Appeal No. UKEAT/0201/03/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 October 2003 
Judgment delivered on 5 January 2004

Before
HIS HONOUR JUDGE PETER CLARK
DR K MOHANTY JP
MR P A L PARKER CBE

MRS K REDMAN	APPELLANT

ROYAL BERKSHIRE FIRE AUTHORITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P GREATOREX
(of Counsel)
Instructed by:
Messrs Richard C Hall & Partners
Crown Buildings
121a Saughall Road
Blacon
Chester CH1 5ET	
For the Respondent	MR N BALDOCK
(of Counsel)
Instructed by:
Messrs Landsdowne Solicitors
83 Sotheby Road
London N5 2UT	

HIS HONOUR JUDGE PETER CLARK

1	This is an appeal by Karen Redman, the Applicant before an Employment Tribunal sitting at Reading under the chairmanship of Mr C E H Twiss, against that Tribunal’s decision, promulgated with Extended Reasons on 16 January 2003, dismissing her complaint of unlawful indirect sex discrimination brought against her employer, the Respondent Royal Berkshire Fire Authority.

The Facts

2	The Appellant commenced her employment with the Respondent in 1993.  Following a series of promotions she reached the rank of Group Fire Control Officer.  That was the top of the tree in the Control Branch of the Respondent’s operation in which she was employed.  Further promotion depended on her attaining a senior officer position in the uniformed branch.  There were 10 such posts in the Respondent’s organisation including 8 Divisional Officer grade posts.  The difficulty which she faced in applying for a position as Divisional Officer was that operational experience was a pre-requisite of such appointment in line with the Respondent’s Flexible Duty System (“FDS”).  Although 97.5% of a Divisional Officer’s work was administrative, the remainder required operational experience.  The Appellant accepted, for example, that she could not control a major incident on the ground.

The Tribunal Decision

3	The Tribunal heard a good deal of evidence over six days.  They were also directed to the relevant statutory provisions and decided cases.  They concluded:

(1)	that the Respondent imposed a requirement or condition, the need for operational experience, with which a considerably smaller proportion of women than men could comply.  We note that none of the 10 Senior Officer uniformed posts within the Respondent were held by women.

(2)	as to the defence of justification advanced by the Respondent under section 1 (1) (b) (ii) of the Sex Discrimination Act 1975 the Tribunal refer expressly to the guidance provided by Sedley LJ in Allonby v Accrington and Rossendale College [2001] IRLR 364, paragraph 29, at paragraph 85 of their Reasons.  There Sedley LJ emphasised that for a Respondent on whom the burden lies to establish the defence of justification it is necessary for him to show a real need for the discriminatory condition.  Having done so it is then for the Tribunal to consider the seriousness of the disparate impact of the condition on women, including in particular the Appellant, and an evaluation of whether the former was sufficient to outweigh the latter.

(3)	the Respondent had established the defence of justification in expressing their conclusion.  At paragraph 127 of their reasons they say this:

127	“We have weighed the evidence in accordance with the guidance given particularly in Allonby and Hampson [Hampson v DES [1989] IRLR 69 (CA)] and find that the Respondents have put forward the strongest justification for their Flexible Duty System.”

The Appeal

4	Shortly before the first day of hearing of this full appeal I directed, on the Respondent’s application, that the Chairman be requested to provide his comments on certain of the Appellant’s amended grounds of appeal.  We must record our gratitude to the Chairman for his prompt response.

5	Paragraph 20 (4) of the amended grounds reads:

20	“The Tribunal failed to take into account of give proper weight to the following evidence that was before it:
…
(4)	evidence that the requirement for operational experience for senior uniformed positions poses is [sic] a national problem for women, not just a local problem for the Appellant (evidence of Julia Logan and Cheryl Rolph on behalf of the Appellant and the documents referred to in paragraph 21 below);”

6	In commenting on that allegation the Chairman said this in his letter to the EAT dated 20 October 2003:

“Paragraph 20 (4)
This was considered extremely carefully.  In fact it informed our whole consideration of the case.  I accept it should have been referred to specifically in the Extended Reasons.”

7	Mr Baldock relies on that response in answer to what we regard as Mr Greatorex’s principal submission in the appeal, that the Tribunal failed on the face of its Extended Reasons, to answer the further questions posed by Sedley LJ in Allonby and referred to above.  That is to say, on the facts of this case, having found that the Respondent had established a real need for the FDS, requiring 10 senior officers with operational experience, the Tribunal do not then go on then in their Reasons to explain how they have balanced the real need of the employer with the seriousness of the disparate effect of the condition on women as found and arrived at the conclusion that the former outweighs the latter.

