MRS AILEEN BROWN v MCALPINE & CO LTD [2005] UKEAT 0009_05_2209

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0009_05_2209Case No Appeal No. UKEAT/0009/05Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
MRS AILEEN BROWNAPPELLANTMCALPINE & CO LTDRESPONDENT
Before
Lady Smith Mr P Pagliari Miss G B LenaghanDate 22 September 2005
[1]APPEARANCES For the Appellant Ms S Akhter, Solicitor Of- Messrs Harper Macleod LLP Solicitors The Ca'd'oro 45 Gordon Street GLASGOW G1 3PE For the Respondents Mr I D Truscott, Queen's Counsel Instructed by- Messrs Kerr & Co Solicitors 23 Nelson Mandela Place GLASGOW G2 1QB SUMMARY SEX DISCRIMINATION Direct Justification The claimant has been employed by the respondents as a full time sales administrator. Her job needed full time cover. She instituted a claim under the Sex Discrimination Act, alleging that she had been discriminated against in respect of the respondents' failure to accede to her request to job share after the birth of her child. The respondents relied on a defence of justification and evidence was led before the tribunal as to the steps taken to try and find a job share partner for the claimant and as to the failure, despite those steps having been taken, to find one. The tribunal found that there had been discrimination but that the defence of justification was made out. On appeal, the claimant argued that employers such as the respondents had a duty, in circumstances such as hers, to take all reasonable steps to find a job share partner. The tribunal should have applied that test and had failed to do so. The steps taken by the respondents were, it was argued, inadequate. The Employment Appeal Tribunal refused the appeal, holding that the tribunal had not erred. They had been correct in approaching the case by asking and answering the question of whether the decision not to offer job sharing to the claimant justified at the time that it was taken. The question of the reasonableness or otherwise of the steps taken to find one would not necessarily be determinative given the extent to which such cases are fact sensitive. THE HONOURABLE LADY SMITH: Preliminaries This case, so far as relevant for the purposes of appeal, concerned a claim for discrimination contrary to the Sex Discrimination Act 1975 ('SDA') s.6.[2]This judgment represents the views of all three members.[3]We will refer to parties as Claimant and Respondents. Introduction[4]This is an appeal in those proceedings against a Decision of an Employment Tribunal sitting at Glasgow, Chairman Mr H J Murphy, registered with Extended Reasons on 19 November 2004. The Claimant was represented there and before us by Ms S Akhter, solicitor and the Respondents were represented there by Mrs A Forsyth, solicitor and before us by Mr Truscott QC.[5]The Claimant contended and sought to establish that she had been the subject of discrimination contrary to SDA. The issues[6]The essential issue between the parties, as identified by the Employment Tribunal was the question of whether or not the Respondents were justified in applying a discriminatory practice of requiring the Claimant to work full-time after the birth of her child. There was no dispute that such a requirement was made by the Respondents and the Tribunal found it to be discriminatory. That left the above issue for determination since if the discrimination was justified, the Claimant had no claim under SDA. The decision[7]The Employment Tribunal rejected the Claimant claim under SDA. The appeal[8]The Claimant appeals against that decision. Employment Appeal Tribunal directions[9]Directions sending this appeal to a full hearing were given by Lord Johnston in chambers. The legislation[10]The relevant legislative provisions are those contained in sections 1 and 6 of SDA which include the following terms:
"1 (2) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if - (a) on the ground of her sex, he treats her less favourably than he treats or would treat a man, or (b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but- (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and ii. (iii) which is to her detriment. (3) Subsection(2) applies to - (a) any provision of Part 2, 6. (1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman- (a) in the arrangements he makes for the purpose of determining who should be offered that employment, or (b) in the terms on which he offers her that employment, or (c) by refusing or deliberately omitting to offer her that employment. (2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her- (a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or (b) by dismissing her, or subjecting her to any other detriment."
