THE INDUSTRIAL TRIBUNALS

CASE REF:	01846/00

APPLICANT:		Donna Lisa Boote

RESPONDENT:		Ministry of Defence 

DECISION
The unanimous decision of the tribunal is:-

1.	The applicant was indirectly discriminated against on grounds of sex contrary to the Sex Discrimination (Northern Ireland) Order 1976.

2.	The applicant was not directly discriminated against on grounds of sex contrary to the Sex Discrimination (Northern Ireland) Order 1976.

Appearances:
The applicant was represented by Ms M Higgins, Barrister-at-Law, instructed by Basil Glass & Company, Solicitors.
The respondent was represented by Mr D Morgan, QC, and Mrs Neasa Murnaghan, Barrister-at-Law, instructed by The Crown Solicitor’s Office.

THE APPLICANT’S INDIRECT SEX DISCRIMINATION CLAIM

1.	The applicant joined the Army in 1987 when she was aged 17.  From the outset of her career, she was a member of the Royal Military Police (RMP) and in 1996 she was promoted to the rank of Sergeant.

2.	There is no doubt that the applicant was regarded by her superiors as an exceptional soldier.  In August 1999 her line manager, Major Rowley, described her as “a very professional investigator who has displayed admirable supervisory and management skills.  She is the number one Sergeant in SIB NI [Special Investigation Branch] and I grade her as OUTSTANDING, (the only ‘O’ grading I have given this year).  I would employ her as a S Sgt anywhere in SIB and she should be promoted now.”

3.	In September 1999, the applicant’s Commanding Officer Lieutenant Colonel D A Lawson recorded in her last annual report:-

“Sgt Boote goes from strength to strength and has been an invaluable asset in DIC during a turbulent period.  She is intelligent, hardworking and has a strength of character and determination that mark her out as a real SIB rising star.  Whether she is briefing a JNCO or the GOC (General Officer in Command) she is completely at ease, a master of her brief and people listen to her and seek her advice.  Amongst a strong peer group, she is looked up to as a natural leader.  Across the regiment, Sgt Boote sits very high in the top third of my 41 Sgts.  Sgt Boote has a bright future; she is a warrant officer of the future and may well also be a future LE candidate.  She must attend the platoon commanders’ course as soon as possible so that she can be promoted at the first opportunity.  An OUTSTANDING year, promote Sgt Boote now.”

4.	The applicant married another serviceman, who was also a member of the RMP, in 1992.  Their first child was born in 1997.  In 1999 whilst the applicant was pregnant with her second child, she was asked to sign Option C of Annex C of a document entitled “Intention and Undertaking to Repay Payment”, as a condition of returning to service after the birth of her child.  This document is part of Defence Council Instruction JS 132/98 which is the method used to promulgate army policy.

5.	The applicant was extremely upset when she read the contents of Option C.  In particular, she was concerned about the implications for her family of paragraph 14 which states:-

“I understand that if the father of my child is a serving serviceman it may not be possible for us to serve in the same unit/locality/theatre and that we may be absent from the family home/area at the same time.  This will include going on exercise, taking part in operational deployments, being drafted to sea service (if so liable) and undertaking unaccompanied or emergency tours.”

6.	The applicant had no objection to her own liability to deploy at short notice.  She accepts that as a serving soldier, Queen’s Regulation 9.260 requires that she must be “available for a world-wide posting at any time”.  She did however take strong objection to the requirement contained in paragraph 14 that both she and her husband may be required to deploy away from home at the same time.

7.	The tribunal accepts that the applicant’s objections were based on concern for the welfare of her children.  The applicant had no satisfactory alternative arrangements which she could make in the event that both she and her husband were deployed at the same time.  She did not have either the space or the money to employ a live-in nanny.  Both of the applicant’s own parents work full-time, and in any event, because she was a servicewoman, there was no opportunity for the grandparents to develop a close personal relationship with the children which would have made it a feasible option to leave the children with them for a period of up to six months.

8.	The applicant discussed these difficulties with her line manager, Major Rowley, and with another superior, Lt Colonel Prosser.  Neither of these men, although sympathetic to her position, were able to offer any reassurance as to the likelihood of both she and her husband being deployed at the same time, despite their childcare difficulties.  She was told by Major Rowley that if she was told to go, she would just have to go.

9.	Although the applicant would have expected the army to take account of individual circumstances in making decisions on deployment, she had no confidence in how much weight would be attached to her position.  Her view was that her difficulties would have fallen quite low in the order of priorities.

10.	In May 1999 the applicant applied to be co-located with her husband in Northern Ireland for childcare reasons.  Although the request was accommodated, her husband was posted to Omagh whilst the applicant remained in Lisburn.  The burden of responsibility for the children therefore fell largely on the applicant.

11.	In the army, mission command decides the objective and a considerable amount of discretion is left to officers at all levels to achieve the objective.  In particular, decisions about which personnel should be deployed at any given time are solely within the discretion of a Commanding Officer.