8	Far from assisting Mr Baldock in resisting the appeal is seems to us that the Chairman’s acknowledgement of a lacuna in the Tribunal’s stated reasons supports in part the submission advanced by Mr Greatorex.  The Tribunal’s conclusions are simply not sufficiently reasoned on this essential aspect of the case.  They are not ‘Meek compliant’, to borrow Sedley LJ’s expression in Tran v Greenwich Vietnam Community [2002] IRLR 735.

9	Until that reasoning is made clear, it is quite impossible for this Appeal Tribunal to discern whether or not the Tribunal has applied the law correctly to the facts as found.  Our dichotomy is that although the Tribunal purportedly followed the approach laid down by the Court of Appeal in Allonby, there remains force in Mr Greatorex’s submission that instead the Tribunal satisfied themselves in accordance with the now discredited test suggested by Ker LJ in Ojutiku v Manpower Services Commission [1982]  IRLR 418, paragraph 20, that “if a person produces reasons for doing something which would be acceptable to right-thinking people as sound and tolerable reasons for so doing, then he has justified his conduct.”

10	Mr Greatorex also advanced argument, based on the evidence before the Tribunal, that the Tribunal’s decision in this case was perverse.  We bear in mind the heavy burden on an Appellant to establish that legal proposition: see Yeboah v Crofton [2002] IRLR 634.  We are not persuaded that such argument is made out on the facts of this case, nor are we persuaded by Mr Baldock that even if the Tribunal appeared to consider whether the Respondent’s operational system was justified rather than the prima facie discrimination against the Appellant, its conclusion was plainly and unarguably right on the facts.

11	In these circumstances we have concluded that the proper course is to allow this appeal and remit the matter to the same Employment Tribunal to fully explain its conclusions on justification, applying the test laid down in Allonby.  In so deciding we have considered Mr Greatorex’s submission that since this Tribunal reached a firm conclusion in the first instance on the merits of the Appellant’s claim it would be wrong for the matter to return to that same Tribunal.  We reject that submission in these circumstances; ideally, at the Preliminary Hearing stage, the case could have been returned to the Tribunal to state its reasons for the implicit conclusion that the real needs of the Respondent outweighed the discriminatory effect on women, including the Appellant of the operational experience requirement for Senior Officer grade.  That such a course was not then taken may be attributable to the majority reasoning of the Court of Appeal in Tran (cf. the approach of a different division of the Court of Appeal in English v Emery Reinbold [2003] IRLR 710).  In the present circumstances we see no realistic alternative to taking that course following this full appeal hearing.  Further, we think that this is a proportionate response, given the length of the original hearing.

12	Finally, we have considered particularly Mr Greatorex’s contention that bearing in mind the progress of this case below a reasonable observer would form the view that this Appellant will not receive a fair hearing on remission.  The Tribunal will, he submits, inevitably reach the same conclusion expressing its further reasoning so as to comply with Sedley LJ’s dictum.

13	We accept the force of that argument in many cases of remission.  However, we reject it in this case partly on the basis of a matter which Mr Greatorex specifically brought to our attention.  On the first day of the hearing below the Tribunal, through the Chairman, administered a costs warning to the Appellant.  Later, having heard some of Mr Greatorex’s cross-examination of the Respondent’s witnesses, that warning was revoked.  Far from demonstrating a closed mind, that retraction demonstrates to us, as it would we think to the reasonable observer, that this Tribunal is one which is prepared to reconsider its earlier view.  In the context of justification, we are confident that on remission this Tribunal will identify, as a matter of fact having heard all the evidence, the seriousness of the discriminatory effect and balance it against the real need shown by the Respondent in order to reach a conclusion as to where the balance lies.  Insofar as it did carry out that exercise, but simply failed to articulate its reasoning, it would be unfair to the Respondent to deprive that party of a legitimate success, purely due to the inadequate formulation by the Tribunal of their reasoning.  Insofar as the Tribunal strayed from the question, according to Allonby, which it set itself, it must now consider the balancing exercise afresh.

14	Consequently, this appeal is allowed and the case remitted to the same Employment Tribunal for reconsideration of the justification issue only, their finding of prima facie indirect discrimination being unappealed.