MR D JEFFREY v (1) STRATEGIC RAIL AUTHORITY [2004] UKEAT 0631_03_0103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0631_03_0103Case No Appeal No. UKEAT/0631/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D JEFFREYAPPELLANT(1) STRATEGIC RAIL AUTHORITYRESPONDENT
Before
His Honour Judge J R ReidDate 1 March 2004
[1]APPEARANCES For the Appellant MS ULELE BURNHAM (of Counsel) Instructed by: Messrs Reynolds Dawson Solicitors 34 John Adam Street Charing Cross London WC2N 6HW For the Respondent MISS HELEN HOBHOUSE (of Counsel) Instructed by: Messrs Kennedys Solicitors Longbow House 14-22 Chiswell Street London EC1Y 4TW HIS HONOUR JUDGE J R REID QC At the conclusion of the hearing of this appeal we announced that the appeal would be dismissed and leave to appeal refused. We now give our reasons for those decisions.[2]This was an appeal by Mr Jeffrey against a decision of an Employment Tribunal held at Bristol. By a decision dated 18 June 2003 and sent to the parties on 23 June 2003 the Tribunal dismissed Mr Jeffery's claim for victimisation on withdrawal and dismissed his claim for direct sex discrimination against the Strategic Rail Authority ("the Authority") and Inspector Paul Richards of the British Transport Police. On this appeal the nub of Mr Jeffery's allegation of sex discrimination is that he was told he could no longer work a shift pattern of working 3 x 12-hour shifts per week, but if he wished to work 36 hours he would have to do 4 x 9-hour shifts. He asserted that in making this decision the Authority was acting in a sexually discriminatory manner. Mr Jeffrey appeals against the decision insofar as it dismissed his claim against the Authority.[3]The background to the case is as follows.[4]Mr Jeffrey and his wife were both police officers in the Metropolitan Police. They decided to apply for transfers to the Devon and Exeter Constabulary. Mrs Jeffrey was accepted but Mr Jeffrey was not. He then applied to the British Transport Police and was appointed to Bristol, where he commenced his employment on 16 October 2000. He was given at least an indication that he would be transferred to Exeter when a vacancy arose and on the 9 February 2001 he formally registered an interest in such a transfer. However, the transfer did not come through and he became increasingly aggrieved. His wife had a baby on 29 October 2001 and he was temporarily transferred to Exeter, but the permanent transfer did not materialise and on 22 November he applied for part-time work. His intention was to work 3 x 12 hour shifts each week. This would add up to 36 hours which would give him 9/10ths of his salary.[5]His application was supported by his station Inspector, Insp. McDonald and by the Area Commander Supt. Daly. However, Supt. Daly who also expressed some concerns because:
"36 hours is not a real reduction in hours but a device to work 3 x 12 hr. shifts and have 4 days off. This officer does have good welfare reasons for his request."
The applicant's wife was working part-time. The intention was that he would look after the child on the days his wife was working and that they would have at least one day a week together. They did, however, have access to a child-minder and while the three day week was for child-care reasons, the 12-hour shifts were intended to maximise his earnings within a three day week.[6]The application was passed to National Headquarters, Employee Relations where it was dealt with by Susan Walsh, the Employee Relations Adviser. There was a general rule that 3 x 12 hour shifts were unsatisfactory. Her evidence was supported by Mr Randall, the General Secretary of the British Transport Police Federation, who said that it was agreed in 1996 that no more than 2 x 12 hour shifts should be rostered in a 7-day period on the standard DMS roster. Concern about 3 x 12 working was also expressed in a letter from Mr Jeffrey's own solicitors, dated 15 July 2002 which expressed concern about the potential injury to health if he continued to work these shifts. The actual decision on Mr Jeffrey's application was made by the Assistant Chief Constable who wrote:
"Approved subject to agreement that he cannot routinely work a 36 hr. week, consisting of 3 x 12 hr. shifts. To be reviewed in 6 mths time."
These comments were converted into a letter to the applicant:
"Your posting will be Constable at Bristol Temple Meads, South west, working 36 hours per week, this is subject to you reaching a local agreement on your hours as three twelve hour shifts are not an ideal roster. This arrangement will be reviewed in six months."
