Appeal No.	 EAT/956/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 January 1997
Judgment delivered on 11 April 1997

Before
HIS HONOUR JUDGE PETER CLARK
MISS J W COLLERSON
MR P M SMITH

LASERTOP LTD	APPELLANTS

MR A WEBSTER	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR T KEMPSTER
(of Counsel)
Messrs Mincoff Science & Gold
Solicitors
Kensington House
5 Osborne Road
Newcastle-upon-Tyne
NE2 1AA	
For the Respondent	MR H FORREST
(Solicitor)
Humberside Law Centre
95 Alfred Gelder Street
Hull
HU1 1EP	

	JUDGE PETER CLARK:   This is an appeal by the prospective employer, Lasertop Ltd, against a decision of the Hull Industrial Tribunal sitting on 17th June 1996, that it had unlawfully discriminated against the applicant, Mr Webster, on the grounds of his sex in refusing or deliberately omitting to offer him employment contrary to sections 1(1)(a) and 6(1)(c) of the Sex Discrimination Act 1975 [“the 1975 Act”].

	The appellant, trading as ‘Lady in Leisure’, has seven subsidiary companies, each of which operates a women only health club in various parts of England and Scotland. We are concerned with the Hull club, which was due to open in June 1996, shortly after the tribunal hearing.

	Prior to opening, the appellant placed an advertisement in the local paper, the Hull Daily Mail,  in March 1996, inviting applicants for the posts of Sales People/Trainee Managers.

	The job specification contained in the advertisement read as follows:

“Sales People/Trainee Managers
You will be based in your club selling memberships to potential members without cold calling or a hard sell. Although no experience is needed and full training will be given, resilience, persistence and the ability to convince people of the benefits of health and fitness is essential. You will earn more than £15,000 within the first year and then progress into a management position within the company.”

	Candidates were invited to telephone Mr S Campbell, joint managing director of the appellant, for an interview.

	The applicant saw the advertisement. He was a man of mature years who had 30 years experience as a sales representative before being made redundant due to the recession. He telephone the number given and spoke to a female, asking to speak to Mr Campbell. When he told her that his enquiry concerned the job advertisement she told him, so the tribunal found, “that is no good to you. These jobs are for ladies only.”

	Based on that finding of fact it is accepted on behalf of the appellant before us that the refusal to progress his application for the post amounted to an unlawful act of discrimination contrary to sections 1(1)(a) and 6(1)(c) of the 1975 Act. However, before the Industrial Tribunal the appellant raised a plea in defence of Genuine Occupational Qualification [“GOQ”].

	That defence, or exception, in a case where prima facie discrimination is made out contrary to sections 1(1)(a) and 6(1)(c), is provided for in section 7 of the 1975 Act which reads, so far as is material, (substituting, for the purposes of this case, the word “man” for “woman” and vice versa):

“(1)	In relation to sex discrimination-
(a)	 section 6(1) ... (c) does not apply to any employment where being a woman is a genuine occupational qualification for the job, and
...
	(2)	Being a woman is a genuine occupational qualification for a job only where-
...
(b)	 the job needs to be held by a woman to preserve decency or privacy because-
...
(ii)	the holder of the job is likely do her work in circumstances where a woman might reasonably object to the presence of a man because they are in a state of undress or are using sanitary facilities; ...
	(3)	Subsection (2) applies where some of the duties of the job fall within paragraph (a) to (g) as well as where all of them do.
	(4)	Paragraph ... (b) ... of subsection (2) does not apply in relation to the filling of a vacancy at a time when the employer already has female employees-
	(a) 	who are capable of carrying out the duties falling within that paragraph, and
	(b)	whom it would be reasonable to employ on those duties, and
(c)	whose numbers are sufficient to meet the employer’s likely requirements in respect of those duties without undue inconvenience.”

	The Industrial Tribunal heard evidence from Mr Graham Forrest, Mr Campbell’s co-managing director, as to the layout of the Hull club and its facilities. It also heard evidence as to the duties of the prospective sales people/trainee managers.

