Appeal No. EAT/660/91
			EAT/668/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 July 1993
	Judgment delivered on 30 July 1993

	Before

	THE HONOURABLE MR JUSTICE TUCKEY

	MR R A JACKSON

	MR J A SCOULLER

EAT/660/91

MRS M DIXON	APPELLANT

MR D REES	RESPONDENT

EAT/668/91

MISS D HOPKINS	APPELLANT

SHEPHERD & PARTNERS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

EAT/660/91	MRS M DIXON v MR D REES

For the Appellant	MISS D ROSE
	(of Counsel)
	Equal Opportunities
	          Commission
	Overseas House
	Quay Street
	Manchester M3 3HN

For the Respondent	MR P MARSHALL
	(of Counsel)
	Messrs Graham Evans &
	          Partners
	6 Christina House
	Swansea SA1 4EP

EAT/668/91	MISS D HOPKINS v SHEPHERD & PARTNERS

For the Appellant	MISS D ROSE
	(of Counsel)
	Equal Opportunities
	            Commission
Overseas House
Quay Street
Manchester M3 3HN

For the Respondents	MR J WALTERS
	(of Counsel)
	Messrs David & Snape
	Wyndham House
	Wyndham Street
	Bridgend
	Mid Glamorgan
	CF31 1FP

	MR JUSTICE KNOX:   Both the Appellants in these appeals, Mrs Dixon and Ms Hopkins had their complaints of sex discrimination dismissed by different Industrial Tribunals in Wales after hearings in September 1991.  Each allege that they were dismissed from their jobs because they were pregnant.  We heard their appeals together as both Appellants are represented by the Equal Opportunities Commission and Ms Dinah Rose, Counsel on their behalf, submitted that each appeal raised the same point as to the effect of the decision of the House of Lords in Webb v Emo Air Cargo Limited 1993 1WLR 49.

	The facts found by the Industrial Tribunal in each case can be stated shortly.  Mrs Dixon was employed as a hair stylist.  She became pregnant in 1990.  She was dismissed on 7th December 1990 ostensibly for constant insubordination and as a result of customer complaints.  The Industrial Tribunal rejected this reason and concluded that she had been dismissed for the business convenience of her employer.  He had found an adequate replacement for her and did not want to lose the opportunity to employ that replacement or have to pay both for the next three months when Mrs Dixon would take maternity leave.  They concluded that there was nothing to indicate from the evidence that a man in analogous circumstances would not have been treated in exactly the same way.  The employer put his own business convenience before that of his employees.  Gender did not enter into that.

	Ms Hopkins was employed as a trainee veterinary nurse.  She became pregnant in 1991 and was dismissed, so her employers contended, because her condition made it unsafe to continue her employment in view of the known risks to the baby of exposure to X-rays and anaesthetics, infections from sheep and other animals, and the need for the mother to lift heavy weights.  It is clear that the issue before the Industrial Tribunal was whether this was a genuine reason.  The Industrial Tribunal decided that it was.  They concluded by saying:
"We ... are satisfied that (the employers) acted genuinely out of concern for possible dangers to the unborn child, coupled with potential liability to themselves and the difficulty of making satisfactory changes in their organisations to eliminate their concern and that there were sufficient grounds for their anxiety to indicate that they would have reacted similarly to a comparable situation (whatever that might be) involving a man, or in other words that they were not simply reacting to the Applicant's pregnancy in itself."
	The Appellants submit that following the decision of the House of Lords in Webb the Tribunals in each case should have found the complaints proved alternatively that we should remit them for further hearing.  The essence of this submission is that the House of Lords have now decided that the "sick man" comparison is not valid in cases such as this and that, following the European Court of Justice's decision in Dekker (1992) ICR 325, as the dismissal in each case was based essentially on the fact of the Appellant's pregnancy it was directly discriminatory. 

	The English statutory provisions against which this submission has to be considered are contained in the Sex Discrimination Act 1975 which provides as follows:
"1 (1)  A person discriminates against a woman in any circumstances relevant for the purpose of any provision of this Act if - (a)  on the ground of her sex he treats her less favourably than he treats or would treat a man ..