The Employment Tribunal took account of these provisions. The facts[11]The Respondents are manufacturers of plumbing products based in Hillington, Glasgow. They employ about 600 people. The Claimant entered their employment in May 1989, as an office assistant and in 1993, she became a sales administrator, a post that she held until the termination of her employment. It was a matter of agreement between parties that that was a post which required full-time cover. It was not, though, necessary that that full-time cover be provided by the same person. In principle, job sharing would have been possible, had a suitable candidate been found.[12]In early 2002, the Claimant became pregnant with an expected date of confinement of 25 September 2002. In February 2002, she advised the Respondents' Mr McAlpine of the position and may, at that time, have indicated that she wished to return to work after her maternity leave, on a part-time basis, working Mondays, Tuesdays and Wednesday mornings. On 8 July, having discovered that she required to arrange precise child care arrangements well in advance, she had a meeting with Mr McAlpine and asked for permission to return to work after maternity leave part-time and on the basis we have indicated. At that stage, Mr McAlpine did not refuse her request. Rather, he said that he was not prepared to make a decision but would consider the matter at the appropriate time, towards the end of the Claimant's maternity leave. At a further meeting on 16 August, the matter of part-time work was raised again and Mr McAlpine's position remained the same.[13]The Claimant went on maternity leave and was due to return to work on 28 April 2003. By letter dated 28 March 2003 to the Respondents, she repeated her request to return to work on a part-time or job share basis, on Mondays, Tuesdays and Wednesday mornings. The Claimant met with Mr McAlpine on 8 May 2003. There seems no doubt that there was tension between the Claimant and Mr McAlpine at that meeting. However, he agreed to advertise for a sales administrator and the Respondents proceeded to advertise for both a full-time and part-time sales administrator, the full-time post being advertised in case no suitable candidate applied for the part-time one. The advertisements were placed in three different newspapers, The Herald, the Sunday Herald and the Evening Times, on three different dates. No suitable candidate for the part-time post was found. The Respondents consulted an employment agency who advised them that it would be extremely difficult to find someone to work the hours that would have suited the Claimant's requirements. The Respondents then, by letter dated 26 June 2003, informed the Claimant that her request to work part-time or job share was refused. The Claimant appealed against that decision and the appeal was heard on 29 July 2003. The Respondents refused the appeal and by letter dated 29 August 2003, the Claimant advised that she could not return to work on a full-time basis, asking them how they proposed to accommodate her. The Respondents replied on 10 September indicating that they could not do so. The Claimant's case[14]The nub of the Claimant's argument was that Tribunal erred in that any reasonable Tribunal would have found that the Respondents failed to take reasonable steps to find an employee to job share with her and that such failure in itself amounted to discrimination contrary to s.6 of SDA. Reliance in support of that submission was placed on the case of Rosie Mitchell v Scottish Borders Council a decision of an Employment Tribunal (case nos. S/400106/02 and S/401198/02) in which the inference was drawn that the employers' attempts to find a job share partner were half hearted and it was not enough for an employer, particularly a local authority, simply to go through the motions of a job share recruitment process. Reliance was also placed on the case of East Berkshire Health Authority v Matadeen [1992] IRLR 336 in support of a submission that the rhetorical question:
'surely the decision of the Tribunal was perverse?' should be answered in the affirmative. Reference was made to the Tribunal having, at page 22 of their Extended Reasons, at paragraph 38, stated that the question for them was not 'whether the Respondents took reasonable steps to find a suitable candidate.'
That was, it was said, an erroneous approach on their part. That was, in this case, the question that they had to answer and it seemed to be the Claimant's ultimate submission that the Tribunal should have found that the Respondents made no genuine attempt to do so.[15]It was submitted that the Tribunal failed to critically evaluate the efforts made by the Respondents to find a job sharer. They should not have relied, as it was submitted they did, on the experience of their lay members. They should have found that the amount and nature of the newspaper advertising was insufficient. They should have taken account of Mr McAlpine's attitude towards the Claimant at the meetings as being indicative of his only paying lip service to and having no interest in the requirement to take reasonable steps and should have regarded that as relevant to the issue that they had to determine. A repeated concern expressed on behalf of the Claimant was that if the appeal was not successful then, standing the decision of the Tribunal in this case, employers would have the impression that they did not need to take reasonable steps in similar circumstances, to find a job share partner. The Respondents' case[16]Under reference to the passage in Yeboah v Crofton [2002] IRLR 634 , where Lord Justice Mummery said, at paragraph 93, "Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care': British Telecommunications plc v Sheridan [1990] IRLR 27 at paragraph 34." It was submitted on behalf of the Respondents that the Claimant's case that the Tribunal decision was a perverse one was ill founded.[17]The appeal was, it was said, pointless and no question of law was raised by it. The Claimant had conceded that her job required full-time cover. To say in the abstract that there required to be an assessment of whether the employer took reasonable steps without reference to a legal proposition that supported the contention that the Tribunal had not done so, did not advance the Claimant's case.[18]The Tribunal had, it was said, correctly considered whether the defence of justification was established and there was no gap in their reasoning. They weighed the evidence and, in some respects rejected that of Mr McAlpine for the Respondents. The Claimant did not, it was said, make any attempt to attack the Tribunal's reasoning in support of their decision on the question of justification so even if she was successful in her argument regarding reasonable steps, her appeal would achieve nothing.[19]Regarding the criticism of the Tribunal's reference to the experience of their lay members, it was clear, it was submitted, that that reference was made in the context of a determination of the credibility of the Respondents' factual case that the chances of finding a suitable job sharer were remote. Regarding the submission that they had not critically evaluated the evidence, the Tribunal had, it was said, amply rehearsed the Claimant's criticisms of the steps that were taken by the Respondents and it was unfair to suggest that they had not scrutinised the matter. All that happened was that the Tribunal had not accepted the Claimant's arguments on the matter. The appeal should, it was said, be refused as misconceived and there should be a finding of expenses against the Claimant under in terms of Rule 34A of the Employment Appeal Tribunal Rules 1993 (as amended). Conclusions :[20]We are not persuaded that the appeal is well founded and reject the Claimant's arguments accordingly.