MRS J FAULKNER v THE CHIEF CONSTABLE OF HAMPSHIRE CONSTABULARY [2007] UKEAT 0505_05_0203

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0505_05_0203Case No Appeal No. UKEAT/0505/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J FAULKNERAPPELLANTTHE CHIEF CONSTABLE OF HAMPSHIRE CONSTABULARYRESPONDENT
Before
His Honour Judge McMullenDate 2 March 2007
[1]APPEARANCES For the Appellant Mr Gavin Millar (One of Her Majesty's Counsel) Instructed by: Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH For the Respondent Mr Andrew Clarke (One of Her Majesty's Counsel) Instructed by: Hampshire Police Headquarters West Hill Winchester Hampshire SO22 5DB SUMMARY Sex Discrimination – Indirect / Justification A policy preventing police officers in a partnership from working together in a supervisor/subordinate role had an adverse impact on women since men outnumbered women by 3 to 1. But the policy was justified by the need to ensure actual and apparent correctness in working relationships. The Employment Tribunal had incorrectly found the pool for comparison was the group of police officers who had an existing partnership since this focused entirely on the group disadvantaged by the policy (a group on the evidence made up of 6 of the 3802 police officers). This pool was not contended for by either party. The EAT ruled that the pool was the whole of the Respondent's workforce, police officers and support staff alike, since the policy applied across the board. Thus constituted, it was likely that the male to female ratio was likely to be even. But even on the Claimant's case that the pool consisted of all police officers, the Judgment was unarguably correct for the policy was justified. HIS HONOUR JUDGE McMULLEN QC This case is about whether the following policy discriminated against a female police officer on the ground of her sex:- "1.1 Staff who are in a partner, family or emotional relationship may at some time work together. Such relationships seldom interfere with work and the presumption will be that the relationship will not affect performance. However, in some instances, a personal relationship between members of staff may become a management concern and this policy is intended as a means of resolving this. 3.2 As a matter of policy , partners should not have roles which involve them being supervisor and subordinate to one another." It is a claim of indirect sex discrimination. The judgment represents the views of all three members who were, as was the Employment Tribunal, asked to take a common sense approach to the issues based upon our industrial relations experience. The Employment Tribunal has done that expressly in its own judgment. We will refer to the parties: Mrs Faulkner with her husband as the Claimant, and the Chief Constable of Hampshire as the Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal sitting over eight days and five in chambers at Southampton, Chairman Mr M G Kurrein, registered with reasons on 29 June 2005 and with further reasons at the request of the EAT at the parties' behest on 23 January 2006. The reasons extend in total to 70 pages. The Claimant was represented by Miss Althea Brown who is now led by Mr Gavin Millar QC. The Respondent was represented by junior Counsel and today by Mr Andrew Clarke QC. The Claimant made claims of direct and indirect sex discrimination and both she and her husband made claims of victimisation. The Respondent denied the claims and advanced a positive case in response to the allegation of indirect discrimination which was that any such treatment was justified. The issues[3]The essential issues as defined by the Employment Tribunal are now narrowly defined so as to determine whether there was indirect discrimination within the statute. The Tribunal dismissed all the claims. The Claimant appeals against the judgment on indirect discrimination only. Extensive case management directions have been given in this case which partly explain the delay, as to which no point is taken. The parties were directed to consider conciliation since the claim is old, the Faulkners are still working for the Respondent and the policy has changed. It was unsuccessful but several grounds have realistically been abandoned. No appeal is now brought by Mr Faulkner. It follows that the scope of our hearing has been much narrower than that of the Employment Tribunal. The legislation[4]The relevant provisions of the legislation have changed during the life of this case including the right of a constable to bring proceedings in certain cases of discrimination against her Chief Constable. It is common ground that there is no jurisdictional bar to the proceedings as constituted against the Chief Constable. He is effectively the Claimant's employer and the provision to be applied here is the Sex Discrimination Act 1975 as amended. Section 1(2) says as follows:- "(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- (i) which is such that it would be to the detriment of a considerably larger proportion of women than of men, 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." This was in force up to 1 October 2005. The Tribunal directed itself by reference to that subsection and to what we hold to be the leading authorities which were cited in its reasons at paragraphs 91-101, 104 and 124 with the sole exception of Rutherford v The Secretary of State for Trade and Industry Number 2 [2006] IRLR 551 which the Tribunal had at Court of Appeal level but which was subsequently determined by the House of Lords, dismissing the appeal. The facts[5]The Respondent is the chief officer of police for Hampshire. There were 3802 police officers of all ranks up to Chief Constable at the relevant time of which 2891 were men and 911 were women. We have been told that that constitutes roughly half of the total work force of the constabulary, as a matter of impression but not evidence. There are of course support staff and special constables. We have been told by counsel for the Respondent that this non-police officer work force is predominantly female. A small group of special constables broadly reflects the gender make up of police officers.[6]The Tribunal introduced the facts in the following way:
"11. The events with which we are concerned commenced in July 2001. At that time Mr and Mrs Faulkner were both based at Fareham Police Station within what was then known as the Traffic Division (now the Roads Policing Unit), and were authorised Firearms Officers ("
