Appeal No. EAT/96/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 26 July 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR R SANDERSON OBE

	MR J A SCOULLER

MRS K JARVIS 	APPELLANT
(Formerly Bowsher)

STRIDE LIMITED	RESPONDENTS
T/A COMPUTER QUOTE

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS TESS GILL
(Of Counsel)
Messrs Blake Lapthorn
South Hampshire Office
New Court
1 Barnes Wallis Road
Segensworth
Fareham
Hampshire PO15  5UA

For the Respondents	MR E HARRISON
(Employment Consultant)
Business Education Associates
Aedifico House
147 Green Lane
Clanfield
Waterlooville
Hants  PO8  8OLS

		MR JUSTICE MUMMERY (PRESIDENT):   This is an appeal against the decision of the Industrial Tribunal held at Southampton on 3 and 12 November 1993.  On 14 December 1993 the Tribunal notified the parties of their majority decision.  The majority decision was that the complaint of Mrs Karen Jarvis that the Respondents, Stride Limited T/A Computer Quote, committed an unlawful act of sex discrimination against her was not well- founded.  The consequence was that Mrs Jarvis's complaint failed.  Mrs Jarvis appealed against the decision by a Notice of Appeal dated 20 January 1994.  On 30 June 1994 an answer was served by the Respondents, and they set out grounds of a cross-appeal.  The cross-appeal is against certain findings of fact by the majority.  It is unnecessary to consider the detailed grounds of the cross-appeal, since, after discussion with Mr Harrison, who represents Stride Ltd., the cross-appeal has been withdrawn.  In our view, that was a correct step to take, since there was no arguable point of law raised on the cross-appeal.  The basis of it was a dispute with the majority's findings of certain facts.  There is no appeal to this Tribunal against findings of fact, made after hearing conflicting accounts from witnesses about what has happened.

	Only the appeal is left.  In order to decide whether the appeal succeeds or not, it is necessary to consider the facts found by the Tribunal and to examine whether the law was correctly interpreted and applied to those facts.  Mrs Jarvis, who at that time was Miss Bowsher, started the proceedings on 30 January 1993, by presenting an application to the Industrial Tribunal alleging unlawful sex discrimination.  Her complaint was a simple one.  She originally worked for British Home Stores.  In the summer of 1992 she applied for the job of a counter-sales clerk with Stride Ltd.  She had an interview in August 1992 and was offered the job.  She signed terms and conditions of employment on 16 August.  She was due to start work on 5 October.  She left British Home Stores on 11 September, as her fiancee and herself wanted to spend some time together before she started her new job.  About a week after she had left on 17 September, she was rushed into hospital with stomach pains.  On 18 September, she was told that she was expecting twins.  She rang the company the following week to ask if she could take an appointment at the Housing Benefits Office on 9 October.  She felt guilty about starting a new job and asking for time off.  She explained the situation to the office manager who informed her that she would not be taken on.  Mrs Jarvis's evidence was that Mrs Tocher told her that she could not let her start her job because it would cost too much money to train her and she would be leaving.

	On that basis, the claim of sex discrimination was made.  The claim was resisted by Stride Ltd., who said that the Applicant had never commenced employment with them.  The grounds of resistance, in the Notice of Appearance dated 23 February 1993, were that they were surprised to receive the application, as they understood that the Applicant had decided not to work with them on 5 October 1992.  This had been mutually agreed in a telephone conversation with the company's Portsmouth senior branch manager, Mrs Tocher.  They believed that it was not necessary to confirm it in writing, as their understanding of the telephone conversation was that the Applicant had decided not to start work.  She did not start work on 5 October.  That confirmed the mutual agreement.  As a result they had filled the position.  They detailed other background matters and took a further point that the application was out of time.

	That was the dispute before the Industrial Tribunal:  a simple dispute which we say, without criticising the Tribunal, resulted in a rather convoluted set of extended reasons.  The upshot at the hearing before the Industrial Tribunal was, in the experience of the Members of this Tribunal, is unprecedented.  No unanimous decision was reached, either on the facts or on the law.  The position on the facts was that the majority, consisting of the two lay Members, took one view of the crucial conflict of fact about what was said in the telephone conversation on 28 September between the Applicant and Mrs Tocher.  The two lay Members preferred the evidence of the Applicant to that of Mrs Tocher.  The Chairman, on the other hand, accepted the evidence of Mrs Tocher on behalf of the company.   The Tribunal set out in the Full Reasons detailed explanations as to why the majority preferred the evidence of the Applicant and why the Chairman preferred the evidence of the company.