	It found as a fact that the appellant employed some 130 female staff at the various outlets. The only males involved in the organisation were Messrs Forrest and Campbell. Specifically, at the Hull club there were to be ten staff members, not all of whom would be on duty at any one time. There would be two-three sales persons, a receptionist and two physical training instructors on duty.

	The tribunal found that the exclusion to the exception contained in 7(2), provided for in section 7(4), applied on the facts as it found them.

	Its reasoning is contained in paragraphs 3(b) and (c) of the extended reasons and we set it out in full.

“(b)	The tribunal is of the view that the circumstances in the present case fall within the provisions of section 7(4) of the 1978 [sic] Act. The tribunal did not accept Mr Forrest’s evidence in its entirety. If the major part of the time of the salesperson was to be spent in duties other than sales, the tribunal is at a loss to understand why the advertisement concentrated solely on sales techniques and mentioned nothing about any of the other matters. Mr Forrest told the tribunal that those other matters were mentioned at interviews with candidates for the post but the tribunal found it odd that, if there were such duties which occupied, according to Mr Forrest, 33 hours per week as compared with 7 hours per week spent on selling, such other duties were not mentioned in the advertisement. We were, therefore, suspicious as to the accuracy of the percentage of time which Mr Forrest ascribed to the working practices other than sales. The tribunal is satisfied, based on the evidence of Mr Forrest as to what the duties in the changing room, saunas, sunbed room and toilet, that those duties occupied a comparatively small amount of time. The tribunal accepts it would not be proper for a man to be entering the changing room sauna area, sunbed room and toilet. However, in the view of the tribunal, there is nothing wrong with a man attending the machine room, as the women occupying that room would be dressed and physical contact would be small, if at all, and such physical contact that there would be would be quite normal in training facilities. The tribunal can see nothing untoward in a man attending the dance floor when aerobic sessions were in progress.
(c)	Section 4 refers to “undue convenience”. Whilst the tribunal is of the view that the employment of a man might cause some inconvenience to the respondents it would not amount to “undue inconvenience”, as there would, at the time a man was present on the premises, be three to four women employees which number of [sic] sufficient to meet the respondents’ likely requirements in respect of the duties above referred to.”

	It is that conclusion which is challenged in this appeal.

	Mr Kempster puts the argument in this way. First he says that the Industrial Tribunal misconstrued section 7(4) of the 1975 Act. At the time when the applicant was refused consideration for the relevant post the Hull club had not opened. Thus there were at that time no female employees who were capable of carrying out those duties which the tribunal held it would be improper for a man to perform [“the prohibited duties”]. Accordingly the section 7(4) exclusion was not available to the applicant on the facts.

	Secondly, he submits in the alternative, if the section 7(4) exclusion was available to the applicant, the tribunal misdirected itself in its application by failing to consider the provisions of section 7(3). Section 7(3) focuses attention on the relevant duties under section 7(2), regardless of other contractual duties which do not fall within section 7(2). Thus, when applying the provisions of section 7(4) it is necessary to consider only the section 7(2) duties, and not the remaining contractual duties. This tribunal fell into error in focusing on the comparatively small amount of time which the applicant spend on selling duties, compared with the duties other than sales. The decision was perverse.

	In response, Mr Humphrey Forrest accepts that on a literal reading of section 7(4) the tribunal fell into error. However, he contends for this construction of section 7(4); that the relevant time to consider the availability of suitable female employees to carry out the section 7(2) duties of the applicant is when the employer already has such female staff in place. The tribunal was entitled to find that when the Hull club did open in June 1996 (shortly after the tribunal hearing) there would be sufficient female staff in place.

	As to the question posed by section 7(3) he submits that the tribunal had in mind the core duties involved, and reached a conclusion that sufficient female staff would be available to cover the prohibited duties without causing undue inconvenience. That was a finding of fact by the tribunal with which this appeal tribunal ought not to interfere. ETAM Plc v Rowan [1989] IRLR 150. The tribunal’s conclusion was a permissible option and was not perverse.

Conclusion
Section 7 of the 1975 Act provides a comprehensive code for the application of the GOQ defence. First the employer must prove that there is a GOQ falling within one of the heads of section 7(2). That prima facie defence will be made out where some, but not all of the post’s contractual duties fall within section 7(2) (see section 7(3)). The exception raised by section 7(4) focuses solely on the section 7(2) duties; the remaining contractual duties are irrelevant.

