part-time post came up; but they rejected her request to return to teaching which included her Form Tutor's post on a part-time basis because, in the school's view, the responsibilities of a Form Tutor should be discharged by one person only. They explained the position to Mrs Sibley, who was unwilling to accept it and resigned with effect from the end of 2000.[3]Mrs Sibley then presented an Originating Application to the Employment Tribunal in which she claimed that she had been unfairly constructively dismissed and had been the victim of indirect sex discrimination. The school, or to be more accurate, the Girls' Public Day School Trust which owns and operates the school and was Mrs Sibley's employer - resisted her claim on the basis, to put it briefly, that it was not practicable for the school to allow the duties of Form Tutor to be discharged on a part-time or job-share basis and that the school was justified in operating a policy to that effect. It was further asserted that Mrs Sibley could have complied with the requirement that she work full-time but chose not to, although she had adequate childcare arrangements in place or available to her.[4]Mrs Sibley's terms and conditions of employment included a section 4.5 entitled:
"Maternity Leave and Pay"
. Paragraph 4.5.2 of that section is headed:
"Right to Return to Work"; it sets out the statutory provisions originally in the Employment Protection (Consolidation) Act 1978 as to the job to which an employee who had been absent on maternity leave is entitled to return. The paragraph then continues: "
A woman in full-time employment cannot demand to return to work in a part-time capacity as this is inconsistent with her statutory right to return. However were the employer to refuse, he could face a complaint of indirect sexual discrimination in Industrial Tribunal and the employer would have to justify that the job had to be filled on a full-time basis. It is unlikely that most teaching posts would come under that justification except for the Head, Deputy Head and Heads of major departments like Mathematics, Science, English and Modern Languages."[5]The Tribunal recorded, at paragraph 17 of their Decision, that the headmistress of the school, Mrs Bidwell, had said in evidence that she would have wished "Form Tutors" to have been included in the list in the paragraph we have just quoted; but it was not so included at the material time. The Tribunal's Decision[6]The Tribunal, having set out the history in their Extended Reasons, considered firstly Mrs Sibley's claim that she had been constructively dismissed. They found at paragraph 18, contrary to the submission advanced on behalf of Mrs Sibley, that it was not a condition of Mrs Sibley's employment, because her role was not included in the list to which we have just referred, that she was entitled to return in a part-time capacity and that the employers had not failed to give sufficient or sufficiently serious consideration to her request so to return. They found that the school had given careful consideration to Mrs Sibley's request and that the school was justified in rejecting it. They found, therefore, that there was no breach of any term of the contract of employment sufficiently important to justify resignation, and rejected Mrs Sibley's claim to have been constructively dismissed.[7]There is no appeal against this part of the Tribunal's Decision; and it was accepted by Mr Clayton, on behalf of Mrs Sibley, that her case as to constructive dismissal had never been put and could, therefore, not now be put on the alternative basis that the indirect sex discrimination of which she complained, if established, constituted by itself a breach of the employers' obligations such as to justify Mrs Sibley in treating herself as constructively dismissed. Accordingly, the constructive dismissal aspect of Mrs Sibley's claim has been finally decided by the Tribunal and we are only concerned in this appeal with the Tribunal's decision upon Mrs Sibley's claim that she had been the victim of sex discrimination.[8]Having thus decided the constructive dismissal claim, the Tribunal then turned to the discrimination claim. No allegation of direct discrimination was made. Mrs Sibley's case was that she had been the subject of indirect discrimination, contrary to section 1(i)(b) of the Sex Discrimination Act 1975 . That section provides as follows:
"(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if - … (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."