12.	There are currently approximately 900 female soldiers with children of whom 270 are single.  Of the remaining 630 female soldiers, between 500-600 are married to male soldiers.  There are approximately 30,000 male soldiers with children.  There are approximately 2,500 single fathers.

13.	In information provided in response to a statutory questionnaire, the army disclosed that between 1 April 1999 and 1 March 2002, 20 pregnant officers and 148 pregnant soldiers whose partners were other soldiers left the army because of pregnancy.  That does not however reflect the number of women who have left the army for family reasons.  The applicant for example is recorded as having left on “premature voluntary release” (PVR), although the reason that she left is because she could not comply with paragraph 14 of Option C of Annex C of DCI JS 132/98.

14.	In November 1999 the applicant served the required one year’s notice to terminate her service.  In April 2000 the applicant made an application for the redress of her complaint under Section 180 of the Army Act 1955 to her Commanding Officer.  She complained that she had been indirectly discriminated against by virtue of paragraph 14 of Option C of Annex C referred to above.  The details of her complaint are as follows:-

“5(a)	We have two very young children and whilst I accept that as a serving soldier I am liable to fulfil a complete range of duties, including unaccompanied tours, I would contend that as this condition applies also to my husband, it would be impossible for me to provide the level of flexibility required by paragraph 14.

(b)	I feel that this particular aspect of DCI JS 132/98 is both grossly unfair and severely prejudicial in that, as a direct result of that policy, I feel I have no other option but to tender my notice and abandon what is a promising career in order to guarantee the long term welfare of my children.

(c)	As a member of the SIB, I will be under command of a different CO to my husband who is a GPD SNCO with additional liabilities for Close Protection deployments.  Our two “specialisations” could cause conflicting priorities for Commanding Officers, which warrant special consideration.

(d)	When I enlisted into the Army in 1988, women were unable to continue to serve once they had children.  The Services have now conceded that position was unlawful.  Paragraph 14 of Annex C to DCI JS 132/98 undermines that acknowledgement by maintaining terms that make it extremely difficult for women, who are married to other servicemen, to continue in the Services.

(e)	Where serving fathers have custody of their children, they are not asked to sign a similar document giving the same undertakings, therefore I would contend that the Services have implicitly acknowledged that the major responsibility of caring for any children generally falls to the female soldier.  Hence, this policy impacts more greatly on those female soldiers with children, as opposed to male soldiers with children.  Accordingly far fewer female soldiers then male soldiers can provide the level of flexibility required.

6.	I claim that I am entitled to the following redress:-

a.	in order for me to continue to serve and ensure that either my husband or I will be able to be the primary carer of my children, I need a written and unequivocal guarantee that at no time, whilst we continue to serve, would my husband and I be deployed away from home for extended periods of time simultaneously and an acknowledgement from the Army Board that one of the parents is to be formally considered to be the primary career; and

b.	that serving fathers who have major responsibility for the care of their children should be asked to give similar undertakings to that contained within Annex C to Defence Council Instruction (Joint Service) 132/98 (now superseded by DCI JS 35/2000).”

15.	The applicant accepts that if the country was in a state of war, the army would be justified in requiring both parents of young children to deploy away from home at the same time.  However, because of her personal circumstances, she could not continue to serve as a soldier unless she had an absolute guarantee that she and her husband would not be deployed at the same time in any circumstances.

16.	Because the applicant’s complaint for redress related to army policy, the Commanding Officer passed it up through the chain of command as required.  The redress of complaint must be submitted with three months from the date on which the matter being complained of occurred.  Rather than dealing with the issue as an ongoing matter, the relevant date was held to be the date on which the applicant signed Option C of Annex C, which was November 1999.  Accordingly, it was decided that her complaint was out of time and could not be dealt with.

17.	However, Major Barton recorded that:-

“notwithstanding [the fact that the complaint is considered out of time] it is noted that the matter that Sgt Boote complains of may be an issue for other serving servicewomen and it has therefore been considered appropriate to refer her case to DPS (A) Employment Policy who have agreed to view her case and respond accordingly.  Please ensure that Sgt Boote is informed of the content of this letter.  You will be informed of the DPS (A) Employment Policy response in due course.”

18.	Despite this, the applicant was never contacted by anyone from the Employment Policy Division regarding her application for redress of complaint.  Nor was the tribunal given any explanation as to why there was no contact, despite Major Barton’s clearly expressed understanding that DPS (A) Employment Policy had agreed to view her case and respond accordingly.

19.	At no stage during the redress procedure, or indeed up until the applicant terminated her service in July 2000, was any reassurance given to the applicant as to the circumstances in which both parents might be deployed at the same time.

20.	In particular, at no stage was the applicant informed that any priority would be given to the fact that her children would be left without a primary carer if a decision was taken to deploy both parents at the same time.

21.	On 21 July 2000, the applicant lodged proceedings in the industrial tribunal alleging sex discrimination.

22.	On 29 November 2002, two years after the applicant left the army, the Directorate of Personal Services (Army) issued guidance to Commanding Officers about the deployment of parents.

