Appeal No.	 EAT/265/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 November 1996

Before
THE HONOURABLE MR JUSTICE J LINDSAY
MR A C BLYGHTON
MRS J M MATTHIAS

MRS M A STEVENS	APPELLANT

KATHARINE LADY BERKELEY'S SCHOOL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR GEORGE DYSON
(Solicitor)
Messrs Burges Salmon
Solicitors
Narrow Quay House
Prince Street
Bristol BS1 4AH	
For the Respondent	MR WILLIAM HENSEN
(Counsel)
Mrs S Showell (Group Solicitor)
Legal Protection Group Ltd
Marshall's Court
Marshall's Road
Sutton  Surrey SM1 4DU	

	MR JUSTICE LINDSAY:  We have before us an appeal in the matter Mrs M A Stevens against the Katharine Lady Berkeley’s School.  The appeal is from a decision of the Industrial Tribunal which was sent to the parties on 26 January 1996.  The case before the Industrial Tribunal concerned sex discrimination and constructive dismissal because Mrs Stevens, who is a schoolteacher, resigned, she said, because of discriminatory treatment.  Her summary of complaint on the subject, said this:

“I resigned as a direct result of the discriminatory treatment of the respondents contrary to the Sex Discrimination Act 1975 and the Equal Treatment Directive ... I therefore contend that I was constructively dismissed.”

	The decision of the Tribunal was announced orally on 11 January and then extended reasons were given on 26 January and the Tribunal held that there had been no sex discrimination, there had been no constructive dismissal and, of course, therefore there had been no constructive dismissal by reason of sex discrimination.

	I need briefly to read the Sex Discrimination Act 1975, section 1:

“(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 he 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 small 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.”

	Mrs Stevens is a well-qualified teacher, principally of geography, but she teaches other subjects as well and she had been employed full-time.  She found herself to be pregnant and on 1 January 1995 her period of maternity leave began.  The baby was born on 24 February.  The maternity leave period was due to expire on 9 September 1995, which one can see is an inconvenient time from a school’s point of view in the sense that it is close to the beginning of an academic year and the school would need to know as early as practicable what was likely to happen in Mrs Stevens’ case.  Was she going to return or not?  In May 1995 she wrote to say that she would prefer to work only part-time on her return.  What she then wrote was that:

“If possible I would prefer to return to work in September on a part-time basis and hope that a suitable post could be made available.”

	The headmaster of the school replied two days’ later:

“I am sorry to say that there would not be any possibility of returning in a part-time capacity.  I have raised it with the Governors but they are not happy about making more part-time appointments.”

	On 31 May 1995 the School advertised (in the press directed especially to teachers) a full-time job.  It was her full-time job, as Mrs Stevens saw it to be.  Her witness statement on the subject, which was read out to the Tribunal and presumably taken as her evidence in chief, said:

“I was very distressed that my position had been advertised because I had not yet decided whether or not I would be returning to work.  I had been considering returning in  September, even if only for a trial term, in order to see if I was happy with full-time work now that I had a baby.  I had organised provisional childcare arrangements to ensure that this option was available to me.”

Rather like the word “prefer” to which I earlier referred, the word “option” does imply the existence of a choice.  On 26 June Mrs Stevens tended her resignation.

	Oral evidence was received at the Industrial Tribunal from Mrs Stevens.  Crucial issues at the Tribunal were gone through in terms of the Sex Discrimination Act 1(b)(i) and 1(b)(2) and there was then discussion of the issue on 1(b)(3).  The question there was whether the requirement of full-time working was to her detriment because she could not comply with it.  The Industrial Tribunal referred to the case of B M Price v (1) The Civil Service Commission and (2) The Society of Civil and Public Servants [1977] IRLR 291 and dealt with the subject in this way in paragraph 17(iii) of their extended reasons:

“In order to be successful in a claim under this section, the final matter that the applicant must show is that she cannot comply with the requirement.  Price v Civil Service Commission [1977] ... confirms that the test is a practical test and not a theoretical test:  the requirement only acts to the applicant’s detriment is she cannot comply with it:  if she can comply with it there is no detriment.  The applicant adduced no evidence as to whether or not, as a matter of practice, she could or could not comply with the requirement.  Her evidence is, however, that she was actively considering returning to work on a full-time basis and was prepared and had indeed considered returning on that basis for a trial period to see how it worked.  She never (apparently) pursued that as a possibility in any discussions she had with the respondent and on the basis of her own evidence, we are not satisfied that she was unable to comply with the requirement.”

	In the ordinary way the approach of the Employment Appeal Tribunal would be that it was for the Industrial Tribunal as a jury to form a view as to which evidence it should prefer in the sense that there were at least inconsistent passages of Mrs Stevens’ written evidence and also there was oral evidence that had to be taken into account and the Industrial Tribunal was entitled to take a view as to which evidence it preferred.  

