Appeal No	EAT/1441/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 December 1997

Before
THE HONOURABLE MR JUSTICE LINDSAY
MRS E HART
PROFESSOR P D WICKENS OBE

MS C ELEY	APPELLANT

HUNTLEIGH DIAGNOSTICS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS H MOUNTFIELD
(of Counsel)
Messrs Leo Abse & Cohen
Solicitors
40 Churchill Way
Cardiff
CF1 4SS	
For the Respondents	MR J HOSKINS
(of Counsel)
Messrs Bevan Ashford 
Solicitors
Waterloo House
Fitzalan Court
Cardiff
CF2 1EL	

	MR JUSTICE LINDSAY:     We have before us as a matter of full hearing the appeal Claire Louise Eley in the matter Claire Louise Eley against Huntley Diagnostics Ltd.  The hearing of the Industrial Tribunal was at Cardiff on 30 August 1996.  The Industrial Tribunal, under the chairmanship of Mr John Thomas, promulgated its reasons in extended form on 13 November 1996 and “the unanimous decision of the tribunal is that the applicant’s (Miss Eley’s) claim for unlawful sexual discrimination fails and is dismissed”.

	It is necessary to say something of the background.  Miss Eley used to work for Huntleigh Diagnostics Ltd (“the company”), a company which manufactures ultrasound instrumentation for detecting and monitoring foetal heart rates in mothers-to-be.  Some 75% or so of the company’s products go for export and the remaining 25% to individuals and hospitals in this country.

	At Cardiff the company employs 135 employees, none, save for four female cleaners and an assistant, being part-time.  Miss Eley was the telephonist/receptionist (we shall have to return later to describe her job more fully).  

	In May 1995, when she had been at the company some four and three quarter years, she was pregnant.  She took maternity leave and indicated, in September 1995, after the birth of her son (which had been in August 1995) that she would wish to return on 30 October 1995.  She wanted to discuss with the company whether her working hours could not be changed to the hours which the factory or manufacturing department worked, namely 8.30 am to 5.00 pm Monday to Thursday, with a half hour lunch, and 8.30 am to only 1.30 pm on Fridays.

	When she had previously worked she had worked the same hours as the Sales Department, 9.30 am to 5.30 pm Monday to Thursday, with an hour for lunch, 9.00 am to 5.00 pm on Fridays, again with an hour for lunch.  Miss Eley was told that that change was not permissible.  Reception, she was told, was a full-time job.  In particular, it was explained to her why that was so and that she would not be able to leave at 1.30 pm on Fridays.  She returned to work, working the full hours of the Sales Department, but, after a while, she raised the question of whether part-time work would be available.  She was encountering difficulties in scheduling care for her infant son.  The matter was taken up with the General Manager of the company and after a while the answer came back that part-time working was not available, much as had been the case with her earlier request for a change in hours.  She therefore continued to work the full-time hours of the Sales Department.

	On 27 February 1996 she handed in her resignation.  She worked full-time during her month’s notice and she left on 29 March 1996 and, as the Industrial Tribunal held, she left in an atmosphere of great amicability.  There had been a presentation to her at which the General Manager had praised her.  She had told the company that she had found part-time employment with her brother-in-law.  She had not made it clear that she was leaving because she had felt forced to leave by reason of the company’s refusal of her request for part-time work.  

	On 28 March 1996 she signed an IT1 Originating Application complaining of “discrimination of part-time work”.  Miss Eley’s claim, as it developed, was seen to be one of indirect sex discrimination under Section 1(1)(b) of the Sex Discrimination Act 1975 linked with Section 6 of that Act and one in which the Council Directive of the 9 February 1976, 207  EEC on the implementation of the principle of equal treatment for men and women had to be very much kept in mind.  It has not been argued that the Directive is here directly enforceable.

	Before we turn in more detail to the facts of this particular case we need to say something about law and first we turn to the Sex Discrimination Act 1975.  Section 1(1) says:

“A person discriminates against a woman in any circumstances relevant for the purposes 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, or 
(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.”

