Appeal No. UKEAT/0305/15/BA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

	At the Tribunal
	On 8 April 2016

Before
HER HONOUR JUDGE EADY QC
MRS C BAELZ
MS G MILLS CBE

MRS C DUTTON	APPELLANT

(1) THE GOVERNING BODY OF WOODSLEE PRIMARY SCHOOL
(2) WIRRAL BOROUGH COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR ADAM WAGNER
(of Counsel)
Instructed by:
Association of Teachers & Lecturers
Legal Services Department
7 Northumberland Street
London
WC2N 5RD

For the First Respondent	MS SINEAD KING
(of Counsel)
Instructed by:
SAS Daniels LLP
30 Greek Street
Stockport
Cheshire
SK3 8AD

For the Second Respondent	MR TIM KENWARD
(of Counsel)
Instructed by:
Wirral Metropolitan Borough Council
Town Hall
Brighton Street
Wallasey
Merseyside
CH44 8ED

SUMMARY
PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke
SEX DISCRIMINATION - Indirect

The Claimant - a teacher, employed to work with children who had special educational needs and needed stability and continuity - requested to work on a reduced basis after her maternity leave (a four- rather than five-day week).  The Respondents refused.  On the Claimant’s claim of indirect sex discrimination, it was accepted that the PCP of working a full, five-day, week placed her and others sharing her protected characteristic at a disadvantage.  It was also accepted that the Respondents had demonstrated a legitimate aim, the need for stability and continuity for the children the Claimant was employed to teach.  What was in issue was whether the PCP was a proportionate means of achieving that legitimate aim.  That was a matter for assessment by the ET; the test was an objective one, not limited to assessing the reasonableness of the Respondent’s response at the time but engaged in a broader exercise of assessment and scrutiny of the means adopted with a view to achieving a legitimate aim, balanced against the discriminatory impact demonstrated.  In explaining its conclusion, whilst the ET was entitled to expect its reasoning to be read as a whole, the parties were entitled to see how the ET had arrived at the conclusion it did.  Specifically, having acknowledged that a difficult balancing exercise arose in this case, the ET’s reasoning needed to demonstrate acknowledgement of, and engagement with, the balance required as between the need identified by the Respondents and the discriminatory impact.

Having recorded the issue before it and summarised the (largely undisputed) factual background, the ET had identified the specific questions arising from an application of the law to the facts in this case.  Having observed that the points were not easy to resolve, the ET then gave a one-line answer, stating its conclusion that the PCP had been proportionate.
On the Claimant’s appeal, held: allowing the appeal
From the limited reasoning provided, it was impossible to see the ET’s engagement with the issues before it, specifically the balance required between the Respondents’ aim and the disparate impact.  In some instances the answer might be obvious but the ET had acknowledged that was not the case here; yet it was impossible, from the reasons given, to see it had carried out the required assessment let alone had done so with the appropriate degree of scrutiny.

In the circumstances, the decision could not stand.  Consideration was given to the possibility of a Burns/Barke Order but it was apparent that the Employment Judge had since retired and this was not an appropriate course, not least as the hearing had been in June 2014.

The appeal would be allowed and the matter remitted to be considered afresh by a new ET.

HER HONOUR JUDGE EADY QC

Introduction
1.	We refer to the parties as the Claimant and the First and Second Respondent, as below.  This is the Claimant’s appeal against a Judgment of the Liverpool Employment Tribunal (Employment Judge Hewitt, sitting with members on 16 and 20 June 2014; “the ET”), sent to the parties on 19 September 2014, with Written Reasons following on 24 February 2015.  The parties were represented before the ET by their respective solicitors; today, each appear by counsel.  By that Judgment the ET found, relevantly, that the Claimant’s claim of indirect sex discrimination should be dismissed.  Her appeal in that regard was permitted to proceed to a Full Hearing after a Rule 3(10) Hearing before Langstaff J on 13 October 2015; the issue raised by the appeal being one of adequacy of reasons.