	On that conventional approach it could not, in our view, be held by any EAT that the decision of the Industrial Tribunal, properly instructing itself, was such that no industrial tribunal could have come to the conclusion which this one did.  But here there is an unusual and very unwelcome feature and that is that it is said by the Appellant before us and was, indeed, said at a late stage to the Industrial Tribunal, that the School side, the employer, had conceded detriment but when the issue came up it was later said by the School that there had been no such concession.

	It is to be noticed, and this is a very significant point, that if there was any concession it was made in the final speech on the School’s behalf, well after evidence was concluded.  This is not a case where the issue had been conceded, if it was conceded at all, whilst evidence was still in play or before evidence was given.  We have received at this level a body of evidence on the subject of whether or not there was any material concession and I will briefly review that evidence.

	First of all, there are some 30 pages of transcribed notes prepared on behalf of the advisers who represented Mrs Stevens at the Industrial Tribunal as to what was said on the subject of concession.  What was then said I will shortly come to but on the way to that I think I should quote some other passages from these rather full notes.  The full notes show that Mrs Stevens read her witness statement and show, in answer to what seems to me to have been a blatantly leading question, that she answered:

“I would have considered full time work but preferred part time work.”

The point about preference was still being brought out.  A little later this exchange took place, according to the note:

“MS:	I was still considering full time work.  I would have tried it for a term but decided that this would be disruptive for the school and pupils and that the time commitment would be too great.
Lane (the person who represented the school):	You are saying two different things;  firstly that the trial basis would not be fair to school and pupils and secondly that it was not possible to do it.
MS:	I thought I would see how a trial worked and realised that it wouldn’t work, there was no point in trying.”

	Coming, as I indicated I would do, to what was said on the subject of a concession or not, the note shows Mr Lane, for the School, addressing himself to section 1(1)(b) of the Sex Discrimination Act and at note C. of the typed notes it says:

“The effect of requirement/condition:-
It has been well held detriment can be shown.  But it is not reasonable to move on from this to show disproportionate effect on female employees.  ...”

“It has been well held that detriment can be shown.”  One would not have thought that was a concession of actual practical detriment.  Going to page 28 of these typed notes we have notes of Mr Dyson’s final speech.  Mr Dyson, appearing then as now on behalf of Mrs Stevens, at note 5 said:

“Detriment
This was conceded by Mr Lane.”

There is no indication in the notes of any intervention by the Chairman or a member of the Industrial Tribunal nor of Mr Lane saying that they had not understood that there had been a concession. 

	A little later in the notes one comes to the oral decision given by the Tribunal.  At page 29 it says:

“The Chairman said that he would give a brief oral decision, full decision to follow.”

What was then said by the Chairman was this, so far as immediately relevant:

“On the matter of detriment we are satisfied that there is a potential detriment [and the note says:  ‘that’ there has been no evidence from the Applicant but I suspect that the word used was ‘but’] there has been no evidence from the Applicant.  There has been evidence that there was no more than a preference and that she was considering returning to work full time.
The application fails under the provisions of this Section and consequently there is no unfair dismissal.”

At that point Mr Dyson spoke and said:

“Detriment was conceded and I proceeded on that basis.
Chairman:	The condition was potentially detrimental but no evidence on the point was presented.  There was no evidence that she cannot comply.
Mr Dyson:	I would like you to consider that we be allowed to give evidence on this point.  I would like the opportunity to make a submission on this point and to know that that was on your mind.
Mr Lane:	[No doubt correctly.]  I think the evidential matters are pivotal and not the submission after the evidence has been given.”

But no one, at that stage, said that Mr Lane had not made a concession nor, indeed, to anyone admit that he had.

	The hearing before the Industrial Tribunal was then adjourned at Mr Dyson’s request for about 30 minutes and when the matter resumed Mr Dyson said:

“I am unclear whether I should ask for a review or whether we can continue the hearing, because no decision has been promulgated.  If we can’t continue the hearing today I will ask to review in the interest of justice and can make an application under Rule 11.
Chairman:	The decision has been made even if not in written form.  It is not open to hear further argument, but you can make and we will hear an application to review.”

An application was then made and the Chairman held eventually that he could find no justification for granting relief and regarded the matter as a second bite of the cherry.  The application for a review was rejected and he indicated that extended reasons would be given as, indeed, they were.

	That led to evidence afterwards from three people on the subject of whether or not there had been a concession.  First of all, we have the notes of Kerry James, a trainee solicitor of the firm representing Mrs Stevens.  She says on this point that Mr Lane had said that:

“he would not address the court on the issue of detriment because it was well established in the case law that detriment is suffered in a situation such as that of Mrs Stevens.  My conclusion was that he had conceded the point.”

