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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Underground Ltd. v Susan Patricia Edwards  EWCA Civ 877 (21 May 1998)
Cite as:  EWCA Civ 877
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
London W2A 2LL
B e f o r e :
LORD JUSTICE SWINTON THOMAS
LORD JUSTICE POTTER
|LONDON UNDERGROUND LIMITED||Appellant|
|SUSAN PATRICIA EDWARDS||Respondent|
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel: 0171 404 1424
Official Shorthand Writers to the Court)
MR ROBIN ALLEN QC and MR CLIVE LEWIS (instructed by Ms Pauline Matthews, Equal Opportunities Commission) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Potter:
"As a result she was able, as single parent, to do her job and be at home to look after her child. She however suffered a financial penalty in working these shifts as these shifts were the ones that did not attract a bonus payment [an unsocial hours payment]."
THE INDUSTRIAL TRIBUNAL'S DECISION
"(b) he applies to her a requirement or condition which 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."
(a) What was the relevant "requirement or condition" which was applied to the applicant?
(b) Could she comply with it?
(c) If not, was it one which "a considerably smaller proportion of female train operators than of male operators could comply"?
(d) If so, was it justifiable.
The tribunal's answer to Question (a) was: "The new rostering arrangements in the new contract ... [which] .. affected the applicant and .. ultimately led to the termination of her contract".
Their answer to the second question was: "No". They held:
"It is clear from the evidence that no reassurance was given to her, and we are not satisfied from the evidence that we heard that the swopping arrangements that would have enabled her to continue with her work would continue in the way that were [sic] satisfactory. As a single parent she was torn between the need to do her job and the need to care for her child and these new rostering arrangements in the new company plan did not satisfy her needs."
The tribunal's answer to the third question was that the requirement was one with which a considerably smaller proportion of the female than male train operators could comply. I shall return to the findings in support of that answer in detail below.
In answer to the fourth question the tribunal found that the requirement imposed on the applicant was not justifiable on the grounds that LU:
"could have easily, without losing the objectives of their plan and re-organisation, have accommodated the Applicant who was a long-serving employee. They were aware of her particular difficulties quite early on and, after the failure of the Single Parent Link in September 1991, she had set out her misgivings and her difficulties in writing to the management. They did not address themselves to these issues and therefore we find that they have not justified this act of discrimination."
THE DECISION OF THE EMPLOYMENT APPEAL TRIBUNAL ("E.A.T.")
THE DISPARATE IMPACT QUESTION
"9. The third requirement is whether it was a requirement or condition with which a considerably smaller proportion of female train operators could comply as compared with male train operators. We have heard from the evidence before us, and it was accepted by Mr Bean, that all the 2,023 male operators complied with this condition of the new rostering. We heard evidence from the Applicant that out of 21 female train operators she was the only one who positively complained that she could not comply with the new rostering arrangement. However, the Respondent's witnesses confirmed that there was a Mrs Quinlan who had also applied for the Single Parent Link arrangement when it was proposed but she had signed the contract and had worked for two or three weeks under the new rostering system. It was accepted that she was then moved because it was said that she had a bad back as she was pregnant and eventually she took a career break. She is still apparently employed by the Respondents but she was not called as a witness by either the Respondents or the Applicant and we can only conclude from the evidence that we heard that, out of 21 female train operators, two of them did not continue with the new rostering a month after it came into operation. The Respondents have argued that the Applicant should have tried the new rostering arrangement to see if it could have worked out. However, an employee faced with a choice between working a new roster and, if it did not prove satisfactory, having to leave or being dismissed for breach of contract, and the alternative of an enhanced voluntary severance package, could reasonably not risk working the roster when they were quite clear in their own mind that they would not be able to do so for very long.
