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Appeal No. UKEAT/0161/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27 July 2010

Before

THE HONOURABLE MR JUSTICE WILKIE

MRS C BAELZ

MR B GIBBS

SHACKLETONS GARDEN CENTRE LTD (APPELLANT)

MISS D LOWE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MR C MILSOM (of Counsel)
Instructed by:
Messrs Lyons Davidson
Jago House
692 Warwick Road
Solihull
West Midlands
B91 3DX

For the Respondent Written submissions

SEX DISCRIMINATION - Indirect

The Employment Tribunal failed to make sufficient findings of fact on: the issue of the Claimant suffering individual detriment as a result of the application of a discriminatory PCP; and on the issue of proportionality to justify their conclusion that there was actionable indirect discrimination.

1. This is an appeal by Shackletons Garden Centre Ltd against the decision of the Employment Tribunal sitting at Manchester on 30 July 2009.

1. By that decision the Tribunal concluded that the Appellant indirectly discriminated against the Claimant, Miss D Lowe. It applied a Provision, Criterion or Practice ("PCP") whereby its employees had to work weekends which put women to a particular disadvantage. The Claimant was put to that disadvantage. The Respondent had failed to show that the imposition of that PCP was a proportionate means of achieving a legitimate gain.

1. The Tribunal also concluded that the Claimant resigned as a consequence of that indirect discrimination, which constituted a breach of the implied term of trust and confidence. Accordingly, the Respondent unfairly dismissed the Claimant. The Tribunal then went on to make certain awards by way of compensation.

1. The Tribunal had to make certain crucial findings of fact, which it did and which to a large extent are not in dispute by the Appellant, as they were, by and large, in the Appellant's favour. Those findings are set out at paragraph 3 of the decision. Briefly, the Appellant runs a garden centre comprising a number of departments and employed 30 members of staff. The Claimant was employed on 9 December 2006 as a sales assistant. That job involved weekend work, the busiest period for the Appellant (when 65 to 75 per cent of its turnover is taken). The department within which she had worked was to close and re-open as a result of refurbishment based on planning permission. She was relocated and spent a significant period of time working on the tills. She became pregnant in June 2007 and discussed her absence on maternity leave with the Appellant. There was a discussion between her and Mr and Ms Shackleton, the prime movers of the Appellant. There were different accounts of the outcome of that conversation which the Tribunal had to resolve.

1. The Claimant's account was that upon her return back to work, she would no longer work full time but would work part time (three days a week) specifically fixed as Mondays, Thursdays and Friday. The Appellant's version of that discussion was that upon her return from maternity leave they would be happy to re-engage her full time but if she would like to reduce her hours they would review her position and any other suitable vacancies within other departments that might be suitable for her.

1. The Tribunal resolved that dispute of fact in favour of the Appellant. The reason for that was that the Tribunal concluded that it did not think that the Appellant would have given the Claimant any guarantee about specific part-time working hours, 1 year in advance, particularly so in light of the fact that the majority of the Appellant's turnover was taken at the weekends. The Claimant had worked on the tills. Everyone else in that position worked rotational shifts which necessarily involved some weekend working, and there was a business need perceived by the Appellant that they needed at least one experienced employee working on the tills at the weekends when no doubt there were other part-time employees (perhaps students) working on the tills during the weekend.

1. The Tribunal concluded that the Claimant genuinely believed that the outcome had been as she argued for, namely she would be returning three days a week, specifically three weekdays. The Tribunal accepted that, acting on that understanding, the Claimant had made arrangements for child care at a specific nursery three days a week, fixed days, in anticipation of her return to work and, indeed, had paid a deposit.

1. It was when her return to work was being discussed, the Claimant apparently not having received a letter from the Respondent which made clear their position, that the Claimant was shocked to realise that the arrangements that she had made were on a basis which was not going to materialise. There had been a conversation in which each side expressed their mutual misunderstanding of the position of the other, perhaps in terms which became somewhat heated. Accordingly, the Tribunal found, as a matter of fact, that upon her return from maternity leave the Appellant was prepared to agree to the Claimant working part time on the tills, but on the basis of her forming part of the rotation which would inevitably mean her working, from time to time, weekends, one or two times every three weeks.

1. It was against that factual background that the Tribunal had to consider the claim of indirect discrimination. There was no dispute but that the Appellant was imposing a PCP, whereby the Claimant and others, including men, had to work at weekends. The Tribunal had to consider, in accordance with section 1(2) of the Sex Discrimination Act 1975 whether that PCP put, or would put, women in a particular disadvantage when compared with men. The Tribunal concluded that it would. They said:

"It is well recognised that significantly more women than men are primarily responsible for the care of their children. Accordingly the ability of women to work particular hours is substantially restricted because of those child care commitments in contrast to that of men."

1. In our judgment, the Tribunal was entitled to come to that conclusion based on what is now well recognised in industrial and employment circles. In fairness, that finding has not been at the forefront of the Appellant's contentions as to the errors of law that this Tribunal made.

1. The Tribunal then turned to the second issue that arises in relation to indirect discrimination cases, namely whether the provision criterion or practice puts her at that disadvantage. The Tribunal concluded that it did. They record their conclusions in the following terms:

"We are equally satisfied that the claimant was put to that disadvantage. Whilst it was at one stage contended by Ms Shackleton that there were other nurseries available which the claimant could have used, the claimant's position was clear. She could have arranged her mother-in-law to look after her daughter on the Friday, but would have to place her child in a nursery or child care on the other two days of the week. The nurseries to which Ms Shackleton had alluded were more expensive and nearer the garden centre, whereas the claimant wanted the child care provision to be nearer her own home so that in the event of an emergency, her immediate family or friends could have attended that nursery and helped out. We are satisfied that that in itself places the claimant at the disadvantage as a consequence of the imposition of the provision criterion or practice."