[7]Mr Jeffery treated it as permission for him to work 3 x 12 hour shifts and regarded the 6-month review as being an imprecise reference to the annual review anticipated in the Part-Time Working Policy.[8]In September 2002 when Mr Jeffery submitted a Sex Discrimination Act questionnaire there were only 6 officers in the South west working part-time and Mr Jeffery was the only man. One of the five women was used by Mr Jeffery as an actual comparator in his claim. In April 2001 PC Morrisey from Cardiff had applied for part-time working - 32 hours, 2 x 10 and 1 x 12. This was for child-care reasons. It did not fall foul of the 3 x 12 policy and was accepted. On 25 February 2002 she applied for a variation in her hours to 3 x 12 hour shifts "to ease a few of my financial commitments". Apart from the travel problems she was in exactly the same position as Mr Jeffery. However, this was not a new application, but a variation of an existing application.[9]She put her application in to Stephen Delemore, the acting inspector. He passed it on to Keith Chapman, the acting Area Personnel Officer who replied: - "There is no formal paperwork, this e-mail is acceptable. FHQ have confirmed that the Area Commander can agree such changes locally." Keith Chapman passed the request up to Supt. Daly who replied "agreed". Susan Walsh had no knowledge of this change. The HQ records had PC Morrisey as working 32 hours, not 36.[10]Meanwhile other applications were coming in. On 29 March 2002 a Mr W from Bristol applied for 3 x 12 hour shifts. His intention was to work the opposite days from the applicant. Acting Inspector Marshall appears to have supported this application on 8 May 2002, but Supt. Daly did not support it. He said:
"I have severe reservations about these applications. I do not believe that there are serious welfare reasons to grant this."
Susan Walsh, refusing the application, wrote (undated): ii) Other Officer working 12 hour is on a temp basis to be reviewed within the next 4 weeks." Similarly a Mrs T from Cardiff applied and was turned down.[11]In June 2002 Supt Daly ceased to be area commander and was replaced by Supt. McHugh. He had previously been Chief Inspector, Cardiff and, indeed, while area administration was in Bristol, area operational headquarters was in Cardiff in another part of the police station building. His evidence is that he had no knowledge of PC Morrisey and that Jane Burstow, the area personnel officer who would have held the records, did not tell him about PC Morrisey. As he agreed with Susan Walsh that 3 x 12 was undesirable, he simply instructed the new Inspector at Bristol, Inspector Richards, to carry out the six months' review for the applicant. His memo of 8 July makes it pretty clear what he expected the outcome to be. However Insp. Richards did not take any immediate action to implement Supt. McHugh's instruction.[12]On 17 July Mr Jeffery was feeling extremely unwell and made arrangements to see a consultant in Exeter the next day because he feared that he was suffering from diabetes. He made an informal arrangement with his Sergeant and worked part of the day in Exeter. It turned out that the problem was not diabetes, but exhaustion. When Insp. Richards heard about the detached duty in Exeter he decided to call Mr Jeffery in. At the meeting Mr Jeffery confirmed the reasons for his absence from Bristol and the lack of formal documentation. Insp. Richards made it clear that he was keeping an eye on his attendance hours and that unpunctuality could impact on his transfer. Mr Jeffery was very upset by the perceived aspersions on his attendance record, but he accepted that he had on occasions arrived late due to delayed trains and had been allowed to go home early. Mr Jeffery also divulged the health problem which Insp. Richards understandably picked up a being possibly related to his long hours, coupled with trying to look after a young baby on his rest days.[13]On 1 August, rather belatedly following Supt McHugh's direction, Mr Jeffery was called in and was asked for a report to justify the continuation of the 3 x 12 arrangement. What Mr Jeffery says occurred at that meeting is at the heart of this appeal. Mr Jeffery produced a report on 8 August. The Tribunal, having considered the report, held that it was clear that the desire to work 3 x 12-hour shifts, rather than 4 x 9 or 3 x 10, was a matter of convenience rather than necessity.[14]On 6 September 2002 Insp. Richards suggested that the applicant should revert to 4 x 9 hour shifts. He gave three reasons - "health grounds" - the regular 12-hour shifts being excessive, "operational grounds", which is the standard argument relating to 3 x 12 that it does not allow for flexibility, in particular getting an officer to extend his shift to deal when unforeseen circumstances arise and thirdly that it could be "a dangerous precedent". This relates to the applications by other officers which had come in.