Appeal No. EAT/790/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 6 September 1994

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MR J A SCOULLER

	MR S M SPRINGER MBE

MRS C A EDDY
MRS S MACDONALD
MRS S STEWART	APPELLANTS

CASSETTE & RECORD SERVICES LTD	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MS V GAY
	(Of Counsel)
Messrs Robin Thompson & Partners
Solicitors
Compass House
Pynnacles Close
Stanmore
Middx 
HA7 4XL

For the Respondent	MR D MARTIN
	(Director)

	MR JUSTICE TUCKER:  These are appeals by three employee Appellants from a decision of the Industrial Tribunal sitting at Bedford on 9 and 10 June 1993.  Then after receiving written submissions, the members and Chairman of the Tribunal held a further discussion on 17 August and delivered their decision as a result of that.

	The unanimous decision of the Tribunal was as follows:

		"(i)	the tribunal has no jurisdiction to consider the Applicants' complaints under Sections 1(1)(a) and 6(2)(a) of the Sex Discrimination Act 1975 [that is to say of direct discrimination];

		(ii)	the Applicants' complaints under Section 1(1)(b) of the Act [that is to say of indirect discrimination] are not well-founded.

		(iii)	the Applicants' complaint under Section 1(1)(a) and 6(2)(b) of the Act based on the Respondents' decision to retain Mr Rigby is not well-founded;

		(iv)	the Applicants were not unfairly dismissed; and

		(v)	these applications are dismissed".

	There is no appeal against the decision of the Tribunal under (i) and (iii).  The appeal relates to (ii) and (iv) in so far as (iv) relates to (ii).  

	The Appellants have been ably represented before us by Miss Vivian Gay to whom we are much indebted for the clarity of her submissions.  She did not represent the Appellants before the Tribunal.  The Respondents, the employers, Cassette & Record Services Ltd, have been represented before us by one of their directors, Mr Martin.  The three Appellants were employed by the Respondents as bindery assistants in the Respondents' printing business which principally works for the recording industry.  It is germane to their complaint that they were all on grade 2 despite having been employed for some time.  The fact is that all the grade 1 employees were men, no women had been trained for that grade or appointed to it.  No complaint of direct sexual discrimination in that regard could be considered by the Tribunal because such a complaint was out of time.  That is why that complaint was rejected by the Tribunal.  But the Tribunal did consider the complaint of indirect discrimination as appears from paragraph 10 of their decision.  They say this:

		"Mr Kibling next relies on indirect discrimination under Section 1(1)(b), contending that, by the arrangements set out in the letter of 13 November 1991, the Respondents have applied a requirement or condition whereby they retain the Class 1 employees, which applies or would apply equally to a man but 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.  This is undoubtedly correct, since at that time the Class 1 employees were all men and, of the Class 2 employees, 4 were women and 2 were men.  However, the subsection goes on to state :

			"and which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied".

		In Ojutiku  v  Manpower Services Commission [1982] ICR 661, the Court of Appeal held that to understand what was meant by `justifiable' it was sufficient to turn to the dictionary meaning `to adduce adequate reasons for'.  It was also held that `justifiable' should not be taken as so high as `necessary'.  In our view, the Respondents have fully justified their decision to retain the Class 1 operatives in preference to the Class 2.  Indeed, far from there being too many Class 1 operatives, there were not enough and they made arrangements to train more.  This justification applies irrespective of the sex of the person to whom it is applied".

	The reliance by the Tribunal on the case of Ojutiku is unfortunate because the House of Lords in the case of Webb  v  Emo Aircargo (UK) Ltd [1993] ICR 175 have in effect reversed that decision.  At page 182 letter H of that case, Lord Keith in his speech said this:

		"After the industrial tribunal had given its decision, there was decided in the Court of Appeal Hampson  v  The Department of Education and Science [1989] ICR 179 in which Balcombe L.J. thus formulated the test of what was `justifiable' under sub-paragraph (ii), at p 191:

			"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 construction is supported by the recent decision of the House of Lords in Rainey  v  Greater Glasgow Health Board [1987] ICR 129, a case under the Equal Pay Act 1970, and turning on the provisions of section 1(3) of that Act ..."

		This test must now be regarded as the appropriate one and as superseding that of Eveleigh L.J. in Ojutiku.

		It was submitted on behalf of the applicant that since this was the correct test and it had not been applied by the industrial tribunal the case should be remitted for reconsideration in the light of it.  The same submission was made to the Court of Appeal, which rejected it upon the view that if the industrial tribunal had applied the correct test as formulated by Balcombe L.J. it would inevitably have come to the same conclusion.  I agree with that view and find it unnecessary to say more".

	It is not clear why the Tribunal should have relied on the case of Ojutiku.  They adjourned the hearing for written submissions and those submissions have been placed
before us.  There is no reference to Ojutiku in the submission of Mr Kibling who then appeared for the Appellants.  The case was not raised by the Respondents whose representatives were not legally qualified and who can be excused for not having heard of that case.  But however it came about, we have no difficulty in accepting Ms Gay's submission that the Industrial Tribunal applied the wrong test.  That being so we ask ourselves whether, if the Industrial Tribunal had applied the correct test, as formulated by Lord Justice Balcombe and as approved by Lord Keith, it would inevitably have come to the same conclusion.  Ms Gay submits that it cannot be known what result the Tribunal would have come to after performing the balancing act.  It would be most satisfactory if the Employment Appeal Tribunal could reach its own conclusion so as to achieve finality in this litigation.  We could only do so if we had the full material before us to enable us to carry out that exercise.  We do not feel that we have sufficient material to do so.  We make no criticism of the Tribunal in this respect but we do not have the necessary findings of fact before us.  In the absence of clear findings, we feel that the only safe course is to remit the case to a differently constituted Tribunal to reconsider the applications, having properly directed itself as to the law.

	There is another respect in which we are satisfied that the Tribunal made an erroneous approach.  This is contained in paragraph 12 of their decision where they say this:

		"Although, in the present case the contention is of direct discrimination by the Respondents, not others, in our view the true principle is that direct discrimination must be considered separately from indirect discrimination and must not be brought in by the back door through Section 1(1)(b) of the Act".  

	In our view where, as is alleged here, the discriminatory effect of the application of a requirement or condition arises out of prior direct sex discrimination by the same employers, that prior direct sex discrimination, if it is established, should be taken into account when considering the question of justification - see Snoxell  v  Vauxhall Motors Limited [1977] ICR 700.  Moreover, if on the remitted hearing, the Appellants succeed in establishing a case of indirect sex discrimination, the Tribunal ought to go on to consider whether they have also established a case of unfair dismissal - see Clarke  v  Eley (IMI) Kynoch Ltd [1983] ICR 165.

	The appeal accordingly succeeds.  The case will be remitted to the Tribunal with the direction we have indicated.