Appeal No.	 EAT/1116/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 February 1997
Judgment delivered on 8 April 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR J R CROSBY
MR W MORRIS

MRS S ISKE	APPELLANT

P & O EUROPEAN FERRIES (DOVER) LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS D ROSE
(of Counsel)
Pauline Matthews
Equal Opportunities Commission
Overseas House
Quay Street
Manchester
M5	
For the Respondents	MR J BOWERS
(of Counsel)
Ms Kingdon
Osborne Clarke
Solicitors
6-9 Middle Street
London
EC1A 7JA	

	JUDGE PETER CLARK: This is an appeal by the Applicant before the Ashford Industrial Tribunal, Mrs Iske, against a reserved decision of that tribunal following a hearing held on 22nd-23rd July 1996, dismissing her complaint of unlawful sex discrimination and/or breach of the Equal Pay Act 1970, brought against her employer, P & O European Ferries (Dover) Ltd. Extended reasons for that decision are dated 20th August 1996.

The Facts
Save for one material issue, resolved by the tribunal in favour of the Applicant, these were not in dispute. 
	In November 1984 the Applicant commenced employment with the Respondent as a seagoing stewardess, working in the perfume shop on board their ferry Pride of Bruges on the Dover/Calais route. In July 1994 she became pregnant.

	Her employment was subject to the Merchant Shipping (Medical Examination) Regulations 1983 [“the 1983 Regulations”] and the Merchant Shipping Notice M1331 [“the M Notice”]. Under the 1983 Regulations and the M Notice it is a criminal offence to employ a seafarer at sea after the 28th week of her pregnancy until at least six weeks after the delivery.

	On 18th January 1995 the Applicant’s doctor completed the maternity certificate MAT B1, showing her expected date of confinement as 17th April 1995. 

	On 1st February she met with Mr Ambrose, the Personnel Manager (Hotel Services). The Applicant intended to work after the 28th week of pregnancy on shore, and asked whether such work was available. His answer, so the tribunal found, was “We don’t do that any more”. The tribunal went on to find that thereafter Mr Ambrose took no steps to look for alternative employment on shore and did not offer such work to the Applicant. Following that indication at the meeting Mr Ambrose completed the maternity leave form in these terms:

“I confirm that I intend to stop work on 28 Jan 1995 and that my expected date of confinement is 17th April 1995. I intend to return to work after the birth of my baby.”

	The date 28th January was filled in by Mr Ambrose. Both he and the Applicant then signed the form.

	In finding that Mr Ambrose did not look for alternative shore based work for the Applicant the tribunal rejected the Respondent’s pleaded case, and the evidence of Mr Ambrose and Mrs Evans of personnel, that no shore work was available for the Applicant.

	In rejecting Mr Ambrose’s evidence that he looked for shore based work for the Applicant but none was available, the tribunal found that the Respondent was in the habit of employing catering assistants on a temporary basis through an agency. The documentary evidence showed that various catering assistants were employed at various times between December 1994 and July 1995. In particular there was one temporary catering assistant employed for the week-ending 13th February 1995 and one was employed for the week-ending 24th February 1995. It was likely that the Applicant would have been able and fit enough to fill one or both of those positions.

	The tribunal referred to two other employees who were found shore based work. Miss Welch was an employee who worked on board ship. From 30th January 1995 to 27th March 1995 she had been away from work ill as a result of complications arising from her pregnancy. She had not reached the 28th week of pregnancy. With effect from 27th March 1995 she was offered secondment to a warehouse job on shore and she then worked on shore till 30th June 1995 when she left on maternity leave. Mr D C Turner was a steward on board ship. With effect from 10th February 1993 he was found to be temporarily unfit for sea duties. With effect from 22nd February he was seconded ashore to a job in the warehouse. He returned to work at sea on 17th April 1993.

	On 23rd February 1995 the Maternity Alliance wrote to Mr Ambrose on the Applicant’s behalf, referring to her request for alternative shore work and her being told that none was available. The letter also made a claim under ss.45-47 of the Employment Protection (Consolidation) Act 1978, since re-enacted in ss.66-68 of the Employment Rights Act 1996. We should say something about that claim.

