Appeal No. EAT/539/89

	ZZZZZZZZZZ APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 21 May 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS M E SUNDERLAND

	MR G H WRIGHT

MRS J M ROBINSON	APPELLANT

GORDONS PHARMACY LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS C BOOTH
	(Of Counsel)
	Women's Legal Defence
	 Fund
	29 Amwell Street
	LONDON
	EC1R 1UN

For the Respondents	MR F WEARDEN (Business 	Consultant)
Irenicon Ltd
April Court
Sybron Way
Crowborough
E.Sussex
TN6 3DZ

	MR JUSTICE WOOD (P):  The Applicant, Mrs Robinson complained to an Industrial Tribunal sitting at Southampton on the 21 August 1989 under the Chairmanship of Mr Belcher that she had suffered discrimination under the provisions of the Sex Discrimination Acts 1975 and 1986.  

	The Respondents were her employers Gordons Pharmacy Limited of East Cowes in the Isle of Wight.  The Tribunal dismissed her applications and she now appeals.

	She alleged both direct and indirect discrimination.  The facts can be stated shortly.  Mrs Robinson started her employment with Gordons Pharmacy Limited on 30 June 1975.  At the date of the hearing in August 1989 she was still so employed in the capacity of a shop assistant.  She was born on the 5 October 1929, and would therefore reach the age of 60 on the 5 October 1989.	She had a written Contract of Employment dated March 1981 as a pharmaceutical assistant but that Contract made no mention of retirement age. 	The Tribunal found specifically that she was under the impression from Gordons Pharmacy Limited, which in fact was ultimately taken over, that there was no retirement date.

	On the 1 July 1980, the major shareholder in Gordons Pharmacy Ltd was a Mr Dove who purchased a number of shares.  A month later, in the August, a Mr Roberts, who was then the Manager of Gordons Pharmacy Limited, had a discussion with Mrs Robinson.  There was an issue of fact as to what happened on that occasion and the Industrial Tribunal preferred the evidence and the version of Mrs Robinson.  They therefore found as a fact that she was under the impression that she would be able to continue in full time employment until the age of 61 and part time until the age of 63.  That meeting and that discussion took place in August 1988.

	Mrs Robinson subsequently had to undergo major surgery with a period of recuperation and was away from her work from December 1988 until the March of 1989.  During her absence, in February 1989, she was informed by Mr Roberts that Company policy had been changed and that shop assistants had to retire at the age of 60.  He also informed her that there was no question of complaining about her work nor was the decision to fix a retirement age of 60 in any way due to her absence through sickness.  Mrs Robinson in fact, returned to work on the 9 March and asked to see Mr Dove;  they met on 17 March and the question of retirement at the age of 60 was discussed.  The Applicant informed Mr Dove of the conversation of August 1988, which she had had with Mr Roberts, and Mr Dove confirmed that the retirement age applied to male and female staff and confirmed also that there was no question of complaints about her work.

	The group of pharmacies owned by Mr Dove in the Isle of Wight consist of three, and no male shop assistants are employed in any of them.  The Tribunal found that the Company operated a policy of retirement for shop assistants at age 60 and a retirement age of 70 for qualified pharmacists but the retirement age policies were applicable both to male and female staff.

	Those being the basic outline facts, Mrs Robinson issued her Originating Application alleging discrimination.  There were certain issues that came to light during the hearing which might have indicated two other causes of action and the Tribunal mentioned them at the end of its Judgment.  We only mention so as to dispose of them;  the first was that she had suffered a change in attitude towards her since filing her Originating Application and the Tribunal quite properly, remarked that that was a separate cause of action under section 4(1)(a) and was not before them.  Secondly, there was clearly a case on the facts, based upon which Mrs Robinson might have left her employment, before her date of retirement and maintained that there had been a unilateral alteration in her Contract of Employment which entitled her to rely upon the principle of constructive dismissal.  Here again, the Industrial Tribunal remarked that that was not before them and they therefore discarded that from their deliberations.  It followed therefore that there were the two issues namely direct and indirect discrimination.  

	The case of direct discrimination was put in this way and is referred to by the Tribunal in paragraph 59 of the Judgment.  I take a passage from the middle of that paragraph, they say this:
"The Applicant maintains that, if a male employee were employed as a shop assistant, at Gordons Pharmacy, then such male shop assistant would not be retired at 60 but would allowed to continue to 65."

That was her case on direct discrimination amongst the shop assistants.

	Then the Tribunal go on to say this:
"The Applicant is unable to bring forward any evidence at all to show that this would happen other than on the basis of her assumption that the normal retiring age is 65 for men as against females at 60."
then a little later they say:
"There are no male employees who are being treated in a more favourable way than the Applicant and no evidence to support the contention that if there were they would be treated differently."

Upon those findings of fact Miss Booth, quite rightly, abandons any appeal on direct discrimination.

	We therefore turn to the question of indirect discrimination.  There are two passages in the Judgment where the Applicant's case is set out and we take the view that the most convenient is in paragraph 52 where the Tribunal say this:
"Mrs Banner [that was the representative for the Applicant Mrs Robinson] asked the Tribunal to consider the question of indirect discrimination and submitted that indirect discrimination was shown in that the Applicant was subject to a retirement age of 60, whereas pharmacists were subject to a retirement age of 70.  A condition therefore was being imposed that, in order to achieve a retirement age of 70, the Applicant would have to qualify as a pharmacist.  She referred us to the survey of pharmacists, Exhibit R1.  This survey concluded that only 37.6% of pharmacists were female and from this we should conclude that a considerably smaller proportion of females would therefore be able to comply with the requirement in order to obtain a retirement age of 70."

Having thus stated the submission that was being made the Tribunal turned to look at the Act and to form their conclusion on the evidence that was before them.

	The relevant sections of the 1975 Act for the present purposes is section 1(1)(b) and section 5(iii).  Section 1 reads in its relevant parts as follows:
"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 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 mean 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."

I will return to those in a moment.  Then section 5 sub-section (3) reads:
"A comparison of the cases of persons of different sex or marital status under section 1(1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

and then section 6 sub-section (2) and (b) reads:
"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -

(b)by dismissing her, or subjecting her to any other detriment."

Thus when looking at section 1(1)(b) the Tribunal first, had to find the relevant pool for the comparison.  Then the three sub sub-sections under the Roman numerals are conjunctive and it is usually more logical to look at the situation under (i) then (iii) and then (ii).  Number (ii) being the question of justification.

	In the present case the Tribunal clearly accepted the pool being put forward on behalf of Mrs Robinson which was the pharmaceutical profession.  That seems abundantly clear, and as far as we can see no criticism can be made of the Tribunal for taking that pool.  But they then deal in paragraph 66 of their Decision, with the evidence in this way, and I read from the middle of that paragraph:
"The Tribunal have also noted with interest that in Mr Dove's four pharmacies he employs a high proportion of female qualified pharmacists to the male qualified pharmacists.  The Tribunal have also noted from the survey of pharmacists that there is a clear trend that more females are qualifying as pharmacists and, in these circumstances, as amongst pharmacists, we would find it difficult to suggest that there is sex discrimination between male and female."

	As to the situation at the four pharmacies the situation, as we have understood the evidence, was that there were four men and two women and within a month of the issue of proceedings there in fact were going to be three and three, thus equally divided;  they included Mr Dove.

	The evidence of the survey, which we have been shown, was a survey of May 1987.  That was therefore the latest survey and it indicated quite clearly from the substance of the text that there was a radical increase in the number of women over the number of men and that this was progressive.  The tables also showed that amongst those of younger age there was an even greater proportion of women to men within the profession.  The conclusion of the Tribunal therefore, seems to us to be supported by the evidence which was before them.

	Miss Booth makes two points, she says first of all, that when one looks at a percentage 36.7 that shows that there are fewer women than men in the pharmaceutical profession.  Secondly, she says that even if she fails on that point,  when one looks at the wording of the Act, nevertheless when one looks at the Applicant at her age of 59 then she was clearly at a disadvantage even if the pharmaceutical profession was open equally to men and women.  Let us take those two submissions in turn.

	Looking at the wording of the Act itself, it seems to us that what is being compared is the proportion of women who can comply with the requirement or condition and that indicates those women, who looked at reasonably and sensibly, are able to comply with the condition.  The evidence before the Tribunal was that the pharmaceutical profession, as is clearly shown from the survey, is open equally to men and women.  It also showed that the number of women who were entering the profession was sharply on the increase, on the statistics which were available, and that was just over a year before the actual hearing before the Tribunal.  It seems to us that the Tribunal was entitled to take the view that that trend was likely to continued and that therefore it was possible for a woman to comply, if she so wished, with the condition namely, to join the pharmaceutical profession.

	The second point which Miss Booth takes is that her client at the age of 59 could not possibly be expected to have qualified as a pharmacist.  That point, it seems to us, fails for this reason.  That the essential purpose of the Sex Discrimination Act is to compare men with women in similar circumstances and that the comparison then would have to be that a woman aged 59 was in a less good position than a man aged 59 to enter the pharmaceutical profession.  In either case it would be the age rather than the sex which would have any effect on the ability to join the profession, and looking at the Act as a whole and looking at the careful reasoning of this Industrial Tribunal we take the view that they were perfectly entitled to reach the conclusion that when looked at in that way, over the whole profession of pharmacists, that it was a requirement or condition that was equally open or equally available to men and women.  Secondly, the Tribunal took the view in the first part of paragraph 66, to which we have not referred that in the comparison between the pool of pharmacists and the pool of shop assistants there was no comparison of like with like.  We would not like it to be thought that we necessarily agreed with that conclusion but in the circumstances it is unnecessary for us to form any view about that in this present case.

	Lastly, and here again it is unnecessary for us to form a view, the Tribunal decided that the Applicant had suffered no detriment, because she had not reached the age of retirement by the time of the hearing.  There again we would wish to leave that point open for consideration on another occasion, as it seems to us that it will be possible to argue that where one's terms and conditions of employment, or one's understanding of the situation on which both sides had been relying had been radically changed in a unilateral way there is thereby a suffering of detriment which might entitle an Applicant to a declaration although perhaps the issue of compensation would have to be considered further.

	For those reasons therefore we have come to the conclusion, reading this very careful judgment as a whole, that the reasoning of the Industrial Tribunal is not open to criticism in law and it follows therefore that this Appeal must be dismissed.