The Background Facts and the ET’s Reasoning
2.	The factual background was largely agreed before the ET and can be stated shortly.  The Claimant worked as a teacher at the First Respondent school, teaching children with special educational needs (including, in particular, children whose needs fell within the autistic spectrum), in a part of the school referred to as “the Base”.  It was common ground that the children required a significant degree of continuity and stability in their lives.  The Claimant was, however, to be away on maternity leave from October 2013 to June 2014 and, prior to that leave, at an early stage in her pregnancy in June 2013, she made a written request to return on a part-time, four-day week basis.  She did not receive a response to that request until October 2013, when it was refused on the basis of the demands upon the school and there was a requirement of stability.  The Claimant appealed, but that was refused.

3.	The ET, relevantly, had to determine whether the Respondents’ refusal of the Claimant’s request - and, thus, the imposition of a provision, criterion or practice (“PCP”) to work full-time - was justified; that is, whether it was a proportionate means of achieving a legitimate aim.  It was common ground that the Respondents had a legitimate aim: to provide continuity and stability for the children taught by the Claimant, a need evidenced in part by a resource pack issued by the National Autistic Society (“NAS”) which was adduced before the ET.  The ET noted that the Second Respondent operated other schools in the area, three of which had similar teaching bases for children with special educational needs, but there was no evidence of contact having been made with those as possible alternatives.  It identified what it described as the issues before it:
“7.1. There is no evidence that the claimant’s maternity leave impacted adversely on the Base, but the Tribunal needs to consider, having regard to the information pack, whether the same would necessarily apply in a more permanent situation of a move from full-time working to a four day week.
7.2. There is also no evidence before the Tribunal that either respondent liaised with other schools with similar Bases within the second respondent’s area before taking the decision to reject the claimant’s application.
7.3. The claimant’s request for part-time working is perfectly understandable; she wishes to spend more time with her child.  The respondents for their part regard the needs of the vulnerable children in their care as of paramount importance.”

4.	The ET then stated its conclusion as follows:
“8. This is a balancing act which … the Tribunal has not found easy to resolve.  It is however persuaded that the respondents’ decision was a proportionate means of achieving a legitimate aim. …”

5.	It therefore dismissed the Claimant’s claim.

The Relevant Legal Principles
6.	The starting point is section 19 of the Equality Act 2010 (wrongly referred to in the ET’s Reasons as section 29) which, relevantly, provides:
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if -
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected characteristics are -
… sex …”

7.	In a claim of indirect discrimination it is thus open to a Respondent to counter what would otherwise be a finding of discrimination by showing the measure taken was a proportionate means of achieving a legitimate aim.  This imports a test of objective justification, the key elements of which derive from European Union case law; see, in particular, Bilka-Kaufhaus GmbH v Weber von Hartz [1987] ICR 110, where the European Court of Justice stated that, to justify an objective that has a discriminatory impact, an employer must show the means chosen for achieving that objective correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objective in question and are necessary to that end.  

8.	Provided a Claimant has established adverse disparate impact, the burden of establishing the defence of justification on the balance of probabilities lies squarely on the employer.  The assessment is for the ET.  It is objective in nature, and the ET’s findings on this point will not be interfered with by the EAT unless they can be said to be perverse or inadequately reasoned.

9.	As for how the ET is to approach its task, this has been considered in a number of cases, including Hardys & Hansons plc v Lax [2005] ICR 1565 CA, Allonby v Accrington & Rossendale College [2001] ICR 1189 CA and Homer v Chief Constable of West Yorkshire Police [2012] ICR 704 SC, from which we draw the following principles:  
a.	Once a finding of a PCP having a disparate and adverse impact on those sharing the relevant protected characteristic has been made, what is required is, at a minimum, a critical evaluation of whether the employer’s reasons demonstrated a real need to take the action in question. 
b.	If there was such a need, there must be consideration of the seriousness of the disparate impact of the PCP on those sharing the relevant protected characteristic, including the Claimant, and an evaluation of whether the former was sufficient to outweigh the latter (see, in particular, per Sedley LJ in Allonby).  
c.	In thus performing the required balancing exercise, the ET must assess not only the needs of the employer but also the discriminatory effect on those who share the relevant protected characteristic.  Specifically, proportionality requires a balancing exercise with the importance of the legitimate aim being weighed against the discriminatory effect of the treatment.  To be proportionate, a measure must be both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so (see Homer).  
d.	A caveat imported by the word “reasonably” allows that an employer is not required to prove that there was no other way of achieving its objectives (see Hardys).  On the other hand, the test is something more than the range of reasonable responses.