[15]Supt. McHugh accepted this recommendation and on 25 September Insp. Richards gave Mr Jeffery four weeks' notice that he would be reverting to 4 x 9 hour shifts. However, Mr Jeffery applied for 3 x 10 and this was granted. Meanwhile Supt. McHugh realised that the best way of addressing the problem was to address the underlying issue and on 9 December Mr Jeffery was informed that he would be transferred to Exeter as from 5 January 2003. This resolved the problem and Mr Jeffery is now working full-time while his wife works part-time.[16]On the basis of these facts, the Tribunal considered whether Mr Jeffery was treated less favourably than the Authority treated or would have treated a woman in a similar position. The Tribunal applied Shamoon v Royal Ulster Constabulary [2003] IRLR 385 and considered both actual and hypothetical comparators.[17]The only person found to be an actual comparator was PC Morrisey. Apart from the travel she was in an identical position to the applicant. However she was granted 3 x 12 hour shifts without any restriction and her position was not reviewed in July 2002. In those circumstances it was for the Authority to show, under s. 63A Sex Discrimination Act 1975 , that the reasons for the difference of treatment were not the difference of sex and that their reasons were not tainted with sex discrimination. The Tribunal held that the Authority had discharged this burden. None of Jane Burstow, the area personnel officer (who was on maternity leave when the arrangement for PC Morrissey to work 3 x 12 was made), Susan Walsh and Supt McHugh were aware PC Morrisey was on 3 x 12 hour shifts until August. This in part was because she had been off sick and on restricted duties and the fact she was on 3 x 12 hour shifts only emerged when she resumed full operational working in August. In part it was because her increase in hours to 3 x 12 hour shifts had not been notified to HQ. When it was discovered, a meeting similar to that with Mr Jeffery was scheduled but she went on long term sick on 27 August before the meeting could take place. The Tribunal held that the true explanation for the different treatment was that Susan Walsh was not aware of PC Morrisey's hours at the crucial time in July/August 2002.[18]So far as hypothetical comparators were concerned, there was specific unfavourable conduct, in that the reasonable accommodation allowing Mr Jeffery to work part-time on 3 x 12 hour shifts was removed. This was treatment which was capable of amounting to sex discrimination and so the burden was on the Authority to show that this decision was not on the grounds of sex, in that they would have treated a woman in a similar position in the same way. The Tribunal held that the Authority had shown a perfectly satisfactory explanation of their conduct which was not tainted by sex discrimination.[19]The basis of this appeal is that the Tribunal made no finding of fact about what occurred at the meeting on 1 August. Mr Jeffery says that Insp. Richards asked him in the course of the meeting whether he had another job. Insp. Richards says he did not. The Tribunal made no finding about it. In this counsel for Mr Jeffrey submitted the Tribunal was wrong. She submitted that the asking of the question of Mr Jeffery but not of PC Morrisey was a difference in treatment. Initially she further submitted that the Employment Appeal Tribunal should take judicial notice of the fact that the question would not have been asked of a hypothetical female comparator. In the course of argument she very properly abandoned this submission.[20]Counsel submitted on Mr Jeffrey's behalf that it was the duty of the Tribunal to make all the necessary findings of primary fact. Reference was made to Anya v University of Oxford [2001] IRLR 377 and in particular the passages from Qureshi v Victoria University of Manchester (EAT, 21 June 1996) there cited. It was submitted that in failing to make a finding on this particular point the Tribunal failed in its duty. It was obliged to identify the issues the resolution of which was vital to its conclusions and explain the manner in which those issues were resolved: see English v Emery Reimbold. & Strick Ltd [2003] IRLR 710 . It was pointed out that she had specifically asked the Tribunal to make a finding of fact on this issue in her closing written submissions. This issue was, counsel said, one which if resolved in the favour of Mr Jeffery, might then have coloured the Tribunal's interpretation of other matters and led the Tribunal to the conclusion that the Authority had in fact been guilty of sex discrimination in refusing to allow Mr Jeffery to continue with 3 x 12 hour shifts. It followed that the case should be remitted to the Employment Tribunal. Further she submitted that absence of a finding on this point meant that Mr Jeffrey could not see why he had lost and so the decision did not comply with the rules laid down in Meek v City of Birmingham [1987] IRLR 251 and Tran v Greenwich Vietnam Community [2002] IRLR 735 .