	S.45(1) provided:

“(1) For the purposes of sections 46 and 47 an employee is suspended on maternity grounds where, in consequence of-
(a)	any requirement imposed by or under any relevant provisions of any enactment or of any instrument made under any enactment, or
(b)	any recommendation in any relevant provision of a code of practice issued or approved under section 16 of the Health and Safety at Work etc. Act 1974,
she is suspended from work by her employer on the ground that she is pregnant, has recently given birth or is breastfeeding a child.”

	S.46 gives such an employee the right to be offered suitable alternative work if it is available before being suspended on maternity grounds. S.47 provided for the payment of remuneration by her employer while she was so suspended.

	A list of “relevant” provisions for the purposes of s.45(1)(a) is contained in the Suspension from Work (on Maternity grounds) Order 1994. The list does not include the 1983 Regulations.

	It is clear that failure to include those Regulations constitutes a breach by the United Kingdom government of the Pregnant Workers Directive (Directive 92/85/EEC). We understand that steps are being taken by the relevant government department to remedy that breach.

	However, this Applicant cannot rely directly on the Directive, since the Respondent here is not an emanation of the state. Thus she is prevented from enjoying the protection of ss.45-47 of the 1978 Act which were introduced with a view to implementing the Directive.

	To resume the narrative, the Applicant’s baby was born on 28th April 1995. Between 1st February and 14th March she had received statutory maternity pay at the higher rate, 90% of salary; from 15th March to 6th June she received the lower rate of £52.50 per week and between 7th June and 30th September she was on Income Support. Between 1st October and 31st October she took annual leave.

	She remained off work until 1st November in order to breast feed her baby for as long as possible. Following her return to work she resumed her sea going career and was so employed when the matter came before the tribunal in July 1996.

The tribunal decision
Having considered the submissions of Counsel, who both appear before us, the tribunal reached the following conclusions:

(1)	that the Applicant had not suffered unlawful direct sex discrimination in breach s.1(1)(a) and 6(2)(a) of the Sex Discrimination Act 1975 [“SDA”] in that, on the grounds of pregnancy she had been refused access to opportunities for transfer.

	The tribunal’s reasoning is expressed at paragraph 12(4) of their reasons:

“(4)		Section 6(2) of the Sex Discrimination Act 1975
	This claim is based on the failure to offer the Applicant a transfer to shore to carry out work there. The Applicant’s claim under this heading is clearly based on a comparison between a pregnant woman and a worker who is ill, but this is now not a relevant comparison (see Gillespie and Clark).
	Other pregnant women who had been offered shore work were not in the same position as the Applicant. They had been offered shore work BEFORE they were 28 weeks’ pregnant. The Applicant had been required to cease work when she became 28 weeks’ pregnant. The Applicant did not have any right, either contractual or statutory, to work ashore.”

(2)	that she was not suspended on 1st February 1995 when she began her maternity leave.

(3)	that she was not discriminated against by being refused employment at sea after the 28th week of pregnancy. In fact, it was not and is not the Applicant’s case that compliance with the 1983 Regulations and the M Notice by the Respondent was unlawfully discriminatory.

The Appeal
In this appeal Miss Rose, on behalf of the Applicant, challenges the first two findings of the tribunal identified above. Additionally, she complains that the tribunal failed to consider and rule upon a further submission which she made below, namely that the statutory maternity pay and other benefits received by the Applicant did not constitute an “adequate allowance” to her during maternity leave. Gillespie v Northern Ireland Health and Social Services Board [1996] ICR 498. We shall deal with each of these three issues in turn.

First issue
The question for the tribunal was whether the Respondent’s failure to offer the Applicant a transfer to shore work on 1st February constituted less favourable treatment on the grounds of her sex.

	The tribunal rejected the Applicant’s submission on two grounds. First, that it was based on a comparison between a pregnant woman and a sick man, a comparison which they said is now irrelevant; secondly, that she had no contractual or statutory right to work ashore.