[9]It was conceded by the school that they had applied to Mrs Sibley a condition or requirement that persons in her position (which, in paragraph 20, the Tribunal described as that of "Year Tutor" but was in fact that of "Form Tutor") must work on a full time basis and, to be a part-time teacher, had to surrender their additional responsibilities. It was further conceded that that condition or requirement, or those conditions or requirements was or were potentially discriminatory. Thus section 1(1)(b)(i) of the Act was satisfied.[10]The Tribunal recorded that there was an issue as to whether section 1(1)(b)(iii) was satisfied on the facts, there being evidence that Mrs Sibley had not shown that she could not comply with the condition or conditions; but they made no finding on that issue and focused their attention on section 1(1)(b)(ii), namely whether the school had shown that the condition or conditions (which we shall refer to hereafter as "the condition") was or were justified. In paragraph 23 of their Decision they said that both parties recognised that the post of Form Tutor was one which the employers believed had to be undertaken by one person; whether that was objectively justifiable or not turned on the evidence. Each side called expert evidence on that issue. The Tribunal concluded as to that evidence firstly that there was a body of respected professional opinion on both sides. They then concluded that the school's policy had a rational professional basis, that the school's belief that the requirement that the duties of a Form Tutor had to be carried out on a full-time basis for the proper management of the school was reasonably held and that the condition was objectively justified. They said, at paragraph 25:
"That belief is firmly held, it has a rational, professional basis and has been the position of the respondent from the outset of this case. There was an objective justification for the condition. The Respondent's case for justification goes far beyond convenience. We find that the condition that the post of year tutor in this school needed to be held by a full time teacher and was not amenable to a job-share. The condition or requirement was in the view of Mrs Bidwell, and that view was reasonably held, a necessity for the proper management of her school. Her opinion is not the test, but we also find the condition objectively justified. A particular feature of the school is that it is an all girl establishment where the subject tutors change with each lesson and the school has a particular need for Year Tutors to be available to the children in each class on a continuous basis in order to be able to counsel and support them, offer them pastoral care and apply a consistent level of discipline and support throughout the class, throughout the school year. That is the rationale and that is what we find to be an acceptable and necessary policy. In no sense has the school invented the policy for the purposes of this case. For these reasons we are persuaded to accept and to prefer Mr Chaplin's view, supporting the school policy in the matter of year tutors being full time teachers."
Mr Chaplin was the employers' expert witness.[11]The Tribunal then went on, in a paragraph, which is also numbered 25, and which we shall describe as the second paragraph 25, to consider whether there was some other non-discriminatory way of achieving the object of the school's policy as to Form Tutors and found that there was not and that the policy was a necessary one for the school.[12]On these findings it was not necessary for the Tribunal to consider further whether Mrs Sibley could not comply with the condition; her claim failed because the Tribunal found that t he condition was objectively justified.[13]We should add that no claim was made under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which came into effect on 1 July 2000. The Appeal[14]Mrs Sibley's Notice of Appeal put forward two grounds of appeal against the Tribunal's decision on the issue of sex discrimination. The second ground, that the Tribunal's finding that the condition was justified was perverse, was dismissed at the preliminary hearing of the appeal. We have, accordingly, only been required to consider the first ground which is that the Tribunal applied to the issue of objective justification the wrong test, namely whether the policy leading to the application of the condition rather than the discriminatory effect of the application of the condition was justified. The argument that the Tribunal erred in that respect is based on the decision of the Court of Appeal in Whiffen -v- The Governing Body of Milham Ford Girls School and Oxfordshire County Council [2001] IRLR 468 , which decision had not been reported when the Tribunal made their decision in this case and which was, therefore, not before the Tribunal. Mr Clayton, on behalf of Mrs Sibley, said at the outset of his submissions that his argument based on Whiffen was the only point in the appeal - although, as will be seen, he developed a similar but allied point .[15]In Whiffen a redundancy situation arose at the school where Mrs Whiffen was employed on a part-time basis as a modern languages teacher under a series of fixed-term contracts. The school followed Oxfordshire County Council's model redundancy policy; that policy included what was described as a "highly praised selection procedure"; but one of the provisions of that policy was that, in a redundancy situation, any employees who were on fixed-term contracts did not qualify for that selection procedure because employees who were not permanent but were on fixed term contracts were to be made redundant first regardless of their length of service or experience because permanent contract holders had a right to expect greater security of employment than temporary staff. When that policy came to be applied at Mrs Whiffen's school, the numbers of men and women teachers employed on the one hand on permanent contracts and on the other hand on fixed-term contracts were such that, treating those teachers as the relevant pool, the proportion of women who could comply with the requirement or condition that to qualify for the redundancy selection process it was necessary to be employed on a permanent contract was considerably smaller than the proportion of men. The school contended that the condition or requirement was objectively justified; the Employment Tribunal found in the employers' favour; their decision was upheld by the Employment Appeal Tribunal; but the Court of Appeal allowed Mrs Whiffen's appeal and remitted her claim to the Employment Tribunal for the assessment of compensation.[16]The Court of Appeal took as its starting point what was described by Henry LJ, at paragraph 19 of his judgment, as the generally accepted test for justification set out by the European Court of Justice in Bilka-Kaufhaus GmbH -v- Weber Von Hartz [1986] IRLR 317 , adopted into domestic law in Staffordshire County Council -v- Black [1995] IRLR 234 , in these words:
"the test is that set out in Bilka-Kaufhaus GmbH ; namely, is the difference in treatment based on objectively justifiable grounds; are the measures chosen appropriate to achieve the aims of the undertaking, and are they necessary to achieve those aims?"
