![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kettle Produce Ltd v. Ward [2006] UKEAT 0016_06_0811 (8 November 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0016_06_0811.html Cite as: [2006] UKEAT 0016_06_0811, [2006] UKEAT 16_6_811 |
[New search] [View without highlighting] [Printable RTF version] [Help]
At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR P HUNTER
MR M SIBBALD
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | Mr John Falkenstein (of Counsel) Instructed by: Croner Consulting Croner House Wheatfield Way Hinckley Leicestershire LE10 1YG |
For the Respondent | Mr Brian Heaney (of Counsel) Instructed by: Messrs Thompsons Solicitors 16-18 Castle Street Edinburgh EH2 3AT |
Summary
Sex discrimination - Comparison
When a male manager entered the women's toilets and shouted at a woman on her break, the correct question which should be asked is this: would the Respondent, in the form of a female manager, with the same robust management style as this manager, treat a male cleaner having the same sensitivity as the Claimant, believed to be skiving, in the same way as he treated the Claimant.
The Employment Tribunal failed to construct the correct comparator. EAT substituted its Judgment and set aside the finding of sex discrimination.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The legislation
"1 Direct and indirect discrimination against women
(1) In any circumstances relevant for the purposes of any provision of this Act, other that a provision to which subsection (2) applies, a person discriminates against a woman if-
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man
5 Interpretation
(3) Each of the following comparisons, that is-
(a) a comparison of the cases of persons of different sex under section 1(1) or (2),
must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
The Tribunal directed itself by reference to what is accepted to be s1 but did not cite section 5(3) and that is the substance of the appeal.
The facts
"13. … she had been in the women's' toilets. She was intending to go into one of the cubicles. She was waiting for a lady to come out of the cubicle. She then noticed Mr Gowans in the toilets beside the sinks. The claimant said that she was not undressed at the time. Mr Gowans had roared to her. He said "You'll not hide in here". The claimant said that she had turned and said to him "You shouldn't be in here'. Mr Gowans had responded that he could go anywhere in the factory.
14. Mr Gowans had then left the toilets."
"74. We accept entirely that Mr Gowans had a poor view of the Claimant as a worker. It is however for the Claimant to demonstrate that such treatment as she received from Mr Gowans was meted out to her because she was a woman and that that treatment that she did receive would not, in the same circumstances, have been meted out to a man. The Claimant has in our view, failed to discharge that burden."
That disposed of three of the four incidents. But the Tribunal concentrated on the toilets incident and made this finding:-
"75. … we take the view that that incident is in a different category. There is no doubt that Mr Gowans did enter the women's toilets. We have no doubt that he did so because of his belief that the claimant was "skiving". We have no doubt at all that the exchanges which took place in the ladles' toilets were as the claimant described. We also have no doubt that the claimant was upset by what had transpired in the women's toilets.
76. When a male person enters a women's toilets in the circumstances as the claimant described, that is in our view plainly an act of sex discrimination."
The submissions
The legal principles
"8. No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
9. The present case is a good example. … Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counseling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference."
"39. The obvious questions with these provisions are: with whom should the comparison be made and which circumstances are to be considered as relevant: see Daniel Peylon, Sex and Race Discrimination IP 271 para 3.2.5. But these issues are by no means straightforward. As Sandra Fredman Discrimination Law (2002) pp 96-99, has explained, the need for a comparator has been one of the most problematic and limiting aspects of direct discrimination as defined in the legislation about discrimination on grounds of sex and race. The requirement is less harsh than in the legislation about equal pay, as the provisions about discrimination on grounds of sex and race permit a 'hypothetical' comparison, based — in a sex case, for example — on the question of how the woman 'would' be treated if it is not possible to find an actual comparator. Nevertheless, the choice of comparator requires that a judgment must be made as to which of the differences between any two individuals are relevant and which are irrelevant. The choice of characteristics may itself be determinative of the outcome: see Secretary of State for Defence v. MacDonald 120011 IRLR 431 and Pearce v. Governing Body of Mayfield Secondary School 120011 EWCA Civ 1347, 120011 IRLR 669. This suggests that care must be taken not to approach this issue in a way that will defeat the purpose of the legislation, which is to eliminate discrimination against women on the ground of their sex in all the areas in which it deals".
"184 Classic cases of sexual harassment, where the motivation of the conduct is sexual, fit easily into the legislation. If, for example, a male manager pursues a female member of staff and, despite her objections, fondles her, tries to kiss her and makes suggestive remarks to her, then he subjects her to detriment in terms of section 6(2)(b). Moreover, in doing so, in most cases at least, it can be said that he discriminates against her because he treats her less favourably on the ground of her sex than he treats or would treat male members of staff: section 1(1)(a). Since the manager is not sexually attracted to the men on the staff, he would not treat them in the same way. This is a straightforward application of the terms of the legislation: in particular, the manager's treatment of the woman is compared with his treatment of the men on his staff and is found to be less favourable. The comparison may be self-evident - because the manager is exclusively heterosexual and is driven by his attraction to the female employee-but it is none the less real."
"44. We consider that the correct comparator is that of a male prison officer conducting a rub-down search on a female. We have considered this issue with great care, knowing that the characteristics of the comparator are likely to be determinative of the outcome. If we accept the comparator suggested by the respondent, that leaves out of account the material factor of searching a person of the opposite gender. A man searching a man will have quite different feelings about the process -and will receive a quite different response from the inmate -from a man searching a woman. It is we think much easier for most people searching a person of the same gender to maintain an entirely professional approach and to distance themselves from any sexual self consciousness. It may well be that many women, by exercising strength of mind, will be able to carry out a cross gender search. A man however is not required by the prison service to exercise that strength of mind. He is entirely protected from the possible feelings of inappropriate self-consciousness, from the innuendo and possible allegations of misconduct that might arise because the prison system forbids him from carrying out a search on a woman.
The EAT considered the speeches in Macdonald and came to this conclusion:-
"9. It is quite clear in this case that the Respondent at the Employment Tribunal relied upon a hypothetical comparator and not an actual comparator. She was entitled to do so: Sex Discrimination Act 1975, sl(1)(a) and Balamoody v UK Central Council for Nursing Midwifery & Health Visiting [2002] IRLR 288. Such a hypothetical comparator satisfies the requirement of s5(3) of the Sex Discrimination Act 1975. It seems to us that the Employment Tribunal were entitled to find that the hypothetical comparator in this case was a male prison officer who was required to conduct a rub-down search on a female: Judgment paragraph 44. In other words the over-arching principle here is the requirement for a prison officer to conduct a rub-down search of a prisoner of the opposite sex. Such a search is prohibited in a case Of a male prison officer conducting a rub-down search of a female prisoner by Home Office Circular Instruction No. 49/92: Judgment paragraph 12. It follows that Mrs Saunders was subject to direct sex discrimination in being required to carry out a rub-down search of a male prisoner when a male colleague was specifically prohibited from carrying out a rub-down search of a female prisoner. To hold otherwise would be to "defeat the purpose of the legislation, which is to eliminate discrimination against women on the ground of their sex in all the areas with which it deals": per Lord Hope in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 at paragraph 39.
Conclusion