Smiley v Fire Authority for Northern Ireland  (Sex Discrimination)  (19 February 2002)
THE INDUSTRIAL TRIBUNALS

CASE REF:	03620/99SD

APPLICANT:	Sonya Smiley

RESPONDENT:	Fire Authority for Northern Ireland 

DECISION
In determining the Applicant’s complaint of unlawful indirect sex discrimination, the unanimous decision of the tribunal is that the Respondent imposed a condition upon the Applicant which it would have applied to a male colleague in a similar and comparable position to the Applicant, pursuant to Article 3(2)(b) of the Sex Discrimination (NI) Order 1976 [“the 1976 Order”], as amended.   The Tribunal determines that the criterion applied would have been to the detriment of a considerably larger proportion of women than men, contrary to the provisions of Article 3(2)(b)(i) of the 1976 Order.  However, the Tribunal determines that the criterion applied has been shown by the Respondent to be justifiable, pursuant to Article 3(2)(b)(ii) of the 1976 Order  Accordingly, the Applicant’s complaint is dismissed.   

Appearances:
The Applicant was represented by Ms M Larkin, of Counsel, instructed by Lavery & Reid, Solicitors.
The Respondent was represented by Mr P Ferrity, of Counsel, instructed by Legal Services Department, Belfast City Hall.  

1.  		     THE TRIBUNAL FOUND THE FOLLOWING FACTS

i.	By her Originating Application, presented on 25 August 1999, the Applicant complained that the Respondent discriminated against on ground of her sex owing to the fact that she was pregnant, and that this was “contrary to the Sex Discrimination (NI) Order 1976 and relevant European Law, in particular the Equal Treatment Directive and/ or the Pregnant Workers’ Directive”.  

ii.	By its Notice of Appearance, the Respondent denied discrimination against the Applicant on the grounds of her sex and/ or pregnancy, and denied contravening the 1976 Order and/ or the Equal Treatment Directive and/or the Pregnant Workers’ Directive.  

iii.	At the commencement of the case, Counsel for the Applicant conceded that the Applicant’s case was based on Article 3(2)(b) of the 1976 Order [as amended by Regulation 2 of the Sex Discrimination (Indirect Discrimination & Burden of Proof) Regulations (NI) 2001 [“the 2001 Regulations”] – which came into force on 20 August 2001, in the course of the hearing - and that the Applicant’s complaint was one of indirect sex discrimination.  Ms Larkin later stated that the Applicant was not seeking to posit a claim for direct sex discrimination.  

iv.	The Tribunal found that the Applicant had been employed by the Respondent from May 1991 on a temporary basis as a typist.  There was a break in her service with the Respondent, and she returned to work for the Respondent in a permanent post in typing services in the Administration Department in November 1993.  In October 1994, the Applicant was promoted to temporary clerical officer Scale 3 in the Retained Section at Respondent HQ, and commenced in this post in December 1994.  This job entailed preparing the wages of the retained fire fighters.  The Applicant received two weeks training from the person she was replacing, who was going off on maternity leave.  The Applicant remained in this post when this person returned from maternity leave.  On 19 June 1995, the Applicant was notified that she had obtained a permanent Scale 1-2 position in the Administration Department as a clerical officer.  This was her substantive post.  However, the Applicant never took up this post, and her substantive post was filled by Gillian Chapman.  

v.	The Respondent had a Job Share Scheme that took effect from 1 April 1994.  The criteria for Job Share provided, inter alia, that the exigencies of the Service must be met at all times, and that a Job Sharer will only be allowed to share a post at his/her substantive grade.  The Applicant was aware of these criteria, and accepted that the possibility of a Job Share could only apply to her substantive 1-2 post in the Administration Department.  No male employees of the Respondent have ever applied for, or been granted, a job share under this Scheme.

vi.	On or about 20 November 1998, the Applicant met Fiona Gray (Respondent Human Resources Manager) and said that she wished to apply for a Job Share under the terms of the Respondent’s Job Share Scheme.  The Applicant stated that she was unsure as to which category she belonged.  Ms Gray said that she would explore the options for job share within the Retained Section, and work from there.  By a letter dated 20 November 1998, the Applicant wrote to the Deputy Director of Human Resources to “formally apply for a job sharing post ideally beginning August 1999”, since by that time she would have a pre-school age child and, due to her husband’s business commitments and lack of family support, she felt that it would be difficult to manage a full time post.  In this letter, the Applicant stated that she “would prefer for the work pattern to be a split week as it would be more practical for childminding purposes although I would be willing to explore all options”.  

