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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Whiffen v Milham Ford Girls School & Anor [1999] UKEAT 1245_98_2810 (28 October 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/1245_98_2810.html Cite as: [1999] UKEAT 1245_98_2810

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APPEARANCES

 

For the Appellant	Mr Graham Clayton Solicitors Hamilton House Mabledon Place London WC1H 9BD
For the Respondents	Mr Martin Kurrein (Of Counsel) Mr P Clarke Head of Legal Services Chief Executive's Office Oxfordshire County Council County Hall Oxford OX1 1ND


 


JUDGE HOLLAND:

1. By an IT1 dated the 5 July 1996, Mrs Kathleen Whiffen initiated a complaint of sex discrimination the respondents being the governing body of Milham Ford Girls School and Oxfordshire County Council. The nature of the complaint was developed in an attached document which asserted correctly, that she had been employed by Oxfordshire County Council at Milham Ford Girls School, on a succession of fixed term contracts since April 1991. She then further specified, again accurately, that on the 24 April 1996 she had been given notice that she was to be dismissed, by non-renewal of her current fixed-term contract, with effect from the 31 August 1996, and the reason being specified as redundancy. She then indicated that her belief was that the selection for dismissal by reason of redundancy, reflected the local education authority's procedure which required the dismissal of staff on fixed-term contracts before proceeding to other criteria for selection for dismissal.
2. With that as the premise, she then raises two points. The first point that she raises is as follows;

"I should not in any event have been on a fixed term contract, the appeal body felt that these arguments did not outweigh the fact that the original governing body panel had, as was claimed, applied the LEA procedures. In fact I dispute that the LEA procedures were followed".

3. She then raises a second contention in these terms.

"I contend that a condition or requirement was applied to me that to be considered equally with others in a redundancy selection procedure one must hold an open ended (permanent) contract or, put in the alternative, one must not hold a fixed term contract. I believe evidence will show that this is a requirement or condition which a considerably smaller proportion of women than men can comply with. It was to my detriment that I could not comply with the requirement or condition and I believe the requirement or condition cannot be justified. Thus I believe my treatment was contrary to sections 1(1)(b) and 6 (2)(b) of the Sex Discrimination Act 1975".

4. The matter came before an Industrial Tribunal held at Reading. Its decision was sent to the parties on the 21 July 1998 together with extended reasons. The decision was in terms

"The first respondent implied a requirement or condition to the applicant which was indirectly discriminatory, but this was justifiable irrespective of the applicant's gender. The application fails".

5. From that decision there is an appeal to this Tribunal. In order to develop the appeal, and indeed to deal with it, it is necessary to mind the terms of the relevant parts of section 1. They are as follows

(1) a person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if –

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 marital status of the person to whom it is applied, and

iii) Which is to that person's detriment because he cannot comply with it.

6. We interpose these words constitute a provision that is plainly designed to cover a "gender neutral" requirement, which is discriminatory in its application. Turn then to the way in which the Tribunal has dealt with the matter. It is convenient to go immediately to Paragraph 8 of the extended reasons. There the Tribunal intimated its intention not to deal with the first point that had been raised by Mrs Whiffen in the IT1. We need not develop the explanation in full, suffice to say that having ruled that it was not the function of the Tribunal to review the operation of the policy which had led to the successive fixed term contracts, there is no appeal on that matter.
7. Therefore we concentrate on the second of the matters raised by Mrs Whiffen, as did the Tribunal. How then did the Tribunal approach the case? By paragraph 5, the Tribunal made its findings about the redundancy policy that prevailed at the school in question. It did so in these terms

"In the spring of 1996, when the applicant was employed to teach French and German, the Governors identified a need to reduce staffing levels due to changes in the curriculum and funding constraints. The County Council had formulated a model redundancy policy which had been in place for some considerable time. We are told that it had been formulated after consultation with the unions, if not, necessarily, their wholehearted agreement to each and every point. The policy was subsequently adopted without amendment by the Governors as being their redundancy policy. The important feature of it is that it sets out a number of steps which will be taken in order to minimise redundancy if this is likely to be necessary. It runs to a form which is quite common in the employment situation and which has the blessing of ACAS. It states that it in order to avoid or minimise redundancy where staffing reductions are likely, measures will be taken which will include a reduction of staff by a natural wastage, the restriction or recruitment of permanent staff, and reducing the use of temporary staff including the non-renewal of temporary fixed term contract. It goes on to say that other steps will include the filling of vacancies from among existing employees and re-training and redeployment of existing employees. The policy envisages that those steps will be considered and adopted where appropriate before any selection process will be undertaken for compulsory redundancies".