[21]Counsel for Mr Jeffery also took two minor points that the Tribunal had failed to make findings on her contentions below that Supt McHugh and Insp. Richards had failed to take any or any adequate account of Mr Jeffery's childcare responsibilities in their respective decision and reporting in relation to Mr Jeffery's desire to retain a 3 x 12-hour shift pattern. The points were only faintly argued and were without substance. The documents show that the Inspector made a proper report and that the Superintendent read it before making his decision.[22]On behalf of the Authority counsel submitted that it could not be said that the Tribunal had overlooked the point merely because it had not referred to it in its decision. Reference was made to the dicta of Lord Russell in Retarded Children's Aid Society v Day [1978] ICR at 444 and Post Office v Lewis (unrep., 22 April 1997, CA). The Tribunal clearly regarded the point as immaterial. The evidence of Mr Jeffrey showed that there was a rumour around the station at the time that he had a second job. He said that he had been asked by Acting DI Bentley on the day of the interview whether he had another job and on 23 August when he was introduced to PC Debbie Rouse, she said to him "Oh, you're the part time lad from Bristol who's got another job." He also gave evidence that later on the day of his interview with Insp. Richards he was told by PC Blackmore that PC Blackmore had told Insp. Richards the previous day that he had stated he would do a 3 x 12 hour roster and work on his days off. In these circumstances even if the Tribunal had held that the question was asked (and it was very doubtful that it would have done having regard to the criticism made by it of Mr Jeffery's interpretation of his earlier meeting with Insp. Richards on 17 July), that fact was on the evidence immaterial to any sex discrimination issue and there was no basis on which it could be suggested that such a question would not have been asked of a female officer if it was asked of Mr Jeffery.[23]So far as the failure to ask the question of PC Morrissey was concerned, the answer was extremely simple. She went off long term sick before a proposed review interview could take place. In those circumstances there was never an interview similar to the interview of 1 August with Mr Jeffery and no chance to ask the question of her.[24]In our view it is clear that this Tribunal under an experienced chairman made no finding on this issue because it rightly considered that the issue was immaterial to the claim before it. Whilst a Tribunal is obliged to make the necessary findings of fact from which inferences can be drawn, it is not obliged to make exhaustive findings of fact on every point however trivial and irrelevant raised before it. In this case the Tribunal made detailed findings of fact with a careful review of the evidence. It did not deal with this particular point in its findings because it rightly took the view that this particular point was one that could not affect any inferences that might be drawn.[25]The Tribunal found as a fact that the three reasons given by Insp. Richards for his recommendation and accepted by Supt McHugh were valid reasons and that the Authority had given a perfectly satisfactory explanation for its conduct untainted by sex discrimination. In our judgment there was no basis for asserting that PC Morrissey was treated differently because she was not asked this question. Even assuming the question was asked of Mr Jeffery, the opportunity to ask it of her did not arise, so it cannot be that she was treated differently in not being asked the question. Further there is no evidentiary basis for suggesting that a woman in Mr Jeffery's position would have been treated any differently from Mr Jeffery, whether the question was asked or not.[26]The careful decision makes it clear why Mr Jeffery lost. He can be under no illusions on that score. The fact that the Tribunal did not deal with one of the many points raised on his behalf does not alter the fact that he can see clearly why he lost. There is no valid basis for suggesting this case should be remitted for a rehearing.[27]So far as leave to appeal goes, there is no point of general interest in this case; there are no ongoing repercussions from it; and the financial amount at stake is small. In these circumstances it would not be appropriate or proportionate to give leave to appeal.