vii.	As nothing had happened by January 1999, the Applicant went back to see Ms Gray, who referred her to Linda Kemp, the Respondent Senior Clerical Officer.  On 20 February 1999, the day the Applicant went off on maternity leave, Ms Kemp informed her that she had been refused the job share within the Retained Section, but that the application had been referred on to the Administration Department for consideration.  The Applicant’s baby was born on 30 March 1999.

viii.	The Applicant again contacted the Respondent to enquire about her job-share application at the end of April 1999.  She was advised that there had been no further developments.  The Applicant spoke to a Ms Morley, who advised that there were two posts within the Administration Department, and that the deadline for applications was within 24 hours.  The Applicant then applied for one of these two posts, that of a Temporary Central Records Clerk.  

ix.	In mid May 1999, the Applicant met Mr Leslie McLean (Respondent Administrative Officer) and explained that she had a young child, and that her sick father was living with her.  Mr McLean undertook to progress the matter.

x.	When Mr McLean considered the Applicant’s application for job share, he considered it unique in his experience.  The Applicant had been on long-term promotion to the Retained Section, and had never worked in her substantive post.  The nature of the job the Applicant had applied for was multi-faceted.  Each of these duties was not particularly onerous; rather it was the number of the duties that challenged the post holder.  The post holder would be required to control stock and have a knowledge of the Respondent’s audit procedures.  Likewise, the nature of the Respondent’s purchasing procedures requires an understanding of the levels of authorisation for different types of purchases.  Likewise, the post holder would have required training in making travel arrangements for Fire Authority personnel.  Another important aspect of the job was the system of annual tenders for the supply of goods to the Respondent.  This is an intensely busy period for the post holder, and must be completed by the end of March of each year.  It was vitally important to the Respondent that the post holder would be a competent switchboard operator, and the Respondent operates a very busy and demanding switchboard.  In respect of the switchboard, previous post holders have required full time training of 3-4 weeks.   Having consulted with Mrs Walker and Mr Marshall (who would be the Applicant’s line manager), Mr McLean decided there would be a training requirement for the Applicant.  In this respect, he considered that the Applicant’s induction training should not affect the efficiency of the Respondent.  The Administration Department was, at that time, already understaffed.  The Respondent could not have afforded to retain Gillian Chapman whilst the Applicant trained for the job share post in the Administration Department.  Therefore, Mr McLean decided that the training period should be six months.  He considered that six months would not place a strain on the existing resources of the Department.  Moreover, Mr McLean considered that a longer training period on a part time basis would have adversely affected the Respondent, since this would have required either (a) leaving the other half of the post vacant until she had completed the training or (b) training the other half of the job share simultaneously.  Mr McLean considered that both of these options would have adversely affected the running of the Fire Authority.

xi.	On 28 May 1999, the Applicant received from Mr McLean a letter which advised:

…I am happy to support your request for Job Sharing and I feel that your post in the Department does lend itself to being suitable for Job Sharing.

However, I am concerned at the implications for the Department of the fact that due to your long-term temporary appointment within the Retained Section, you have not yet had an opportunity to actually fill your substantive post.  This means that when you join the Department there will be a significant amount of training and familiarisation that you will have to undertake.  I feel that to undergo this training and familiarisation whilst Job Sharing is going to increase the settling in period and possibly affect the efficiency of the Department.

In addition, I am not aware of a potential Job Share partner for this post, which means that we will have to consider making an external appointment for the other half of your post.  This new employee would also require extensive training and familiarisation and I am afraid that to train two employees simultaneously, as it were, would put an undue strain on the personnel currently working within the Department.

In the light of this, I feel that the most appropriate arrangement would be for you to commence Job Sharing after you have gained experience in a full time capacity within the position.  My initial suggestion is that this should be for a period of six months….

