Appeal No. EAT/603/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 November 1996

Before
THE HONOURABLE MRS JUSTICE SMITH
MR D J JENKINS MBE
MR R H PHIPPS

MRS J BEECH	APPELLANT

MANCHESTER GRAMMAR SCHOOL
	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A BURNS
(Of Counsel)

MR M PILKINGTON
(Solicitor)
Association of Teachers & Lecturers
7 Northumberland Street
London 
WC2N  5DA	
For the Respondents	MISS B LANG
(Of Counsel)
Messrs Slater Heelis
Solicitors
71 Princess Street
Manchester
M2  4HL

				MRS JUSTICE SMITH:   This is an appeal from the decision of an Industrial Tribunal sitting at Manchester on two days in March and April 1996.  The Tribunal found that the Appellant had been fairly dismissed from her employment with the Respondents and that the Respondent had not discriminated against her on the ground of sex.

	The Tribunal found the following facts:  the Respondent is an Independent Grammar School for boys, with a national reputation for high academic achievement.  In September 1990 the Appellant commenced employment as a part-time teacher in French on a fixed term contract for the academic year 1990-1991.  Her initial engagement envisaged teaching for twenty-five periods a week.  Her contract was renewed each year until July 1995.  Over that period there was a gradual reduction in the number of periods which she taught.  In the final year she taught only nineteen periods.

	In the Spring term of 1994 Mr Sheldon, the Surmaster, or Deputy Head, of the Respondent School undertook an appraisal of the School’s requirements for teaching staff in the forthcoming academic year.  To a large extent, requirements depended on pupil choices in optional subjects.  He found that the demand for French had diminished in favour of Spanish, which we understand had only recently been introduced to the curriculum.  He concluded that the requirement for French teachers was likely to diminish significantly, and in particular for the school year commencing September 1995.  

	The modern language department of the School offered French, Spanish, German and Russian.  At the end of the school year July 1995, the teaching staff in that department comprised fourteen full-time teachers, all of whom were men.  There were also two part-time teachers, one of whom was the Appellant and both of whom were women.  The policy of the School, as found by the Tribunal, was to engage a number of part-time teaching staff on annual contracts, to cope with the fluctuation in teaching requirements, due to the choices exercised by pupils in the various optional subjects.  If the demand in any subject was reduced a part-time teacher on an annual contract would be the first to be considered for redundancy.  The Applicant was able to teach only French, the other part-time teacher taught Russian.  

	Following Mr Sheldon’s analysis of the requirements for the academic year 1995/96, discussions took place between the Appellant, Mr Sheldon, Mr Hatton (the Head of Modern Languages) and Dr Stephen the High Master.  In February 1995 Mr Hatton advised the Appellant that it was unlikely that the School would be able to renew her contract beyond July 1995, due to the reduced demand for French lessons.  This was confirmed to the Appellant in letters from Dr Stephen dated 5 April and 27 June 1995.  In the final letter the Appellant was informed that she was to be dismissed on the ground of redundancy.  Her contract expired at the end of the academic year.

	Before the Tribunal the Appellant’s submissions were that she had been discriminated against on the ground of sex and also unfairly dismissed.  On sex discrimination Mr Burns, who appeared for the Appellant below and before this Appeal Tribunal, submitted that the policy of the School to select part-time teachers for redundancy and to exclude their core of full-time teachers from consideration for redundancy was to impose a condition or a requirement upon the part-time teacher which was indirectly discriminatory on the ground of sex.  

	Section 1(1)(b) of the Sex Discrimination Act 1975 provides:
“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 sex of the person to whom it is applied, and
(iii)	which is to her detriment because she cannot comply with it.”

We note before considering those three limbs of the sub-section that they are cumulative.  In other words, if an applicant seeks to demonstrate that she has been indirectly discriminated against, she must satisfy each of the three limbs of the test.

	The Industrial Tribunal accepted the Appellant’s submission that the policy of selecting part-time teachers for redundancy did impose a requirement upon the Appellant, namely that in order to escape vulnerability to redundancy she must have a full-time post.  By implication from the findings of fact to which we have already referred, the Tribunal were saying that in order to escape vulnerability to redundancy she must have a full-time open contract of employment, as opposed to a part-time annual fixed-term contract. 

	The Appellant submitted that as there were fourteen full-time teachers in the department, all men, and two part-time teachers both women, it was self-evident that a far smaller proportion of women could comply with the requirement to have a full-time post than men.  Within that department that was plainly so.  However the Tribunal did not accept the Appellant’s submission.  At paragraphs 21 and 22 of their Reasons they said:-:

“21.  In relation to the applicant’s complaint of unlawful discrimination, the Tribunal accept the applicant’s submission that the School had imposed a condition or requirement to the effect that a teacher had to be employed on a full-time basis to escape selection for redundancy in these particular circumstances.