	Sub-section (2) of Section 1 is not necessary for immediate purposes, nor is this a Section 1(1)(a) case of direct discrimination.  Section 5(3) tells one what sort of comparisons have to be brought into account (where comparisons are relevant at all) but I do not think that needs to be read.

	Turning to the subject of discrimination in the employment field with which we are, of course concerned, Section 6 sets out some passages that need to be read:

“(1)  It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman - 
(a) in the arrangements he makes for the purpose of determining who should be offered that employment, or 
(b) in the terms on which he offers that employment, or
(c) by refusing or deliberately omitting to offer her that employment”

	And then, in sub-paragraph (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 -
(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.”

	Of the many areas which can be disputed in cases of this kind, few here have actively been contested.  Few were contested at the Industrial Tribunal and even fewer are raised in this appeal.  The Industrial Tribunal adopted a robustly sensible approach and it was accordingly accepted without the statistical incubus that sometimes is encountered that “single mothers .... form a proportion which is considerably smaller than the proportion of persons of male sex who would be able to able to comply with the condition” namely, of full-time working and, going back to a quote, “in particular in relation to the need to remain until 5.00 pm on a Friday”.

	For the purposes of that observation the Industrial Tribunal took Miss Eley, as we shall, to be a single mother, although her evidence does refer to her “partner” and no point has been taken before us on that subject.

	The Industrial Tribunal were satisfied that the company, by requiring her to work on Fridays to 5.00 pm or 5.30 pm and by declining to allow her to leave on Fridays at 1.30, was applying to her a condition or requirement within the meaning of Section 1(1)(b) and that it was one within Section 1(1)(b)(1).  As to whether Miss Eley suffered a detriment for the purposes of Section 1(1)(b)(iii) what they held was this:

“For completeness and because of deference to the arguments put forward we find that the applicant had in fact suffered a detriment if only because of the loss of a job that she loved so much and that despite some conflicting evidence as to the costs of child care that the applicant would have been justified in coming to the conclusion generally that an appropriate level of child care was beyond her financial resources.”

	That being so, the argument below and here has chiefly been concerned with justification of the indirect discrimination within Section 1(1)(b)(ii), as that provision is to be interpreted in the light of European guidance and of guidance from other cases as to other forms of discrimination where justification is also a matter that needs to be considered.  As to that interpretation we need to begin with Bilka-Kaufhaus GmbH v Weber Von Hartz[1987] ICR 110 European Court of Justice, which concerned discrimination in the administration of an occupational pension scheme and accordingly, as was held, was in relation to pay.  In that way Article 119 was brought into issue.

	It was held that the Article was infringed by reason of the exclusion of part-time employees from the scheme “where that exclusion affects a far greater number of women than men unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex”:  see page 125 G to H.  At page 126 the European Court of Justice continues as follows, at paragraph 36:

“36.  It is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker’s sex but in fact affects more women than men may be regarded as objectively justified economic grounds.  If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of article 119.
37.  The answer to question 2 (a) must therefore be that under article 119 a department store company may justify the adoption of a pay policy excluding part-time workers irrespective of their sex, from its occupational pension scheme on the ground that it seeks to employ as few part-time workers as possible where it is found that the means chosen for achieving that objective correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objective in question and are necessary to that end.”

	It is worth commenting that that formulation differs, although to what extent is not entirely clear, from the preferred submission of the commission in paragraph 35, which in terms talks about proportion.  That, at all events in relation to pay and Article 119, indicates that a sound defence requires the employer to satisfy a three-fold test, namely firstly, “is the objective or effect which is sought to be procured by the measures of indirect discrimination which had been adopted, an objective really needed by the undertaking, (2)  were the measures so taken appropriate with a view to the achievement of that objective or effect and (3) were the measures necessary to that end.