AFOs"). Their principal duties were to crew armed response vehicles ("ARVs"). Mr Faulkner was at that time a Sergeant and Mrs Faulkner was a PC. There were three shifts at Fareham, but only two Sergeants. The other Sergeant was Sergeant Weston. Mr Faulkner was Mrs Falkner's direct line manager. One of his duties, for instance, was to conduct appraisals of her performance."[7]The Respondent has a policy called "Working Together" which in relevant part provides:- "1.1 Staff who are in a partner, family or emotional relationship may at some time work together. Such relationships seldom interfere with work and the presumption will be that the relationship will not affect performance. However, in some instances, a personal relationship between members of staff may become a management concern and this policy is intended as a means of resolving this. 1.2 The policy will apply to police, support staff and special constables. 2. Rationale 2.1 Such relationships may unintentionally impair operational efficiency or affect the integrity of service delivery, for example:• involvement with recruitment, selection, discipline, grievance• inflexibility re annual leave, duties etc• difficulties in team building, other staff may fear favouritism• can cause embarrassment to other staff• public or staff perception of fairness, impartiality or objectivity• evidence issues• emotional responses to other's work, e.g. on exposure to risk3.1 It is the duty of staff who are in a partnership to inform the Divisional Commander or Department Head of that fact.3.2 As a matter of policy , partners should not have roles which involve them being supervisor and subordinate to one another. The supervisor/subordinate relationship is a unique one where fairness and objectivity are essential for both the partners involved and the perception of colleagues. The situation could influence, or be seen by colleagues to influence, the supervisor on a daily basis on matters of deployment, discipline etc. This policy is intended to both avoid such perceptions (whether real or imagined) and not put the partners in a potentially difficult situation.3.3 Normally issues raised due to individuals in a personal relationship working together can be resolved informally. Where a manager considers a personal relationship may adversely affect performance, he/she must discuss the concerns and implications with the couple, and agree wit them a satisfactory resolution. However, the manager must ensure that working arrangements are satisfactory in all respects. 5. Monitoring 5.1 This policy will be monitored by Career Development Department." In addition, guidelines applied to other cases where there is not a partnership as so defined. It is fair to say a more flexible approach is taken in respect of them. It is recognised that the constabulary is a large and varied organisation and the policy may have different implications in different circumstances.[8]The Tribunal made the following observations on this policy:- "15. We take the view that the Policy is clear. It applies, as a whole, to staff who are in a partner, family or emotional relationship. We took the view that Clause 3.2 was correctly interpreted as providing that as a matter of policy partners should not work as direct supervisor/subordinate to one another. The rationale for the Policy is set out within it. We thought it highly relevant, in the circumstances of this case, that one of the rationales specifically mentioned was the emotional response that one person might have to another's work, and that the example given was that of exposure to risk.126. The application of this Policy is central to large parts of this case. We accepted that it was not applied consistently. Sometimes it was applied. Sometimes it was not. It appears to have been that inconsistency, which we saw as the exercise of a degree of flexibility, that gave rise to Mr and Mrs Faulkner's dissatisfaction. Complaint is made of the occasions on which it was applied.127. In our view the Policy is both clear and reasonable. We took the view that a large organisation such as the Respondent was perfectly justified In adopting a Policy of this nature containing the provisions it did. It is our experience that many large organisations have policies of this nature, albeit sometimes unwritten.128. The Policy required staff who are in a partnership to inform the Divisional Commander or Department Head of that fact. Thereafter, the Policy is divided up into different clauses which apply to different circumstances.129. Clause 32 applies solely to partners in supervisor/subordinate positions. It provides that as a matter of policy , partners should not have roles which involve them being supervisor and subordinate to one another. The reasons for that policy were set out and, in our view, were reasonable and justified. Issues such as those identified had arisen in respect of Mr and Mrs Faulkner.130. Clause 33 of the policy is also applicable to partners who are in a direct reporting relationship. We take the view, particularly because of the references to "couples", that the reference to "individuals in personal relationships" is also a reference to "partners". Any Issues that arose were expected to be resolved informally. 131 The guidelines at clause 34 apply to "all other cases": i.e. where there is no supervisor/subordinate relationship. They make it clear that each case is to be judged on its own merits 132 The further provisions of the Policy also indicate that where there is a need to transfer one of a couple, the proposal should be put to both for them to recommend which one will transfer. In most cases, that recommendation was to be accepted but if not, the rationale was to be fully explained. There was a right of appeal to the Director of Personnel. 133. We took the view that the interpretation placed on this policy by Inspector Price and others, to the effect that the circumstances arising from Mr and Mrs Faulkner's personal and professional relationships was such that one of them would have to move, was proper and reasonable. 188.4 At least prior to 10 November 2003, it was not a "prohibition" in the sense of an absolute bar. It was a policy. It was frequently not enforced against Mr and Mrs Faulkner. The inconsistency with which it was enforced was one of the grievances they raised with the Respondent. 189.4 The "provision" that was applied to them was clause 3.2 of the Partners Working Together Policy:- "As a matter of policy , partners should not have roles which involve them being supervisor and subordinate to one another." 190. However, we accept:- 190.1 From time to time, officers who were partners were prevented from working in a direct supervisor/subordinate relationship; 191. In the interests of justice, therefore, we have gone on to consider the application of that policy because, on the particular occasions on which it was enforced, it did amount to a requirement or condition or a provision, criterion or practice."[9]The Tribunal recorded the Claimant's case in relation to the application of the policy to her, which she said constituted a detriment:- "207. Mrs Faulkner sought to rely on a series of detriments as being evidence from which we could infer that a discriminatory state of affairs existed. We accept that as a consequence of the various matters that occurred between 2001 and 2003 Mrs Faulkner suffered a series of detriments. The principal detriments were as follows:-207.1 She moved from Fareham to Eastleigh.207.2 She surrendered her AFO status briefly.207.3 She was deprived of acting-up status for a period.207.4 She was prohibited from attending live firearms incidents with Mr Faulkner.207.5 She moved from Eastleigh to Winchester.207.6 She was again deprived of acting-up status for a period.207.7 She surrendered her AFO status in November 2003. 208. These were all connected. They all arose form the fact that Mrs and Mr Faulkner had become partners. 