5  (3)  Comparison of the cases of persons of different sex under Section 1 (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

6 (2)  It is unlawful for a person in the case of a woman employed by him at an establishment in Great Britain to discriminate against her ... (b) by dismissing her ..."
	In Hayes v Malleable Working Mens Club (1985) ICR 703 an EAT decided that the proper course for a Tribunal to follow was to compare the position of a pregnant woman with that of a man who by reason of some medical condition required a period off work equivalent to what a woman would require for her confinement.  A specially constituted EAT of five upheld this approach in Webb (1990) ICR 442.  In that case the Applicant had been employed to replace a pregnant employee and then became pregnant herself whereupon she was dismissed.  The EAT accepted submissions by the employers which they recorded as follows:
"In relation to direct discrimination the question for consideration is always whether the Applicant was adversely treated because of her sex or because of a neutral factor.  She may say she was dismissed because of her sex but an employer may say it was because of the inconvenience to the business if he continued to employ a person who was going to be absent for three to six months over a vital period.  The issue of which explanation is correct has to be answered by the application of a test involving a principle.  That test, whether the dismissal was on the ground of sex or some other neutral ground, is whether she has been less favourably treated than a man was or would have been treated in comparable circumstances where those relevant circumstances are not materially different.  If in comparable circumstances a man would have been treated in the same way the dismissal was not on the ground of sex and there is no direct discrimination, it was because of business needs.  The applicant will have failed to establish her case.

(4)  If the Applicant's submissions are correct it would automatically be direct discrimination not to offer a woman employment because she is pregnant.  The true reason might be that she was incapable of performing the necessary duties, or, the job needed to be carried out over the next few months and she would be away as also would be a man about to enter hospital.  Thus, unless a court carries out a comparison of the treatment of the complainant with that which was or would have been accorded to a comparable man, there is no principle test by reference to which it can be decided whether the adverse treatment was on the ground of sex or some other ground."

	By the time of the hearing of Webb in the Court of Appeal the European Court of Justice had decided the case of Dekker (above) and Hertz (1992) ICR 332.  The question in each case was whether the employer was in breach of the principle of equal treatment laid down in articles 2 (1) and 3 (1) of the Council Directive 76/207.  

	In Dekker a pregnant woman was not offered employment because the employer would not have been able to afford to pay for a replacement and this might have led to a staff shortage.  In its judgment the court said:

"The answer depends on whether the fundamental reason for the refusal of employment is one which applies without distinction to workers of either sex or conversely whether it applies exclusively to one sex ... It should be observed that only women can be refused employment on the ground of pregnancy and such a refusal therefore constitutes direct discrimination on the ground of sex.  A refusal of employment on account of the financial consequence of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy."

	In Hertz a woman was dismissed because of repeated absence from work due to illness caused by complications arising from an earlier pregnancy.  In its judgment the court said

".. the dismissal of a female worker on account of pregnancy constitutes direct discrimination on grounds of sex, as is a refusal to appoint a pregnant woman: see Dekker ... on the other hand the dismissal of a female worker on account of repeated periods of sick leave which are not attributable to pregnancy or confinement does not constitute direct discrimination on grounds of sex in as much as such periods of sick leave would lead to dismissal of a male worker in the same circumstances."

	The Directive does not have direct effect upon the relationship between the Appellants and their employers in the instant case but our domestic legislation must be construed to accord with the Directive as interpreted by the European Court of Justice if that can be done without distorting the meaning of the domestic legislation.

	The Court of Appeal in Webb (1992) ICR 445 specifically approved the "sick man" comparison as a matter of construction of the 1975 Act.  Lord Justice Glidewell at page 455 H said
"I therefore conclude that dismissal of a pregnant woman for a reason arising out of, or related to, her pregnancy can in law be, but is not necessarily, direct discrimination under section  1 (1) (a)."

	Lord Justice Balcombe in considering a submission that "any dismissal on the ground of pregnancy is necessarily gender based and therefore discriminatory" said at page 463 (D) 
"It would indeed be remarkable if the law compelled us to reach such an unjust result."
	He said at page 463 H
"I agree, the dismissal of a pregnant woman for a reason arising out of her pregnancy can be but is not necessarily direct sex discrimination...  It will be direct discrimination if the employer did treat or would have treated more favourably a man whose relevant circumstances were not materially different, e.g. a man who needed three months absence from work due to a medical condition."

	The court also rejected the argument that the decisions in Dekker and Hertz required the Act to be construed in the manner contended for.  They accepted the submission that these decisions should not be read as meaning that dismissal for a reason related to pregnancy would in every circumstance be treated as discriminatory but if this is what they did mean they could not be given effect to without distorting the meaning of the 1975 Act.