	Coming from Europe to England we next find Hampson v The Department of Education and Science [1989] ICR 179 in the Court of Appeal, a race case.  Section 1(1)(b)(i) of the Race Relations Act 1976 uses, in relation to indirect racial discrimination, a test or definition which mutatis mutandis, is the same as that in the corresponding part of Section 1 of the Sex Discrimination Act 1975.  Just as in Section 1(1)(b)(ii) of the 1975 Act which reads “which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied”, the 1976 Act has a justification defence “which he cannot show to be justifiable irrespective of the colour, race or ethnic or national origins of the person to whom it is applied”.

	Lord Justice Balcombe at page 191, in a passage with which both Nourse LJ and Parker LJ agreed -  see page 196 A - C and page 207 D - said this:

“In my judgment ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.”

	A little earlier, moving towards the passage where he indicates the need for a balance to be objective, he had said at page 191 C - D:  

“...  it is not sufficient for the employer to establish that he considered his reasons adequate.”

	After referring to the way in which, in a case under the Equal Pay Act 1970, the House of Lords had applied Bilka-Kaufhaus supra, Balcombe LJ held at page 192 E that:

“It is obviously desirable that the tests of justifiability applied in all these closely related fields should be consistent with each other.”

	Lord Justice Nourse at page 196 A - B posed a test as to justifiability in terms identical to those I have cited from Balcombe LJ, both of them referring to “objective balance”, “the discriminatory effect” of the condition and to “the reasonable needs’ of the person who had applied the condition.  Hampson supra was applied by the House of Lords in Webb v Emo Air Cargo (UK) Ltd [1993] ICR 175, a sex discrimination case.  Justifiability was there in issue.  Lord Keith of Kinkel at page 183 held that the appropriate test was now that formulated by Balcombe LJ in the Hampson case.  All of their Lordships sitting with him agreed with his speech.

	Basing ourselves on these authorities we see the proper approach on law in this case to be this.  The onus as to justifiability is upon the employer.  He is required to justify his measure upon an objective balance being struck between the discriminatory effect of the condition he has applied and his reasonable needs, objectively regarded.  In the striking of that balance the three-fold test proposed in Bilka-Kaufhaus is to be taken as an important guide.  Although Ms Mountfield referred us to the Equal Opportunities case [1995] 1 AC 1, different considerations apply in the case which that authority was dealing with, namely where the legislation of a member state was itself the alleged vehicle of discrimination:  see page 28 F.  The case does not add anything of real materiality to the three cases that we have cited so far as concerns the matter before us.

	If our view just stated on the law is correct then we must next turn to the directions which the Industrial Tribunal here gave itself.  Correcting some minor errors in their extended reasons, we find that at their paragraph 21 they say this:

“We turn thereafter to the thrust of the argument surrounding the case.  Namely whether or not the rule is objectively justifiable.  We find that it is.  We have been referred to the case of Hampson v Department of Education and Science [1989] ICR 179 and the dictum of Lord Justice Balcombe, where he said ‘justifiable requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applied the condition’.  An employer must show that the discrimination is objectively justified, that is that the means chosen for achieving that objective correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objective in question and are necessary to that end.  That is a burden of proof which must be discharged by the employer on the balance of probabilities.”

	We detect no error of law in those directions which the Industrial Tribunal gave to itself.  At the beginning of paragraph 22, continuing on from the citation above, they concluded “We are satisfied that they have done that”.

	However, the Appellant’s case here is that the Industrial Tribunal merely paid lip service to that correct test but, in truth, applied some other and more subjective a test.  It is first convenient to look at the reasons which the Industrial Tribunal itself expressly mentioned.  First, the Industrial Tribunal held that the company had considered Ms Eley’s request to be enabled to work time “in a reasonable and open-minded way.  We note that they are progressive employers and pride themselves on a paternalistic and caring approach.  This is evidence which we accept”.  That is sought to be converted by the Appellant into a criticism, namely that the Industrial Tribunal acted irrationally in taking into account an irrelevant consideration, namely the employers’ paternalistic and benign attitude.  A fairer view would be that, rather than that the Industrial Tribunal, considering whether Ms Eley’s requests had, indeed, been fairly considered by the company, was, in effect, holding that it was, in general, likely that the request had been fairly considered as the company was the kind of employer who, in general, did take care over its employees’ needs.