It is useful to set out the document in full:-

	DEPLOYMENT OF PARENTS

1.	Parents have a legal responsibility to care for their children or make proper alternative arrangements if they are absent.  Soldiers, whether they deploy for one day or 6 months, often rely on their spouses or partner in such circumstances.  However, if the soldier has no spouse or partner, or if that person has a job which requires them to be absent at the same time (for example if he or she is also a soldier) then the situation becomes more complex.

2.	The Army has an interest in helping individuals to balance the needs of their family against the needs of the job.  However, QR 9.260 stipulates that “a soldier must be available for a world-wide posting at any time”.  Furthermore, the fact that one soldier, particularly in a restricted trade group, is unable to deploy may mean that another has to take an unfair share of the burden of deployment.  In the future greater flexibility between various types of engagement with different degrees of liability to deploy may be possible, but in the interim it would be useful to offer Commanding Officers guidance in interpreting QR 9.260, in order to ensure a degree of consistency across the Army (including the TA).

3.	The following factors should be considered in determining whether an individual should deploy in a given set of circumstances.

a.	The bottom line is the operational imperative.  At the end of the day if a CO determines that it is essential that an individual should deploy, that he or she must do so.

b.	No two sets of circumstances will be identical.  The CO must weigh the particular demands of the operational task and the morale of the other members of the team against the specific needs of the individual in coming to a decision.  In some circumstances the balance will lie in favour of the operational imperative (for example if it would involve a ‘back to back’ tour for another soldier), in others it may lie in favour of the individual (for example if it involves a single parent who has been recently widowed or there is a handicapped child).

c.	Whenever possible both parents, both of whom are serving, should not be deployed at the same time and this may require close cross unit liaison.  Whenever possible a 24 month tour gap should be maintained for single parents.  Where such a potential conflict arises in a unit at high readiness, consideration should be given to posting one of the parents out of that unit to one on a different readiness cycle, or at a different state of readiness.

4.	Much can be done in advance to pre-empt potential difficulties.  Those who may have difficulty deploying should be identified well in advance (as should volunteers who are happy to serve a ‘back to back’ tour).  They should be encouraged to design ‘Care Plans’ and discuss them with their chain of command.  These need not be in writing but should detail how their children will be looked after from day to day and when they are required to deploy for a day, a month or a year.  The plan might include nominated formal guardians, together with their contact details, and NOK details of the parents and should be lodged with the UWO.

5.	The overall aim must be to make individuals aware of their liability to deploy, assist them in constructing robust arrangements for the care of their children and balance the operational requirement with a compassionate approach to individual families.

6.	I would be grateful if you would disseminate this letter down the chain of command.

23.	Lieutenant Colonel Von Bertele gave evidence that he was not aware that any steps had been taken to communicate the guidance in this document to individual soldiers.  He explained that normally if the army wants to communicate information to individual soldiers a direction would be given that the information is to be repeated in unit orders.  No such direction was given in relation to the guidance contained in this document.

24.	The tribunal accepts that there is a current shortfall in the number of trained service personnel required by the army.  This is due to problems both in the recruitment and retention of the best people for the job.

25.	The second report of the House of Commons Defence Committee entitled “The Strategic Defence Review : Policy for People” (14 February 2001) sets out a number of reasons for those problems:-

(i)	“The fragmentation and instability in the world has led to a dramatic increase in international involvement in peace support operations.”

(ii)	Whereas in the past, servicemen and women could have expected a “predictable rotation of accompanied postings and time spent away on planned exercises, [the forces] have become expeditionary, travelling to trouble spots around the world when they are needed, often at short notice, on active unaccompanied deployments and operations.”

(iii)	Because of the shortfall in trained personnel, there is a perception amongst servicemen and women that they are “overburdened” and that there is consequently a deterioration of quality of life.  “More time is spent away from families and longer working hours”.

(iv)	“This is not just an issue for people with families : single people feel that they too are entitled to have a private life and that in fact the burden placed on them is often disproportionate as efforts are made to decrease the burden on married personnel first.”

(v)	Intervals, between operational tours have decreased in recent years, adding to the pressure on personnel.

26.	The tribunal accepts that the issue of equality for women in the Armed Services is an issue which has been the focus of a great deal of attention in recent years by the Armed Forces in consultation with the Equal Opportunities Commission.  The Equal Opportunities Commission stated in its response to the House of Commons Defence Committee (October 2000) that:-

“From a history of recruiting women, but dismissing them when they became pregnant, the challenge for the services today, is not only to recruit more women, but also to retain them.  In respect of the retention of more women, there are two main issues of concern to the Equal Opportunities Commission:-

•	sexual harassment; and

•	the lack of opportunities to balance work and family life.”