	As to the first point, it is now well-established that no comparison is necessary between a pregnant woman and a man because pregnancy is a female only condition. Webb v EMO Air Cargo UK Ltd (No. 1) [1993] ICR 175. Dekker [1992] ICR 325 (ECJ).

	The correct approach, submits Miss Rose, is to apply the principles contained in King v GB China Centre [1992] ICR 516, 528-9, per Neill LJ. What inference may properly be drawn from the primary facts? Is the explanation put forward by the Respondent adequate or satisfactory?

	Here, the Respondent’s explanation for not offering a transfer to shore based alternative work was that no such work was available following a diligent search. The tribunal roundly rejected that explanation. It found that Mr Ambrose did not offer alternative work; had he done so he would have found that suitable work was available for the Applicant. On the contrary, on the tribunal’s finding alternative work simply was not given to seafarers after the 28th week of pregnancy. That may be contrasted with the specific cases of a woman less than 28 weeks’ pregnant and a man who was unfit for sea going work. That is not to make a comparison between their cases and that of the Applicant, merely to demonstrate that as a matter of inference the reason why she was not offered a transfer to shore based work was that she was 28 weeks’ pregnant. That was the Respondent’s policy; no women seafarers were offered shore based work after the 28th week of pregnancy.

	As to the tribunal’s second ground for rejecting the Applicant’s argument, it is nothing to the point that she had no contractual or statutory (we think under ss.45-47 of the 1978 Act) right to work ashore. The SDA is concerned with non-contractual rights. Further, we reject Mr Bowers’ submission that every case such as this, where work in unavailable through statutory prohibition, will lead to a finding of sex discrimination. If no work had in fact been available, as the Respondent contended, it would be open to the tribunal to conclude that that was the reason for not offering the Applicant shore work, not her pregnancy. In the absence of protection afforded by ss.45-47 of the 1978 Act the Applicant would have no claim.

	It therefore seems to us that the grounds upon which the tribunal rejected the Applicant’s first submission are misconceived. This part of the decision cannot stand, subject to a further point with the Respondent’s seeks to take in support of this finding.

	Mr Bowers submits that the temporary catering assistant post which the tribunal found could have been filled by the Applicant were filled by agency staff and not by the Respondent directly. Accordingly the Respondent did not discriminate against the Applicant in the way he afforded her access to opportunities for transfer.

	We are satisfied that this point was not argued below and under ordinary principles (see Kumchyk v Derby City Council [1978] ICR 1116) ought not to be permitted on appeal.

	However, we have heard argument on the point and we reject it on its merits.

	S.50(1) of SDA provides:

“(1) Reference in this Act to the affording by any person of access to benefits, facilities or services are not limited to benefits, facilities or services provided by that person himself, but include any means by which it is in that person’s power to facilitate access to the benefits, facilities or services provided by any other person (the “actual provider”).”

	S.6(2)(a) of the Act provides, in full:

“ (2) It is unlawful for a person, the case of a woman employed by him at an establishment in Great Britain, to discriminate against her-
(a)	in the way he affords her access to opportunities for promotion, transfer or training, or any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them,”

	In our view s.50(1) is inserted for the avoidance of doubt where access to benefits, facilities or services are provided indirectly by the employer through a third party. It follows that the same principle applies to access to opportunities for promotion, transfer or training. See O’Shea v Royle Publications Ltd (Unreported. EAT/961/93. 27th October 1995), per Maurice Kay J, Transcript 7E-8A.

	In our judgment an employer cannot avoid the effect of s.6(2)(a) of the SDA by contracting out a job to which the employee could be transferred.

Second Issue
Miss Rose’s submission here depends upon her establishing that the Applicant was suspended on 1st February 1995, in that she involuntarily felt compelled to commence her maternity leave eight weeks earlier than she had intended. It is accepted that the submission fails if the Applicant exercised her right to maternity leave under s.34 of the 1978 Act, which provided:

“(1) Subject to subsection (2), an employee’s maternity leave period commences with-
(a)	the date which, in accordance with section 36, she notifies to her employer as the date on which she intends her period of absence from work in exercise of her right to maternity leave to commence,”

	On this aspect we prefer the submissions of Mr Bowers. There was no question of suspension. Albeit reluctantly, as the tribunal found, the Applicant exercised her right to commence maternity leave by signing the maternity leave form and thereby giving notice to the Respondent under s.34(1)(a) of the 1978 Act and commencing that leave on 1st February 1995.