[17]Henry LJ continued:
"21 What the respondents had to show was why it was important that only permanent employees were permitted to take part in the selection procedure to avoid redundancy, and why that was necessary. Given the school's policy as to fixed term contracts ….. the respondents would have met considerable difficulties. It is not immediately clear why it is 'appropriate' to the running of a good school to ensure that, in the event of redundancies, even those on fixed term contracts who had served the school for upwards of five years should be automatically discharged and not even be allowed to take part in the redundancy selection competition, nor why such a requirement was necessary to achieve the aims of the school. 22 But the answer to this appeal does not turn on those speculations. It is much more fundamental. The respondents simply did not call evidence that went to the statutory question, because they had not properly focused on the right question. 23. To demonstrate this it is necessary to analyse the tribunal's extended reasons. By paragraph 9 they have correctly identified the 'requirement or condition' that the employer has imposed and which he must justify. That is the rule that those on fixed term contracts cannot take part in the redundancy avoidance selection process, but only permanent staff can apply; that consequently those on fixed term contracts are debarred from the redundancy avoidance selection process, and long service on a series of fixed term contracts counts for nothing. 24 That is what the respondents had to justify, and there was no attempt so to do. What in fact they set out to justify was the need for the employers to have some sort of redundancy policy. What they should have tried to justify was not the general policy, but the specific requirement….. 25 It is plain from the wording that the employment tribunal thought that the requirement could be justified by just having a redundancy policy, when it can only be justified by showing that the particular requirement or condition of such a policy was necessary."
[18]Buxton LJ, at paragraph 35, said:
"35 What the employer had to show was that the policy of dismissing fixed term contract holders first was necessary to meet the employer's needs. The evidence adduced by the employer, so far as we have been able to elicit it with the assistance of Mr Kurrein, who appeared for the employer before the tribunal, never addressed that question. The needs were not identified by the employer; the necessity for, as opposed to the commonplace use of, the policy was never considered."
[19]The thrust of Mr Clayton's submission to us was that the Tribunal in the present case had made the same error as had the Tribunal in Whiffen , i.e. they had considered whether the policy of the school was objectively justifiable and necessary and not whether the discriminatory requirement or condition was justified.[20]Alternatively, he submitted, the Tribunal had decided the justification issue, not by considering whether the condition was objectively justified, but by deciding that the implementation of that condition was believed to be appropriate and necessary by the school and that the school's view fell within the range of reasonable responses to the situation.[21]Mr Clayton supported these submissions by detailed reference, in particular, to the two paragraphs of the Tribunal's Decision, numbered 25. He agreed that the Tribunal had correctly identified the issue when, in paragraph 23, they said:
"….we must consider whether the respondents refusal even to contemplate job sharing the Year Tutor post, was justified. That is the heart of this case."
Having thus described the central issue, the Tribunal in paragraph 24 set out how they had received the expert evidence upon that issue, from two experts on behalf of Mrs Sibley and from Mr Chaplin, on behalf of the school. They found that there were two points of view, held by people of standing and worthy of respect in the profession; and in the first paragraph 25, they expressed their preference for Mr Chaplin's view.[22]Of that paragraph, Mr Clayton submitted:(1) that the sentence "That belief is firmly held" in the first paragraph 25 was irrelevant because the school's belief was not in issue; what was in issue was whether the school's application of the condition was objectively justified. He accepted, however, that the existence of a rational professional basis for the school's view was, or was potentially, supportive of objective justification.(2) That the Tribunal had continued in the first paragraph 25 to look at the school's subjective view of the condition and to consider whether the school reasonably held that view.(3) The sentence starting "We find that the condition" did not make grammatical sense.[23]Mr Clayton drew attention to the second paragraph 25 in which the Tribunal went on to consider whether there was some other non-discriminatory way in achieving the object of providing suitable Form Tutor arrangements; he submitted that the Tribunal resolved that issue again by looking at the school's subjective views. Conclusions[24]We address first Mr Clayton's criticisms of the Tribunal's use, to describe the additional responsibilities which the school did not permit Mrs Sibley to undertake on a part-time basis, as being, on some occasions in the decision, those of a Form Tutor and, on other occasions, the decision being those of a Year Tutor. It is clear that the Tribunal used both expressions to describe the same position at different points in the decision; but that inconsistency and the misuse of the term "Year Tutor when the relevant position was that of Form Tutor" did not, in our judgment, per se constitute any error of law or demonstrate any mistake in the Tribunal's approach to or decision upon the central issue, as opposed to a simple confusion of terminology. What was important was whether the condition that those responsibilities should be carried out by a full-time teacher and not by a part-time teacher was objectively justified and not what description of those responsibilities was used by the Tribunal.