22.  However, despite the fact that all the full-time teachers in the Modern Languages Department were male and both the part-time teachers were female, the Tribunal do not accept that a considerably smaller proportion of women were able to comply with this requirement or condition.  Relying on their own knowledge and experience, the Members of the Tribunal unanimously conclude that the reason for the apparent discrepancy is due to the fact that Manchester Grammar School has a large preponderance of male pupils and historically has attracted male teachers.  [As we understand it, it is not disputed that Manchester Grammar School is a “boys only” school.]  By way of contrast, Manchester High School For Girls and Withington High School For Girls  - which are located in the same area and are regarded as establishments which also offer a very high level of academic achievement for female pupils - employ predominantly female teaching staff on a full-time basis.  Consequently, it is illogical to suggest that as a group a considerably smaller proportion of female teachers are unable to work full-time.”

	Before this Appeal Tribunal the Appellant has submitted that the Tribunal erred in that passage of their decision.  They were not entitled to find that the Appellant had not satisfied the statutory test under the first limb of Section 1(1)(b) of the Act.  Mr Burns submitted that the Tribunal have wrongly rejected the only evidence of comparison available to them, namely the Modern Languages Department, and they went on to consider other pools of comparison, without giving the Appellant and her team of advisers the opportunity to argue that those other pools were inappropriate or to obtain the statistics relevant to those other pools.  That, submitted Mr Burns, is a breach of natural justice.  He also submitted that it was the Tribunal’s duty to decide the issue under the first limb on the basis of the material available to them.  From the figures that were available, which related only to the Modern Languages Department, it was self-evident that the proportion of women who could comply with the requirement was much smaller than the proportion of men.  In fact none of the women could comply.

	He submitted that it was not right for the Tribunal to consider reasons why so few women were employed; they should just look at the figures and make a decision.  He submitted that the Tribunal ought not to have made observations about two other schools in the locality.  He did accept that the Tribunal were entitled to reject the pool proffered for comparison purposes.  He also accepted that the adoption of a pool is a matter for the Tribunal and provided they do not exercise their discretion in that regard on wholly unreasonable grounds, their choice of a pool or indeed their rejection of a pool, cannot be challenged.  

	We reject Mr Burns’ submissions on this issue.  The Appellant had put forward only one set of figures, namely the numbers of men and women in the Modern Languages Department.  The Tribunal were not prepared to make a decision on the basis of those figures and that group.  They rejected the argument that it was self-evident from the figures that the proportion of women who could comply with the condition was considerably smaller than the proportion of men.  Their references to the two girls’ schools in the locality was not, in our judgment, the adoption of the staff at those schools as a pool for statistical comparative purposes.  They referred to those schools simply to explain why they regarded the adoption of the small group of the Modern Languages Department of Manchester Grammar School as wholly unsatisfactory and why they regarded the argument advanced on the Appellant’s behalf as illogical.  

	Their real conclusion, implicit in the passage which we have read, is that the Appellant had failed to produce any evidence to show that the proportion of women who could comply with the requirement was considerably smaller than the proportion of men who could comply.  The burden of proving that was upon her.  She had failed to discharge it.  In our judgement the Industrial Tribunal was entitled so to find.  

	Because, as we have already indicated, the three limbs of Section 1(1)(b) of the Act must all be satisfied, the failure of the Appellant to satisfy the first limb effectively disposed of her complaint of sex discrimination.  However, the Tribunal went on to give their finding under the second limb, on the basis that it might be thought that they had been wrong in respect of the first limb.  
	To some extent this was an unreal exercise, as the second limb only comes into play if there has been a finding of the imposition of a requirement upon the Appellant which had a discriminatory impact.  Under the second limb the Tribunal has to consider whether the employer can justify the discriminatory requirement irrespective of the sex of the person to whom it is applied.  In Webb v Emo Air Cargo Ltd [1993] ICR 175 the House of Lords endorsed the dicta of Lord Justice Balcombe in Hampson v Department of Education and Science [1989] ICR 170.  At page 191F, Lord Justice Balcombe said:

“In my judgment “justifiable” requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition”...

Thus it is not possible to carry out a balancing exercise if the Tribunal has not found that there was a discriminatory effect.  However the Tribunal said this at paragraph 23:

“Even if the Tribunal had concluded that a considerably smaller proportion of female teachers were able to work full-time and that this also applied to the applicant, the Tribunal would still have rejected the applicant’s complaint of sexual discrimination for this reason.  On the evidence presented the Tribunal are satisfied that there was a justifiable non-gender basis for imposing such a requirement - namely a need to retain an essential degree of flexibility to enable the School to provide the very high quality of education for which it is nationally renowned.  The Tribunal do not suggest that this particular respondent should be treated more favourably because of its reputation.  The Tribunal’s determination on this point is simply that the respondent’s methods of pursuing its acknowledged excellence as an educational establishment justified the policy of engaging part-time teaching staff to enable the respondent to cope with inevitable fluctuations in demand in respect of various subjects and that it was consistent with this policy for part-time teachers to be made redundant before full-time teaching staff when there was a reduction in the requirements for certain lessons due to pupils exercising their choice of subjects.”
	