	Secondly, the Industrial Tribunal paid particular attention to the nature of Ms Eley’s work in relation to the commercial needs of the company.  She was more, they held, than “just a receptionist”.  The company operated, of course, in a highly technical area and, at paragraphs 4, 5, 6 and 7 the Industrial Tribunal set out some important parts of the nature of the company’s business and Ms Eley’s work within it.  Without reading it all out we would wish to incorporate what they say there as to the nature of her job and of the company’s needs.  

	When Ms Eley had earlier been away she was greeted on her return with the news that management was delighted she was back because it had been “a disaster” in her absence.  Ms Eley had conceded that she had been treated, including her treatment as to salary, as someone who was not “merely a straightforward receptionist”.  It had earlier been explained to Ms Eley that the hours worked by the factory or manufacturing department were not suitable for the Sales Department or for a receptionist dealing with customers or visitors.  The company had taken the view that continuity and familiarity with customers made it essential for there to be a full-time receptionist.  The company also feared that Ms Eley’s request might set a precedent which, if acceded to, would make administration difficult.  The Industrial Tribunal also had evidence from which they concluded, in their paragraph 12:

“In addition there would have to be taken into consideration the training costs and the appointment of a further employee to cover the applicant who herself on occasions might be unavailable for work, which would give rise to potential further difficulties in cover of a sufficient quality and standard.”

	That was the background to the Industrial Tribunal’s conclusion on the point of justifiability which is at paragraph 23 of their extended reasons which I should read in full:

“We conclude that the employer in considering the requests in the light of the needs of the company decided on good grounds that anything other than a full time employee filling the receptionist position would result in disruption of customer continuity which would be detrimental to the company’s business.  We are satisfied that this is the case because that has been the position pointed out to the applicant when she first returned to work and explained as being based upon what had been the company experience in her absences.  We bear in mind that this was a company which was based essentially on telesales where the receptionist provided a vital role in that area and also in the supporting role of clerical assistant.  We consequently are of the view that the condition which was discriminatory was nevertheless objectively justifiable.”

	The Appellant has, on balance, failed to persuade us that that represents a subjective test.  The good grounds are found not merely because the company said they were so and believed them to be so, although that cannot be wholly left out of account, but because the Industrial Tribunal had received evidence as to, inter alia, the disruption which would result from Ms Eley not working the full hours of the sales department.

	The fact that months earlier, when Ms Eley returned after her son was born, the company had taken the same view, was material not because whatever the company said twice was true but because the consistency of the company’s response on the subject tended to support that it did represent commercial reality.  That the Industrial Tribunal had firmly in mind that the condition the company applied was discriminatory is clearly shown in the last sentence of paragraph 23, where the Industrial Tribunal refers to it being “discriminatory” and in paragraph 24, where the Industrial Tribunal held that Ms Eley had, indeed, suffered a detriment.  A balance can be struck without the Industrial Tribunal having to say on the one hand this and on the other hand that.  They plainly had in mind the discriminatory effect which the condition had on Ms Eley.

	It is true that, having cited the three-part Bilka-Kaufhaus test in their paragraph 21, the Industrial Tribunal does not then expressly deal with each of its three parts separately, and this is very much a matter which Ms Mountfield has criticised.  But there is, in our view, nothing that clearly shows they did not have that three-part test in mind.  

	As to the first part of that three-part test, there was in, our view on balance evidence such that the Industrial Tribunal could have concluded that the application of the requirement that Ms Eley should work until 5.00 pm on Fridays and not work part-time did correspond with a real need of the company, namely the need to ensure that in a business very dependent on the telephone there would only be one experienced receptionist (and a well-informed one at that) to field and allocate enquiries so that customers would, throughout the Sales Department hours, deal with only one respondent, however frequently they needed to make contact.  That we might have concluded differently upon the same evidence is utterly immaterial.  As to the appropriateness of the condition (working the full hours of the Sales Department) as a means of achieving that end, there was evidence from which the Industrial Tribunal could have concluded that it was entirely appropriate in that such condition would, if satisfied achieve the objective sought, would do no more than achieve the objective sought and had, in any event, been made clear to Ms Eley from the moment that the variation in her hours had been considered.