10.	As for the requirement on the ET in terms of its Reasons, Rule 62(5) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides that an ET has a duty to give reasons for its Judgment, which must state its findings of fact, identify the relevant law and state how the law has been applied.  That said, an ET’s Judgment will not be erroneous in law simply because the structure of that Rule is not visible on the surface of the decision, so long as its constituent parts can be unearthed from the material underneath (Greenwood v NWF Retail Ltd [2011] ICR 896 at paragraph 56).  Moreover, the ET is not obliged to set out each stage of its reasoning in exhaustive detail if the reasoning is implicit from the Judgment read in the context of the evidence provided and the submissions made at trial.  The leading statement of principle as to what is required of an ET in terms of its reasoning remains that of Bingham LJ (as he then was) in Meek v City of Birmingham District Council [1987] IRLR 250 CA:
“8. … the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts.  The parties are entitled to be told why they have won or lost. …”

11.	In assessing whether a party is in a position to understand why they have won or lost, we further bear in mind that the parties are not coming to the matter as strangers but will be familiar with the evidence and submissions below.  An unsuccessful party should not seek to upset a Judgment on the ground of inadequacy of reasons unless, despite the advantage of considering the Judgment with knowledge of the evidence given and submissions made at trial, unless that party is unable to understand why it is the Judge reached an adverse decision (English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 CA, paragraph 118).

Submissions
The Claimant’s Case
12.	Mr Wagner contended the ET’s decision was plainly inadequately reasoned.  The key issue was whether it was proportionate for the Respondents to refuse the Claimant’s request for a four-day working week, a refusal that was justified with reference to maintaining stability for autistic children at the school.  This was a paradigm case where a clear and detailed analysis was required in relation to the issue of proportionality so that the Claimant could know why she had not succeeded on her claim and how the ET had reached its conclusion on the balance of factors.  The ET had, however, failed to make the minimum factual findings necessary to establish that the Respondents had satisfied the objective test for proportionality, and its conclusion on proportionality was wholly inadequate and failed to provide sufficient detail to enable the Claimant to know why she had lost: it failed to set out any of the factors pulling one way or the other in making the difficult decision it had accepted the case to be.

The Respondents’ Case
13.	On behalf of the First Respondent, Ms King reminded us of the way we should approach an ET’s Reasons, as we have set out above.  She then undertook the exercise of showing us how we should approach the ET’s written reasoning in the context of the oral Judgment given at the hearing (the Notes of which are before us), the evidence, oral and written, before the ET (largely uncontested) and the submissions then made.  In particular, she noted the evidence given for the Respondents by Allison Evans, the Head Teacher, and as derived from the NAS guidelines, noting that paragraph 7 of Ms Evans’ statement - incorporating those guidelines - was not seriously challenged by the Claimant below and had been accepted by the ET.

14.	Ultimately, it was clear the ET accepted the Respondents’ concern that the Claimant’s proposal of a four-day/one-day arrangement gave rise to an unacceptable risk to the children’s need for stability.  Its reasoning, explicit and implicit, could be understood as follows:
“(a) Both parties’ positions were reasonable: it was understandable that [the Claimant] wished to spend more time with her child; and that [the Respondents] regarded [the] children’s needs of paramount importance.
(b) Neither [Respondent] had liaised with other schools before reaching their decision;
(c) There was no evidence that [the Claimant’s] maternity leave impacted on the base but it did not follow that therefore there would be no impact caused by a weekly change;
(d) On the contrary, the National Autism Resource Pack, and Allison Evans’ opinion suggested that the change could cause disruption;
(e) The National Autism Resource Pack and Allison Evan’s [sic] opinion had not been seriously challenged by [the Claimant];
(f) Consequently it was just persuaded [the First Respondent’s] decision was justified, despite the manner in which it had been reached.”

15.	In truth, the Claimant understood why she had lost but did not agree with the conclusions reached.  To the extent she was now placing emphasis on the greater risk posed by an unexpected and sudden change, that was not the weight of the evidence before the ET, which comprehended risks arising from regular changes such as would occur between lessons.

