ALAN GIBSON v THE SCOTTISH AMBULANCE SERVICE [2004] UKEAT 0052_04_1612

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0052_04_1612Case No Appeal No. UKEAT/0052/04Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
ALAN GIBSONAPPELLANTTHE SCOTTISH AMBULANCE SERVICERESPONDENT
Before
Lord Johnston Mr J M Keenan Mr R P ThomsonDate 16 December 2004
[1]APPEARANCES For the Appellant Mr A Hardman, Advocate Instructed by- Messrs Stronachs Employment Division 70 Carden Place Queens Cross ABERDEEN AB10 1UP For the Respondent Mr B Napier, Queen's Counsel Instructed by- Messrs McGrigor Donald Solicitors Princes Exchange 1 Earl Grey Street EDINBURGH EH3 9AQ SUMMARY PART TIME WORKERS LORD JOHNSTON: This is an appeal at the instance of the employee against a decision of the Employment Tribunal sitting in Inverness against a majority decision that the appellant's application for a finding that he had been discriminated against in respect of the part-time working Regulations, should be refused. A decision of the Tribunal to the effect that he had been discriminated against in relation to overtime was not appealed by the respondents.[2]The issue related to the fact, which is not in dispute, that the number of standby hours that the appellant, as a part-time worker, was required to keep was disproportionate to those required of a full-time worker as a comparator. The appellant was employed part-time in the Ambulance Service, based at Lairg. His comparator was employed full-time, based at Wick. It was not in dispute that the so-called "pro rata" principle was offended and the issues before the Tribunal were purely questions of law, namely:-(1) Did the requirement that the applicant work a higher proportion of standby to rostered hours than his comparator, constitute a detriment in terms of Regulation 5(1)(b)?(2) Was the less favourable treatment on the ground that the applicant is a part-time worker?(3) Is the less favourable treatment justified on objective grounds?[3]There was no dispute that the higher proportion of standby to rostered hours that the appellant was required to work, constituted a detriment in terms of the relevant Regulation. The issues before us, therefore, were the second and third ones we have set out and we will deal with them separately.[4]Issue (2)[5]In this respect the decision of the Tribunal is as follows:- " II Is the less favourable treatment on the ground that the applicant is a part-time worker? It is well established that motive or intention to discriminate is not a necessary condition of liability for discrimination, although it may be relevant to the consideration of remedy. The respondents accepted they did not apply their minds to the effect of the Regulations, admitting that no review of their employees' terms and conditions was undertaken at the time the Regulations came into force. We noted Mrs McKinney's evidence to refute the applicant's claim that he was being exploited as a part-time worker, that 'the way the service is provided is based on demand and not on getting services on the cheap', although she did concede it is cheaper in terms of pay for the service to have more people on standby hours. She drew attention to 7 stations where part-timer workers have a better ratio of rostered to standby hours than full-timers. She testified she knew of no case where the decision was taken to provide a service run by part-time rather than full time workers because it would be cheaper, and to illustrate that claim, she referred to 3 stations which received funding to change from part-time to full time working from the Scottish Executive after making out a proper business case. They were prioritised because of their high demand levels, unlike Lairg where demand was very, very low. We were referred to two tests for the purpose of assessing whether the less favourable treatment was "on the ground" of part-time status. Applying, first, the causative "but for" test, held as the appropriate test by the EAT in Matthews , and which as pointed out in James v Eastleigh District Council (per Lord Goff) avoids, in most cases at least, complicated questions relating to concepts such as intention, motive, reason or purpose and the danger of confusion arising from the misuse of those elusive terms, the question is: Would the applicant, working a weekly average of 56 hours on standby, have received the same treatment as Mr McLeod who works an average of 35 hours of standby, but for his part-time status? It seemed to the majority of us that he would not have been, for, as argued by Mr Napier, even were the applicant to work full-time hours, the manning level in Lairg would still require him to put in 9 more standby hours each week than Mr McLeod. Evident from the table of ratios produced (R10) are wide variations throughout the North West area between the number of standby to rostered hours worked, ranging at one extreme from Dingwall, a full time station with 12 full time workers performing 40 rostered hours and less than 2 standby hours each week, to the other prevailing at Barvas, Benbecula, Mallaig and Strontian, where the "Equated on call per month per person" shows that the part-time workers at these stations undertake an average of 28 full-time hours and 69.75 standby hours (R10). Applying the subjective approach preferred by the House of Lords in the cases of and Chief Constable of West Yorkshire Police v Khan (and also Nagarajan v London Regional Transport ), for determining less favourable treatment by focusing on the phrase "by reason that", the proper question to be asked was not, "but for bringing proceedings