[21]At the outset we would wish to deal with the Claimant's argument that the Tribunal should have taken a different view of the evidence to the effect either that the steps taken by the Respondents to find a job share partner for the Claimant were not genuine or were not sufficient to be able to be described as reasonable (both assertions, though not clearly separated out, were inherent in the Claimant's case). We consider that this is a case where the Tribunal have made clear findings in fact regarding this matter. They found that steps to find a job share partner were, as a matter of fact, taken by the Respondents.[22]In these circumstances, the Tribunal rightly considered that it was not, thereafter a matter of them resolving the discrimination issue by asking whether those steps were reasonable but that, given the terms of the relevant legislation, what they had to do was ask themselves whether, when the Respondents decided that they could not offer job sharing to the Claimant (a decision which was communicated in their letter of 26 June 2003, after the process of advertisement and consultation with the employment agency had taken place), that was a decision which was justified. Certainly, had the Tribunal felt that the Respondents had not taken reasonable steps to find a job share partner, in the circumstances of this case, it is difficult to see that they would have been satisfied that the Respondents were justified in their approach. But that is not to say that in every case a finding that an employer has not taken reasonable steps to find a job share partner will, of necessity, give rise to the conclusion that his decision to refuse a woman's job share request post maternity leave is not justified. These cases are, by their nature, fact driven and it may be that the facts of a particular case are such as to enable an employer to show justification on grounds other than that he has attempted to find a job share partner. Speculating as to possible examples is probably not helpful but we can see, for instance, that in a case of urgency or financial constraint, an employer might be able to justify a job share refusal without having gone through the process of trying to find a job sharer. We do not, accordingly, accede to what we understand to be the Claimant's proposition that it is necessary to make it clear to employers that in discrimination cases involving maternity and job share applications, that they have a duty to take all reasonable steps to find a job share partner.[23]The resolution of the question of justification in this case turned largely on looking at whether the Respondents could be said to have been entitled to take the view, as at 26 June 2003, that the prospects of finding a job share partner were remote. Overall, as the Tribunal rightly commented, under reference to the decision in Hampson v The Department of Education and Science [1989] ICR 179 , it was a matter of considering whether, objectively, the discriminatory effect of the provision, criterion or practice was outweighed by the legitimate commercial interests of the Respondents, the resolution of which will almost always involve judgment and opinion. It did, of course, in this case, involve taking account of what steps, as a matter of fact, had been taken by the Respondents to find a job share partner before they decided that the prospects of being successful in finding one were remote.[24]It is clear in our view that the Tribunal in this case applied the necessary judgment referred to by them properly and appropriately to facts that they were entitled to find as established. We see no room, particularly at this appeal stage, for arguing that the fact that the advertisements could have been placed for longer or in a different part of the newspaper should have led to a decision that the Respondents position was not justified or that Mr McAlpine's attitude should have led to a different view being taken. We have also considered the criticism of the Tribunal's reference to the experience of their members. What they said requires to be read in context, which was as follows:
"39. We, for our part, are quite satisfied that the defence is established. As noted, the respondents required a full-time cover. In practical terms this could only be provided by finding a suitably qualified recruit prepared to work hours that suited the applicant. The members of this tribunal and particularly the wing members with their wealth of experience in these matters are quite satisfied that the chances of finding a suitable recruit were exceedingly remote, and that even without taking the steps that the respondents took. The respondents' view (and that of all members of the tribunal), moreover, was bolstered by that of the employment agency that the respondents were wont to use."
We are readily satisfied that all that the Tribunal were saying was by way of support of their finding that they accepted as credible the Respondents' case that the picture they had by 26 June 2003 was that the chances of finding a job share partner for the Claimant were remote.[25]As regards the criticism levelled by the Claimant at the Tribunal's comments as to the relevance of the 'reasonable steps' question, that too has to be understood in context. At p.22, paragraphs 37 and 38, they say:
"…much of the proof was an attempt by the applicant to show that the Respondents had not taken reasonable steps to try and recruit a suitable job sharer. 38. We are not completely satisfied that this approach is completely correct."
The Tribunal then go on to consider the issues relevant to the question of whether or not the Respondents' approach was justified and they comment, at paragraph 39:
"We, for our part, are quite satisfied that the defence is established."
[26]In short, the Tribunal did not, as was apprehended by the Claimant, say that the question of whether or not reasonable steps to find a job sharer was irrelevant. Rather, it was a matter of it not being the only relevant matter. Their comment that the question was not that of whether reasonable steps had been taken was obviously made in the sense of the question that they had to answer not simply being a matter of considering that issue. It would have perhaps been clearer if they had said so expressly but we are, for present purposes, satisfied that the meaning is clear enough. The Claimant's case fails in this respect also. Expenses:[27]Whilst we are readily satisfied that the Claimant's appeal is ill founded and should be dismissed, we do not conclude that the test set out in Rule 34A is satisfied as we would not go so far as describing it as misconceived, which was the Respondents' submission. We will, accordingly, not make any order for expenses. Disposal:[28]Having decided that the appeal should be dismissed, we will pronounce an order to that effect.