Please do not hesitate to contact me if you require clarification of the above.

xii.	Mr McLean left the Respondent’s employment for another post in June 1999.  The Applicant was distressed to read this letter.  She felt that when Mr McLean wrote, “my initial suggestion is that this should be for a period of six months”, that the letter was advising that the full time training period in her substantive post in the Administration Department would last for at least six months, and possibly longer.  The Applicant felt that she could have completed this period of training before she went off on maternity leave.  Moreover, the Applicant felt that since she had worked for over four years in the Retained Section, which was a superior post, that she did not require such extended training, and that the six months required by the Respondent was excessive.  The Applicant considered that she could have done the job after one month’s substantive training.  The Applicant was uncertain if the other half of her job share would be trained simultaneously, or at the end of the period of six months – thereby, in reality, requiring her to work full time for twelve months before going onto job share.  The Applicant therefore decided that she would not attend the interview for the post she had applied for in the Administration Department.  

xiii.	There was a conflict in the Respondent witnesses’ evidence as to the minimum period of training required.  Mrs Walker (Respondent Administration Manager) gave evidence that six months was necessary to fully train the Applicant.  Mrs Conley (Respondent Director of Human Resources) gave evidence that the “initial suggestion” made by Mr McLean demonstrated a degree of flexibility by the Respondent.  However, Ms Conley’s evidence was that she could see more grounds for a requirement of six months than anything less.  Mr McLean gave evidence that the Respondent may have been prepared to negotiate the training period down to a minimum of three months, but the Applicant never reverted to Mr McLean to seek clarification or attempt to negotiate downwards the initial suggestion of a period of six months training.

xiv.	The Applicant was offered alternative employment outside the Respondent on 29 May 1999.

xv.	The Applicant wrote to the Director of Human Resources on 28 June 1999, to advise that she was unable to accept the Respondent’s proposals, and seeking a resolution of the matter.  On 9 July 1999, the Applicant went to see Mr Gibson (Respondent Director of Finance).  By letter of 9 July 1999 to the Applicant, Mr Gibson advised that if she decided to resign from the Respondent’s employment she would owe the Respondent £1,457.16 in maternity pay, which could be repaid in six instalments of £242.86.  Her maternity pay stopped in July 1999.  

xvi.	By letter dated 14 July 1999, Mrs B Walker (Respondent Acting Administrative Officer) wrote to the Applicant to ask her to contact her to discuss her concerns.  

xvii.	By letter dated 11 August 1999, the Applicant wrote to Mrs Walker to advise that it would be unsuitable for her to return to work in a full time capacity, and request that the Respondent’s position, as outlined in Mr McLean’s letter of 28 May 1999, be reconsidered within seven days, and that she be allowed to return to work on a Job Share basis in her Scale 3 position in the Retained Section.

xviii.	By a letter dated 24 August 1999, Mrs Walker replied to advise that she had passed the Applicant’s request to the Retained Section for consideration.

xix.	By letter dated 25 August 1999, the Applicant advised the Respondent that she would not be returning to work for the Respondent after her maternity leave.

3.    i 	The Tribunal heard argument that the relevant law in respect of the Applicant’s claim is now to be found in Regulation 2 of the Sex Discrimination (Indirect Discrimination & Burden of Proof) Regulations (NI) 2001 [“the 2001 Regulations”].  The 2001 Regulations came into operation on 20 August 2001, in the course of the hearing of this complaint, and they insert into the 1976 Order a new Article 3, which provides, inter alia;

Direct & Indirect Discrimination Against Women

3. –	(1) 	In any circumstances relevant for the purposes of any provision of this Order, other than a provision to which paragraph (2) applies, a persons 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, or

(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,

(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.

(2)     In any circumstances relevant to the purposes of a provision to which this paragraph 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, or

(b)	he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but-

(i)	which is such that it would be to the detriment of a considerably larger proportion of women than men,

(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…

               ii.    	By Regulation 7 of the 2001 Regulations, Article 2(2) of the 1976 Order is  
    	amended to provide that “provision, criterion or practice” includes a 
    	requirement or condition.