8. In the next paragraph, 6, the Tribunal then looked at the application of their policy by the governors of the school in 1966. They note very clearly the complaint, as they understood it that was being made by Mrs Whiffen.

"The requirement or condition which she claims was imposed on her, and which the respondents concede, was that in order not to have her employment terminated at an early stage, but to progress to take her changes in a redundancy selection exercise to be carried out at a later stage, she has to be employed under a permanent contract. In that she was not so employed there was, she says, a requirement or condition with which she was unable to comply and which operated to her detriment in that it led to the ultimate termination of her employment. We accept that proposition. This was a requirement or conduct which was imposed by the respondents".

9. In paragraph 7, the Tribunal turned its attention to the basic grade teachers employed at the material time at the school. One of whom was Mrs Whiffen. They noted that there were 11 such, they noted further that of those eleven, two were male, each a full-time employee. They then went on.

"The remaining nine female teachers there were two temporary employees on fixed term contracts, one of whom was the applicant. The figures at that stage disclose that of the male staff two out of two, that is to say 100%, were able to satisfy the requirement or condition of holding permanent contracts of employment. Of the female staff seven out of nine were able to satisfy that requirement, that is to say 77.7% and we are invited to say, as we do, that 77.7% is a substantially smaller proportion than 100%".

10. Pursuing their reasoning, they then review the significance of these statistics, and in paragraph 11, they then apply their mind to the first issue, as to whether this requirement was indeed such, as to satisfy section 1(b)(1); that is that it was such that the proportion of women who could comply with it was suitably smaller than the proportion of men who could comply with it. Having dealt with certain arguments, which are not now raised before us, they reach the conclusion that the requirement was caught by that paragraph. It was caught by that paragraph because as a matter of plain fact at the material time the proportion of women who could comply with it, was indeed smaller than the proportion of men.
11. They then direct themselves that their remaining consideration has to be paragraph 1(b)(2) and they deal with that by way of paragraph 12 which is necessary to cite in full thus.

"The application does not end there because whilst it is conceded by the respondents, and we accept, that the requirement, which was applied to the applicant, was one with which she was unable to comply and which was to her detriment we still have to consider the argument as to whether or not it was justifiable irrespective of the sex of the person to whom it was applied. We have been referred to a number of authorities, in particular, to the cases of Ojutiku V Manpower Services Commission [1982] ICR 661, Bilka-Kaufhaus GmbH V Weber Von Hart [1987] ICR 110 and Greater Manchester Police Authority V Lea [1990] IRLR 372.

The general approach we should adopt is to consider the reason why the requirement is put forward by the employer and the extent to which it is necessary to meet the employer's needs. We must then strike a balance between those needs and the discriminatory effect on the particular employee.

In particular Mr Boland refers us to the case of Bilka-Kaufhaus in which he invites us to accept that the respondent must show a real need on the part of the undertaking to impose the condition and that the steps taken to meet that need are appropriate in all the circumstances. The argument the respondents put forward on justification (and it is for them to show that the imposition of the condition is justified) is that the redundancy policy itself is not inherently discriminatory. It is a policy which has been adopted by the respondents having been initially produced by the County Council. It is one which sets out the formula by which the Governors will approach the disagreeable task of deciding how staff reductions shall be achieved if that has to be done. They say that in those circumstances the policy is a justifiable one.

Good industrial relations require that there shall be a policy put in place, hopefully with the approval and agreement of the work force and its representatives, whereby the procedure for addressing redundancies is clear and certain. No such policy is likely to be able to give universal comfort to all members of staff, but it should have the virtue of certainty so that when this unpleasant spectre looms both sides of the equation will know how the matter is to be addressed. In our view that is a need which an employer has to address either in anticipation of an actual redundancy situation or against the day when it may arise. In our view, to put in place such a policy is a need and this particular policy, which the respondents adopted, is an appropriate one. We are reminded that it is one which has the blessing of ACAS. IT is one which runs to a pattern which is familiar to us. It may not necessarily be the only policy, other employers may set in place a different policy, but in our view it is an appropriate one and it is sufficient to justify the imposition of the requirement or condition. It is a policy which is of its nature genera neutral. It may produce one result today according to the gender make-up of a particular school's teaching staff and another result tomorrow. Therein, it seems to us, lies its strength and negates the suggestion that it is inherently discriminatory. We find that the imposition of the policy was justifiable and for those reasons we have come to the conclusion, sadly for Mrs Whiffen, that this application must therefore fail".

12. In presenting Mrs Whiffen's appeal to us, Mr Clayton initially took a point which he described as being narrow but important. The point as we understand it arises as follows. It will be observed that there comes a stage in the course of paragraph 12, when the Industrial Tribunal having reviewed the nature of this policy expressed itself in these terms.

