Appeal No.	 EAT/953/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 December 1999

Before
HIS HONOUR JUDGE WILKIE QC
MR D J JENKINS MBE
MR B M WARMAN

LANDER CARLISLE LTD	APPELLANTS

MRS T A HIGHFIELD	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MS N JOFFE
(of Counsel)
Instructed by:
Engineering Employers Federation
Broadway House
Tothill Street
London SW1H 9QU	

HIS HONOUR JUDGE WILKIE QC

1.	This is an appeal by Lander Carlisle Ltd against the decision of the Employment Tribunal sitting at Birmingham that the Applicant was unlawfully discriminated against on the grounds of her sex within the meaning of Section 1(1)(a) and Section 6(2) of the Sex Discrimination Act 1975 i.e by way of direct discrimination.  It rejected her application insofar as it was a claim for indirect discrimination.  

2.	The hearing was conducted on three days, 15th & 16th April and 6th May.  The reserved decision was sent to the parties on 28th June. In essence the complaint of Mrs Highfield was that she was dismissed from her employment by Lander Carlisle Ltd within a period of two years of commencing her employment.  The unfair dismissal application was adjourned pending the outcome of the Crown –v- Secretary of State of Employment ex parte Seymour Smith and Perez ,  This left a Sex Discrimination claim, she put forward that claim on both direct and indirect discrimination.  As far as indirect discrimination is concerned, the Tribunal dismissed the claim.  The Tribunal found for her on the basis of direct discrimination.  

3.	In essence there had been series of changes in the shift patterns, both of the Applicant and her husband who was also employed by the Appellants.  We do not need to rehearse the number and nature of those shift changes, but ultimately there arose a situation in which the employer was saying to Mrs Highfield that either she worked a full time shift during the week or, if she wanted to work part time, she would have to do so at the weekend.  In order to accommodate her requirements as to childcare, there was an arrangement on a trial basis for sharing a shift with another female colleague which involved them both working 5 hours consecutively.  That was coupled, apparently, with a change in the shift times of Mr Highfield.  There did come a time however, when she did, for a short period, work a full time day shift.  That involved a further change in the precise hours of Mr Highfield’s night shift working.  That latter arrangement was brought to an end because Mr Highfield found it inconvenient and did not want it to continue.  

4.	The parties, therefore, reverted to the shared shift work pattern between Mrs Highfield and her colleague.  The employer decided that it did not want that shift share pattern to continue and gave notice that it was to terminate.  That, therefore, meant that Mrs Highfield was given a stark choice of either working full time during the week or part time at weekends, neither of which was acceptable to her and therefore her employment came to an end.  In considering the question of direct discrimination, the Tribunal addressed that question in paragraph 15 of the decision.  It did so in two sub paragraphs.  As to sub paragraph (a), a complaint is made in essence that it erroneously imports certain considerations relevant only to indirect discrimination and fails to address at all the correct test for identifying whether or not there has been direct discrimination.  As far as paragraph (b) is concerned, that was a paragraph which was based upon a direct comparison between Mr and Mrs Highfield.  In effect the allegation was that there was direct discrimination by reason of her sex because she was less favourably treated than her husband in that, whilst the employer was prepared to accommodate Mr Highfield’s wishes in respect of his shift hours, the employer was not prepared to grant Mrs Highfield the same level of accommodation of her wishes.  The point that is taken, as far as that is concerned, is that there is really a failure accurately to consider who or what is the proper comparator, the other requirements of the Act not being properly addressed.  There is in addition argument that it is, in effect, perverse.  

5.	It is our judgment,without in any way expressing our view as to the likely final outcome of this appeal, that the employer has put forward points in their Notice of Appeal on these issues which are worthy of argument at a full hearing.  In other words they raise reasonably arguable points of law and therefore we allow this appeal to go forward to a full hearing and we do not take a decision to dismiss this appeal at this stage.