10. We now have to consider whether the one or possibly two train drivers out of 21 female train drivers as compared with 2,023 male train operators can be considered a "considerably smaller" proportion of the whole which we consider are the train operators as a whole. We were referred by Mr Bean to Staffordshire County Council -v- Black  IRLR, where it was held that a proportion of 89.5 per cent of females compared with 97 per cent of male teachers was not a "considerably smaller" proportion within the meaning of Section 10(1)(b) of the Sex Discrimination Act. Mr Bean has argued that this proportion in this case is less than a 5 per cent difference and therefore was not a big enough proportion to come into this category and to be classified as "considerably smaller". It is clearly established from the case law that this is a question of fact for the Tribunal to decide, and we find that taking into account the number of male train operators as compared to the very few female train operators (2,023 to 21) and the fact that only one person, the applicant, could not comply and also added to the fact that it is common knowledge that females are more likely to be single parents and caring for a child than males, it is clear that this was a condition or requirement that a "considerably smaller" number of females could comply with."
(1) It was common ground that for the purposes of comparing the proportion of women and men employees who could comply with the new rostering arrangements, the "pool" was that of all train operators to whom the new rostering arrangements applied (see: Edwards No.1) which (as counsel were agreed) consisted of, and thus was limited to, those in the employment of LU at the time the arrangements were introduced
(2) The Industrial Tribunal found that the pool consisted of the 2023 male train operators, of which all, i.e. 100%, could comply, and twenty-one female train operators of whom all but 1 (Mrs Edwards), i.e. 95.2%, could comply.
(3) That being so, the question for the Industrial Tribunal was, and was no more than, whether or not 95.2% was a "considerably smaller" proportion than 100%.
(4) In finding that it was a considerably smaller proportion, the Industrial Tribunal erred in law. While Mr Bean acknowledged that, when dealing with matters of fact and degree in the field of industrial practice or discrimination, the decision of an Industrial Tribunal is normally to be regarded as that of an industrial jury, he nevertheless submitted that the question whether a proportion is "considerably smaller" in this context is to an extent a question of statutory interpretation and to an extent a "threshold" matter as to which the Court of Appeal should be prepared to intervene in an appropriate case. In this respect he referred to certain authorities to which I shall turn below.
(5) Mr Bean further submitted that, even if the decision was essentially one of degree for the Industrial Tribunal, in reaching it the tribunal had taken into account matters which were strictly irrelevant given the circumscribed nature of the task to be performed. In particular,
(i) they attached significance to "the number of male train operators as compared to the very few female operators (2023 to 21)". Mr Bean said that was irrelevant to the issue for decision, namely the comparative proportion of women train operators able to comply;
(ii) they did not limit themselves to making the straight percentage comparison which arose on the figures revealed by the pool, but acted also on:
"The fact that it is common knowledge that females are more likely to be single parents and caring for a child than males."
This additional and, as Mr Bean again submitted, irrelevant consideration appeared to have driven the tribunal from its finding potentially favourable to LU that
"Only one person, the Applicant, could not comply"
to the conclusion that
"This was a condition or requirement that a "considerably smaller" number of females could comply with."
"What is the legal test for establishing whenever a measure adopted by a member state has such a degree of disparate effect as between men and women as to amount to indirect discrimination for the purposes of Article 119 of the E.C. Treaty unless shown to be based upon objectively justified factors other than sex?"
"In every case the Court of Justice referred not to a simple difference between the number or percentage of women and the number or percentage of men within a particular group but to "a considerably smaller or larger percentage" or to "a much larger or lower number". Counsel for the parties provided us with a useful summary in the form of an agreed note comparing the French and English text of the judgments in the eight cases to which we have just referred and also in Enderby -v- Frenchay Health Authority (Case C-127/92)  ICR 112. It is noteworthy that in a majority of these cases the French term which is used to describe the disparity is "Un nombre beaucoup plus élevé:" ...[authority cited]...
In these circumstances we would accept the submission made on behalf of the Secretary of State that before a presumption of indirect discrimination on the ground of sex arises there must be a considerable difference in the number or percentage of one sex in the advantaged or disadvantaged group as against the other sex and not simply a difference which is more than de minimis."