209. We also noted that the policies that were in place were not followed as they should have been, and that Inspector Price was over-hasty. On at least two occasions Mrs Faulkner was not spoken to personally, but had information that directly affected her communicated to her via Mr Faulkner. 212.5 In our view all the detriments referred to above arose from decisions that were taken by Mr and Mrs, or solely Mrs, Faulkner or from a policy that was applied to them jointly:-212.5.1 They or she decided that she would move to Eastleigh.212.5.2 They or she decided she would surrender her AFO status for a period.212.5.3 The loss of acting-up duties was a direct, common and known consequence of moving stations.212.5.4 The Firearms Provision was imposed on both of them jointly.212.5.5 She volunteered to move to Winchester.212.5.6 They or she decided that she would surrender her AFO status. In our judgment what the Tribunal was there recording was what could be described both in general and in statutory terms as detriments. Seven are listed in paragraph 207, six in paragraph 212.5. The Tribunal holds that they were all connected to the discrimination alleged which at that time included criticism of the policy relating to the status as an AFO. As a matter of fact, the Tribunal has made this conclusion and has decided that it was because they were partners; and because they were partners the policy applied to them.[10]The first legal issue to be decided by the Tribunal was whether there was a policy. It held there was. This is not disputed. Next it considered the existence of a pool of persons for the purpose of making the statutory comparison required in its list of issues and rejected two sorts of partners:- "141. The only instance of partners being permitted to be in a potentially supervisor/subordinate relationship was that of Sergeant and PC Miller. This was for a three month period in early 2004 when PC Miller was undergoing a difficult pregnancy, was on restricted duties, and temporarily provided administrative support because there were unfilled vacancies. This was permitted, under the revised Partners Working Together Policy, following a risk assessment which resulted in restrictions to avoid PC Miller being directly supervised by her husband." 192. In the list of Issues Mrs Faulkner had put her case in the following way:- "Is the Respondent's partners Working Together Policy and the implementation of it as applied to Mrs Faulkner such that it would be to the detriment of a considerably larger proportion of women than men…..since a higher proportion of female officers are in relationships with male officers are with female officers, and it being also the case that female officers are more usually in lower/subordinate ranks to the male officers within the relationship?"[11]The Tribunal's conclusion is given in paragraph 189.1. That conclusion was advanced by neither the Claimant nor the Respondent but is supported by the Respondent today. It concluded that the pool consisted of those partners working for the Respondent: see paragraph 193.5.[12]It then considered briefly the justification issue. It did so not only in respect of the policy, but of the application of the policy in each of the situations claimed by the Claimant to be a detriment: see the list above. It held as follows:-133. We took the view that the interpretation placed on this policy by Inspector Price and others, to the effect that the circumstances arising from Mr and Mrs Faulkners personal and professional relationships was such that one of them would have to move, was proper and reasonable.134. Our reasoning for that conclusion is as follows. As a matter of policy the Faulkners, as partners, should not be in a supervisor/subordinate relationship. They were. Because there were only two Sergeants for three shifts at Fareham it would be effectively impossible to avoid direct line management by Mr Faulkner of Mrs Faulkner. ARV Sergeants were difficult to recruit. It has not been suggested that a third ARV Sergeant was available. In addition, there was a presumption, under clause 341, that even in the absence of a supervisor/subordinate relationship, a couple should not both work on the same team, at the same station or in the same section of a department We do not consider that mid-level managers such as Inspector Price are entitled, let alone required, to depart from a Policy such as this... 4.1.6 The Respondent's case is that where there is a "partners" relationship between superior/subordinate there is a real risk that undue influence or favouritism will either actually, or be perceived to, affect the integrity of one or both of the partners. AS indicated in our Reasons, we were of the view that the Partners Provision was introduced to meet the real need to manage that risk. The Respondent's Officers and staff have to have, and continuously demonstrate, the highest levels of integrity in both their public and private lives. It is not simply a matter of actual integrity. The perception of colleagues and members of the public is equally important. Trust is fundamental to the Respondent's role in society. We are well aware of other large organisations where trust is also important, such as banks and building societies, which have similar policies. In our view the Partners Provision is for the benefit of the Respondent's Force, all those working within it and the general public. We thought it significant that Mr Faulkner, on at least 2 occasions, accepted that it was inappropriate for him to continue as Mrs Faulkner's line manager. 4.1.7 The Respondent's perception that such a risk existed was not subjective. It was based on experience. Its existence was confirmed by the events surrounding the Faulkners' relationship. 4.1.8 From the time rumours first circulated regarding the Faulkners' relationship, difficulties arose within their unit. Comments were made when they were seen together outside work; notes had been left in Mrs Faulkner's basket; backhanded comments had been made. Sergeant Weston was concerned at the impact this was having on the rest of the office. As Mrs Faulkner's line manager. Mr Faulkner was in a position to show favouritism in respect of rotas, overtime, holidays, rest days and appraisals. Although Inspector Watkins was confident that Mr Faulkner's actual integrity was entirely unaffected by his relationship with Mrs Faulkner, he was concerned that he, or other Sergeants, might be inhibited from discussing Mrs Faulkner's performance, as would normally be the case, at Sergeants' meetings. Although Mr Faulkner volunteered to leave such meetings during such discussions (and therefore recognised the existence of a real problem) that would have reduced the input available from relevant Sergeants. Inspector Watkins also received complaints from other officers about the contact between Mr and Mrs Faulkner, both by telephone and in person, whilst they were on duty. Colleagues were concerned at the confidentiality of their interchanges with Mrs Faulkner. She was seen as a "spy in the camp". Some officers perceived that Mrs Faulkner was treated favourably in respect of overtime and duty days. All these matters were of legitimate concern to the Respondent: they are clearly likely to have an adverse effect on his Force. We took the view that these events provided clear evidence that the Partners