27.	In relation to work-life balance the Equal Opportunities Commission submitted at paragraph 5.3.2 of its submission to the Defence Committee that -

	“The Armed Service’s response to women’s return to work after maternity leave has been one of the most difficult cultural problems to address.  It is questionable whether return from maternity leave has been implemented sympathetically in very many cases.  There was, and in some cases, there remains a view that to be in the Armed Services is incompatible with family life - at least for women.”

28.	Evidence of resistance to women being accommodated within the army after they have children may be found in correspondence between officers in 1998 relating to the amendment of the Maternity Leave DCI.  On 18 August 1998 Captain D M J Clarke commented that he was concerned about legal advice which suggested that in order to avoid an indirect discrimination claim “it would be prudent to be as accommodating as possible [to a woman with a young child], where that is consistent with maintaining operational effectiveness.”  This advice had been given in the context of the application of the requirement that a woman with a young child must undertake the full range of her duties.

	His concern was expressed as follows:-

	“Clearly, if there were documented medical or welfare reasons why a woman was unable to carry out her duties to the full, then the decision to afford her a degree of ‘light duties’ would be a local administrative decision.  We should not suggest within the DCI that a woman returning to work, following SML should be afforded, or expect to be afforded, any form of ‘special’ treatment automatically.  This would only serve to plant such an idea by way of a right into the minds of those who, not wishing to carry out their role to the full, may try and use the DCI as some form of authority to support their actions.  It is therefore strongly recommended that no such suggestion or reference be included …..”

29.	On the same date in response to legal advice that there was no restriction on the period of service which the army could require following return from maternity leave, if a woman were to retain the right to full pay during the maternity leave period, a Civil Servant in the Ministry of Defence recorded the comment “ye-ha!”.

30.	Colonel Von Bertele accepted that there was resistance within the army to proposals for flexible working, part-time working and career breaks.

31.	The applicant herself was accused by a colleague of deliberately getting pregnant with her first child in order to avoid being deployed to Bosnia.

32.	Paragraph 20 of the executive summary of “Women in the Armed Forces” (2002), an official report issued by the Ministry of Defence states:-

“Women must have the opportunities to progress to the highest ranks, and if they are to do so, ways need to be found to retain more women for longer.  Ways in which the unique and demanding conditions of service life, including the unlimited liability to deploy at short notice, can be better reconciled with the demands of family life will continue to be examined.  These conflicting demands affect men also, but more often they bear disproportionately on women.”

33.	Ms Higgins drew the tribunal’s attention to the Optional Protocol to the Convention on the Rights of the Child which was signed by the UK on 7 September 2000.  This Protocol concerns the involvement of children in armed conflict.  The Declaration of the UK and Northern Ireland states:-

“The United Kingdom of Great Britain and Northern Ireland will take all feasible measures to ensure that members of its armed forces who have not attained the age of 18 years do not take a direct part in hostilities.

The United Kingdom understands that Article 1 of the Optional Protocol would not exclude the deployment of members of its armed forces under the age of 18 to take a direct part in hostilities where:-

(a)	there is a genuine military need to deploy their unit or ship to an area in which hostilities are taking place; and

(b)	by reason of the nature and urgency of the situation:-

(i)	it is not practicable to withdraw such persons before deployment; or

(ii)	to do so would undermine the operational effectiveness of their ship or unit, and thereby put at risk the successful completion of the military mission and/or the safety of other personnel”.

	The applicant’s claim is that she was indirectly discriminated against on grounds of her sex and marital status contrary to the Sex Discrimination (Northern Ireland) Order 1976, the Equal Treatment Directive 207/76 and the Human Rights Act 1998.

34	THE LAW

34.1	Article 3(1)(b) of the Sex Discrimination (Northern Ireland) Order 1976 states as follows:-

3(1)	A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Order if –

(b)	he applies to her a requirement or condition which he applies or would apply equally to a man but –

(i)	which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and 

(ii)	which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii)	which is to her detriment because she cannot comply with it.

34.2	By Article 5 of the Sex Discrimination (Northern Ireland) Order 1976, discrimination against married persons is defined in the same way.

34.3	The Equal Treatment Directive (76/207/EEC) is also applicable in this case.  The Directive is directly effective against the State or an emanation of it.  (See eg Johnston  v  Chief Constable of the Royal Ulster Constabulary [1987] ICR 83)

By Article 1 of the Directive its purpose is described as to “put into effect in the Member States the principle of equal treatment for men and women as regards ... working conditions ... this principle is [thereafter] referred to as “the principle of equal treatment”.

34.4	Article 2 of the Directive provides that:-

“1.	For the purposes of the following provisions [of the Directive] the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital family status.”

34.5	Article 5 of the Directive requires that:-

“1.	Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.”

34.6	Article 5 requires that Member States take the measures necessary to ensure that:-

“(a)	any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished ...”

34.7	The European Convention on Human Rights.

Article 8 provides that:-

“1.	Everyone has the right to respect for his private and family life, his home and correspondence.