	The unlawfulness on the part of the Respondent, we have concluded, lay in not offering the Applicant available and suitable shore based work, which would have had the effect of postponing the commencement of her paid maternity leave. However, once that leave commenced, it cannot be said that she was then suspended without pay in breach of her contract of employment. Under her contract of employment, and the Regulations designed for the protection of pregnant employees, as a seafarer, she could not remain at work, having reached the 28th week of her pregnancy. That was not compulsory suspension.

Third issue
We accept that Miss Rose raised this issue in her skeleton argument (paragraphs 16-17) placed before the Industrial Tribunal. The point is not expressly dealt with in the tribunal’s reasons. It is implicit that the submission was rejected by the tribunal, but they have failed to give reasons for so doing. That is a breach of the tribunal’s duty to give reasons under rule 10(3) of the Industrial Tribunal Rules of Procedure 1993.

	It is open to this appeal tribunal to remit the matter on this point to the same Industrial Tribunal for reasons to be given. Yusuf v Aberplace Ltd [1984] ICR 850.

	However, before taking that course we have considered the submission made before us in order to ascertain whether it is necessary so to do.

	In Gillespie the complainants were employed in the health service in Northern Ireland. They claimed that payments made to them under the terms of the relevant collective agreement, which were slightly more generous than statutory maternity pay, constituted direct sex discrimination contrary to Article 119 of the EC Treaty, the Equal Pay Directive or the Equal Treatment Directive, in that their normal pay and benefits during maternity leave were reduced. Such a claim was open to them where the respondent was an emanation of the state.

	The complaints were referred by the Northern Ireland Court of Appeal to the European Court of Justice. The gravamen of the European Court’s ruling is contained in paragraphs 19-20 of the judgment:

“19
However, that Directive does not apply ratione temporis to the facts of the present case. It was therefore for the national legislature to set the amount of the benefit to be paid during maternity leave, having regard to the duration of such leave and the existence of any other social advantages.
20
That being so, it follows that at the material time neither Article 119 of the EEC Treaty nor Article 1 of Directive 75/117 required that women should continue to receive full pay during maternity leave. Nor did those provisions lay down any specific criteria for determining amount of benefit to be paid to them during that period. The amount payable could not, however, be so low as to undermine the purpose of maternity leave, namely the protection of women before and after giving birth. In order to assess the adequacy of the amount payable from that point of view, the national court must take account not only of the length of maternity leave but also the other forms of social protection afforded by national law in the case of justified absence from work. There is nothing, however, to suggest that in the main proceedings the amount of benefit granted was such as to undermine the objective of protecting maternity leave.”

	In our judgment it is not appropriate to extend the principle of adequate pay referred to in Gillespie;

(a)	to a claim brought against a respondent which is not emanation of the state, and
(b)	in respect of a period outside the statutory maternity leave period, as Miss Rose seeks to do in this case,
(c)	in circumstances where the maternity pay paid to the Applicant was not inadequate.

	In these circumstances we are satisfied that the tribunal was plainly and unarguably right to reject this submission and we shall not remit the matter to the Industrial Tribunal.

The result
We uphold Miss Rose’s submission on the first issue only. On the tribunal’s findings of fact we conclude that on remission an Industrial Tribunal would inevitably find that the Applicant’s complaint of direct sex discrimination contrary to s.1(1)(a) and 6(2)(a) of the SDA was made out. In these circumstances we shall allow the appeal and substitute a declaration that the Respondent unlawfully discriminated against the Applicant on the grounds of her sex in refusing or deliberately omitting to afford her access to opportunities for transfer between 1st February and 31st March 1995.

	We shall remit the case to a fresh Industrial Tribunal to determine the further remedies to which she is entitled consequent upon that unlawful discrimination.