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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Rollinson v Baldwin & Anor (t/a United Colours of Benetton) [2005] UKEAT 0873_04_2203 (22 March 2005) URL: http://www.bailii.org/uk/cases/UKEAT/2005/0873_04_2203.html Cite as: [2005] UKEAT 0873_04_2203, [2005] UKEAT 873_4_2203

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APPEARANCES

 

For the Appellant	MR GARY HODKINSON (Representative)
For the Respondent	No Appearance or Representation by or on behalf of the Respondent


 


SUMMARY

Sex Discrimination

Employment Tribunal confusing tests for 'direct' and 'indirect' sex discrimination.

HER HONOUR JUDGE WAKEFIELD

1. This is an appeal by Miss Lesley Anne Rollinson against a decision of an Employment Tribunal sitting at Carlisle on the 7 September 2004 by which her complaint of sex discrimination was dismissed.
2. For purposes of this appeal, the facts may be briefly stated. The Appellant was employed by the Respondent, P & B Baldwin t/a United Colours of Benetton, from October 2003 as a part-time sales assistant, regularly working 16 hours per week over two days in their store in Darlington. She was dismissed with effect from 24 February 2004 because, in the Respondent's view, she was not prepared to be flexible as to her working hours. The Appellant has a young daughter, then aged 13 months, and had to arrange child care for the times when she was at work.
3. In its decision, sent to the parties with extended reasons on the 23 September, the Employment Tribunal set out in Paragraph 5 of those reasons what they saw as the issue, that being:

"……. whether the Applicant had been treated less favourably by the Respondents on the grounds of her sex and in particular whether the Respondents had applied to the Applicant a provision, criterion or practice which he applied equally to a man but which was such that the proportion of women who could comply with it was considerably smaller than the proportion of men who could comply with it."

4. The Employment Tribunal made a finding of fact in Paragraph 14 of the extended reasons, that it was a condition of the Applicant's employment with the Respondent that she would only have to work on Tuesdays and Wednesdays and would only have to work other shifts when she was able to arrange for her partner to look after their daughter.
5. In setting out the law, the Employment Tribunal quoted in full Sub-sections 1(1)(a) and (b) of the Sex Discrimination Act 1975 rather than the applicable Sub-sections 1(2)(a) and (b). They then concluded in their Paragraphs 16-19:

"16. The applicant's case was that the respondents required her to vary her working hours to cover for sickness or holidays of other members of staff. The applicant was unable to change her working hours because she was unable to arrange childcare cover for her daughter unless her partner witness statement able to look after the child. The applicant's case was that the respondents were applying to her a provision, criterion or practice (namely the requirement to vary her working hours) which the respondents applied or would apply equally to a man but which was such that it would be to the detriment of a considerably larger proportion of women than of men and which the respondents could not show to be justifiable irrespective of the sex of the person to whom it was applied and which was to her detriment.

17. The applicant did not, and was indeed unable to, produce any evidence as to the proportion of women who would be able to comply with the condition applied by the respondents. The applicant accepted in her evidence that a part-time male employee with childcare responsibilities would probably have been dismissed by the respondents for refusing to change his working hours. The applicant accepted that the pool for comparison was part-time employees who had childcare responsibilities. Having accepted that a part-time male employee with childcare responsibilities would also have been dismissed for refusing to change his working hours, the applicant was unable to satisfy the Tribunal that, on the ground of her sex, she had been treated less favourably than a man would have been treated by the respondents.

18. Throughout her evidence, the applicant attached considerable weight to the fact that the respondents had behaved in an unreasonable manner towards her in refusing to discuss with her the decision to terminate her employme t and fialing to hold a formal disciplinary hearin. The Tribunal witness statement mindful of the decision of the Employment Appeal tribunal in Law Society v Bahl [2003] IRLR 640, which stated that the Tribunal is not entitled to draw an inference of discrimination from the mere fact that the employer has treated the employee unreasonably. Whilst all unlawful discriminatory treatment is unreasonable, not all unreasonable treatment is discriminatory. It is not to be presumed that the respondents have committed an act of sex discrimination merely because the victim is a woman. The applicant herself accepted that the respondents would probably have treated a male employee in the same circumstances in exactly the same way.

19. In those circumstances, the Tribunal was not satisfied that the respondents treated the applicant less favourably on the grounds of her sex or had applied to her a requirement or condition which they would apply equally to a man but which was such that the proportion of women who could comply with it was considerably smaller than the proportion of men who could comply with it. The applicant's complaint must therefore fail and is dismissed."

6. By the Notice of Appeal, the decision is said to be wrong in law in that the Tribunal failed to address the question whether the application of variable working hours would be to the detriment of a considerably larger proportion of women then of men, could not be justified by the Respondent irrespective of sex and was to the detriment of the Appellant and secondly that it failed to consider whether it was common knowledge that more women than men had childcare responsibilities and therefore that any provision, criterion or practice which requires variable working hours will have a detrimental effect on considerably more women than men.
7. These grounds have been expanded upon in a helpful skeleton argument and in oral submissions today on behalf of the Appellant. The Respondent has not appeared nor has been represented before us and has relied on the Employment Tribunal decision and written submissions which we have considered and taken into account.
8. We find that this Employment Tribunal, having correctly identified the issue in Paragraph 5 of the extended reasons already referred to, then failed properly to address and to answer the relevant questions. In setting out the law they quote from Sub-section 1(1) of the Act instead of the applicable Sub-section 1(2), the wording of which is significantly different.
9. The Employment Tribunal did in fact use the words of Sub-section 1(2)(b) in Paragraph 16 of the extended reasons when referring to the Appellant's case being that the Respondent had applied "a provision, criterion or practice to her" but the Tribunal then in Paragraph 17 of the reasons asked the question appropriate for consideration of direct sex discrimination under Sub-Section 1(2)(a) but never addressed the correct issues under the other Sub-section.
10. The appeal therefore is allowed. The decision of the Employment Tribunal is set aside and the matter is remitted for a rehearing before a differently constituted Employment Tribunal.