2.	There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

In determining whether an infringement has taken place, the court must have regard to “the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole convention”.  (Cossey  v  UK A184 Para 37 [1990])

35.	The tribunal’s conclusions:

	The tribunal proposes to deal with each part of Article 3(1)(b) in turn:-

35.1	He applies to her a requirement or condition which he applies or would apply equally to a man.

	The tribunal is satisfied that the requirement which was applied to the applicant and was applied equally to a male soldier was that she must be available for a world-wide posting at any time, irrespective of whether her husband was required to deploy at the same time.  The requirement was unlimited, and decisions on individual deployment were at the sole discretion of each Commanding Officer.  There was no obligation on a Commanding Officer to attach any particular weight to the fact that a service couple who were asked to deploy at the same time had dependent children vis a vis any other factor attaching to an individual.

35.2	In our view, the guidance expressed in the 2002 document entitled “Deployment of Parents” represented a change in army policy and was not the policy which was applied to the applicant.  The guidance states that “whenever possible both parents should not be deployed at the same time and this may require close cross unit liaison”.

35.3	We understand that guidance to mean that both parents should only be deployed at the same time in exceptional circumstances.   Lieutenant Colonel Von Bertele agreed that that was effectively what the wording meant.  Commanding Officers are therefore in our view now required to attach very considerable weight to the fact that a service couple has dependent children when making individual decisions on which personnel should be deployed in a given set of circumstances.  They were not so required when the applicant signed the undertaking in November 1999.  We have reached this conclusion for the following reasons:-

	(a)	Lieutenant Colonel Von Bertele’s evidence was that army structure is such that Commanding Officers are told the mission they must achieve, and the means of achievement is left entirely to them.  Decisions on deployment are solely within the authority of an individual Commanding Officer.

	(b)	Neither the applicant’s line manager nor her Commanding Officer Lieutenant Colonel Prosser understood that there were limited circumstances in which both she and her husband could be deployed at the same time.

	(c)	The applicant’s application for redress of grievance clearly set out her difficulties with the apparently unrestricted nature of paragraph 14 of DCI.  Although she wanted an absolute guarantee of non-deployment at the same time as her husband in any circumstances, one would have expected the army to have offered reassurance that “whenever possible” such a requirement would not be imposed, if that was the policy in place at the time.

	(d)	Although the applicant’s redress of grievance was deemed to be time-barred, DPS(A) Employment Policy agreed to consider the matter because it was an issue which affected other servicewomen.  Therefore the fact that only a guarantee of   non-deployment would have been sufficient for the applicant because of her particular circumstances would not have prevented the army setting out clearly how paragraph 14 would be applied in practice to service couples.  The fact that the army did not do so leads us to the conclusion that at the relevant time army policy did not impose any limits on the right to deploy both parents at the same time.

	(e)	The tribunal notes that paragraph 12 of Option C of Annex C of DCI JS 132/98 states:-

		“I understand that, if I choose to return to duty after taking Statutory Maternity Leave and Occupational Maternity Absence the Service will, where possible, allow me to return to the post/unit in which I served prior to taking maternity leave/absence.  I understand, however, that due to operational requirements it may not always be possible to place me in exactly the same unit/post I held before commencing maternity leave; but my wishes will be considered carefully and taken into account before any decision is reached.”

		The tribunal also notes paragraph 13 of Option C of Annex C of DCI JS 132/98 - which states:-

		“I understand that I can, on my return from Statutory Maternity Leave and Occupational Maternity Leave, opt to be posted to a different post/unit and that this will be granted if at all possible, however I have no right to this request.”

	The absence of any such wording in paragraph 14 supports the view that the army intended a Commanding Officer to take into account any factors he wished in reaching decisions on deployment, and did not require him to attach any particular weight to the fact that a service couple had dependent children.

36.	Which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it.

The respondent concedes (for the purposes of this case only) that the proportion of women who can comply with the requirement to deploy at short notice is considerably smaller than the proportion of men who can comply with it.

36.1	Which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied.

36.2	It is clear that once the applicant has established a prima facie case of indirect discrimination, then it is for the respondent to establish that it can be objectively justified.  Justification requires an objective balance to be struck between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it (Hampson  v  Department of Education & Science [1989] IRLR 69; Briggs  v  North Eastern Education & Library Board [1990] IRLR 181).  Butterworths Discrimination Law sets out at part A 1 paragraph 386 factors to be taken into account in determining the proportionality between the needs of the employer and the avoidance of discrimination: the number of employees that will be affected by a policy and the extent of the detriment they will suffer (Jones -v- University of Manchester [1993] IRLR 218(A)); the reason for the application of the requirement or condition and whether the objective could be achieved without discrimination.  If an alternative is available, the tribunal will consider the costs (London Underground -v- Edwards (No 2) 1997 IRLR 157).  Butterworths expresses the view that “as the Equal Treatment Directive emphasises the importance of outlawing discrimination, tribunals should not be too quick to accept claims of justification.”