iii. 	It was the Applicant’s case that the requirement, imposed by Mr McLean on 28 May 1999, that she undergo a period of full time training of six months was contrary to Regulation 7 of the 2001 Regulations in that, contrary to Article 3(2)(b)(i) of the 1976 Order [as amended], such a requirement would be to the detriment of a considerably smaller proportion of women than men.  It was posited for the Applicant that she had manifestly suffered a detriment, since it is widely accepted that fewer women than men can comply with the requirement of full time work, particularly after maternity leave – see Mulligan v. Eastern Health & Social Services Board 1258/93 SD, at paragraph 7; Briggs v. Northern Eastern Education & Library Board [1990] IRLR 181, NICA; Meade-Hill & National Union of Civil & Public Servants v. British Council [1995] ICR 847.  Put another way, the Applicant argued that it is common knowledge that women returning from maternity leave seek part-time working hours on a disproportionately greater number of occasions than men in a similar situation – London Underground Ltd v. Edwards [1995] ICR 574.  Moreover, the Applicant argued that it was immaterial that no men had ever sought a job share from the Respondent, as Article 3(2)(b) allows for the scenario where the employer treats “…or would treat a man” in similar circumstances.  On the facts, the Applicant argued that, when she applied for the job share on 20 November 1998, she was pregnant, thus bringing her within the pool of women likely to be disproportionately affected by the requirement to work on a full time basis upon her return to work.  The Applicant sought to convince the Tribunal that, pursuant to Article 3(2)(b)(iii) of the 1976 Order, as amended, the detriment she had suffered was that she had had to resign from her employment and commence employment elsewhere.  The Applicant argued that the uniqueness of her position – that she had never worked in her substantive post in the Administration Department – should not mean that she was disadvantaged by not having the full benefit of the Respondent’s job share provisions, since the fact that she had never worked in the substantive post was not a situation of her own making.

iv.	Moreover, the Tribunal heard argument that the standard for justification, pursuant to Article 3(2)(b)(ii) of the amended 1976 Order, has been laid down by the Court of Appeal in Hampson v. Department of Education & Science [1989] ICR 179, where it was held that the task of the Tribunal hearing such a complaint is to strike an objective balance between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it.  The Applicant’s case was that her substantive post was not pivotal to the Respondent’s operation, and that – since a number of people had occupied the post - the requirement that she undergo a full time induction training of six months was not credible.  In particular, the Applicant argued that Mr McLean’s letter of 28 May 1999 was a definitive ruling on the matter and that there was no room for further negotiation on the subject.  In this respect, the Applicant highlighted the conflicting evidence of the Respondent’s witnesses as to the minimum requirements for full time training, and sought to convince the Tribunal that Mrs Walker’s evidence was more reliable, when she had said that six months was the minimal period of induction.  

v.	The Respondent conceded that it had imposed a provision, criteria or practice, pursuant to Regulation 7 of the 2001 Regulations.  The Respondent argued that a male applicant for job share in similar circumstances would have been asked to complete six months training also.  The Respondent contended that this was an important consideration, since it was important to compare like with like.

vi.	The Respondent contended that the decision of 28 May 1999 to impose a criterion of six months full time training was justifiable.  In particular, the Respondent stressed that Mr McLean’s letter had made an “initial suggestion” of a lead in period of six months, and invited the Applicant to contact the writer if she required clarification of the above.  The Applicant had never availed of this invitation, and this raised the question of a degree of contributory fault on her behalf.

THE DECISION OF THE TRIBUNAL

4. 	Having considered all the evidence heard in this case, all the submissions, and all the references and case law cited, the Tribunal makes the following decision;

i.	The Applicant conceded that her complaint is one of indirection sex discrimination, contrary to the provision of Article 3(b) of the 1976 Order, as amended.

ii.	The Tribunal determines that the criterion imposed by Mr McLean in his letter to the Applicant on 28 May 1999 amounted to a condition that she could only return to work once when had completed six months induction training in her substantive post.

iii.	The Tribunal is satisfied that the criterion thus imposed would have been applied to any male colleague in a similar and comparable position to the Applicant, pursuant to Article 3(2)(b) of the 1976 Order. 

iv.	Having construed all the case law laid before it, some of which is cited at paragraph 3(iii) above of this decision above, the Tribunal determines that the criterion applied would have been to the detriment of a considerably larger proportion of women than men, contrary to the provisions of Article 3(2)(b)(i) of the 1976 Order.

v.	However, the Tribunal has considered the provisions of Article 3(2)(b)(ii) of the 1976 Order, as amended.  The Applicant was aware that the Respondent’s policy was to only allow job sharing in substantive posts, and that the exigencies of the Respondent’s service must be met at all times.  The Applicant was informed on 20 February 1999, on the day she went off on maternity leave, that she had been unsuccessful in securing a job share within the Retained Section, and that the matter would be referred to her substantive post in the Administration Department.  Mr McLean’s letter of 28 May 1999 clearly referred to the Applicant’s application in the context of her job within the Administration Department.  