	The Tribunal divided again in different combinations when it came to the final conclusions.  The final conclusion of the majority, consisting of the Chairman and Mrs Saunders, was that there was no sex discrimination and the claim failed.   Confusingly, but consistently with their divergent views of the facts, the Chairman and Mrs Saunders arrived at the same conclusion by different routes.  The Chairman's conclusion was straightforward: having found, on the balance of probabilities, that he had preferred the evidence of Mrs Tocher to that of the Applicant, there was no discrimination.  Mrs Saunders, who had taken a contrary view of the facts, followed a different route for justifying her conclusion that there was no discrimination.  Her reasons for finding that there was no discrimination are set out in paragraph 9 of the decision.   They have been the subject of trenchant criticism by Ms Gill, on behalf of the Appellant.  The other lay Member, Mr Robertson, who had been in the majority in deciding that the evidence of the Applicant was to be preferred, found himself out-voted by the Chairman and Mrs Saunders on the result.  Paragraph 10 of the decision contains the reasons why he concluded that it was a case of sex discrimination.  Ms Gill's submission was that the reasoning of Mr Robertson, in the minority, was a correct statement of the legal position; and that the majority decision was infected by the legal error of Mrs Saunders.  No criticism could be made of the Chairman's position, but Mrs Saunders joining with him with her erroneous reasoning meant that the majority decision on no discrimination was legally flawed.  It was submitted that as the appeal should be allowed and by the consequence of allowing the appeal was that there should be a finding by this Tribunal that the Respondent has committed an unlawful act of sex discrimination against the Applicant.

	In our judgment, the appeal should succeed and so should the claim.  We have reached the conclusion that there is an error of law in the reasoning of Mrs Saunders and that the reasoning of Mr Robertson is the correct application of the proper interpretation of the Sex Discrimination Act to the facts of the case.   Why have we reached this conclusion?  It can be explained as follows.  We start with the reasoning of Mrs Saunders.  In the section of paragraph 9 which sets out her reasons, it is stated:

	"... Mrs Saunders looked to Section 1 of the Sex Discrimination Act 1995 and the provision there in respect of direct discrimination...

Section 1 is set out.  There is no dispute that Section 1(1)(a) is the relevant statutory provision.  It deals with direct discrimination and makes it unlawful in these terms:

	"(1)	A person discriminates against a woman in any circumstances relevant for the purposes of any provisions of this Act if -

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

Mrs Saunders then reasons as follows: in paragraph 9(a)__

	"Whilst it is true that the respondent has not sought to argue that the true cause of any treatment complained of was not pregnancy but instead a factor that is not gender-related, nevertheless Mrs Saunders was confident from having seen and heard the witnesses that if, for example, a man or indeed a woman had approached Mrs Tocher on the telephone in a similar manner in relation say to a kidney transplant operation which might have to be undertaken in 6 months time Mrs Tocher would have done exactly the same as was found on the facts by the 2 Tribunal members.  It was thought that the example of a kidney transplant operation was appropriate because this could still leave doubt as to the continuance of employment after an operation as might be the case with a pregnancy.

	(b)	Commonsense showed that Mrs Tocher's reaction was not one of sex discrimination and it must be viewed against the respondents declared policy of equal opportunities.  It was more likely to be economic expediency which motivated the respondent to withdraw the offer and this motivation would have been the same in the case of a male or female suffering with a similar condition but not pregnancy.  The respondent would avoid the necessity to spend money on training and would not be exposed to the risk of losing an employee after a short period of employment.

	(c)	In the circumstances of this case and in the light of all the evidence it would not be right to say 	that there was automatic discrimination because of the pregnancy.  It was important to follow the provisions of the Sex Discrimination Act and to compare how a man would have been treated, namely a man in similar circumstances who would not be available or would be unlikely to be available at similar times as the applicant."

Reference was made to the decision of the House of Lords in Webb v EMO Air Cargo (UK) Ltd [1993] ICR175.  At the end of paragraph 9 of the full reasons dealing with Mrs Saunders position, these words were added:

	"(e)	It is fair to say that had the Chairman been with the majority on the question of fact, then he 	would have come to this same conclusion."