36.3	It is also clear that the issue of justification of an indirectly discriminatory condition must be considered at the correct point in time.  In Meade-Hill -v- British Council [1995] IRLR 478 which concerned a mobility clause contained in the contract of employment, it was held that the relevant date for considering justification was the date the contract was agreed rather than the date the clause was invoked.  In our view, the correct date for considering the issue of justification in this case is the date the applicant was required to sign the undertaking contained in Option C of Annex C of DCI as a condition of returning to service which is November 1999.  It is also apparent from Meade-Hill that the inclusion of a contractual term which imposes an obligation on a party to the contract amounts to an application of a requirement or condition against that party (per Millet LJ).

36.4	The respondent contends that paragraph 14 is necessary because:-

	(a)	Operational effectiveness must be the paramount consideration when making decisions on deployment.

	(b)	It is essential to have flexibility in the area of deployment to ensure that the diverse needs of all service personnel are taken into account.  As the Strategic Defence Review points out, the changing demands imposed on the army have had an adverse effect on the retention of all service personnel, and the army continues to be below trained strength.

	(c)	The purpose of the army is to fight wars.  In times of emergency all members of the regular forces need to be available to be deployed.

	(d)	The need for soldiers to be capable of being deployed at short notice often affects the cohort of those who have responsibility for parenting because those people generally have been trained up to have the skills which often were essential in relation to emergency deployments.

	(e)	In practice, it was contended that the army adopted a sympathetic approach to the needs of its personnel when individuals have difficulties.

36.5	The applicant contends that the discriminatory effect of paragraph 14 is that although pregnant women are no longer dismissed by the army, it is effectively impossible for them to remain, bearing in mind that although the conflicting demands of family life and service life affect men also, they have a disproportionate adverse impact upon women.

36.6	The tribunal is not satisfied that the respondent has established that paragraph 14 can be objectively justified.  We have reached this conclusion for the following reasons:-

(a)	The fact that since November 2002 the respondent has qualified the circumstances in which both parents may be deployed at the same time is a recognition that operational effectiveness is not compromised by a policy which only permits such a decision to be taken when there are exceptional reasons for doing so.  It is clear from the detailed advice given in the document “Deployment of Parents” that methods can be used to reconcile the needs of both the army and parents such as identifying cases where a “potential conflict [may] arise in a unit at high readiness and [giving] consideration to posting one of the parents out of that unit on a different readiness cycle, or at a different state of readiness”.  Obviously this will involve effort and  pre-planning, but it is clear that it can be done.

(b)	We accept the submission of the Equal Opportunities Commission submitted to the House of Commons Defence Committee that the opportunity to balance work and family has a direct link to the issue of retention of women in the army.  In our view, unless women are given clear assurances as to the circumstances in which both they and their husbands may be required to deploy at the same time, it is very unlikely that women will have the opportunities to progress to the highest ranks, because an unqualified requirement to deploy at the same time as one’s partner precludes the opportunity to balance work and family.

(c)	It is inevitable that unless limitations are given to commanding officers, decisions on the deployment of both parents will be inconsistent and may be influenced by discriminatory attitudes towards women.

(d)	The army already recognises that at least one group of soldiers does have qualifications on deployment, namely soldiers under the age of 18.  The circumstances in which such soldiers may be deployed in an area of conflict are clearly set out in the Optional Protocol to the Convention on the Rights of the Child.

36.7	We consider that we are not required to reach a decision on what requirement would have been justified in the circumstances.  However, the case that was presented to us on behalf of the applicant was that nothing short of an absolute guarantee of non-deployment at the same time as her husband could lawfully be justified.  We therefore take the view that we are obliged to deal with that case.  We do not consider that the applicant is correct in her submission.  We have reached this conclusion for the following reasons:-

(a)	The applicant herself acknowledges that in an emergency situation, such as war, it would be justifiable to deploy both parents at the same time.  We do not accept that this is the only situation which could justify such a decision.

(b)	The primary purpose of being a soldier is that one is capable of being deployed.  We consider that a guarantee of non-deployment is inconsistent with that purpose.

(c)	There can be no doubt that operational effectiveness must be the paramount consideration for any army.  Clearly therefore, if operational effectiveness requires both parents to be deployed at the same time, the decision to do so would be justified.  Where both parents are specialists in a particular area, problems may arise if a complete veto on deployment is imposed.

(d)	If a guarantee of non-deployment were to be given to service couples, clearly the principle would also have to be applied to all single parents in the army also.  Therefore a significant group of people would be unavailable for deployment in any circumstances.  Given that the army is already below strength, and the changing demands imposed on it have had an adverse effect on the retention of all service personnel, we do not consider that an objective balance between the needs of the army and the discriminatory effect is struck by an absolute guarantee.