16.	For the Second Respondent, it was similarly contended that the ET had made adequate findings of fact on which to base its decision.  There was only limited dispute between the parties, and the ET expressly accepted the evidence of Ms Evans.  Effectively, the ET must be taken to have found that the Respondents had put the needs of the children above those of the Claimant, and, recognising the balance that had to be drawn, concluded it fell in favour of the Respondents.  If the reasoning was considered to be inadequate, the appropriate course to follow would be to return this matter to the ET to see whether it might be possible to obtain a fuller explanation of the Reasons, i.e. to adopt the Burns v Royal Mail Group plc [2004] ICR 1103/Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578 procedure.  It should not necessarily be inferred that the Employment Judge, although apparently retired after suffering a period of ill health, would not be in a position to assist, and it should also be borne in mind that there were two other members of the ET who might be able to help.

Discussion and Conclusions
17.	We start with what was not in issue for the ET: the identification of a PCP (not expressly identified but essentially not in issue), the question of disadvantage to the Claimant and to those sharing her protected characteristic and the existence of a legitimate aim, the need for stability and continuity for the children the Claimant was employed to teach.  

18.	What was in issue was whether the requirement that the Claimant work full-time - a five-day rather than a four-day week - was a proportionate means of achieving that legitimate aim.  On that question the Respondents bore the burden of proof.  Whether they had succeeded in discharging that burden was a question of assessment for the ET.  The test was objective; the ET was not limited to assessing the reasonableness of the response at the time but was engaged in a broader exercise of assessment and scrutiny of the means adopted with a view to achieving the legitimate aim balanced against the discriminatory impact demonstrated.  How it was to undertake that exercise has been made plain in a number of cases (see the guidance in cases such as Hardys, Allonby and Homer, which we have set out above), and it is apparent that the ET was referred to relevant authorities in that regard.

19.	Turning then to the explanation for the conclusion reached in this case, we bear in mind that an ET can expect us to read its reasoning as a whole, not to pick out one particular sentence or paragraph.  That said, we - and the Claimant as the losing party - are entitled to see how the ET arrived at its conclusion.  

20.	In this case, the ET referred to possible other alternatives: the other schools.  It also referenced the fact there had been no evidence of adverse impact in relation to the Claimant’s absence on maternity leave and recorded the need to balance the Claimant’s needs and those of the Respondents in terms of their duties to the vulnerable children in their care.  Having thus identified the competing factors arising in this case, the difficulty is that the reasoning then makes no attempt to explain how the ET resolved those issues.  
21.	The Respondents say that the Reasons have to be read bearing in mind that the Claimant would have been aware of the evidence and submissions before the ET.  We accept that point and can see - as set out in some detail in the Respondents’ submissions - that the considerations were certainly not all one way in favour of the Claimant; there was plainly evidence to support the Respondents’ conclusion, which was no doubt relied on to demonstrate that the response was proportionate.  Equally, however, we see there are points the Claimant was making that might be said to tip the balance the other way.  In some cases, an ET might ultimately consider matters to be straightforward.  In the present case, some ETs might have concluded that the need for stability for the children in the Respondents’ care was bound to outweigh the discriminatory impact.  That, however, is not what the ET found in this case (see paragraph 8 of its Reasons, set out above).

22.	Having thus not seen this as a case where the evidence was all one way, the ET’s reasoning needed to demonstrate some acknowledgement of, and engagement with, the balance required as between the need identified by the Respondent and the discriminatory impact (where some degree of scrutiny of the possible alternatives might be required).  It is the issue at the heart of this appeal.  We just cannot see the ET’s engagement with these issues and we cannot see that it carried out the assessment that it was obliged to undertake, let alone did so with the required degree of scrutiny.  If the ET did undertake that scrutiny (and Ms King has impressively taken us through the evidential material to demonstrate how it might be possible to infer that the ET did approach its task correctly), we have to conclude that the Reasons provided are simply inadequate to demonstrate that to us.

23.	In reaching this conclusion, we accept that the ET had identified the relevant issue before it (paragraph 2) and did sufficient as to the background facts (not least because there was little dispute; see paragraphs 4 and 5).  Whilst it might have set out the relevant legal principles more fully (paragraph 6), we would not criticise the decision on that basis.  The ET further identified the questions arising from an application of the law to the facts in this case (paragraph 7) but then provided a one-line answer to those questions, without explanation as to how it got there.  Whilst the ET did not itself find the point itself straightforward - it expressly stated that it did not find this case an easy one to resolve - the reasoning does not tell us (even if we incorporate the earlier findings and draw from the Note of the oral Reasons given on the day) how it resolved the problem it acknowledged arose in this case.