	As for that reasoning, Ms Gill argued that there was no basis on the evidence presented by the Respondent, fully summarised in the decision of the Tribunal, from which Mrs Saunders could have concluded that the company would have treated an employee seeking time off for a kidney transplant operation in the same way as they treated Mrs Jarvis.  The conclusion reached by Mrs Saunders was based on surmise and speculation and was not legally supportable.  In particular, reliance was placed by Ms Gill on findings as to the company's evidence set out in the decision and usefully summarised in paragraph 6(ii) of the Notice of Appeal.  The position as summarised in the Notice of Appeal and based upon identified paragraphs in the decision, is as follows: 

	"6(ii)	the Industrial Tribunal found that the Respondent gave the following evidence:

	1.	the company regularly gave long compassionate leave to employees when required for a medical 	   condition, ...

	2.	the respondent had no reason to refuse the applicant's employment, ...

	3.	the respondent company would have given maternity leave to the applicant, although each case 	   is assessed on its merits, ...

	4.	if the applicant had started work she would have been given time off for her maternity, ...

	5.	they (the respondents) would have worked round the question of maternity leave and there was 	   no problem with this, ..."

It is argued that, in the light of this evidence, there was no basis for the conclusion by Mrs Saunders that a man would have been refused employment in the same circumstances, or that the offer was withdrawn on grounds of economic expediency.

	During the course of argument, particular reference has been made to the submissions that were made on behalf of the company.  In paragraph 7(d) of the extended reasons it is stated:

	"The respondent's case rested on the evidence, and in particular, that regarding the telephone conversation on the 28 September.  The respondent's representative was aware of the decision in Webb v EMO Air Cargo (UK) Ltd as well as that of Dekker v VJV-Centrum in the European Court of Justice but did not propose to make any submissions in that respect because the respondent's case was simply that there was no act of discrimination, the decision not to start work being that of the applicant. [That was rejected on the facts found by the majority.]  He [Mr Harrison representing the company] submitted, and Mrs Norman [the general manager of the company who gave evidence] confirmed under oath, that if the applicant had been a man who had come to them with a situation resulting in future absences as near as possible to a pregnancy this would have caused no problem to the respondent, who would have provided cover for leave as they had done on other occasions."

Therefore, Ms Gill submitted, there was an error of law in the reasons given by Mrs Saunders for her conclusion that there was no sex discrimination.  As the evidence for the company was that there was no reason to refuse the Applicant employment, it was not open to Mrs Saunders to find that there was a reason for that refusal, namely economic expediency.  In the absence of the company presenting evidence of a non-gender based reason for not honouring the contract of employment, it was legally erroneous for Mrs Saunders to find that the reason was economic expediency, a non-gender based reason.   Ms Gill submitted in conclusion that, as the company had failed to put forward a reason, the Tribunal should have drawn the inference, as supported by the comment of Lord Keith in the House of Lords in Webb v EMO 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.  That statement by Lord Keith is found in the [1993] ICR175.   The relevant passage is at page 180 between C and D.

	Ms Gill has referred helpfully to passages in the judgment of the European Court of Justice in Dekker v VJV-Centrum [1992] ICR325.  We do not find it necessary to examine in detail the judgments in the House of Lords or the judgment of the European Court of Justice in detail, because it is clear that, on the arguments summarised, Ms Gill is correct.  She adopts the reasoning of Mr Robertson in the minority.  He reached, by a correct route, a conclusion that there was sex discrimination.  Mr Robertson's view was that the Dekker case should be applied and the comments of Lord Keith in the Webb case, followed.  The substance of his dissent is summarised in paragraph 10(b) of the decision, this is the correct decision.  That of Mrs Saunders and the Chairman is wrong.  He said:

	"10 (b)	The respondent having said that it would not have treated a man other than in a way the applicant was treated goes against the respondent.  Mr Robertson has found as a fact that the respondent treated the applicant in such a way that she was refused employment and therefore, with reference to the Sex Discrimination Act, the respondent would not have treated a man in the same way as it treated the applicant.  [The finding of fact made by Mr Robertson was also a finding of fact that was made by Mrs Saunders.]  Which ever way one looks at the Webb case there is discrimination for 2 reasons.  Firstly, if one uses the comparator under the Act then the respondent has admitted that a man would not have been treated like this, ie, in the manner in which the 2 members have found as a fact.  Secondly, it is no part of the respondent's argument that there was any reason for not employing the applicant which is a non gender-related reason, and accordingly there is nothing to consider in that regard."

	In our view, there is no legal flaw in Mr Robertson's reasoning.  That is the reasoning supported by Ms Gill on this appeal.  The consequence is that the appeal should be allowed and, having regard to the evidence and findings of fact in the full reasons, it follows that Mrs Jarvis's claim for sex discrimination succeeds.  As we understand the position, the matter now has to be dealt with by the Industrial Tribunal on the question of remedies.