37.	Which is to her detriment because she cannot comply with it.

37.1	It is clear from the decisions in Mandla -v- Dowell Lee 1983 IRLR 209 and Ravel  v  DHSS and Civil Service Commission [1985] IRLR 370 that in considering whether or not the applicant can comply with the requirement, the correct approach is to determine whether she can comply in practice, not in theory.  The respondent contended that the applicant did not wish to comply with the requirement and that the evidence did not establish that she could not comply.  We do not accept that submission.  In the circumstances of this case we consider that “can comply” requires a consideration of whether the applicant has satisfactory childcare arrangements at her disposal to safeguard the welfare of her children in the event of both herself and her husband being deployed at the same time for a period of up to six months.  We accept that the applicant did not have such arrangements available to her.  The applicant’s evidence was that both her parents worked full-time, and in any event they did not have a close relationship with their grandchild because the demands of service life meant that there was no regular contact.

Although, when pressed by the respondent about what she would do in a war situation, the applicant stated that she would have had no option but to turn to her mother, it was by no means certain that her mother would have been able to accommodate her.  What was clear to the tribunal, was that this was not an option which the applicant considered to be feasible, taking into account all relevant circumstances, and which would have enabled her to remain in the army whilst subject to the requirement of paragraph 14 of DCI JS 132/98.  It is not surprising that the applicant was not prepared to countenance her children being put into social services care, and she could not afford to pay for a live-in nanny.  The tribunal is satisfied that the applicant could not comply with the requirement to be fully flexible for deployment at all times including periods when her husband would also be deployed at the same time.

37.2	The second issue for the tribunal is whether paragraph 14 is to the applicant’s detriment because she cannot comply with it.

Mr Morgan submitted on behalf of the respondent that if the tribunal concluded that paragraph 14 was unjustified (which he did not concede), but that the applicant was not legally entitled to a guarantee of non-deployment at the same time as her husband, then the applicant had not suffered a detriment.  He submitted that the applicant’s detriment was not caused by the fact that the requirement was unlimited, and could have been qualified.  Her detriment was caused by the fact that she could not deploy at the same time as her husband, in any circumstances.  Mr Morgan pointed out that the applicant’s clear evidence was that she needed an absolute guarantee in order to remain in the army.  

In deciding this issue, the tribunal considered at length the definition of “detriment” contained in the House of Lords decision Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] UK HL 11.  Lord Nicholls of Birkenhead said at paragraph 35 that once the applicant has established that the disadvantage has arisen in the employment field:-

“ ... the only other limitation that can be read into the word [detriment] is that indicated by Lord Brightman.  As he put it in Ministry of Defence  v  Jeremiah [1980] QB 87 104 B, one must take all the circumstances into account.  This is a test of materiality.  Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?  An unjustified sense of grievance cannot amount to “detriment”.  Barclays Bank PLC  v  Kapur and Others (No 2) [1995] IRLR 87.  But contrary to the view that was expressed in Lord Chancellor  v  Coker and Osamar [2001] IRLR 116 on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence.  As Lord Hoffmann pointed out in Khan’s case at p1959, para 52, the employment tribunal has jurisdiction to award compensation for injury to feelings whether or not compensation is to be awarded under any other head ...”.

37.3	The question for this tribunal is therefore whether the evidence justifies a finding that the treatment of which the applicant complained was to her detriment.

In West Yorkshire Police  v  Khan [2001] UK HL 48, Lord Nicholls accepted that because the provision of a reference was a normal feature of employment, the refusal to provide one could constitute a detriment, even though on the facts, the applicant would not have been appointed, no matter how glowing the reference might have been.

We do not consider that the applicant’s sense of grievance was unjustified.  Paragraph 14 effectively told the applicant that she could not expect any particular weight to be attached to the fact that she had dependent children when decisions on deployment were being made.  A reasonable female soldier in her position might well feel anxious and distressed, as did the applicant, that such a requirement was imposed as a condition of returning to service after maternity leave.  To be subject to such an unlimited liability to deploy at the same time as her partner is clearly a disadvantage to any mother.  To that extent, we consider that paragraph 14 was to the applicant’s detriment because she could not comply with it.

However, we do not accept that the detriment extended to the loss of her career, because it was clear from the applicant’s own evidence that she could only remain in the army if she was given “a written and unequivocal guarantee that at no time” would she and her husband be deployed at the same time.

37.4	We therefore conclude that the applicant was indirectly discriminated against on the grounds of sex contrary to the Sex Discrimination (Northern Ireland) Order 1976.

37.5	The issue of remedy will be dealt with at a separate hearing.

THE APPLICANT’S DIRECT DISCRIMINATION CLAIM

38.	At paragraph 11 of her originating application, the applicant stated that her complaint was sex discrimination.  She did not specify direct or indirect discrimination.  Ms Higgins indicated in opening the case that the applicant wished to pursue a claim of direct discrimination as well as a claim of indirect discrimination.  The direct discrimination claim related to the fact that only women are required to sign the document which contains paragraph 14 as a condition of returning to service after the birth of a child.

39.	Mr Morgan submitted that the claim as originally pleaded contained only an indirect discrimination claim.  Having considered the matter, the tribunal decided that the only claim in the originating application was one of indirect discrimination.