"but the consistent approach of the European Court has been to go beyond the fact that a measure is formulated in neutral non-discriminatory terms and to see whether the measure works to the disadvantage of far more women than men, and if so, to leave it the national court to determine in the light of all the circumstances whether such measure is justified by objective reasons unrelated to any discrimination on grounds of sex." (emphasis added)
Mr Bean also referred us to R -v- Secretary of State ex p. Unison  ICR 1003 in which the Divisional Court had to consider the proportions of male and female employees who enjoyed the two-year qualification for unfair dismissal claims. On the most recent statistics the gap was shown to be 4%, though the evidence was not complete. Otton LJ, with whom Newman J agreed, stated:
"without making a final decision ... I would on the evidence currently available be inclined to the view that if there is now only a four per cent disparity then this would fall within the de minimis exception. Thus, if the Secretary of State had considered, or if he were to consider this question, it would be open to him to conclude that the disparity was less than considerable. There would thus be no obligation upon him to consider objective justification on this occasion."
Thus, submitted Mr Bean, the meaning of the words "considerably smaller" in S1(1))b) properly interpreted in accordance with the views of the Court of Appeal expressed above, should have led the Industrial Tribunal to conclude that discrimination had not been made out in the applicant's case.
(i) there may be historical reasons (discriminatory or other) leading to a small number of women (or men) in the workplace;
(ii) there may be small overall numbers involved in the pool under consideration, so that a variant of one employee in either compared group within the pool may have a large effect on any percentage difference;
(iii) there may be some fortuitous circumstance affecting the numbers within the pool or within either compared group, or affecting the ability of particular group members to comply with a condition or requirement operative at the time of the comparison but atypical of the usual position;
(iv) in such cases, to convert the relevant proportions into percentages can be misleading if the background, numbers and makeup of the compared groups are not considered and taken into account so as to inform the decision as to whether or not the difference is "considerably smaller".
(i) The Industrial Tribunal was right to have regard to the large discrepancy in numbers between male and female operators. The figure of 100 men for every 1 woman indicated that it was either difficult or unattractive for women to work as train operators. Thus a condition which made it even more difficult for women to perform or continue in such work was of particular significance.
(ii) They were also entitled to take into account their own knowledge and experience that the burden of child care falls upon many more women than men and that a far greater proportion of single parents with care of children are women rather than men. Consequently the fact that one woman only was shown positively not to have been able to comply with LU's rostering requirements did not reflect a fortuitous error and indeed was likely to represent a minimum impact on the female workforce.
(iii) in relation to (ii) above, Mr Allen pointed out that, while the Industrial Tribunal did not find as a fact that Mrs Quinlan, the second woman who applied for the Single Link Arrangement, could not comply with the new arrangement, their reference to her was such that their finding was effectively that the percentage difference was at least 100: 95.2 i.e. if anything it was an under-estimate of the position, which by implication tended to confirm their view that the number and proportion of women able to comply would always be substantially smaller bearing in mind the known disparity in numbers between female and male single parents.
"The way in which the case was put to us by Mr Tattersall at one stage in his argument was that if one had gone into the street and asked people whether 95.3% was a considerably smaller proportion than 99.4% there would not have been many takers for that view. That formulation in our judgment lets a rather significant cat out of the bag because it does connote that some takers might have been found for that view. It is of course wholly undesirable that one should determine the case upon the particular formulation that counsel relies upon but in our judgment it is illustrative of the heart of this particular problem which is whether or not the assessment that the Industrial Tribunal has reached on this aspect of the matter is one which any reasonable tribunal could have reached. We are not expressing the view that had the question been one for us we would have reached the same conclusion. That is not the function of this tribunal. It is of course notorious that this tribunal is solely concerned with questions of law and the question of law is not 'do we agree with what the Industrial Tribunal said on this issue' but 'do we consider that no reasonable tribunal could have reached its conclusion'. The latter question we unhesitatingly answer 'No, we are not satisfied that no reasonable tribunal could have reached this conclusion', and it would be inappropriate for us to express the view that we - or perhaps it might be the majority of us - would have reached on the question had it been one for us to answer."