That, of course, does not square with the earlier note that I have read that spoke of detriment can be suffered.  Going on with Kerry Lane’s affidavit:

“When Mr Dyson made his submission he referred to Mr Lane’s concession and said that he would not discuss the issue of detriment because Mr Lane had conceded the point.  Mr Lane raised no objection, and there was no indication from the members of the Tribunal that they were dissatisfied with Mr Dyson’s appraisal of the situation.”

An affidavit was sworn by Mr Stevens, the husband of Mrs Stevens, the Applicant below and the Appellant before us, and he says:

“The Respondent’s representatives said that the fact that there would be detriment to the Appellant was conceded.  I have a clear recollection as my conclusion at the time was that there was to be no dispute on this point.”

That there would be detriment is another form that does not quite square with either Kerry James’ version or the full note.  Going on, says Mr Stevens:

“Mr Dyson, my wife’s representative, analysed the relevant law and said that he was grateful that his friend (the Respondent’s representative) had kindly agreed to concede on the point as to whether there had been detriment to the Appellant.  These may not be Mr Dyson’s exact words, but they are a very close approximation to what he said.”

	Mrs Stevens herself deposes on the point.  She says:

“Mr Lane said that he would not be contesting the issue of detriment because it had been shown in previous cases that detriment could be proved.  It was my understanding that he conceded the issue.
My own solicitor, Mr Dyson, referred in his submission to Mr Lane’s concession on the issue of detriment.  Mr Dyson said that he would not pursue the point, because Mr Lane had conceded that detriment can be shown.”

That is more nearly in line with the full notes that I quoted from.

	The Industrial Tribunal itself took the view later that there had not been a concession.  The Regional Secretary to the Tribunals, having spoken to the Chairman, wrote to say that:

“The Tribunal did not accept Mr Lane as ever having conceded detriment as would appear to be the position indicated by the appellant’s solicitor’s note.”

	The Respondent’s case before us, had it needed to be developed, was that there had been no concession.  We cannot be satisfied that there was a material concession but it does not seem to us that that is the most important point.  There is no dispute on the evidence that Mr Dyson, for Mrs Stevens, said that there had been a concession and there is no dispute either that when that was said no one jumped and said, “Oh, no, there hasn’t been a concession”.  No one, either, has suggested that Mr Dyson’s suggestion that he understood there to have been a concession was disingenuous on his part.  If, at the time when Mr Dyson said that there had been a concession, either the Chairman or the Members of the Tribunal or his opponent had indicated that there had not been a concession or, certainly, not an intended concession, what would have happened?  Well, what would have happened would have been that Mr Dyson would have been invited fully to address the question of detriment by drawing the Tribunal’s attention to the evidence and to the passages, in particular, no doubt, which I have already cited.  He would have had the opportunity of referring in some detail to the passages to refresh the Tribunal’s mind about precisely what was available on the subject of detriment.

	That proper treatment would not, of course, have affected the evidence on the subject of detriment because, as we have indicated, the point only arose after the evidence was complete but I think it has to be said (especially if the case was that there was available to Mr Dyson a full note of what precisely had been said in oral evidence) that he would have been able to draw the Tribunal’s mind in some detail to what Mrs Stevens’ side said were the most relevant passages.  It is not a case where the evidence on the point was all one way.  I have already cited the passage where Mr Lane said to Mrs Stevens in cross examination that she was saying two different things and her answer was:

“”I thought I would see how a trial worked and realized that it wouldn’t work, there was no point in trying.”

Her witness statement said:

“As a full-time teacher I spent most evenings and usually an entire day at the weekend in preparation and marking.  Such a time-commitment would not be possible now that I had a small child.”

	The evidence was not all one way.  There was evidence which required evaluation by the Industrial Tribunal and which it would be proper for Mr Dyson to have drawn in detail to their attention for them to have been sure to have had it in mind with whatever weight he would have said was appropriate.  It could have been urged that full-time working on Mrs Stevens’ part, on the evidence, was not a practicable course open to her and if that had been urged, well then, the conclusion that there had been detriment was at least possible.  It could be that the Tribunal would still have preferred her other evidence that her choice was a matter of preference.  I have read a passage from the evidence on that subject.

	If the Tribunal had heard speeches from Mr Dyson against a factual background that he understood there had been no concession, in other words, if he had directed his mind fully to the issue and directed the Tribunal’s minds fully to the issue, it cannot be said that a decision in the same sense as that the Tribunal did decide upon could not properly have been arrived at.  But, looking at it the other way, it would be speculation on our part to try and determine what the result would have been had Mr Dyson been told that there was no concession and had he, therefore, addressed the matter in some detail.