	It is necessary to consider the history of Webb in this detail in order to evaluate the Appellants' submissions about what the House of Lords decided.  The headnote at page 49F says
"HELD, (1) That in determining under Section 1 (1) (a) of the Sex Discrimination Act 1975 whether the Applicant had been directly discriminated on the ground of her sex the correct comparison to be made under section 5 (3) was with a hypothetical man who would also have been unavailable for work at the material time, the precise reason for the unavailability being irrelevant; and that, in the circumstances as found by the Industrial Tribunal, the Applicant's dismissal had not constituted unlawful discrimination .."
	Ms Rose submits that this headnote is wrong.  She refers to a passage in the opinion of Lord Keith (with which all their Lordships agreed) at page 53 H which says
"There can be no doubt that in general to dismiss a woman because she is pregnant or to refuse to employ a woman of child bearing age because she may become pregnant is unlawful direct discrimination.  Child bearing and the capacity for child bearing are characteristics of the female sex.  So to apply these characteristics as the criterion for dismissal or refusal to employ is to apply a gender based criterion, which the majority of this House in James v Eastleigh Borough Council (1990) 2 AC 751 held to constitute unlawful direct discrimination".
	This Ms Rose submits, supports what was said in Dekker.  Where the dismissal is related to the normal consequences of pregnancy it must be regarded as discriminatory of itself and it is unnecessary to make a comparison between the treatment of the woman and the treatment of  a hypothetical man in similar circumstances.  The House do not approve the "sick man" comparison, so she submits, and the decisions in Dekker and Hertz are cited without disapproval.  The line should be drawn between dismissal related to the normal (Dekker) and abnormal (Hertz) consequences of pregnancy.  The former will be discriminatory; the latter will only be discriminatory if a man in a comparable position would have been more favourably treated.

	Despite the ability and clarity with which Ms Rose made these submissions we are unable to accept them.  In the two pages of his opinion immediately following the passage relied on by Ms Rose it seems to us that Lord Keith approved the "sick man" comparison.  At page 54 B he says
"The question is whether it is legitimate to make a comparison between the non availability of a woman by reason of expected confinement and the non availability of a man, which may or may not be for medical reasons, for the purposes of postulating relevant circumstances under section 5 (3) of the Act.  If it is not legitimate then cases can be envisaged where somewhat surprising results would follow."

	He then goes on to give some examples of these and continues at H by saying
"The Applicant was not dismissed simply because she was pregnant but because here pregnancy had the consequence that she would not be available for work at the critical period.  It is true that but for her sex she would not have been pregnant, and but for her pregnancy she would not have been unavailable then.  If the "but for" test applies to that situation it must equally apply where the reason for the woman being unavailable at the critical time is that she is then due to have an operation of a particularly gynaecological nature, such as a hysterectomy.  But a man may require to undergo an operation for some condition which is peculiar to males, such as an abnormal prostate.  Is the "but for his sex" test to be applied so as to produce a finding of unlawful discrimination where he is not engaged because the impending operation will make him unavailable when his services are particularly required? ... The circumstances in the case of a woman due to have a hysterectomy are different from the circumstances in the case of a man due to have a prostate operation.  The question is whether they are materially different, and the answer must be that they are not, because both sets of circumstances have the result that the person concerned is not going to be available at the critical time.  Then it has to be considered whether there is something special about pregnancy which ought to lead to the conclusion that the case of a woman due to be unavailable for that reason is materially different from the case of a man due to be unavailable due to an unexpected prostate operation.  In logic there would not appear to be any valid reason for that conclusion.  It is true that pregnancy may be said to be a normal condition, not an abnormal pathological condition such as to require a hysterectomy, but the consequences of both are the same, namely unavailability of the person when particularly needed.  The argument for the applicant is that when comparison is made between a pregnant woman, who is going to be unavailable on account of her confinement at the critical time, and a man, then because a man could not be available for the same reason dismissal or failure to engage the pregnant woman constitutes discrimination.  The correct comparison is not with any man but with a hypothetical man who would also be unavailable at the critical time.  The relevant circumstances for the purposes of the comparison required by section 5 (3) to be made is expected unavailability at the material time.  The precise reason for the unavailability is not a relevant circumstance, and in particular it is not relevant that the reason is a condition which is capable of affecting only women or for that matter only men."
	Nowhere in these passages does Lord Keith disapprove the "sick man" comparison.  In view of the decisions of the EAT and the Court of Appeal to which we have referred we would have expected him to do so if that was his intention.  Nor can his references to the comparison be explained on the basis that it was appropriate only in the exceptional circumstances of that case.  The case was one of non availability caused by pregnancy.  That is not in our view an exceptional case.  If a comparison has to be made in such a case it is difficult to see why it should not have to be made, as it seems to us the statute requires, in every case.  Moreover Webb was a case where the dismissal was related to the normal consequences of pregnancy.  The House would have decided it the other way if its decision means what Ms Rose says.