Policy corresponded to a real objective need to manage the risk. 4.1.9 It was not suggested that there was some other manner in which the problems and perceptions arising from the relationship between Mr and Mrs Faulkner could have been addressed. We have no doubt that those problems and perceptions existed. WE are equally confident that the Respondent had to address them. We considered the Partners Policy to be both appropriate and necessary to meet that need. We are therefore satisfied that the Respondent, had it been necessary, has proved to our satisfaction that the application of the Partner Provision to Mr and Mrs Faulkner was justified. The alleged discriminatory effects arising from the application of it were, in our view, outweighed by the objective need for such a policy." In those circumstances the Tribunal dismissed the claim and did not change its mind when further reasons were sought from it. The Claimant's case[13]Mr Millar QC submitted that the Tribunal had erred in law in two separate aspects, disparate impact and justification. Three incidents were relied upon for the claim of detriment and they are included in the list we have cited from the Employment Tribunal reasons. These are in respect of the moves required to be made by Mrs Faulkner pursuant to the policy and of an issue raised with Inspector Watkins. As to the pool, it was always the Claimant's case that the pool was that of police officers, that is those by statute defined as a constable within the service of the Chief Constable. The finding that the pool consisted solely of those disadvantaged was an error, for it paid no attention to the other side of the equation which has to be those who are advantaged. The sole proposition advanced before us was that the pool was correctly identified by the Claimant and that was the claim pursued and should have been adjudicated upon as an agreed issue.[14]The difficulty facing the Claimant at first instance was that the disadvantaged group could not be precisely identified because of the failure by the Respondent to monitor the requirement that those in a relationship should disclose it. Also, there would inevitably be a difference because some people would be unwilling to disclose their relationships as was indeed the case with the Faulkners before they did disclose it and of course they are now married and still working for the Respondent.[15]As to justification, it was contended that the Respondent had applied a blanket ban without flexibility. The three aspect required to be satisfied in the defence of justification by a Respondent included whether there was a real need, and this is not met. The Tribunal had failed properly to balance the effect of the discrimination (on the hypothesis at this stage that there was discrimination) upon the Claimant and the necessity for such a policy as was in place and was applied.[16]It was contended further that barriers were placed upon junior Counsel at the Employment Tribunal against pursuing further evidence which might have indicated a greater number of couples in the disadvantaged group and this was unfair. As to the question of an alternative pool, as was suggested by Mr Clarke in his oral argument to us, it was contended that it would be unfair, if we detected an error, for us to substitute a view. There is no evidence as to the numbers and gender breakdown of others within the workforce if the whole of the workforce, one of the candidates posited by Mr Clarke, was to be the relevant pool. The Respondent's case[17]On behalf of the Respondent it is contended that the pool was correctly diagnosed by the Employment Tribunal. If it was not correct then alternative pools were available such as those who were in a relationship where the partner is not an officer and those who would be prevented it is said by the policy from becoming an officer or from taking up a position in line management over a partner. As a matter of logic the policy applies simultaneously to a man and a women for it is directed at couples, there being no issue here as to whether same sex partnerships would destroy the logic. There is no requirement as to who in the relationship is to move in order to satisfy the policy. It is unsurprising that disparate impact is shown because of the number of men and women respectively engaged within the constabulary. On this question there is no legal authority but the line is clear from the existing authorities where a policy is in force or a rule applied.[18]As to justification, Mr Clarke contends that clear evidence was placed before the Employment Tribunal and upon its initial and further reasoning upon direction by the EAT it has set forth its full reasons. This policy had some flexibility in it, as was demonstrated in the Faulkners' own case. In due course, the policy was replaced by a more flexible policy akin to the policy applicable to those not in a partnership under the original procedure but that did not mean that the original policy was itself discriminatory. The Tribunal had carried out the correct balancing exercise.[19]As to detriment, while conceding that there was detriment sufficient to satisfy the statute, certain findings by the Employment Tribunal could be separated as being those attributable to the firearms policy and those, on the other hand, attributable to the partnership policy. No concession was made wider than the one detriment which was in relation to the road traffic incident. The legal principles[20]The legal principles to be applied in this case appear to us to be as follow. The four elements of this form of statutory indirect discrimination can be extracted from the wording of SDA s.1(2)(b) namely:a. The application of a "provision" which the discriminator "applies or would apply equally to a man";b. Which is such that it "would be to the detriment of a considerably larger proportion of women than of men" [ss.1(2)(b)(i)] ("disparate impact");c. Which the discriminator cannot show to be justifiable irrespective of the sex of the person to whom it is applied [ss.1(2)(b)(iii)];d. Which is to her "detriment" [ss.1(2)(b)(iii)]."[21]The latest and most authoritative ruling on this matter is in Rutherford above where the speech of Baroness Hale contains the following statement of the law:-71. BARONESS HALE OF RICHMOND: The essence of indirect discrimination is that an apparently neutral requirement or condition (under the old formulation) or pro vision, criterion or practice (under the new) in reality has a disproportionate adverse impact upon a particular group. It looks beyond the formal equality achieved by the prohibi tion of direct discrimination towards the more substantive equality of results. A smaller proportion of one group can comply with the requirement, condition or criterion or a larger proportion of them are adversely affected by the rule or practice. This is meant to be a simple objective enquiry Once disproportionate adverse impact is demonstrated by the figures, the question is whether the rule or requirement can objectively be justified.72. it is of the nature of such apparently neutral criteria or rules that they apply to everyone, both the advantaged and the disadvantaged groups. So it is no answer to say that the rule applies equally to men and