Lord Justice Swinton Thomas:
In company with Simon Brown LJ, I have found this a difficult case. At first blush it might seem that the fact that one woman in twenty-one (95.2%) could not comply with the requirement as to rostering arrangements whereas all 2,023 men (100%) could comply would not result in the requirement being such that the proportion of women who could comply was considerably smaller than the proportion of men. However, having considered the submissions made by Mr Bean and Mr Allen with care I have come to the conclusion that Mr Allen's submissions are to be preferred, and that the decision of the Employment Appeal Tribunal is correct. Having had the advantage of reading the judgments of Simon Brown LJ and Potter LJ I agree with their reasoning and conclusions, and there is nothing which I can usefully add to them.
Lord Justice Simon Brown:
The law, the facts and the arguments are fully set out in Potter LJ's judgment and for the most part I do not repeat them. Certain matters, however, are central to the appeal and these for convenience I do set out.
S.1(1) of the Sex Discrimination Act 1975 provides:
"(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 sex of the person to whom it is applied, and
(iii) which is to her detriment because she cannot comply with it.
S.5(3) of the Act provides:
"(3) A comparison of the cases of persons of different sex ... under s.1(1) ... must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
It is s.5(3) which requires that a "pool" of persons be decided upon for the purpose of making the necessary comparison under s.1(1). That pool in the present case is agreed to consist of all the train operators in the appellant's employment at the material time.
It is not in dispute on this appeal (a) that all members of the pool were required to work the new roster, (b) that that requirement was to the respondent's detriment because, as a single parent carer, she was unable to comply with it, and (c) that the appellants could not show the requirement to be justifiable in the respondent's case, given that she had been working for them for nearly ten years. (Had the pool been any larger, one should note, the appellants would in all likelihood have been able to justify the requirement.)
What is now in dispute is whether the requirement 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", it being clearly established on the authorities that "considerably smaller" in this context means much smaller and not simply smaller to an extent which is more than de minimis.
The essential facts relevant to the determination of that issue were these:
The critical question arising on the appeal is this: On these facts can it properly be said that 95.2% is a "considerably smaller" proportion than 100% within the meaning of s.1(1)(b)(i) of the Act?
Contending for the answer No, Mr Bean QC submits in effect that the question answers itself: a difference of under 5% is simply not sufficient. It would, he says, be perverse to describe 95.2% as "considerably smaller" than 100%. On this approach, of course, the fact that only one in twenty-one women was unable to comply with the new roster requirement was of itself fatal to the respondent's cause: it mattered not whether any of the men were affected, nor what proportions of men and women are lone parents in the population as a whole. Those further facts, submits Mr Bean, are simply irrelevant.
Mr Allen QC for the respondent advances two arguments to the contrary. First he submits that the proportion of women to men lone parents in the overall population is relevant to ensuring that the 5% figure here is not fortuitously small. That, he suggests, is always a risk where very small numbers are involved. To my mind, however, this argument carries him nowhere. There is no evidence before us as to what proportion of the working population as a whole are single parents who would be unable to comply with the appellants' roster system and, even if there were, that is not the group which it is agreed must be used here to make the necessary comparisons. In any event the 10 to 1 proportion overall indicates nothing as to whether the 5% figure is fortuitously small or fortuitously large. Given the 10 to 1 proportion overall, one might have expected 0.5% of the men to be similarly affected - i.e. 100 odd out of the 2023 men in the group whereas in fact there were none. But no one suggests that the 5% figure for women was fortuitously high. To my mind the sole relevance of the 10 to 1 statistic here is to preclude the appellants from contending that it is fortuitous to find the women in the group to any degree disadvantaged. It would, for example, have been highly relevant had by chance a man in the group been affected but no woman, and the man then claimed. As it is, and given that the appellants do not contend that there is anything fortuitous about the figures here, the 10 to 1 statistic seems to me of essentially neutral effect.