40.	Ms Higgins sought leave to amend the application.  The tribunal gave the applicant time to consider the amendment she wished to make.  The proposed amendment was then reduced to writing and it was agreed by both parties that the case would proceed on the basis that this was the proposed amendment, and the tribunal would hear submissions at the end of the case as to whether the amendment was time barred and if so, whether time should be extended.  The proposed amendment which was put before the tribunal was as follows:-

Furthermore, I believe that the requirement that servicewomen expecting a baby, but not servicemen who are about to have a baby agree to the statements contained in paragraphs 10-14 of Option C of the Statement of Intention (or their equivalent in Option B) – which is set out at Annex C of JS 132/98 – particularly when read with paragraph 38 of JS 132/98 as an ongoing condition of their continuing to serve in the army, amounts to direct sex discrimination.  These issues are not relevant to the issue of maternity leave.

41.	After all the evidence had been heard and submissions had been made by both the applicant and the respondent, Ms Higgins submitted in reply that the proposed amendment was incorrect.  She indicated that she wished the tribunal to consider a different amendment, namely:-

“Serving fathers who are the primary carers of children are not required to give the same undertakings as pregnant mothers.  This amounts to direct sex discrimination.”

The respondent strenuously opposed any change to the amendment at this stage, since the case had proceeded on the basis of the original proposed amendment.

42.	In the tribunal’s view it would not be just and equitable to consider a different amendment at such a late stage in the proceedings, after all the evidence has been heard, and in view of the respondent’s objections.  Accordingly, the tribunal considered the proposed amendment which had been reduced to writing at the start of the hearing.  However, whether one considers expectant fathers or male primary carers, the essence of the applicant’s complaint is that only women must sign the document which contains paragraph 14.

43.	The principles relating to the exercise of a tribunal’s discretion to amend an originating application are set out in Selkent Bus Co Ltd  v  Moore [1996] ICR 836.  In particular, the tribunal noted that it should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

44.	The tribunal also considered the three separate categories of amendment set out in Harvey on Industrial Relations and Employment Law Volume 5 (T) at paragraph 311 onwards.  In our view, the proposed amendment falls within category II, namely “an amendment which adds or substitutes a new cause of action but one which is linked to, or arises out of the same facts as the original claims”.  The authorities suggest that it is not good law to apply the statutory time limits to such amendments.

45.	Applying the principles of Selkent we have reached the conclusion that the applicant should be permitted to amend the originating application.  The reasons for our decision are as follows:-

(i)	the applicant completed the originating application herself, without the benefit of representation;

(ii)	although the applicant had received advices from the Maternity Alliance, those advices were restricted to an indirect discrimination claim;

(iii)	in correspondence dated June 2003, the applicant had indicated her intention to pursue both a direct and an indirect discrimination claim.  Therefore the respondent was not taken by surprise at the hearing;

(iv)	there was no suggestion that the respondent would require an adjournment to deal with the amendment, and indeed Lieutenant Colonel Von Bertele gave evidence about the reasons why women are asked to sign such a document.

(v)	there is no doubt that the application to amend could, and should have been made at a much earlier stage.  The only apparent reason for the delay was that the applicant considered that the originating application as pleaded was sufficient to ground both a direct and an indirect discrimination claim.

In our view, the balance lies in favour of granting the amendment since to do otherwise would prevent the applicant pursuing her claim in circumstances where there is no prejudice to the respondent, other than the prejudice of having to deal with an additional claim.

46.	Article 3(1) of the Sex Discrimination (Northern Ireland) Order 1976 provides:-

“A person discriminates against a woman in any circumstances relevant for the purposes of this Order if –

(a)	on the ground of her sex he treats her less favourably than he treats or would treat a man.

Article 8(2) provides:-

“It is unlawful for a person in the case of a woman employed by him at an establishment in Northern Ireland, 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.”

47.	Lieutenant Colonel Von Bertele gave evidence that the purpose of the document was to spell out the rights and implications of having a child whilst in a service career.  The document was intended to ensure that a woman considered her full liability as a serving soldier, before she agreed to return to service after maternity leave.

48.	It is accepted that both male and female soldiers are subject to exactly the same requirements.  The fact that women are required to sign a document indicating their acceptance of those terms, does not make them subject to any additional liabilities.  As Lord Hoffmann pointed out in Khan, being subjected to detriment is an element of the statutory cause of action additional to being treated “less favourably” which forms part of the definition of discrimination.

Except insofar as the document at issue contains paragraph 14 which we have held to be indirectly discriminatory, the applicant has not established that she was subjected to any disadvantage, which would constitute a detriment, by the mere fact that she had to signify her agreement to the terms of service applied to every soldier in the army.

In our view, therefore, the direct discrimination claim must fail.

Chairman:

Date and place of hearing:		1 – 9 September 2003 and 29 September 2003, Belfast

Date decision recorded in register and issued to parties: