Appeal No. EAT/241/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14th February 1995
	Judgment delivered 15 March 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)

	MR R JACKSON

	MR J C RAMSAY

LONDON UNDERGROUND LTD	APPELLANT

MRS S P EDWARDS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D BEAN
(of Counsel)
N Evans
London Transport Solicitors
55 Broadway
LONDON SW1H 0BD

For the Respondents	RESPONDENT IN PERSON

MR JUSTICE MUMMERY (PRESIDENT)           This is an appeal from the decision of the Industrial Tribunal held at London (North) on 15th and 29th October 1993.  For full reasons notified to the parties on 18th January 1994 the Tribunal unanimously decided that the complaint of unlawful sex discrimination made by Mrs Edwards against London Underground should be allowed and she was awarded the sum of £5,000 compensation.  By a Notice of Appeal served on 23rd February 1994 London Underground appealed on the ground that the Industrial Tribunal erred in law in reaching that decision.  On the hearing of the appeal London Underground were represented by Mr Bean.  Mrs Edwards conducted her own case with the assistance of a Representative of the publication "Singled Out", supported by legal contentions contained in a draft amended Respondent's Answer and a six-page skeleton argument settled by counsel not instructed to appear at the hearing (leave to amend was granted).  At the hearing before the Industrial Tribunal Mrs Edwards conducted her own case, without any assistance, and London Underground was represented by a solicitor, not by Mr Bean.

	We note the representation of the parties in order to highlight the problems faced by the Industrial Tribunal and by this Tribunal in the adjudication of a difficult case, like this, when one of the parties is not legally represented at the hearing.  This case raises a significant point on sex discrimination law in the context of the practical difficulties of female lone parents in complying with the requirements of rostering arrangements at work.

	The complaint of indirect discrimination, contrary to the Sex Discrimination Act 1975, made by Mrs Edwards raised four issues:-

	(1)  In applying the new rostering arrangements to Mrs Edwards under her contract of employment were London Underground applying to her a condition or requirement within S.1(1)(b) of the 1975 Act?  The Industrial Tribunal held that they were.

	(2)  Was the condition or requirement such that a considerably smaller proportion of women than men could comply with it?  The Industrial Tribunal decided that it was, that S.1(1)(b)(i) of the Act was satisfied and that the condition or requirement was to Mrs Edwards' detriment because she could not comply with it.

	(3)  Was the condition or requirement justifiable under S.1(1)(b)(ii)?  The Tribunal concluded that the condition was not justifiable.  

	(4)  Was the condition or requirement applied with the intention of treating Mrs Edwards unfavourably on the grounds of her sex?  The Tribunal held that it was, with the result that she was entitled to payment of compensation under S.66(3) of the 1975 Act.

	London Underground appeal against the second, third and fourth grounds of decision.  Mr Bean submitted that, if London Underground succeeded on the third and fourth points, the appeal should be allowed and Mrs Edwards' complaint should be dismissed.  There would be no point in remitting the matter to an Industrial Tribunal for re-hearing if any indirect discrimination suffered by Mrs Edwards was justifiable and could not be the subject of compensation.

	Mr Bean accepted, however, that if he succeeded on the second point, but failed on the third and fourth, the proper order would be that the appeal should be allowed and the matter remitted for a re-hearing by another Industrial Tribunal.

	Against that, Mrs Edwards argued that there was no error of law in any of the conclusions of the Industrial Tribunal and the appeal should therefore be dismissed.

	For reasons set out later in this judgment, we have reached the unanimous decision that there was an error of law on the second point only.  The appeal should therefore be allowed on that point and the matter remitted for a re-hearing by a different Industrial Tribunal.

The factual background
	The facts found by the Industrial Tribunal can be conveniently summarised as follows:-

	(1)  Mrs Edwards worked for London Underground from 12th September 1983 until she left on voluntary severance terms on 19th December 1992.  From 1987 she was a train operator, working for most of the time at Northfield train depot.

	(2)  She was a single or lone parent with a son born in 1987.

	(3)  When she became a train operator the system of rostering involved three 8-hour shifts with pay varying according to the shift worked.  The starting time of the first shift was between 4.45 a.m. and 9 a.m.  The starting time of the second shift was between 9 a.m. and 12 noon, and the starting time of the third shift was between 12 noon and 5.30 p.m.  The effect of a system of mutual changeover was that a person could change shifts and, in doing so, could lose or gain shift bonuses payable for working between 6 p.m. and 7 a.m.  Under that system Mrs Edwards generally worked between 8 a.m. and 4 p.m. or 8.30 a.m. to 4.30 p.m. with Saturday as a rest day.  She only worked the early turn on Sundays.  The Tribunal stated -

		"The effect of these arrangements was that as a single parent she could do her job and also be at home in the mornings and evenings to attend to her son.  To work those hours, however, she also had to forego the shift bonuses because of the hours at which she worked." (Paragraph 3(3)

	(4)  In early 1991 a scheme called "Single Parent Link" was proposed for the Piccadilly Line to assist employees in the position of Mrs Edwards.  The introduction to the scheme stated -
		"In recognition of the need for flexibility in the working arrangements for Single Parents, the Piccadilly Line is proposing to introduce a new roster for train operators who fall within this category and are finding the normal turns difficult.

		 It is anticipated that these arrangements, operating from both ends of the Line, will be flexible enough to meet the needs of the Line and the train operators."

	(5)  In late 1991 London Underground introduced the new system of rostering as part of the "Company Plan" whose aim was to achieve considerable savings by means of flexible rostering and the closure of train depots.  It was estimated that the implementation of the plan would achieve savings of £10m a year.  Under the new system flexible shifts were to be introduced with a minimum of four hours and a maximum of 8 3/4 hours.  Duties were to begin at 4.45 a.m. and end at 1.30 p.m.  Sundays were to become part of the working week.  Train operators were to be paid a fixed salary, payable four-weekly with no shift bonuses.  The hours of work were to be 381/2 a week averaged over a period of weeks in accordance with the duty rosters.  Although change overs were still possible under the new system, the changing of shifts involved exchanging a four-hour shift for an eight-hour shift.  Short shifts occurred in the early and late parts of the day and the longer shifts took place during the day.  The Tribunal said -
		"Whereas under the previous rostering system, the trade off was in terms of money, under the new system the trade off was in terms of hours.  Thus a person might wish to change a short shift for a longer shift, but if he or she did so, there would be no difference in the amount of remuneration paid." (Paragraph 3(5))
	The Tribunal were satisfied that, if Mrs Edwards were to take part in a mutual changeover so that she could work only during the day, the effect would be that she worked excessively long hours and that would have affected her ability to look after her child.

	(5)  Mrs Edwards was off sick from 14th May to 27th July 1992 and went on annual leave until 24th August.  She continued to ask about the Single Parent Link.  She signed an application for the scheme, but the scheme was disbanded on 4th September because no agreement could be reached on it between London Underground and the Unions.

	(6)  On 3rd November Mrs Edwards was given a letter by London Underground with details of the changes to her contract.  She made it clear that she was not happy with the proposed changes.  It was suggested that she should apply for promotion to duty crew manager, but in the event she was not interviewed.

	(7)  On 25th November Mrs Edwards made it clear in a letter that the only basis on which she was prepared to sign the new contract was that she would not have to work new rosters and that she was to receive a severance payment.  London Underground agreed to her application to leave on voluntary severance terms and she received a total payment of £13,641.75

	(8)  The Tribunal also made findings about the relevant numbers of train operators.  They totalled 2,044 of whom 2,023 were male and 21 female.  The proportion of female train operators was therefore 1%.  As one of the female train operators, Mrs Edwards represented 5% of the female train operator workforce.

The Sex Discrimination Act 1975
	The Industrial Tribunal applied to those findings of fact the provisions of S.1(1)(b) and S.6(2) of the 1975 Act which read as follows:-
		"(1)  A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -
			(a) ...

			(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."

Section 6(2)
		"It is unlawful for a person, in the case of a women employed by him at an establishment in Great Britain, to discriminate against her -
			(a) ...

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

	Although the Industrial Tribunal did not expressly refer to it, it is also relevant to note the interpretation section 5(3) -
		"A comparison of the cases of persons of different sex or marital status 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."

The Decision of the Tribunal
	The reasons which led the Tribunal to find in Mrs Edwards' favour may be summarised as follows:-
	(1)  In applying the new rostering arrangements to Mrs Edwards London Underground were applying to her a condition or requirement within S.1(1)(b).  That is not disputed on the appeal by London Underground.

	(2)  The condition or requirement in question was such that a considerably smaller proportion of female single parents than male single parents could comply with it.  The Tribunal stated that they had not heard any evidence to enable them to make any findings of fact as to the proportion of single parents of either sex employed as train operators by London Underground and they therefore assumed that amongst the train operators there were single parents of both sexes.  They referred to statistics in the Employment Gazette to show that there is one lone father for every 10 lone mothers in Great Britain.  The application of that condition or requirement was to Mrs Edwards' detriment, because she could not comply with it.  She felt compelled to take voluntary severance rather than attempt to work with the rostering arrangements under the new contract.

	(3)  London Underground had failed to show that the condition or requirement was justifiable.  The Tribunal directed themselves to the requirement of 
		"... an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition."
	Hampson v. Department of Education & Science [1989] IRLR 69.
	As regards the reasonable needs of London Underground the Tribunal took into account the considerable savings.  On the other side they considered the discriminatory effect of the requirement or condition.  The Tribunal concluded, from the fact that the single parent scheme was contemplated, that it was clear that London Underground regarded such a scheme as feasible.
		"... Provisions could have been made, without significant detriment to the savings sought to be made, for single parents like the applicant to be catered for.  Balancing, therefore, the needs of the Respondents against the discriminatory effect of the condition, we conclude that the condition was not justifiable." (Paragraph 7)
	London Underground do not dispute the Tribunal's conclusion that, if the Tribunal were correct as regards indirect discrimination and lack of justification, Mrs Edwards had suffered indirect discrimination on the grounds of sex.  London Underground made it clear, however, that they disputed the correctness of the decision of the Tribunal on indirect discriminatory effect and lack of justification.

	(4)  In connection with remedy the Tribunal referred to S.66(3) of the 1975 Act which provides -
		"As respects an unlawful act of discrimination falling within S.1(1)(b) ... no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on the ground of his sex or marital status as the case may be."

	London Underground attempted to argue that the requirement or condition was not applied with the intention of treating Mrs Edwards unfavourably on the ground of sex, but the Tribunal rejected that contention and awarded Mrs Edwards £1,000 for loss of earnings and £4,000 for injury to feelings.

The Appeal
	In outline, the case of London Underground on the appeal is that
	(1)  The finding of indirect discrimination is flawed by legal error because the Tribunal made legally incorrect comparisons for the purpose of determining whether the application of the condition or requirement had an indirectly discriminatory effect.

	(2)  The finding of the Tribunal that the condition or requirement was not justifiable was also flawed by error of law in that the conclusion was reached without evidence or reasoning to support it.

	(3)  The conclusion of the Tribunal that London Underground intended to treat Mrs Edwards unfavourably on the grounds of her sex was a perverse conclusion and there was no basis for making an award of compensation in her favour.

	We shall deal with each ground of appeal in turn.

The finding of indirect discrimination.
	We agree with the submission made by Mr Bean on behalf of London Underground that the correct question under S.1(1)(b)(i) and S.5(3) is whether the condition or requirement of availability for rostering was such that a considerably smaller proportion of women qualified to be train operators than of men so qualified could comply with it.  Instead, the Tribunal applied the following test in paragraph 5 of the decision when they stated -
		"... In our view the condition or requirement in question was such that a considerably smaller proportion of female single parents than male single parents could comply with it. ..."
We agree with Mr Bean that it was wrong in law to select "single parent train operators" as the pool for comparison in relation to the question of indirect discrimination.  In University of Manchester v. Jones [1993] ICR 474 at 493H Ralph Gibson LJ commented on the proper application of S.1(1) as follows:-
		"In order to compare the proportion of women who can comply with the requirement with the proportion of men who can comply with it, it is necessary to determine the relevant total.  In my judgment, the relevant total is the number of men and women referred to in the subsection, ie, those men and women to whom the person - in this case the employer- applies or would apply the requirement.  In this case, that means all men and women graduates with the relevant experience.  I do not accept that the relevant total is all men and women: the employer would have no occasion to apply the requirement to any men or women other than those who are able to comply with the requirements of the advertisement other than the requirement in question."
The advertisement which had been answered by the complainant, was for the post of a Careers Adviser at Manchester University and stated that the person to be appointed would be "a graduate, preferably age 27 - 35 years".  The complainant was 46, outside the preferred age range.  She was not selected for interview.

	On the complaint of indirect discrimination Evans LJ held at p.501D, after an analysis of the statutory provisions in S.1(1) and reference to the authorities,
		"It follows that the statutory concept, in my judgment, is that of a "pool" or "relevant population", meaning those persons, male and female, who satisfy all the relevant criteria apart from the requirement in question.  It is, in effect, the total number of all those persons, men and women, who answer the description contained in the advertisement, apart from the age requirement.  Here, that means all graduates with the relevant experience.

		 The next question raised by this appeal is whether the numbers of men and women, respectively, who can comply with the requirement, must be compared as proportions of the total numbers of men and women, respectively, in the whole of the relevant population - graduates with the relevant experience - or whether they may be sub-divided so as to form some smaller group which is then compared with a corresponding sub-division of a larger pool - mature graduates with the relevant experience.  This sub-division has no part in the process described by Mustill LJ and I find it difficult to identify the basis on which any sub-division might be made."    
Lord Justice Evans went on to hold that
		"The Industrial Tribunal erred in law in having regard to a "pool" which consisted of mature graduates with relevant experience only, and that the Appeal Tribunal majority was correct in holding that there should be no sub-division in the present case.  This means that discrimination contrary to S.1(1)(B)(I) cannot be established; statistics only support the applicant's case is comparison is limited to mature graduates aged between 25 and 29, or perhaps 30 years of age."

	On the same reasoning, the Industrial Tribunal erred in law in having regard to a "pool" which consisted of only those train operators who were single parents, a sub-division not warranted by the statutory provisions.  The pool consisted of train operators, male and female, to whom the new rostering arrangements were applied.

	Mr Bean also correctly pointed out that, even if a comparison was made between female single parents and male single parents who were able to comply, there was no evidential basis for the Tribunal's conclusion of indirect discrimination.  The Tribunal said -
		"We have not heard any evidence to enable us to make any findings of fact as to the proportion of single parents of either sex employed as train operators by the respondents and we must, therefore, assume that amongst the train operators there were single parents of both sexes."

	There was no evidence, as the Tribunal admit, and therefore no findings, as to the numbers of single parents in the workforce, still less as to the numbers of men or women who were unable to comply with the condition or requirement.  The fact that lone motherhood is more frequent than lone fatherhood does not mean that the proportion of lone mothers able to comply with rostering is considerably smaller than the proportion of lone fathers able to do so, either among London Underground train operators or generally.

	The skeleton argument prepared by counsel on behalf of Mrs Edwards pointed out that it had been found by the Industrial Tribunal that there were 21 female train operators as against 2,023 male operators and that Mrs Edwards, comprising 5% of the female train operators, could not comply.  They also had statistical evidence from the Employment Gazette there was one lone father for every 10 lone mothers in Great Britain.  It was submitted that the Tribunal was entitled to take into account its own knowledge and experience that women have the main responsibility for looking after children, which results in a considerably higher proportion of men than women being able to comply with the requirement to work extended hours or non-social hours.  Mrs Edwards' arguments did not, however, attempt to justify single parent train operators as the correct "pool".  The argument was that, on the basis of the facts stated above, the Appeal Tribunal should substitute a finding that the proportion of women train operators who could comply with the rostering requirement was substantially smaller than the male train operators.

	In our view, we are in no position on the facts found, or not found, by the Tribunal, to reach such a conclusion.  As the Industrial Tribunal did not make the correct comparison for the purposes of S.1(1)(b)(i) of the 1975 Act, their conclusions are flawed by an error of law.  The only course is to remit the matter to another Industrial Tribunal for a rehearing of Mrs Edwards' complaint.

	It is, however, still necessary to deal with the arguments raised by London Underground on the issue of justifiability and on the question of remedy, since Mr Bean argued on behalf of London Underground that there was no point in remitting the matter to the Industrial Tribunal for a rehearing.  He argued that the Tribunal's conclusions that the condition was not justifiable and that Mrs Edwards was entitled to compensation were so clearly wrong in law that both issues were bound to be resolved in London Underground's favour at the end of the day.  We do not agree and express our reasons for that conclusion briefly.  (The conclusion is, of course, based on the assumption that there was indirect discrimination on the ground of sex.  That has yet to be established.) 

The issue of justifiability
	Under S.1(1)(b)(ii) it is open to the alleged discriminator to show that the requirement or condition is "justifiable irrespective of the sex of the person to whom it is applied".  It is not disputed that in paragraph 6 of the decision the Tribunal correctly directed themselves in law as follows:-
		"The final requirement in S.1(1)(b) is that the employer must be able to show that the condition or requirement is "justifiable".  The test to be applied is set out by Balcombe LJ in Hampson v. Department of Education and Science [1989] IRLR 69, as approved by the House of Lords in Webb v. EMO Air Cargo (UK) Ltd [1993] IRLR 27.  It is this:

			"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."

		 This was followed by the Court of Appeal in Jones v. University of Manchester [1993] IRLR 21."
The Tribunal referred to the single parent Link Scheme proposed for the Piccadilly Line to assist employees in the position of Mrs Edwards and to its disbandment in September 1992 because agreement on it could not be reached with the unions.  Mr Bean criticises the Tribunal's statement in paragraph 7 of the decision that
	"...From the fact, as we have found, that a scheme for single parents was contemplated, it is clear that the Respondents regarded such a scheme as feasible.  Provisions could have been made, without significant detriment to the savings sought to be made, for single parents like the Applicant to be catered for.  ..."

	Mr Bean submitted that these statements ignored the question whether a scheme of positive discrimination is favour of a small sector of the workforce was feasible, if the workforce as a whole, through its elected representative, opposed it.  There was no evidence or reasoning to support the conclusion that provision could, in those circumstances, have been made to cater for single parents.  The Tribunal failed to address questions as to why the law should require London Underground to give single parents preference in rostering over other categories of employees, such as those with sole responsibility for a disabled spouse or partner, or sole responsibility for an infirm parent, or those who have care of children shared with a spouse or partner who is a night security guard, or for those who experience serious strain on a marriage or relationship as a result of working unsocial hours.  The Tribunal failed to consider whether the 1975 Act compelled London Underground to require those of its workforce who are not single parents to work more night shifts than average in order to allow privileged class of single parents to avoid night shifts altogether, and whether, if the Tribunal's reasoning is correct, this in turn might give rise to sex discrimination claims by the disadvantaged majority.  The adverse effect of the new rostering on Mrs Edwards had to be balanced against the reasonable needs involved in introducing the Company plan with its attendance saving of £10 million a year and doing so without creating anomolies and inequalities between categories of the workforce.  For all those reasons Mr Bean submitted no Tribunal reasonably directing itself could properly have concluded that the introduction of the new rostering was not justifiable.

	We do not accept that the Tribunal's conclusion was perverse.  We agree with Mrs Edwards that it was for London Underground to satisfy the Tribunal that the requirement was justifiable.  That was an issue of fact and degree which cannot be disturbed on appeal if the Tribunal directed themselves, as they did, to the correct test, and came to a conclusion for which there was some evidence.  There was evidence before the Tribunal as to London Underground's proposal for a Single Parent Link Scheme.  In our view, the Tribunal were entitled to come to the conclusion on that evidence that it was feasible to cater for single parents or those with primary care of children who were able to work social hours, without significant detriment to the objectives of London Underground to achieve savings.  The Tribunal took account of the need of London Underground to make savings and found that there was no significant detriment.  In our view, there was no error of law in the Tribunal's treatment of this issue.

The remedy issue
	We find against London Underground on this issue for similar reasons.  Under S.66(3) of the 1975 Act, it was for London Underground to prove that the requirement or condition was not applied with the intention of treating Mrs Edwards unfavourably on the ground of her sex.  The Tribunal was not satisfied that London Underground had proved that fact.

	Mr Bean referred to a passage in the House of Lords decision in Orphanos v. Queen Mary College [1985] 1AC 761 at p.775D where Lord Fraser pointed out, in the context of a case of race discrimination, that not all acts of indirect discrimination need be done with the intention of treating the claimant unfairly on prohibited grounds.  There could be an intention to discriminate but, at the same time, no ground for suggesting that the intention was to discriminate on grounds of race (or sex).  There could be unlawful discrimination which was unintentional and accidental.  Mr Bean submitted that that was the case here.  The Tribunal had reached a conclusion without explanation or reasoning.  It was only possible to support it if the introduction of the Company Plan and the requirement that everyone, including Mrs Edwards, should work the new rosters, was motivated by an intention to treat Mrs Edwards unfavourably on the ground of her sex.  Such a conclusion was (or would be) perverse.  There was, therefore, no basis for awarding compensation to Mrs Edwards.

	In our view, it was open to the Tribunal to conclude, on the evidence, that London Underground had failed to prove as a fact that the requirement of the new rostering was not applied to Mrs Edwards with the intention of treating her unfavourably on the grounds of her sex.  They were entitled to reach that conclusion, without evidence that the rostering arrangements themselves were introduced with the intention of discriminating against Mrs Edwards.  The relevant question under S.66(3) relates to the intention with which the requirement or condition was applied, not to the more generalised intention relating to the introduction of the rostering arrangements.  The application of the requirement or condition resulted in Mrs Edwards being treated unfavourably on the ground of her sex.  It was open to the Tribunal to infer that the requirement or condition was applied with knowledge of its unfavourable consequences for her as a single or lone parent.  An intention to produce those consequences could be inferred.

	The result is, therefore, that the appeal is allowed on the first ground relating to indirect discrimination and that the whole matter must be remitted for a rehearing before another Industrial Tribunal.