women, or to each racial or eth nic or national group, as the case may be. The question is whether it puts one group at a comparative disadvantage to the other. However, the fact that more women than men, or more whites than blacks, are affected by it is not enough. Suppose, for example, a rule requiring that trainee hair dressers be at least 25 years old. The fact that more women than men want to be hairdressers would not make such a rule discriminatory It would have to be shown that the impact of such a rule worked to the comparative disadvan tage of would-be female or male hairdressers as the case might be.73. But the notion of comparative disadvantage or advantage is not straightforward. It involves defining the right groups for comparison. The twists and turns of the domestic case law on indirect discrimination show that his is no easy matter. But some points stand out. First, the concept is normally applied to a rule or requirement which selects people for a particular advantage or disadvantage. Second, the rule or requirement is applied to a group of people who want something. The disparate impact complained of is that they can not have what they want because of the rule or requirement, whereas others can. 78. This approach, defining advantage and disadvantage by reference to what people want, chimes with the definition of discrimination given by McIntyre J in the seminal Canadian case of Andrews v British Columbia [1989] 1 SCR 143:
'…discrimination may be described as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society '
(emphasis supplied). It also chimes with Sandra Fredman's observation, in Discrimination Law (Clarendon Law Series, 2002, p.115), that 'A disparate impact is not itself discriminatory. Unequal results are legitimate if no exclusionary barrier can be identified…' The sorts of cases where indirect discrimination can be established confirm this. 82. The common feature is that all these people are in the pool who want the benefit - or not to suffer the disadvantage - and they are differentially affected by a criterion applicable to that benefit or disadvantage. Indirect discrimination can not be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question. If it were, one might well wish to ask whether the fact that they were not interested was itself the product of direct or indirect discrimination in the past. That reflects earlier jurisprudence including London Underground Ltd v Edwards [1999] ICR 494 CA where this is said by Potter LJ:- 22. I accept the submissions of Mr. Allen. In my view there is a dual statutory purpose underlying the provisions of section 1(1)(b)of the Act of 1975 and in particular the necessity under sub-paragraph (i) to show that the proportion of women who can comply with a given requirement or condition is "considerably smaller" than the proportion of men who can comply with it. The first is to prescribe as the threshold for intervention a situation in which there exists a substantial and not merely marginal discriminatory effect (disparate impact) as between men and women, so that it can be clearly demonstrated that a prima facie case of (indirect) discrimination exists, sufficient to require the employer to justify the application of the condition or requirement in question: see sub-paragraph (ii). The second is to ensure that a tribunal charged with deciding whether or not the requirement is discriminatory may be confident that its disparate impact is inherent in the application of the requirement or condition and is not simply the product of unreliable statistics or fortuitous circumstance. Since the disparate impact question will require to be resolved in an infinite number of different employment situations, well but by no means comprehensively exemplified in the arguments of Mr. Allen, an area of flexibility (or margin of appreciation), is necessarily applicable to the question of whether a particular percentage is to be regarded as "substantially smaller" in any given case. 23. The first or preliminary matter to be considered by the tribunal is the identification of the appropriate pool within which the exercise of comparison is to be performed. Selection of the wrong pool will invalidate the exercise, see for instance Edwards No. 1 [1995] I.C.R. 574 and University of Manchester v Jones [1993] I.C.R. 474, and cf. the judgment of Stephenson L.J. in Perera v Civil Service Commission (No.2) [1983] I.C.R. 428, 437 in the context of racial discrimination. The identity of the appropriate pool will depend upon identifying that sector of the relevant workforce which is affected or potentially affected by the application of the particular requirement or condition in question and the context or circumstances in which it is sought to be applied. In this case, the pool was all those members of the employer's workforce, namely train operators, to whom the new rostering arrangements were to be applied (see paragraph 3 above). It did not include all the employer's employees. Nor did the pool extend to include the wider field of potential new applicants to the employer for a job as a train operator. That is because the discrimination complained of was the requirement for existing employees to enter into a new contract embodying the rostering arrangement; it was not a complaint brought by an applicant from outside complaining about the terms of the job applied for. There has been no dispute between the parties to this appeal on that score. However, Mr. Bean has placed emphasis on the restricted nature of the pool when asserting that the industrial tribunal were not entitled to look outside it in any respect. Thus he submitted they should not have taken into account, as they apparently did, their own knowledge and experience, or the broad national "statistic" that the ratio of single parents having care of a child is some 10:1 as between women and men. 25. Equally, I consider that the industrial tribunal was entitled to have regard to the large discrepancy in numbers between male and female operators making up the pool for its consideration. Not one of the male component of just over 2,000 men was unable to comply with the rostering arrangements. On the other hand, one woman could not comply out of the female component of only 21. It seems to me that the comparatively small size of the female component indicated, again without the need for specific evidence, both that it was either difficult or unattractive for women to work as train operators in any event and that the figure of 95.2 per cent of women unable to comply was likely to be a minimum rather than a maximum figure. Further, if for any reason, fortuitous error was present or comprehensive evidence lacking, an unallowed for increase of no more than one in the women unable to comply would produce an effective figure of some 10 per cent as against the nil figure in respect of men; on the other hand, one male employee unable to comply would scarcely alter the proportional difference at all. Again, I consider Mr. Allen is right to point out in relation to Mrs. Quinlan that, albeit the industrial tribunal lacked the evidence to find as a fact that she could not comply, the reference to her indicates that they had her uncertain position in mind when assessing