	Mr Burns makes several complaints about this passage.  First he submits that there could not be a gender neutral justification for the requirement imposed in this case in a department where the only part-timers were women.  We think that this submission demonstrates a misunderstanding of what is meant by a “gender neutral justification”.  Here, in effect, the Respondents were saying that they would have chosen the part-timer for redundancy whether the part-timer was a man or a woman.  The reason for choosing was that the person worked part-time.  That, in our view, is a gender neutral reason.  The Industrial Tribunal accepted it as, in our view, they were entitled to do.

	Mr Burns submits also that the Industrial Tribunal appeared in this passage to have set different standards for the Manchester Grammar School because of their reputation, although expressly saying that they have not done so.  We understand the concern felt by the Appellant on this point, especially as we have been told that the Chairman was a former pupil of the School.  He disclosed this to the parties at the commencement of the proceedings and the Appellant, on advice, raised no objection.  We note that no allegation of bias has been made in the Notice of Appeal.  Also on examination, we reject the submission that any different standard has been set.  All the Industrial Tribunal are really saying in this passage is that this School has a policy which the Tribunal accept as being genuine and reasonable.  Any school, whether it has a high reputation or not, is entitled to set high standards for itself in the hope of achieving them.  We do not think that the rather generous compliments which the Tribunal gave to the Respondents had any bearing upon their reasoning in this section of their decision.

	Finally, on this issue, Mr Burns submitted that the Industrial Tribunal should not have taken account of the fact that the Appellant knew that she was on a short-term contract and that it was a policy of the School to reduce the hours of part-timers so as to ensure full employment for full-timers.  From the passage which we have read at paragraph 23 of the decision, it does not appear to us that the Tribunal have taken that matter into account.  	So far as sex discrimination is concerned, we reject the Appellant’s grounds of appeal and conclude that the Tribunal were entitled to reach the decision which they did.  

	We turn then to deal with the claim that the Appellant was unfairly dismissed.  The Tribunal found that the Appellant was dismissed by reason of redundancy and that there was a genuine reduction anticipated in the Respondent’s need for the teaching of French lessons.  That finding is not challenged.  

	The Tribunal then went on to consider Section 57(3) of the Employment Protection (Consolidation) Act 1978.  They held first that the criteria of selection for redundancy were fair, reasonable and objective.  In particular at paragraph 15 they said:

“The School were entitled to exclude the full-time teaching staff in the Modern Language Department from the pool of candidates for selection for redundancy for this reason.  It was clear that the pupils’ selection, in accordance with their options, had resulted in the School having to provide less [sic] French lessons.  It was for precisely this sort of situation that the School had adopted a policy of engaging part-time teaching staff so as to minimise the disturbance to the teaching schedules of full-time teaching staff.  The applicant had acknowledged that she accepted this policy and the Tribunal also regard it as fair and reasonable in the context of the objectives and very high standards which the School sought and had succeeded in achieving.  ... In this instance, however, the School were simply implementing a machinery which had been devised for this very purpose and which the applicant accepted when she undertook her engagement.”

The Appellant sought to criticise the selection criteria as discriminatory on the ground of sex.  We have already rejected the submissions in that regard.  No other criticism is made.  

	The Tribunal then considered all the possible ways in which the redundancy of the Appellant might have been avoided by the Respondents.  There is no need in this judgment for these to be set out.  The Tribunal’s conclusion was that the Respondent had acted reasonably in taking the course that they chose and no arguments have been addressed to us to challenge that conclusion.

	Finally, on the issue of consultation, the Tribunal said that they regarded the consultation which had taken place between the School and the Appellant as adequate.  Having reached that conclusion they expressed themselves satisfied in general that the employers had acted reasonably in treating the redundancy as a sufficient reason for dismissal.  The Appellant has submitted to us that the finding that the consultation had been adequate was perverse.  Mr Burns submitted that the only findings in relation to consultation were as set out at paragraph 6, which we have already paraphrased.  He submitted that there was there no evidence of consultation, only of warnings.  He submitted that a distinction must be drawn between warnings and consultation.  Of course we accept that that is so.  But we cannot accept his submission that there is no evidence upon which the Tribunal could have declared themselves satisfied with the consultation.  

	First we observe that there is no duty on an Industrial Tribunal to set out every single finding of fact upon which it bases its conclusions.  We can see even from the documents before us, which are limited, that there is reference to a number of conversations having taken place between the High Master and the Appellant.  From the context of the letters of the 5 April and 27 June 1995 it is apparent that there has been some consultation.  If the Appellant wished to argue that the Tribunal’s conclusion was perverse in this regard, the Chairman’s Notes should have been called for.  That was not done.  In our view it is clear that even if they had been, the argument could not have been sustained.

	Accordingly we reject this final ground of appeal and the appeal as a whole must fail.  We add only this.  We wish to say that where a Chairman or a Member of a Tribunal finds himself in the position that he must declare an interest to the parties, the better course will usually be that he or she should disqualify himself from sitting.  Sometimes this cannot be done without causing inconvenience, possibly necessitating an adjournment.  In those circumstances the parties may prefer to go on.  We do not know the circumstances here in detail and we make no criticism of the Tribunal.  We say only that, if possible, any potential conflict of interest or any suggestion of bias should be avoided from the start.