	As to whether the term was necessary, which is perhaps the very heart of the appeal, it is to be remembered that, even in our domestic statutes the word “necessary” can, taking colour from its context, mean nothing more exacting than “really needed” - see the case in the House of Lords at [1988] 1 AC 660.  Bilka-Kaufhaus is not to be approached as if the judgment of the European Court of Justice was a statute.  Whether a condition is “necessary” and where precisely the meaning needs to be put for the word “necessary” in the spectrum which Lord Griffiths describes in that 1988 case from “useful” at the one end to “indispensable” at the other, is very much a matter best left to the Industrial Tribunal.  It is not to be adjudged by considering whether some other approach, however impractical or inconvenient, could have avoided the application of the particular condition in question and whether, in that sense, the condition could be said to be unnecessary.

	Here, looking to see what evidence the Industrial Tribunal received, we see from the Chairman’s notes and from the witness statements expressions on subjects such as these:-  These days you cannot afford to lose or confuse customers; that the company had looked at Ms Eley’s request from all aspects; that it was not suitable for sales or reception not to be available to 5.30 pm; that another member of the sales staff could not be switched as he or she would have been required to be at his or her sales desk; that to employ someone just for Friday afternoons would cause huge problems; that it was essential for the receptionist to have a fundamental knowledge of the organisational structure of the business and a knowledge of the products and the customer base; that it was essential to have continuous cover; that there would be a significant breakdown in communication if the company had two part-time telephonists; that the company placed great importance on continuity and familiarity with customers and it was considered that a full-time receptionist was essential.

	Of course, when witnesses speak they are likely to express themselves in subjective terms such as in that last quotation “the company placed great importance”, but that form of subjective expression in the evidence does not preclude a position in which, upon the acceptance of that view by the Industrial Tribunal, it ceases to be merely a subjective view.  It can be accepted by the Tribunal as being a case objectively justified.

	Of all the most familiar observations, as to the proper approach to decisions of Industrial Tribunals, surely the three most common are firstly that this Employment Appeal Tribunal should not go through the reasoning with a fine tooth comb.  Secondly, that matters of fact are best left to the good sense of the Industrial Tribunal as an industrial jury (and it may be added, as a carefully balanced and selected jury) and that thirdly, how difficult it is to show perversity.  On that we have been referred to the well known passage in Piggott Brothers & Co Ltd  v Jackson [1991] IRLR 309 where, at paragraph 17 one finds this:

“A finding of fact which is unsupported by any evidence clearly involves an error of law.  The Tribunal cannot have directed itself, as it should, that findings of fact need some evidence to support them.  The danger in the approach of May LJ is that an appellate court can very easily persuade itself that, as it would certainly not have reached the same conclusion, the Tribunal which did so was ‘certainly wrong’.  Furthermore, the more dogmatic the temperament of the judges concerned, the more likely that are to take this view.  However, this is a classic non sequitur.  It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion.  What matters is whether the decision under appeal was a permissible option.  To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal.  If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as ‘perverse’.”

	We have been greatly troubled by the exiguous statement of the reasons and by real doubts as to whether paragraphs earlier than paragraph 20 in the extended reasons represented in part finding of fact later relied upon by the Industrial Tribunal or were merely indications of what the subjective view of the company had been stated to be.  An Industrial Tribunal plainly more readily satisfies the well known test in Meek v City of Birmingham District Council [1987] IRLR 250 if it spells out its reasons more fully than did this one.  However, as we have indicated earlier, we have found no misdirection in law on the case and, on balance, we have not identified any matter sufficiently clearly relied upon which did not have the support of any evidence given to the Tribunal.  If we ask ourselves whether an Industrial Tribunal, properly instructing itself, could, on the evidence it here received, have properly come to the conclusion to which this Industrial Tribunal came, we would have to conclude, although almost with reluctance, that it could.  

	Accordingly, we must dismiss the appeal.