vi.	The Tribunal is satisfied, on balance of probabilities, that because the Applicant had never worked in her substantive post within the Administration Department, that she would have required – in the words of Mr McLean’s letter – a “significant amount of training and familiarisation”.  The Tribunal found Mr McLean’s evidence very compelling in this regard, and is satisfied that, had the Applicant been allowed to train part time, that would have increased the settling in period for her, and adversely affected the efficiency of the Respondent.

vii.	Mr McLean’s letter outlined a possible alternative to the criterion of the Applicant having to train for six months full time.  The alternative would be the appointment of a job share partner to commence training at the same time as the Applicant.  The Tribunal is satisfied, on balance of probabilities, that that alternative would have adversely affected the running and efficiency of the Respondent’s operation.

viii.	The Tribunal rejects the Applicant’s interpretation of the letter of 28 May 1999 from Mr McLean, when she asserts that it contained an indication that the period of full time training would be at least six months.  The Tribunal considers that this is a wholly unreasonable interpretation.  The Tribunal considers that a reasonable interpretation is, and that Mr McLean’s evidence was, that the letter sought to convey that the initial suggestion was of six months training.  There is nothing in the letter that suggests an extension of this period.  On the contrary, the Tribunal considers that a reasonable interpretation of the phrase, “my initial suggestion is that this should be for a period of six months…”, would be that the six month criterion was meant as an opening gambit, and was thus open to negotiation.

ix.	The Tribunal has heard no evidence as to why the Applicant could not have reverted to Mr McLean, or his successor, to respond to this “initial suggestion” and mitigate downwards the criterion of six months full time training.  The Tribunal prefers the evidence of Mr McLean, when he said that he would have considered a lesser period, and possibly three months.  

x.	The Applicant did reply by a letter dated 28 June 1999, and simply stated that she was “unable to accept this position with the conditions outlined in the above”.  The Applicant did not outline what conditions she would have found acceptable.  Mrs Walker again wrote the Applicant on 14 July 1999, and thereby invited the Applicant to discuss her concerns.  But the Applicant’s response to this offer was to reply, on 11 August 1999, that it was unsuitable for her to return to work in a full time capacity.  In this sequence of correspondence, the Applicant failed to discuss the situation with the Respondent or make any counterproposal.  The Tribunal notes that, at that stage, the Applicant was requesting a return to work on a job share basis in the Retained Section.  She had been informed on 20 February 1999 that this was not possible, and she was aware that such an appointment was contrary to the Respondent’s Job Share Scheme.

xi.	The Tribunal determines that it prefers the Respondent witness’ evidence in that there was a necessity for a training requirement for the Applicant’s substantive post.  The Applicant accepted this in evidence.  The Tribunal determines that the Applicant had never worked in this post, and that it comprised a number of interlinking duties which at various times of the year could be particularly onerous, owing to the cyclical nature of some of the duties.  The fact that the training would commence in August 1999 and continue for six months would have meant that the Applicant was exposed to the busiest period of the Respondent’s year, and would have witnessed its tendering processes, which must be completed by March each year.  The Tribunal is satisfied that Mr McLean considered the Applicant’s application and then took a decision that considered the exigencies of the Respondent against this application.  The Tribunal determines the factors that Mr McLean considered were reasonable considerations arising from the real needs of the Respondent Service.  The Tribunal determines that there were alternatives available to the Respondent when it imposed the criterion, viz: (a) leaving the other half of the post vacant until the Applicant had completed the training, or (b) training the other half of the job share simultaneously.  Mr McLean considered that both of these options would have adversely affected the running of the Fire Authority.  In preferring this evidence from Mr McLean, who made the decision to impose the criterion, the Tribunal determines that there was no other feasible, non-discriminatory alternative available in the circumstances.  Pursuant to the Court of Appeal’s dictum in Hampson v. Department of Education & Science [1989] ICR 179, the Tribunal determines that, on objective examination, these reasonable needs outweigh the discriminatory effect of the criterion he imposed.  Accordingly, the Tribunal determines that the Respondent has satisfied it that the criterion it imposed upon the Applicant was justified, pursuant to Article 3(2)(b)(ii) of the 1976 Order, as amended.

xii.	Given the foregoing, the Tribunal now dismisses the Applicant’s complaint of unlawful indirect sex discrimination.

xiii.	No further or other Order is made.

____________________________________

Date and place of hearing:  7-8 August 2001, 21 & 28 September 2001, Belfast

Date decision recorded in register and issued to parties: 19 February 2002