against the chief officer of police, would Sergeant Khan have been accorded the less favourable treatment of which he complained?" but rather, "Was Sergeant Khan refused a reference by reason that he had brought proceedings against the chief officer of police under the [Race Relations Act]?" When so stated, the House of Lords concluded that the chief officer clearly established, in the circumstances, that he did not refuse a reference by reason that Sergeant Khan had raised proceedings under the Act, but rather because, he needed temporarily to preserve his position in the outstanding proceedings. Translating that question to the facts of this case, the question for the tribunal is, "Is the requirement for the applicant to work a higher ratio of standby to rostered hours than his full time comparator by reason that he is a part-time worker?" What is the respondents' reason or motivation for requiring him to do so: is it on the grounds of his part-time status, or is it for some other reason? Mr Hardman considered the respondents' reason to be unavoidably on account of the applicant's part-time status. The fact that the respondents chose to employ him as a part-time worker when they could have chosen to staff Lairg with full-time workers, left them with no alternative but to require him to work more standby hours. Mr Napier criticised Mr Hardman's argument for conflating two factors: the choice the respondents made and the fact of the applicant being a part-time worker, which, in his opinion, was not enough to satisfy the 'by reason that' test. The tribunal's function is to enquire into the respondents' state of mind to determine their motivation. The evidence suggested no single determinant, but a combination of factors, interacting in support of establishing the level of service required (R3). Among these factors is part-time status, but the reason for requiring the applicant to work a higher ratio of standby hours seemed to the majority to be primarily the level of demand in Lairg, cost and some attempt at arriving at an equitable loading. As a full time worker, Mr McLeod spent 40 hours away from home at the ambulance station in Wick and 35 hours on standby at home. To have required him to put in the number of standby hours undertaken by the applicant would have meant a commitment to the service of 96 hours per week. The applicant, on the other hand, spent all his working hours both rostered and standby at home. He therefore, enjoyed a greater opportunity, once he had discharged his obligation to clean the ambulance and check its equipment, of using his time for contact with his family and friends to pursue his own interests or to suit his inclinations, except when actually called out. Further, we noted the word "solely" which appears in Clause 4 of the Framework Agreement, but is not reflected expressly in the Regulations. Under Clause 4, part-time workers are not to be treated less favourably than full time workers, solely because they work part-time. Where there is a divergence between a national measure and a directive, the national measure should, so far as it is possible for the national court to do so, be interpreted and applied so as to give effect to the directive by a purposive interpretation. As Regulation 5(2)(a) uses the word "the ground" in the singular, it suggests the treatment should be found to be on one ground only (whatever that ground may be). If that ground is not shown to be the part-time status, then the condition is not fulfilled. It would, we think, be unlikely to find a sole or single reason in the circumstances of a case like this. The contrary intention to the rule of interpretation that words in the singular include the plural, in our view, appears to apply to the context of the condition in Regulation 5(2)(a). On the balance of probabilities, the majority of us accepted the respondents' position that the decision whether a technician should be employed full or part-time was based on demand, and accordingly we were not persuaded that the sole reason for the less favourable treatment was the applicant's position as a part-time worker."[6]In this respect the proposition advanced by Mr Hardman, on behalf of the appellant, was based on the test with regard to the phrase "on the ground that he is a part-time worker" was to ask the question "What would be the position but for the part-time status of that worker". He advanced this proposition against the background of discrimination cases generally, and, in particular James v Eastleigh Borough Council [1990] IRLR 288 . He argued that the "but for test", which was objective, was the way in which the Tribunal should have determined whether or not there was discrimination on the ground of part-time working. He referred also to Matthews & Others v Kent & Medway Towns Fire Authority & Others [2003] IRLR 732 , although he recognised the different position that had been adopted by the House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 . Both parties also made reference to Nagarajan v London Regional Transport [1999] IRLR 572 .[7]Against that background Mr Hardman submitted that applying the "but for" test the only reasonable conclusion was that, but for his part-time status, the appellant would not have suffered a detriment by having to work a higher proportion by standby hours to rostered hours than his comparator.[8]Mr Napier, Q.C., appearing for the respondent, argued that the "but for" test was now out of date in respect of both comments by Lord Browne-Wilkinson in Nagarajan , and Lord Nicholls in the House of Lords, and, particularly, by Lord Nicholls in Khan where he states at paragraph 29:
"The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
[9]This approach had been reinforced by both by the EAT and the Court of Appeal in The Law Society v Bahl [2003] IRLR 640 and [2004] IRLR 799 . Accordingly, Mr Napier argued, the Employment Tribunal in this case had not erred in seeking to investigate the reason or motivation for acquiring the appellant to work the particular ratio of standby to rostered hours which gave rise to the detriment. This, he said, was recognised by the EAT in London in Hendrickson Europe Ltd v Christine Pipe EAT 15/4/03.[10]In addition, Mr Napier argued that the word "solely" should be written in to the Regulation as that was found in the Directive and the Regulation should be construed against the background of the Directive. If that was right, any other reason that might be found to apply for or to the issue of part-time working and the standby hours, would disqualify the Regulation from applying.[11]In seeking to resolve this matter, we are satisfied that the proper test to be applied is as set out in Khan , albeit that is in relation to racial discrimination. Whatever may be the motive of the employer, it is necessary to look at the intention behind the decision to impose part-time working, whatever may be its consequences in other aspects. We therefore reject the "but for" test in this context and we consider that for the reasons given by the Tribunal, they applied their minds to the right question and reached a conclusion, namely, that the real reason was the issue of demand in the local area which means that the appellant was not being discriminated against on the ground that he was a part-time worker per se . It is also of significance, that, on the evidence, some part-time workers in other areas did not fail to meet the "pro rata principle" and therefore it cannot be said to be a sole question that the issue was determined by simply part-time working and nothing else.[12]Mr Hardman accepted that his secondary position that the decision of the Tribunal was perverse, was extremely difficult for him to justify if they had applied their mind to the right test and not applied the "but for" test. We accept that this position was properly taken and do not consider the Tribunal can be criticised in any way for its approach to the evidence once it had determined to proceed upon the right test.[13]That is enough to dispose of this appeal but since the third issue, namely, that of justification was also before us, it is appropriate we should offer a comment in that respect.[14]Issue (3)[15]In essence, the position of Mr Hardman here, was, that, the real reasoning behind the decision to impose part-time working, was, in fact, economy, and, in this respect, reference was made to Hill and Stapleton v Revenue Commissioners and Department of Finance [1998] IRLR 466 where the European Court of Justice at paragraph 40 indicates that, economy, if the sole reason for the relevant decision, cannot be a justifiable one. In this respect Mr Hardman also relied upon the DTI Guidance Notes which, it was submitted by Mr Napier, did not properly reflect the decision of the European Court in a case Bilka – Kaufhaus GmbH v Weber Von Hartz [1986] IRLR 317 .[16]In the opinion of the majority, the approach to be adopted in relation to the question of objective justification, has to be looked at in the round against the background of what the employer was seeking to achieve and why he was so acting. Here again, we are entirely satisfied that the approach to the Tribunal is correct, or, at least acceptable upon the evidence, to the effect that the requirements of the area in respect of an ambulance service were dictated by demand and demand was better met in this context by part-time working. The fact that there was an imbalance in terms of standby hours was therefore nothing to the point and any question of saving of costs was equally not the material factor.[17]Here again, we are satisfied that if this was a live issue before us, the Tribunal reached a decision it was entitled to make.[18]In the opinion of the minority Lay Member he states as follows:- "He agrees with the opinion of the dissenting member of the Employment Tribunal. From productions and evidence the Tribunal found that the respondents did not have any policy for considering the organisation of full/ part time working in its stations in the North West and that different ratios existed on an ad hoc basis. The purpose of the Directive (Council Directive 97/81 EC Annex Clause 1(a) is to eliminate discrimination against part time workers. Employers have a duty to ensure that the way they organise their workforce for business needs/provision of service does not discriminate against part time workers. Otherwise unscrupulous employers could organise their work force in a discriminatory way for reasons of economy but claim it was justified as it satisfied their business needs/provision of service. Specifically, the fact that the organisation of working/standby hours at Lairg satisfied business needs/provision of service, is not of itself objective justification for the accepted detriment suffered by the appellant. On the evidence evinced by the Tribunal, the respondents could have re-oganised the working/standby hours at Lairg to eliminate, or, at least, substantially reduce the breach of the pro rata principle in relation to standby hours. The respondent's failure to do so was the reason why the appellant suffered the accepted detriment."[19]In these circumstances the majority opinion is that this appeal is refused.