the firmness of the figure of only 4.8 per cent as the basis for a finding of prima facie discrimination. And the following is said by Simon Brown LJ at page 510:- "I can state my conclusions really quite shortly. Given that this legislation is concerned essentially to contrast the impact of a given requirement or condition as between men and women rather than as between the women in the group, it would seem to me wrong to ignore entirely the striking fact here that not a single man was disadvantaged by this requirement despite the vast preponderance of men within the group. Looked at in the round, this requirement clearly bore disproportionately as between men and women, even though only one woman was affected by it. Had there been an equal number of women drivers to male drivers and the same 5 per cent proportion of them been affected, i.e. 100, Mr. Bean's argument would remain the same, namely that too large a proportion of women were able to comply with the requirement to leave room for a finding that such proportion was "considerably smaller" than the proportion of men who could comply. It is not an argument I am ultimately prepared to accept. The approach to section 1(1)(b)(i) must, I conclude, be more flexible than this argument allows. Parliament has not, be it noted, chosen to stipulate, as it could, just what difference in proportions would be sufficient. Once, then, one departs from the purely mechanistic approach contended for by the employer, and has regard to other facts besides merely a comparison between 95 per cent and 100 per cent., the applicant's argument becomes compelling: no other fact could be more relevant than that, whereas 5 per cent of the women were disadvantaged, not one of the 2,023 men was. That further consideration, in my judgment, supports the industrial tribunal's finding here."[22]As to the comparison between the advantaged and disadvantaged groups the judgment of myself and Dr Fitzgerald sitting with Ms Switzer in British Airways v Grundy (UKEAT/0676/04) is relevant. The parties asked for full legal reasoning, albeit not strictly necessary for our judgment on all of the points, advanced by leading Counsel. In that case we summarised the law as we saw it up to but not including Rutherford in the House of Lords and we came to this conclusion:- "51. … the correct approach is to focus on the advantaged group and not the disadvantaged group. It is not incorrect to look at other proportions and other numbers before finally focusing on the advantaged group. The only authority relied upon by the Claimants before the Tribunals to support the proposition that the focus was to be a small disadvantaged group was the judgment of Lord Nicholls in Barry v Midland Bank Plc [1997] ICR 319. In that case the majority of the House dismissed the appeal on the ground that there was no difference in the treatment afforded to either men or women. A dissenting view was taken by Lord Nicholls at paragraph 36, albeit that he concurred in the result on the basis that the difference was justified. He accepted that, following Seymour-Smith in the ECJ, "a comparison must be made between, on the one hand, the respective proportions of men... who are not disadvantaged and, on the other hand, the like proportions regarding women in the workforce". Lord Nicholls went on to suggest (without being prescriptive) that " a better guide " would often be found " in expressing the proportions in the disadvantaged group as a ratio of each other". However, in our judgment this approach was not endorsed by the majority, it does not address the note of caution struck by the Divisional Court in Seymour-Smith and is with respect out of step with the prevailing (and subsequent) case-law and was not repeated by Lord Nicholls when giving the leading speech of the majority in Seymour -Smith .[23]Although permission to appeal was given in one of those cases on the basis that this matter might be the subject to further treatment in Rutherford by the House of Lords the closest it got in Rutherford is in the speech of Lord Walker, which is this:- 67. I do not express the view that some element of disadvan tage-led analysis may not be appropriate in some cases. But it must be recognised that there is a difficulty here: the more extreme the majority of the advantaged in both pools, the more difficult it is, with any intellectual consistency, to pay much attention to the result of a disadvantage-led approach. However I can imagine some (perhaps improbable) cases in which a disadvantage-led approach would serve as an alert to the likelihood of objectionable discrimination. If (in a pool of one thousand persons) the advantaged 95% were split equally between men and women, but the disadvantaged 5% were all women, the very strong disparity of disadvan tage would, I think, make it a special case, and the fact that the percentages of the advantaged were not greatly different (100% men and 90.5% women) would not be decisive. Thus the position remains that the analysis has to pay attention to the advantaged group. I f Lord Walker's approach is to be preferred, and as a matter of precedent we hold that it is not binding on us, there may occasionally be some softening of that line, yet it would yield no different result in this appeal.[24]As to justification, the legal principles are as follow:- "43. The domestic law has been developed from the principles articulated in the ECJ case law, in particular the "tripartite" test at para 36 in the well known decision of the ECJ in Bilka – Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317 , namely:a. the measure (ie the provision) must correspond to a real need of the employer/undertaking;b. it must be appropriate with a view to achieving that objective;c. and necessary to that end; and the need for national court to apply the principle of proportionality in considering justification [ Enderby v Frenchay Health Authority [1993] IRLR 591 ]. 44. The latter was explained by Lord Nicholls in Barry at pp. 587:
"…In other words, the ground relied upon as justification must be of sufficient importance for the national court to regard this as overriding the disparate impact of the difference in treatment, either in whole or in part. The more serious the disparate impact on women or men, as the case may be, the more cogent must be the objective justification…" 45. See also the judgment of Sedley LJ in Allonby at paras 23-25, 27 and 29. As Sedley LJ put it, criticising the approach of the Employment Tribunal in Allonby : "…Once a finding of a condition having a disparate and adverse impact on women had been made, what was required was at the minimum a critical evaluation of whether the college's reasons demonstrated a real need to dismiss the applicant; if there was such a need, consideration of the seriousness of the impact of the dismissal on women including the applicant; and an evaluation of whether the former were sufficient to outweigh the latter…"