	It seems to us that the proper course, as far as possible, is to put the clock back to the point of time in the final speech of Mr Dyson at which he said there was no concession and to put the position back as it would have been if, at that stage, the Chairman or someone had indicated that no concession had been intended.  It seems to us, fortunately, that we can do that.  The problem would be sufficiently redressed, in our view, if the matter was restored to the same Tribunal to hear argument on the point.  This is not a case we see as being one where it is appropriate to go back to a different Tribunal.  A different Tribunal,  in order to be able to evaluate the evidence in the way that Mr Dyson is going to invite them to do, would need to hear that evidence.  This Tribunal have heard the evidence and there is no justification for any argument such as to bias or prejudice demonstrated in the judgment of the Industrial Tribunal and although Mr Dyson has before us sought to say that there are indications of a “mindset” on the part of this Tribunal, we do not feel that criticism to be justified.  We have no reason to think that sufficient flexibility of mind would not exist in this Tribunal if we referred the matter back to them.

	So far as concerns this concession point, we see the right course as to send the matter back to the same Tribunal for argument only on the subject which is dealt with in paragraph 17(iii) of their decision, which is the paragraph which I read out earlier.  As a practical matter, we suggest that there be speeches in this order: first of all, there should be a speech on behalf of Mrs Stevens, then that if so advised the School should be given an opportunity to reply to that, and, if the School does reply, then the last word should again be from the Mrs Stevens’ side.  

	But we do have a proviso that we would wish to add to that remission to the Tribunal and that is this:  that if the Tribunal feels that it cannot sufficiently recollect the evidence - it is not very long ago and this is perhaps unlikely but we make a proviso to deal with the point -  then the Tribunal itself will be able, should it so chose, to require evidence on the subject of detriment.  Equally, if for any reason the Tribunal itself feels that to separate out detriment for a ruling, in other words, to deal with paragraph 17(iii) point only, is not workable, then the Tribunal itself can be empowered to require argument to be extended, but we do not see this as an appropriate case for a re-opening of evidence because, as we have indicated, what went wrong, so far as it did go wrong, arose at a stage after the evidence was concluded.

	That deals with the point as to the concession and the difficulties that arose out of that.  Before us Mr Dyson does have other complaints.  He complains that the Tribunal used the expression that it did not have any evidence before it on the subject of detriment.  I have earlier read the passage from paragraph 17(iii) where the Tribunal said:

“The applicant adduced no evidence as to whether or not, as a matter of practice, she could or could not comply with the requirement.”

	Had the Tribunal said “no sufficient evidence” it seems to me that that could not be a matter of any real complaint and, indeed, that must be what the Tribunal meant because immediately after the passage about adducing no evidence, the Tribunal then quoted the evidence which was, indeed, directed to the question of practicability of compliance with the requirement.  It is well settled that the reasons given by Industrial Tribunals are not meant to be picked over by way of some pedantic or linguistic analysis;  one has to look at the broad sense of the language used and although the words “adduced no evidence” are there, it seems to us plain that truly that what the Industrial Tribunal was meaning to say was that there was not sufficient evidence.  On that basis, it seems to me, there can be no complaint.

	Another point he raises is about constructive dismissal.  At paragraph 14 of the decision the Tribunal says:

“It seems to us, however, that all that the respondent did was to refuse to vary the terms of the applicant’s contract and although that may be discriminatory, it cannot amount to a fundamental breach of the terms of that contract:  indeed, the respondents were seeking to enforce the contract, rather than breach it.”

Meaning by that that the School wanted the original full-time contract to be adhered to and not departed from by way of permitting part-time work.  

	Mr Dyson says that the case must be that if there is sexual discrimination that must be capable of being regarded as being a fundamental breach of contract.  The test for constructive dismissal refers one back to the well-known three-part test in the decision of Mr Justice Arnold in the British Homes Stores Ltd  v Burchell case.  One has to ask whether the employer believed that there was ground for dismissal, whether there was sufficient investigation - that is not a material feature here - and whether the response made by the employer was within the range of responses open to a reasonable employer.  We do not see that the approach the Industrial Tribunal indicates any improper approach to the question of constructive dismissal and we are unimpressed, in other words, with the criticism that Mr Dyson mounts on that subject.  We do not see, in relation to constructive dismissal, that there has been an error of law.  In any event, it is hard to discuss it altogether in the abstract because it is here, of course, linked with the question of whether or not there has been sex discrimination and that turns one back to the question of whether or not there has been a detriment, which is the subject that we have been addressing and as to which there can be fresh argument.  It is not appropriate, at this stage, to go more fully into the question of constructive dismissal because it is tied up with an issue which is going to be remitted and we do not think it is appropriate to say more on the subject for that reason.  

	Coming back to the central core of our reasoning and conclusion, we come back to the fact that we remit to the same Tribunal for argument only on the detriment point only but with the proviso that we have indicated.