Appeal No.	 EAT/1331/01/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	               On 10 April 2003
Judgment delivered on 11 September 2003

Before
HIS HONOUR JUDGE PROPHET
MR D NORMAN
MISS S M WILSON CBE

MISS I JOHNSON	APPELLANT

QUEEN ELIZABETH HOSPITAL NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J GALBRAITH-MARTEN
(of Counsel)
Instructed by:
Messrs Bindman & Partners
Solicitors
275 Gray’s Inn Road
London WC1X 8QB	
For the Respondent	MR A SHORT
(of Counsel)
Instructed by:
Messrs Beachcroft Wansbroughs
Solicitors
100 Fetter Lane
London EC4A 1BN	

HIS HONOUR JUDGE PROPHET
1	On 10 April 2003, this Tribunal held a hearing for Miss Johnson’s appeal in respect of part of a reserved decision by an Employment Tribunal sitting at London South on 23 and 24 April 2001, followed by a Chambers meeting on 14 May 2001.  The Chairman of the Employment Tribunal was Ms Stacey and the lay members were Mr Rayner and Mrs Tritton.  The Reserved Decision was promulgated on 7 September 2001.  There is also a cross appeal in respect of the Tribunal’s decision to allow the sex discrimination complaint to proceed, notwithstanding that it was out of time.  

2	Towards the end of the hearing on 10 April 2003, the possibility arose that a settlement might be reached which could well be advantageous  to both sides, and accordingly it was decided not to issue a judgment whilst negotiations were pursued in that direction.  Those negotiations took rather longer than originally envisaged, and on 6 August 2003, the EAT was advised that the parties had been unable to reach a settlement.  Consequently this written judgment has now been prepared.

3	The Decision of the Employment Tribunal simply stated that the Originating Application is dismissed, but that encompassed several complaints by Miss Johnson.  The appeal, however, centres essentially on one matter only.  To understand it, it is necessary to set out briefly the relevant facts as found by the Employment Tribunal. 

4	Miss Johnson was originally engaged as a bank midwife by the NHS Trust in January 1994.  Her name was removed from that bank on 2 August 2000.  She had not worked for the bank for 16 months by that time.  She last worked in May 1999, but she had a session booked for 30 May 2000, but that was cancelled the day before.  Within that period she was pregnant and gave birth on 28 November 1999.  The Trust operate a system by which anyone in the bank is automatically removed if they have not worked for the bank for a period of 12 months or more.  The position is checked 4 times a year.  Such persons are not specifically warned of impending removal and not advised of their actual removal.  It is possible however to reapply for inclusion, but the Applicant then has to go through the recruitment procedures which would apply to all new applicants.  

5	It happened that Miss Johnson attended a mandatory training for midwives on the bank on 2 August 2000, i.e. on the very day that she was removed from the register by the process explained in the previous paragraph.  The Trust were not, as we understand it, prepared to re-admit her to the bank unless she completed their standard procedures for re-entry.

6	The matter which has engaged our attention is in respect of the policy which the Trust operates.  Does that policy, applied as it is, involve sex discrimination?  Mr Galbraith Marten of Counsel in a sustained submission seeks to persuade us that as a matter of law, it does.  Mr Short of, Counsel, for the Trust says it does not .  

7	It is common ground that the policy of automatic removal enables an Employment Tribunal to consider whether sex discrimination was involved under section 6(1) of the Sex Discrimination Act 1975, and also that section 6(1) has to be construed in accordance with the Equal Treatment Directive.  

8	Mr Galbraith Marten does not rely on the Pregnant Workers Directive.  He says, however, that if the period during which Miss Johnson was unable to work during pregnancy and confinement is excluded from the reckoning, Miss Johnson would not have fallen foul of the 12 month rule.  Mr Short seeks to distinguish the position of employees who are on maternity leave from that of someone on a bank register system.  
9	Mr Galbraith Marten fully sets out his reasons as derived from the Equal Treatment Directive in his Skeleton Argument, culminating in the principles indicated by a former President of the EAT, Mr Justice Morrison in Healy -v- William Morrison & Son Ltd EAT/172/99 (30 June 1999) i.e. that a woman must not be prejudiced in the workplace by the effects of pregnancy on her ability to work.  

10	Mr Short says that Miss Johnson’s removal from the bank was simply a consequence of the application of the rule, which is designed to (as the ET had indicated at paragraph 11 of the Reasons) to ensure a regular and reliable bank of midwives.  The rule is applied to all midwives on the bank irrespective of their sex, and no sex discrimination is involved.  

11	Whilst Mr Short’s submissions seem attractive at first blush, on reflection we find ourselves persuaded that Mr Galbraith Marten is right.  It is, after all, the Trust which has decided to make such a rigid policy and to apply it without any apparent consideration of the individual's circumstances.  Thus they must be deemed to have taken the risk that the policy and its application may incorporate sex discrimination. 

12	The 12 month rule in its automatic application means that no consideration will be given to the fact that an individual woman on the bank may not be available to work from the bank within the 12 month period because of circumstances relating to pregnancy and confinement.  That is not a factor which would affect a male on the bank.  Consequently sex discrimination is involved.  The appeal is therefore allowed.  

13	There is, however, a difficulty in that there are no clear findings of fact by the ET (and we do not criticise them in that respect, dealing as they were with a series of complex issues) as to when Miss Johnson was not available to work from the bank because of pregnancy and confinement.  It is not therefore certain that excluding non availability for these reasons would have affected the issue in her particular case.  We shall therefore remit the original ET to determine whether the position as indicated by Mr Galbraith Marten (see paragraph 8 above) is factually correct in order for there to have been sex discrimination arising from the operation of the rule in Miss Johnson’s particular circumstances.  

14	We would observe that it is a matter of some surprise to this Tribunal that steps have not been taken to make the rule more flexible and to allow for consideration of the circumstances of individuals.  To fight this matter out on the basis of legal principles appears to show little understanding by the Trust of the human side of making and applying rules which affect employment relations.  

15	So far as the cross appeal is concerned, we are quite satisfied notwithstanding Mr Short’s submissions, that the Employment Tribunal properly applied itself to the ‘just and equitable’ provisions which permit out of time sex discrimination cases to proceed to be heard on their merits.  Accordingly the cross appeal fails and is dismissed.