That is a reference to the judgment in Allonby v Accrington and Rossendale College [2001] IRLR 364 . Conclusions[25]With those principles in mind, we have decided to accept the arguments of the Respondent on most of the points and that the appeal should be dismissed. We will take an analytic approach to the Act based upon its basic elements. 1. A provision[26]It is not disputed that there is a provision in this case whether it is a provision, criterion, practice, rule or policy matters not. We have called it a policy as it is described by the Respondent. 2. Equal application to men and women[27]The Employment Tribunal found that there was not such equal application. Neither party supports this conclusion and it is conceded by the Respondent that it is in error. The policy is on its face neutral. "189.1 The statute requires that the provision be applied to the Claimant, and that it would equally be applied to a man. It was not. It was applied to Mr and Mrs Faulkner jointly as partners." The distinction which the Tribunal draws is not mere sophistry but is wrong. On its own reasoning, application of the policy to Mr and Mrs Faulkner is application equally to a man and a woman. It would follow from this finding that nothing which it later says is necessary. The case could have been dismissed on that basis. However, the Tribunal does not say that it was unnecessary to deal with the other matters. It went on to deal with them. There is a great utility if a Tribunal does just that in a case where it is found that one part of a claim or a statute has not been proved. It makes it easier for us. Nor is it suggested here that that is the start and finish of the appeal. But, having detected such an error, it is open to us to determine the issue ourselves or to remit it to an Employment Tribunal. We will consider the other matters before we come to that conclusion. 3. Disparate impact[28]This is found in paragraph 193.5:- "193.5 We are therefore of the view that the appropriate "pool" for comparison must be composed of partners working for the Respondent." This is a consideration of the pool. The Tribunal said it must be composed of partners working for the Respondent. We hold that this too was an error. Mr Millar is correct when he submits that this pays no attention to the advantaged group and focuses solely on the disadvantaged group. This was the error identified in British Airways v Grundy . The pool is coextensive with a disadvantaged group leaving no room for any comparison. This pool was not the case advanced by the Claimant which consisted of the police officer complement. The Respondent responded with statistics and evidence directed to this pool. Only three examples were given of people within this disadvantaged group, that is of partners working for the Respondent. We accept Mr Millar's point that the evidence on this was wanting. The policy itself requires in terms monitoring and disclosure by those in a partnership. There are inherent difficulties in the requirement placed upon those within scope of such a rule, for they may be unwilling to disclose such a relationship at all, or at least initially. In the course of his argument Mr Clarke suggested a number of candidates for the pool. At one stage, he suggested it was those engaged in the line management relationship; but this must include every police officer, particularly as this is a hierarchical command structure, often uniformed. He also suggested that it could include potential entrants to the police force, and the whole of the workforce of the constabulary, that is, police officers, support staff and special constables.[29]Having identified that error as to the selection of the pool, both Counsel recognised that it was open to us to substitute a judgment as to the correct pool or to refer to the matter back to an Employment Tribunal. Alternatively we could hold the Judgment to be unarguably right notwithstanding the legal error. Our firm judgment is that the correct pool is the whole of the Respondent's work force. No authority has been shown to us in which a rule of universal application throughout an employment establishment is capable of giving rise to a discrimination claim in respect of a pool substantially smaller than the whole. The policy in this case is specifically directed at everybody employed by the police authority, certainly both the constables and the support staff. That means that the wrong statistics were produced to the Employment Tribunal and evidence was not focused on this issue. We, of course, do not have that material although an impressionistic approach from the fact that the majority of the support staff are said by Mr Clarke to be female and the majority of the police officers are male would indicate that the workforce is split roughly 50/50 on gender lines.[30]The disparate impact in this case is said to arise, and it is not disputed, from the fact that male officers outnumber female officers in a ratio of roughly 3:1. A difficult forensic position opens up before us. The Claimant's case, as presented to the Tribunal, failed for the Tribunal made its own decision on the pool, and we have held that to be the wrong pool. We cannot substitute our view except to say that we would hold that the correct pool is as we have suggested for we have no detailed evidence. On the other hand, if we give our view on the pool as contended for, as consisting of police officers, while strictly unnecessary for our decision, it might assist the parties to come to conclusions about the way forward. That was our initial thinking. However, this case can be disposed of on the sole basis advanced in argument before us and so we will operate on the basis of the pool as advanced by Mr Millar.[31]As to this Mr Clarke's submission is too simple. He says that because the policy applies to people who are in a partnership and any partnership includes one man and one woman, every application of the policy will be made equally against a man and a woman. The more sophisticated approach of Mr Millar seems to us to be correct, that is by reference to the gender breakdown of the police officer workforce. The figures can show dramatic results, for he said this:- "60. The proportion of women disadvantaged by the provision will always be considerably larger than me disadvantaged because of the substantially lower number of women officers in the force. Thus, say there are 50 different sex partnerships: 5.4% of women are subject to the disadvantage, but only 1.7% of men. The ratio of women to men affected will always be around 3:1. The higher the number of relationships, the more dramatic the disparity between the percentages – viz if (to take the most extreme possibility) all 911 of the women officers were in a relevant relationship it would be 100% of women but only 31% of men." On the figures which he has there produced, we would be prepared to hold, applying the judgment in British Airways v Grundy , that there was a larger percentage of women than men disadvantaged by the policy. We would have some difficulty in holding that it was considerably larger. When the figures are put in positive terms 94.6% of men and 98.3% of women are disadvantaged. Less than four percentage points would not seem to us to be considerable. This is precisely the kind of equation which was discussed by the Divisional Court in Seymour-Smith [1994] IRLR by both Balcombe LJ and McCullough J where positive figures were respectively 96% as against 98% and these were held not to be considerably larger one against the other. It is for this reason that, when Seymour-Smith reached the Court of Appeal Mummery LJ, considered that such statistics might be "seriously misleading" taking the evidence which had been given by Mr Peter Parker CBE, formerly a member of this Court. Mr Millar's example, we remind ourselves, is simply an example but even applying it we would hold that a considerably larger proportion of women than of men is not disadvantaged. Since it is an example we can take it no further but that was the highest he put his case. The only figures actually available, and therefore the only figures upon which it is proper form a judgment, were in respect of the three couples including the Faulkners.