Appeal No.	 EAT/777/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 March 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR P R A JACQUES CBE
MISS D WHITTINGHAM

MRS D BULLEN	APPELLANT

HM PRISON SERVICE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR SIMON GORTON
(of Counsel)
Messrs Lees Lloyd Whitley
Solicitors
Castle Chambers
43 Castle Street
Liverpool
L2 9TJ	
For the Respondents	MR RICHARD SEABROOK
(of Counsel)
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London
SW1H 9JS	

	JUDGE PETER CLARK:     This is an appeal by Mrs Donna Bullen, the Applicant before the Nottingham Industrial Tribunal, whose complaint of unlawful indirect sex discrimination in the course of her employment as a prison officer at HM Prison Services, North Sea Camp in Lincolnshire was dismissed by that Tribunal following a hearing held on 27 February and 23 April 1996.  The Respondents to her complaint were Mr R. Reveley, the Governor of the prison and the Prison Service.  Extended Reasons for the Tribunal’s decision are dated 6 June 1996.

The Facts

	The Tribunal made the following findings of fact:

“5.  (a)  The applicant joined the prison service on 29 February 1988 and in 1993 became pregnant.  In July 1993, before departing on maternity leave, she made a formal request to the Governor for part-time work.  The Governor was encouraging in his response to this proposal.
(b)  Her child was born on 8 November 1993, but in June 1994 she was suffering from mild depression and advised not to return to full-time working.  She returned to work on 16 July 1994 and renewed her request for part-time work.
(c)  The Governor devised a package of proposals which included provisions to enable the applicant to work part-time and the entire package was put to the prison officer’s association and staff for consideration on 25 July 1994.  These proposals were rejected by a ballot of the staff and because of this, Mrs Bullen’s application for part-time working was refused.”

	The Governor left to join the private sector in December 1994.  Before that time, in June 1994, it was his view that he was unable to recruit part-time prison officers.  Any new staff were to be selected from a transfer list of officers who wished to transfer from other establishments.  Only after considering these was he free to look at local recruitment.  There were 20 officers on the list.  He had an establishment of 22 officers at North Sea Camp which he considered only just adequate.

	His reaction to the Appellant’s request to work part-time was that he should preserve the element of staff pay which would be lost as this would be cut from the following year’s staff budget.  This would have a detrimental affect on the flexibility and quality of the service at North Sea Camp.  The solution he devised was to attempt to recruit a job sharer locally if he could convince the Union and his area management of the merits of this course.  The area manager was not hostile to the idea, but his view revolved around the question of cost.  Job sharing would involve no additional cost except for training.  However, no job sharer could be found.  

	Statistically, although part-time staff were established in the prison service (there were some 1,317 part-time staff on 25 August 1993), only 4 of those were prison officers, of whom 3 were women.  The transfer list contained no part-time candidates.  The Governor made enquiries of the local staff and POA representatives and encouraged the Appellant to make her own enquiries.  He then attempted to construct a package involving changing duties, movement of officers within his establishment and retirements designed to enable the Appellant to work part-time without added financial burdens for North Sea Camp.

	However, although matters which had no financial implications were agreed, the arrangement for part-time working was not.  This became dependent upon the recruitment of an additional officer from the transfer list.  A ballot of Union members conducted in September 1994 rejected the proposal.  The Governor did not seek further guidance from higher authority, that is authority above his area manager.  He did however, so the Tribunal found, do his best to accommodate the wishes of the Appellant.

	We pause to observe that evidence was led on behalf of the Appellant from Miss Lord, who is a National Executive Committee member of the Union.  Her evidence was that, although she accepted that the rights of individuals had to be balanced against the interests of managers, sometimes it was found that the commitment of managers to part-time working was not there when the service was scratched.  She said that Mr Reveley gave the impression of being very keen on part-time work, but she did not know if he did all he could to achieve that end.

	It is plain that Miss Lord’s reservations about Mr Reveley’s commitment to the principle of part-time work, were not shared by the Tribunal.