1. The Appellant says that there are a number of things wrong with that conclusion. Their primary contention is that, by indicating that she did not wish to investigate the suggested alternative nursery arrangements described, the Claimant was exercising a personal choice rather than suffering a detriment by reason of the disparate impact of the provision criterion or practice on women. Reference is made to the unreported case of the Ministry of Defence v Mrs Adele MacMillan (EATS/0003/04), in which, at paragraph 35, it is stated to be axiomatic that the detriment cannot be self inflicted.

1. The second criticism of the Appellant is that the Tribunal has not identified, with sufficient particularity, what was said by the Claimant to constitute the disadvantage imposed by the requirement that she work particular hours, in particular, hours that fitted in with a rota system and which involved weekend working.

1. We observe that there is nothing in the ET1, nor apparently in the evidence that the Claimant gave, which identifies what was the problem with her accepting rotational work involving some weekend work, rather than fixed days, all of them during the week. There does not seem to have been any evidence from her that the place that she had booked at the particular nursery would only be available if she could guarantee to leave her child on specific fixed days of the week, or that the nursery was not available at weekends. Had that been the case, and had the choice of that nursery, for the reasons that she has given, not been simply a self inflicted detriment, then it might have given rise to the conclusion to which the Tribunal came. But the Tribunal did not make findings of fact along those lines.

1. In our judgment, the conclusion that the Tribunal reached is one which was not open to it on the evidence that it had heard and on the arguments presented. Nor were there sufficient findings of fact to enable them to come to that conclusion. Accordingly, in our judgment, this ground of attack is well aimed and the appeal succeeds in respect of this issue.

1. The third issue to which the Tribunal had turned its mind was the question whether, if the Claimant were put at that disadvantage on gender discriminatory grounds, the PCP could or could not be shown to be a proportionate means of achieving a legitimate aim. In that respect, at paragraph 5.3 of the decision, the Tribunal effectively refused to engage with the issue at all because of evidence given by Mr Shackleton that he could have looked at alternative work for the Claimant to do and accommodated her. In fact, we are told that the evidence of Mr Shackleton went on to say that it would have been difficult and this would simply have been a matter that they would have looked at if there were no other alternative. Furthermore, it appears that the Claimant resigned before the conversation between her and the Appellant got to that stage and, we are told by counsel who appeared below, that the Claimant herself accepted, in cross-examination, that by resigning first, before these matters had been canvassed, she had failed to engage as fully as she might have done with the Appellant in seeking a resolution to the difficulty which they both faced.

1. In our judgment, the Tribunal erred in failing to address the issue whether it could, or could not, be shown that the PCP was a proportionate means of achieving a legitimate aim. There was ample material to suggest that it was addressing a legitimate aim, namely the need to provide experienced cover at the weekends, during which the majority of the turnover of business was taken in and to play fair with all of their employees, each of whom (men or women) were expected to work at weekends in accordance with the rota. It may be that in that context the possibility of finding an alternative position for the Claimant, which would not have required weekend working, might have been a factor. But, in our judgment, the Tribunal erred in failing at all to engage in that exercise but by simply taking that admission as determinative of this issue. Accordingly, we find that the appeal succeeds on this ground as well.

1. Mr Milsom argues that, having found that the appeal succeeds, we should go on to substitute our view for that of the Tribunal on the second issue and to conclude that the Claimant had not proved that she was put at the disadvantage to which the Tribunal referred as affecting women generally. If that were the case, then, of course, the third issue would not arise. Even if that were not the case, he invites us to conclude there could be only one answer in relation to the proportionality argument, namely that the Respondent had demonstrated that it was a proportionate means of achieving a legitimate aim.

1. We have a certain amount of sympathy with those arguments. We are, of course, hearing this appeal in the absence of the Claimant who, for understandable reasons, does not feel able to come to London to attend the EAT and has indicated she was not going to be here and relied on the reasons set out in the ET's decision.

1. In our judgment, however, there are a number of factual issues which need to be investigated in respect of the second issue. We are concerned that at no point has anyone seemed to be able to get the Claimant to articulate what it was about rota working, some times at the weekend, which caused her arrangements for child care to be thrown into disarray. What it was about those particular arrangements which would enable her to say that her insistence on those did not constitute a self-inflicted detriment, such as was described in the MacMillan case, which is an authority which may be of assistance to the Tribunal ultimately considering this.

1. Equally, whilst it may be that the arguments in favour of the insistence by the Appellant were powerful ones, nonetheless there is still the point that they were prepared to consider, in extremis, alternative employment arrangements and it seems to us that that is an issue which also cannot properly be decided by us on the basis of the material before us. Therefore, in our judgment, this case will have to be remitted. We agree with Mr Milsom that it should not be to the same Tribunal but we are clear that it would not be just to either side to remit it to a different Tribunal for the matter to be argued on the basis of evidence from scratch. It seems to us that the findings of fact that the Tribunal made in this decision: on the absence of any agreement as to what was to happen upon her return to work, and their findings about the various conversations that took place in advance of her return to work; are findings of fact which were clear, were open to that Tribunal on the evidence that they had received and should form the factual basis against which the different Employment Tribunal should address the discrete issues of whether or not the Claimant suffered such a detriment, and/or whether, if she did, the insistence on the criterion, provision or practice could be shown to be a proportionate means of achieving a legitimate aim.

1. Accordingly, our order is that the matter be remitted to a differently constituted Tribunal to determine those two issues against the background of the findings of fact made by the instant Employment Tribunal to which we have referred and which were set out at paragraphs 3.1 to 3.8 inclusive of the Tribunal's decision.