[32]We bear in mind the caveats Mr Millar has asked us to place upon using those low figures. These include the complaint made by junior Counsel at the Employment Tribunal hearing that she was not allowed to cross-examine a relevant witness on certain evidence. The Tribunal accepted that it halted cross-examination for it deals with this in its judgment at paragraphs 102 and 104. It preferred not to take evidence as to a witness's opinion of the percentages of female officers who are in relationships. It said that it was an issue for submissions and the witnesses were not fully aware of the figures. The knowledge or otherwise of individuals did not appear to it to be relevant and so on that basis cross-examination was halted. That was a matter for it to decide at trial and we see no error in it, even bearing in mind Mr Millar's caveat about the non-disclosure problem.[33]We are forced to look again at the actual figures. Testing the proposition by reference to the citation in positive terms, 99.9% of men as against 99.7% of women can comply with the rule. Negatively, 0.15% of men and 0.32% of women police officers are disadvantaged. If we were to operate on this basis of the pool as Mr Millar suggested, it would not be a considerable difference. There would be no disparate impact.[34]There is force in Mr Millar's argument that it is wrong for the Respondent to have raised the wider pool, that is the whole of the workforce in the constabulary, in debate before the EAT. Were this plainly a new point taken on appeal we would not have allowed it for no exceptional reason is advanced. But as he recognised, a different category is where we have acknowledged that an error has been found and we have to decide what to do about the case. We the view, and this is a necessary part of our finding, that even if the Claimant's case proceeds on appeal on the basis of the pool as she set it forth, she would on the material put before us fail to show disparate impact. Mr Millar contended that the Tribunal had used the wrong pool but the pool consistently advanced and acknowledged by all sides at the Employment Tribunal, fails to show disparate impact on those figures even given a generous allowance for the difficulties which Mr Millar has shown us.[35]We look at the disadvantaged group itself. It is, as the policy itself says, directed at those who are in a partnership. It is possible to approach this from the other end by saying that all those in a management relationship will be disadvantaged, in other words they cannot start a partnership. But this is not how the policy is framed, nor is it realistic. Those who are in a partnership are required to disclose it. If they fall into a supervisory relationship the policy will take effect. It does not apply to anyone outside the existing payroll because it deals with those who have, or have formed, a partnership while working, or possibly before working, for the Respondent. The comparative exercise is conducted with those who are not in a partnership. As we have said, everybody in this organisation will be in some line management relationship with someone else. That then deals with pool and disparate effect. We dismiss the appeal on that basis as well. In so far as we might take a different view of the pool, the decision to dismiss the claim was unarguably right. 4. Detriment[36]Before justification we will deal with detriment, slightly out of sequence. Mr Clarke advanced an elaborate argument based on analytic approach to the various claims made by the Claimant, some of which are based upon her treatment for the purposes of the partner's policy and others for the purposes of the firearms policy. Of the eight issues identified by the Employment Tribunal only two are specifically relied on by Mr Millar. Another emerges from the judgment and a fourth is conceded by the Respondent. In our judgment the criticism of Mr Millar's case is misplaced. The finding of fact by the Tribunal is that all of the events were connected to the fact that the Faulkners were partners and the background was the partner's policy. Since Mr Millar's case is narrow, only three points, it is only necessary for us to say what we uphold. The finding that there was a detriment for the purposes of the statute consisting of the move from Fareham to Eastleigh, the move from Eastleigh to Winchester and the attendance at the 2003 road traffic incident as conceded by Mr Clarke are at least three incidents of detriment and we would also be prepared to uphold Mr Millar's third specific ground relating to Chief Inspector Watkins failure to support the Faulkners: see reasons paragraph 49. 5. Justification[37]In any event, a more serious matter afflicts the attack on justification. This Tribunal was perfectly focused on the issues which it was asked to consider further by the EAT. We reject the contention that the Tribunal failed to do the balancing act required of it. It necessarily focused on the application of the rule to the Faulkners because they were the best example of the implementation of the rule. It had direct evidence about this. It is not necessary for us to repeat all of the detailed reasons which attended upon the Faulkners' case but the Tribunal has, by consideration of the statute under the direction of the EAT, and citation of the relevant authority, come to a firm conclusion on the appropriateness, that is the proportionality, of the measure.[38]As it affected the Faulkners, it must also be noted that this is not simply an exegesis on the policy itself, for the statutory tort committed here, if proved, is of discrimination against Mrs Faulkner by the operation of a rule said to be contained within the partner's policy. Here the Tribunal has done full justice to the task which we set it. In giving further reasons on justification, it has not strayed beyond the remit in the questions drafted by leading Counsel on both sides and has as a matter of fact upheld the justification advanced by the Respondent. We see no error of law and we note again that on this aspect of the case the Tribunal infused its judgment by its own appreciation of relationships in workplaces. That is specifically part of its statutory constitution. Thus, if this were the only issue in the case we would also have dismissed the appeal on the basis of justification.[39]For all those reasons the appeal is dismissed. We would very much like to thank all Counsel involved for the help that they have given and to solicitors who have done additional work today and yesterday. Permission to appeal refused [reasons not transcribed].