"In our view that is a need which an employer has to address either in anticipation of an actual redundancy situation or against the day when it may arise. In our view to put in place such a policy is a need and this particular policy which the respondent adopted is an appropriate one".

13. His narrow but important point appears clearly in his skeleton argument.

"The appellant says, in this appeal, that having decided upon a broadly correct approach to the task before it, the Employment Tribunal wrongly attached its approach to the respondent's need to have a redundancy policy rather than, correctly, to the employer's need to impose the discriminatory condition in question".

14. The submission is repeated in Paragraph 11 of his skeleton argument in which it reads.

"The proper question is whether the respondents needed to have the discriminatory condition. That is quite clear from the statute and the authorities".

15. Thus it is, he submits in the event the Employment Tribunal asked itself a wrong question, thus there was an error in law. We have to say that we reject this argument. We reject it because, having reviewed the cases, the Tribunal directed itself earlier in Paragraph 12 in these terms.

"The general approach we should adopt is to consider the reason why the requirement is put forward by the employer and the extent to which it is necessary to meet the employer's needs. We must then strike a balance between those needs and the discriminatory effect on the particular employee".

16. Mr Clayton does not challenge that proposition, as being one that is not substantiated by authority: it plainly is substantiated by authority, it has not been called into question before us. Mr Clayton is right that eventually the Tribunal does have to address its mind to the question as to whether there is need for a discriminatory requirement. But the effect of the authorities is plain and that is achieved by the Tribunal applying its mind to the two factors set out in that citation, and making a balance between them.
17. The first factor is the needs of the employer. That is an issue that arises quite independently of any discriminatory effect. It is that factor which this Tribunal plainly applied its mind to, in quite admirable terms. Once that has been identified it is then for the Tribunal to go to the second factor, and that is the discriminatory effect on a particular employee of their needs. Once that has been identified, the final stage in the reasoning is a balancing exercise between the two factors, it is in that way as guided by authority that the Tribunal comes to the question as to whether there is a need to impose a discriminatory condition. To make that an initial factor completely bypasses that which authority had laid down as a practical common sense approach to the application of this part of section 1 of the act. We are entirely satisfied that the submission was misconceived, we are entirely satisfied that the Tribunal correctly identified itself as to the factors, and that very properly it considered initially the needs of the employers.
18. Then as is apparent, in the latter part of Paragraph 12 it applied its mind to the discriminatory effect of the policy and the requirement, and made a balance between that and the employers needs, leading to the final sentence in the paragraph. Mr Kurrein submits that this a tribunal tackling the issues in the classic fashion, we entirely agree.
19. This was not the only point that was taken by Mr Clayton on behalf of Mrs Whiffen. He complains that when the Tribunal did come in the latter part of paragraph 12 to making a judgement, it expressed itself in terms wider than were necessary for adjudicating upon Mrs Whiffen's complaint against the Governors of the School. He is concerned that given the width of the finding it will somehow achieve a status of some authority in situations that may arise in the future. We agree with him that the Tribunal did use terms in the latter part of Paragraph 12, that are somewhat general, and do on their face go rather wider than was needed to deal with Mrs Whiffen's complaint. That said, we cannot in any way regard that as undermining this decision. The prospect of this becoming an authority in dealing with situations, in addition to that raised before it, it is non-existent. This is plainly a finding, made by a fact finding body on the particular evidence put before it. However it expressed itself, it can have no wider significance than was called for by the decision.
20. He further submitted that the Tribunal was wrong to direct itself that the requirement was "gender neutral". We have to say that in our judgement it plainly was, hence why we were concerned with this part of the section 1, and we draw attention to the finding by the tribunal

"It may produce one result today according to the gender makeup of particular school teaching staff and another result tomorrow"

21. Additionally, Mr Clayton sought to have us examine Paragraph 8, in which Mrs Whiffen's initial first point was first discussed, only to have the Tribunal decline jurisdiction. He sought to indicate that there were factors there that which might arise and, which could and should bear upon the exercise of judgment in Paragraph 12. As Mr Kurrein pointed out, given the ruling by the Tribunal, that could have been no proper investigation of the underlying facts, and certainly none in which the respondents took an active part. Furthermore and importantly there are no findings of fact by the Tribunal. Add to that a failure to make any appeal against the decision set out in Paragraph 8, and it becomes quite plain to this Tribunal that there is nothing therein that we could, or should take into account in exercising our judgment on this particular appeal. Thus, having dealt with the points raised by Mr Clayton, we come to the clear and unanimous decision that this appeal must be dismissed.