	Section 7(2)(b) looks to the future. Section 7(1)(a) provides that the refusal or deliberate omission to offer a complainant employment on the grounds of his sex does not apply to any employment where being a woman is a GOQ for the job.

	By section 7(2)(b)(ii) being a woman is a GOQ for a job where the job needs to be done by a woman to preserve decency or privacy because the holder of the job is likely to  do her job where women might reasonably object to the presence of a man because they are in a state of undress or are using sanitary facilities.

	In relation to the construction of section 7(4) we find ourselves divided.

	In the view of the majority, section 7(4) looks to the time at which the prima facie discrimination takes place, that is the refusal to offer employment to the complainant. At that time the employer must already have sufficient female employees who are capable of carrying out the prohibited duties and whom it would be reasonable to employ on those duties without undue inconvenience. The question is a factual, not hypothetical one. On the facts as found in this case that requirement has not been met. There were no employees at the Hull club when the applicant was refused employment on the grounds of his sex.

	This point did not arise in the earlier cases, which dealt with existing businesses. See ETAM v Rowan and Wylie v Dee & Co (Menswear) Ltd [1978] IRLR 103.

	We are  conscious that our construction of the statutory provisions may lead to an apparent lacuna in the protection against discrimination afforded to job applicants where a business is being set up, as opposed to an existing business. However, the same might be said, in a different context, of the Court of Appeal decision in Adekeye v The Post Office (No.2) [1997] IRLR 105, where it has been held that a complaint of unlawful racial discrimination relating to an internal appeal against dismissal falls outside the protection of the legislation where the complainant is no longer in employment. We do not feel able to give a ‘purposive’ construction to the plain words of the statute.

	The minority member, Mr Smith, considered that such a conclusion could only arise in this case if the section 7(4) exception was erroneously applied at differing times to the applicant and the other female applicants. On this view, the section 7(4) exception to the section 7(2) duties cannot be claimed at a time when there are no employees (which seems to have been true when the relevant telephone call and potential discrimination applied). If section 7(4) was applied to Mr Webster when the employment decisions were actually made for this start-up company (i.e. subsequent to the telephone call), the section 7(4) justification would be available but recruitment processes could then produce sufficient female employees capable of carrying out the “prohibited” duties while employing a man on other duties.

	Accordingly, by a majority, we uphold Mr Kempster’s first submission and on that ground we shall allow the appeal and on the tribunal’s findings that the GOQ defence has been made out under section 7(2), and on our finding that the section 7(4) exclusion cannot apply, we shall reverse the tribunal’s decision and substitute a declaration that the complaint is not well-founded and is dismissed.

	If the majority are wrong in their construction of section 7(4) then we turn to the alternative ground of appeal. We are unanimously satisfied that the tribunal did not direct itself in accordance with section 7(3), which we note is not set out in the tribunal’s summary of the relevant provisions of section 7 in paragraph 3(a) of the reasons. In our judgment the tribunal has allowed itself to be deflected from the correct question posed by section 7(4), which is to look at the section 7(2) duties of the post, and has taken into account an irrelevant factor, that is the extent to which the section 7(2) duties formed a part of the overall working hours under the contract.

	Having identified an error of law we then turn to consider whether under section 35(1) of the Industrial Tribunals Act 1996 it would be appropriate to remit the case for rehearing or to exercise the powers of an Industrial Tribunal. We would take the latter course, all the necessary findings of fact having made by this Industrial Tribunal.

	In our judgment this is not a case where that part of the post-holder’s selling duties which took him into the changing room, sauna area, sunbed room and toilet could be allocated to female members of staff without undue inconvenience. The sales job required the salesperson to take prospective members on a tour of the club. It would be wholly unsatisfactory for a male salesperson to have to hand over a prospective member to a female member of staff everytime he reached a prohibited area. To do so would undermine the very purpose of his selling function. Accordingly, we would hold that the circumstances of this case do not fall within the provisions of section 7(4), had it applied.

	For these reasons the appeal is allowed and we declare that the complaint is not well-founded and is dismissed.