24.	That leads us to the conclusion that the Judgment cannot stand.  Given the time that has passed and the costs (financial and otherwise) involved, we have considered whether it might be possible to ask the ET to make good the reasoning under the Burns/Barke procedure, but take the view that is not the appropriate course.  First, we do not feel it a very satisfactory course to adopt in relation to a case heard in June 2014.  Second, we do not consider we can infer it remains possible to approach the Employment Judge to undertake this exercise (we have been told the Employment Judge concerned has now retired, after a period of ill-health, and we note the Regional Employment Judge did not feel able to ask the Judge for assistance in typing up the Notes of Evidence requested by the EAT).  Third, we do not consider it appropriate to ask the lay members to try to make good the reasons; that is not their role.

25.	We recognise that all the parties in this case might feel that they have been let down but we feel that there is only one course that can be adopted in this case, and that is to remit this matter to a freshly constituted ET to, effectively, start this matter again.  For completeness, we should add that we have also considered whether it might be possible for the EAT to carry out the assessment itself on the material put before us, but we take the view that the assessment required in determining a defence of justification in an indirect discrimination case is one for the ET to carry out after hearing and assessing evidence on the point.  That being so, we think there is little that can be done but to face the inevitability of this matter being remitted to start afresh before a new ET.

Costs
26.	Having given our Judgment in this matter, Mr Wagner, for the Claimant, made an application for costs under Rule 34A(2A) of the Employment Appeal Tribunal Rules 1993 (as amended); that is, for the Claimant’s costs limited to the £1,600 fees incurred in lodging the appeal and pursuing it to a Full Hearing.  The Respondents resisted the application, observing there would be no basis for making a costs Order in terms of any unreasonable conduct on their part; they had properly resisted this matter, as they were entitled to do; the EAT remains a jurisdiction where costs do not necessarily follow the event and here the costs had been paid by the Claimant’s trade union and not by the Appellant herself.  Mr Kenward also made the point that it had been open to the Claimant to follow the alternative course of making an application under the Burns/Barke procedure for fuller explanation from the ET.

27.	Now that fees have to be paid to lodge and pursue an appeal to a Full Hearing, where a party is successful (in whole or in part), the EAT’s costs jurisdiction, limited to those fees, is engaged.  That does not require that the Respondents behaved unreasonably in resisting the appeal (and had such an application been made under our more general costs jurisdiction, we would not have found it appropriate to make such an award in this case).  Limiting ourselves just to a consideration of the application of the fees, we bear in mind that the (admittedly few) authorities that exist so far on this point make clear that this now will be the general expectation: it is reasonable to expect that where one party has had to pay fees to bring an appeal and has been (wholly/partly) successful, they may well look to those who have resisted the appeal for some reimbursement of those fees.  Where Respondents have made proposals that might have avoided the incurring of fees (for example, to apply to the ET for a reconsideration or to avoid the cost of a Full Hearing by adopting the Burns/Barke procedure), that might be a valid argument as to why they should not then be faced with reimbursing the fees.  As our Judgment has explained, that, however, was not a course that could sensibly have been adopted in this case, for the reasons we have explained.  It thus seems to us that this is a case where the Claimant is entitled to expect reimbursement of her fees.

28.	As for whether she is disentitled from recovering those fees because her union has met the costs, we do not know the precise arrangements between the Claimant and her trade union (it may be that there is some structure whereby the money is effectively loaned to her for the payment of the fees; we do not think it is sensible for us to speculate on that) but, in any event, we prefer the guidance on this particular issue laid down by Wilkie J in Ibarz v University of Sheffield UKEAT/0018/15/JOJ, and we do not consider that to be a factor that disentitles the Claimant from recovery of her fees.  

29.	We therefore Order that the Respondents are jointly and severally liable to pay to the Claimant the sum of £1,600 by way of reimbursement of the fees necessarily incurred in pursuing this matter to a Full Hearing.