Mr Allen's second and principal argument is that, even assuming the 5% figure to be correct (as I think we must), i.e. that 95% of the women in the group could comply with the new roster requirement, that proportion could properly be held to be considerably smaller than the 100% proportion of men. It is not to be overlooked, he submits, that at the other end of the scale 5% of the women were disadvantaged as against 0% of the men, a very considerable difference indeed. In the final analysis, he argues, equality of treatment is the paramount consideration.
I confess to having found the point a very difficult one and to having changed my mind more than once during the course of the appeal. The strength of Mr Bean's argument lies in the focus given by s.1(1)(b)(i) to those who can comply, rather than those who cannot. Its weakness, however, to my mind lies in its assumption that Parliament was uninterested in the extent of disparity as between men and women unless only a considerable proportion of the women in the group were found to be disadvantaged by the requirement or condition in the first place.
None of the authorities cited to us seemed to me to bear directly on this point. Certainly none of them appears to decide clearly that, unless a considerable proportion of the women in the group are unable to comply with the requirement in question, it matters not how that requirement affects the men in the group. Sometimes in the judgments phrases are used which might be thought to support one approach rather than the other; for example, in University of Manchester v Jones  ICR 474 at 495 Ralph Gibson LJ stated:
"Parliament enacted that indirect discrimination against women could be found to exist if the proportion of women who could comply with the requirement is considerably smaller than the proportion of men who could comply: it did not put the ground of proof on the proportions within a particular group of people who could not comply with the requirement."
Conversely, in R v Secretary of State for Employment ex parte Seymour-Smith  ICR 889 at 950, Neill LJ giving the judgment of the court said:
"In these circumstances we would accept the submission made on behalf of the Secretary of State that before a presumption of indirect discrimination on the ground of sex arises there must be a considerable difference in the number or percentage of one sex in the advantaged or disadvantaged group as against the other sex and not simply a difference which is more than de minimis." (emphasis added)
I repeat, none of the cases appears to decide the present point.
As to how percentages of this sort have been regarded in the past, one finds only limited assistance, and indeed some inconsistency, in the cases. Whereas, for example, in Staffordshire County Council v Black  IRLR 234, the EAT (presided over, be it noted, by Morison J) upheld the industrial tribunal's finding that 89.5% was not "considerably smaller" than 97% - stating that "the figures speak for themselves", in Greater Manchester Police Authority v Lea  IRLR 372, the EAT (presided over by Knox J) upheld the industrial tribunal's finding that 95.3% was "considerably smaller" than 99.4%.
I can state my conclusions really quite shortly. Given that this legislation is concerned essentially to contrast the impact of a given requirement or condition as between men and women rather than as between the women in the group, it would seem to me wrong to ignore entirely the striking fact here that not a single man was disadvantaged by this requirement despite the vast preponderance of men within the group. Looked at in the round, this requirement clearly bore disproportionately as between men and women, even though only one woman was affected by it. Had there been an equal number of women drivers to male drivers and the same 5% proportion of them been affected, i.e. 100, Mr Bean's argument would remain the same, namely that too large a proportion of women were able to comply with the requirement to leave room for a finding that such proportion was "considerably smaller" than the proportion of men who could comply. It is not an argument I am ultimately prepared to accept. The approach to s.1(1)(b)(i) must, I conclude, be more flexible than this argument allows. Parliament has not, be it noted, chosen to stipulate, as it could, just what difference in proportions would be sufficient. Once, then, one departs from the purely mechanistic approach contended for by the appellants, and has regard to other facts besides merely a comparison between 95% and 100%, the respondent's argument becomes compelling: no other fact could be more relevant than that, whereas 5% of the women were disadvantaged, not one of the 2023 men was. That further consideration in my judgment supports the industrial tribunal's finding here.
I too, therefore, would dismiss this appeal.
ORDER: Appeal dismissed with costs; application for leave to appeal to the House of Lords refused.
(Order not part of approved judgment)