	The Issue

	The Respondents admitted prima facie indirect discrimination, but defended the claim on the basis of justification under Section 1(1)(b)(ii) of the Sex Discrimination Act 1975.  The Tribunal correctly directed itself that the burden of proving justification lay on the Respondents and that it was a heavy burden.  It was for the Respondents to show that the prima facie discrimination was justifiable, objectively balancing the discriminatory effect of the condition applied to the Appellant (that is full-time work) and the reasonable needs of the Respondents - Hampson v Department of Education and Science [1989] ICR 179, 191F  per Balcombe LJ.

The Industrial Tribunal’s Decision

	Having considered the submissions of Counsel the Tribunal expressed their conclusions at paragraph 14 of the Reasons in this way:

“14.  The Tribunal are of the view that it was the conditions at North Sea Camp and the choices open to the then Governor, Mr Reveley, which are relevant to the question of justification.  The balancing exercise involves the consideration of the reasonable needs of that establishment and the need to maintain its administrative efficiency and finances.  Mr Reveley imposed the conditions on Donna Bullen of either continued full-time working or part-time working within a restructuring package which involved changes to staffing affecting a number of other posts.  These proposals were rejected by the staff and the rejection meant that the alternative of part-time working was no longer open to the applicant.  The present arrangements of part-time working are no more than a short term expedient depending upon the request [result] of the Tribunal’s decision.  In the autumn of 1994, Mr Reveley and Donna Bullen were looking for a long term solution.  We do not consider that faced with the restrictions of the transfer list and budgetary consideration that Mr Reveley had an alternative, non-discriminatory course of action available to him.  His area manager was not hostile to the concept of part-time working as long as no extra costs were involved and we do not accept that Mr Reveley had further options which would remove the obstacles already mentioned.  The fact is, of course, that part-time prison officers were in situ in other prison establishments, but this was to a minimal extent and indeed Mr Reveley accepted the principle of part-time working.”

	In these circumstances the Tribunal found unanimously that the Respondents had made out the defence of justification.

	The Appeal

	The point taken by Mr Gorton on behalf of the Appellant is one which he took below and which was rejected by the Tribunal, namely that in considering the question of justification the Tribunal ought to consider the resources of the employer as a whole, and not limit the enquiry to the circumstances peculiar to the establishment at which the Appellant worked.

	He develops that submission by reference to the steps taken by Mr Reveley’s successor at North Sea Camp, Mr M.A. Lewis, who sought advice from Headquarters, culminating in a temporary proposal made in October 1995, allowing the Appellant to work an average of 20 hours per week on a flexible basis.  That point is dealt with by the Tribunal at paragraph 14 of the Reasons; it was an interim measure pending the Industrial Tribunal’s determination of the Appellant’s complaints.

	In essence, submits Mr Gorton, the Tribunal erred in confining its balancing exercise to the local needs of North Sea Camp, and in so doing permits an employer to frustrate attempts to introduce part-time working in these circumstances by reference only to the particular establishment at which the employee works, and the particular budgetary restraints applicable to that establishment.

Conclusion

	Provided an Industrial Tribunal directs itself properly as to the legal test for justification, as this Industrial Tribunal did, it is essentially a question of fact for the Tribunal as to whether the employer has made out the defence (Raval v Department of Health and Social Security [1985] IRLR 370).

	On the particular facts of this case the Tribunal was entitled, in our judgment, to focus on the needs of the North Sea Camp because there was no question of the Appellant transferring elsewhere.  As Miss Lord conceded, the geographical position of North Sea Camp, in a remote part of Lincolnshire, made it difficult for the Appellant to job share.  The Tribunal’s considerations were not limited to budgetary constraints; they also took into account the local rejection of the restructuring package put forward by Mr Reveley and the absence of any candidate for part-time work on the transfer list.  They also took into account Mr Reveley’s approach to his Area Manager for assistance.

	We limit our judgment to the facts of this particular case.  Nothing we say should be taken as an indication that in every case it will necessarily be sufficient for the Tribunal to consider the position locally.  In other circumstances the possibility of job share or transfer may be very much a live issue for consideration.

	Limiting ourselves in this way we have concluded that the Tribunal’s approach in this case discloses no error of law; it reached a permissible conclusion on the facts as found.

	Accordingly, this appeal must be dismissed.