	When Lord Keith at page 53 H says "there can be no doubt that in general to dismiss a woman because she is pregnant is unlawful direct discrimination" we think he is recognising what the Court of Appeal said in the passages we have cited that dismissal of a pregnant woman for a reason arising out of or related to her pregnancy can be direct discrimination and saying that it will be "in general", which we interpret to mean "without more".  Read in this way there is nothing inconsistent with what Lord Keith and the Court of Appeal say.  

	Having resolved the main point in these appeals we can deal with the consequences and the other points taken in each case quite shortly.

	In the case of Mrs Dixon the Tribunal reached their conclusion after directing themselves in accordance with Hayes and the EAT decision in Webb i.e. the law as it then was.  In view of our decision on the main point this approach cannot be faulted.  This was not a case of dismissal for pregnancy without more.  Mrs Dixon was dismissed because of the business convenience of an employer who would have treated a man in exactly the same way.  By "business convenience" we take the Tribunal to mean not only the financial consequence of continuing to employ the Appellant but also the inconvenience of her non availability coupled with the fact that he had found a suitable replacement for her.  This would dispose of the appeal as formulated in Mrs Dixon's notice of appeal but Ms Rose took a further point based on the fact that in their reasons the Tribunal say
"It is however a reasonable assumption that what happened in her case was that the convenience of Mr Rees prevailed over her continued employment.  If business convenience was the motive it would not matter whether the employee was male or female".
	Ms Rose argues that by using the word "motive" the Tribunal erred in their approach because motive is irrelevant (see R v CRE Ex. p. Westminster City Council 1990 ICR 554 at page 567 B).  So it is but it is clear from the context that when the Tribunal use the word "motive" they mean "reason".  Read in that way it is conceded that the Tribunal cannot be criticised.  There is nothing in this point in our view.  It follows that Mrs Dixon's appeal must be dismissed.

	In the case of Ms Hopkins the position is not so clear.  In paragraph 1 of their reasons the Tribunal say

".. under the Sex Discrimination Act 1975 there has to be actual or potential better treatment of a man; but men do not become pregnant; but it has been decided that an imaginative leap must be made.  European law does not require any explicit comparison (whatever meaning can then be given to discrimination or in the European phrase "equal treatment") and the conclusion has been drawn that adverse treatment on the ground of pregnancy is automatically discriminatory for the very reason which raised the difficulty under English law, namely that only women can conceive... but our jurisdiction is limited to applying (the 1975) Act and logically we should not have regard to European decisions except as an aid to construing the Act where no other authority binds us (which is not the case here).  This conclusion seems to be forbidden us by the whole trend of recent decisions.  In this case however the conflict is more academic that practical; the Respondents allege that they dismissed Miss Hopkins not simply because she was pregnant (or to escape any statutory liability towards her based simply on that fact, see Dekker's case) but because her condition made it unsafe to continue her employment ...; and the Applicant accepts that if (this was) the genuine reason for her dismissal and was well founded, she cannot succeed.  Those issues being joined, we need not look into the underlying authorities".
	It is apparent from this that the Tribunal proceeded on the assumption that the only issue between the parties was as to the genuineness of the reason for the dismissal and that if this was the reason given by the employers the complaint would fail.  Accordingly the Respondent relies on the well established rule that it is not open to an Appellant to take points in the EAT which were not taken below, particularly if, as here, further findings of fact might be necessary to resolve them.  At the hearing before the Tribunal the Appellant was represented by a Solicitor.  It was asserted that she has no recollection of making the concession recorded and believes that it may have been made by the Appellant in the course of her evidence.  The Appellant apparently denies this and there is apparently no reference to any such concession in such notes of her evidence as still exist.  This is all very unfortunate.  We think that if the Solicitor had not made the concession, she would immediately have asked for a review when she received the Tribunal's reasons.  She did not.  Nor was the matter raised in the notice of appeal at which time it might have been possible to have asked the Chairman for his recollection of what had happened.

	In these circumstances we do not think it would be right to enable the Appellant to take points now which might result in the case being remitted for further hearing.  We can see nothing from such reasons as they gave to indicate that the Tribunal failed to approach the case in accordance with the law as we find it to be.  This was not a case of dismissal for pregnancy without more but one where the Tribunal found that the employers acted genuinely out of concern for themselves and for the unborn child and that they would have acted similarly in a comparable situation involving a man.

	This appeal will therefore also be dismissed.