[25]As to Mr Clayton's principal point, in our judgment, the Tribunal in this case did not err in the same way as had the Tribunal in Whiffen . In Whiffen the Court of Appeal was considering a policy which was, on its face, gender-neutral. However, one facet of that policy, when it was applied to the restricted pool of teachers at the relevant school, operated so as to impose a condition which was prima facie discriminatory; and the school had therefore, to show that that condition was objectively justified. However, as is clear from Henry LJ's judgment, the school's evidence did not address that issue but sought to justify the redundancy policy as a whole.[26]In the present case there was no broad based policy of which the condition under examination was only part. The Tribunal was in this case examining throughout only one matter of policy, namely the condition that a Form Tutor should be full-time. The policy here was identical with the condition; and the evidence adduced by the school, which the Tribunal accepted, went directly to showing that that condition was objectively justified. Thus the Tribunal found, in the first paragraph 25, that there was a policy that the Form Tutor's position should not be job-shared and then considered whether and decided that the policy was objectively justified. The facts of this case and the issue to which the evidence of justification was directed were not the same as in Whiffen's case. In this case the Tribunal used the word "policy" and "condition" interchangeably because they were one and the same; that was not so in Whiffen ; the error of law in the Tribunal's approach in Whiffen , contrary to Mr Clayton's submissions, cannot be transposed into the Tribunal's approach in this case. The school's evidence as to justification in this case was directed specifically towards the discriminatory condition, was directed to establishing that that condition was objectively justified; and the Tribunal accepted the school's evidence and found that the condition was objectively justified. No error of law is revealed in that process such as that made by the Tribunal in Whiffen .[27]We further reject the arguments that the Tribunal looked not at objective justification but at the subjective view of the school or that they considered whether the school's policy was within the range of reasonable responses. It is plainly correct that, in the first paragraph 25, the Tribunal did refer, more than once, to the view of the school or of Mrs Bidwell, the Headmistress; but if that paragraph is read as a whole, as in our judgment it should be, the Tribunal can be seen to have been concluding that they preferred the evidence of Mr Chaplin, which supported the justification put forward by the school for the condition that a Form Tutor had to be full-time, namely that the condition had a rational, professional basis, that the post of Form Tutor needed to be held by a full-time teacher for the reasons that the Tribunal set out, and was not amenable to a job-share.[28]Indeed, the Tribunal expressly said in the first paragraph 25 that Mrs Bidwell's opinion was "not the test"; and the grammatical infelicity in the sentence starting "we find that" does not affect the clear meaning of the paragraph taken as a whole and, in any event, disappears if that sentence is read together with the following sentence. There are other ways in which the sentence of which Mr Clayton was critical can be seen, in the context of the paragraph as a whole, to make sense. We do not see anything in that sentence which undermines the rest of the paragraph or indicates or, still less, amounts to an error of law.[29]Finally, we see no error of law on the part of the Tribunal in embarking in the second paragraph 25 upon an examination of the evidence as to whether there was some other non-discriminatory way of achieving the object of providing suitable Form Tutor arrangements. The Tribunal were, at this stage of their decision, considering whether the condition was necessary. They prefaced that paragraph by indicating that they needed to look at possible alternatives before they could "endorse the condition" i.e. conclude that it was objectively justified; they directed themselves to look at that issue because they rightly felt that it was relevant to do so; if there had been some other non-discriminatory way of achieving the desired effect, the condition would not have been or might not have been necessary. However, the Tribunal found that there was no other way of achieving the desired effect and that there was good reason for the school to say that the policy was a necessary one. We see no error of law on the Tribunal's part either in entering upon consideration of the issue which they describe in the second paragraph 25 or in their resolution of that issue.[30]Looking at the two paragraphs 25 together, we are satisfied that the Tribunal directed themselves properly as to the issue which they had to decide as to objective justification, did not err in law in their resolution of that issue and reached a decision which, on the facts, was open to them.[31]For these reasons this appeal is dismissed.