Appeal No.	 EAT/928/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 November 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR J R CROSBY
MS B SWITZER

MS J KITCHER	APPELLANT

ACAS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr M Ford
(of Counsel)
Messrs Thompsons
Solicitors
Congress House
Great Russell Street
London  WC1B 3LW	
For the Respondents	Mr M Bishop
(of Counsel)
The Treasury Solicitor
Queen Anne’s Chambers
28 Broadway
London SW1H 9JS	

	JUDGE PETER CLARK:	The Appellant, Ms Kitcher commenced employment with the Respondent, ACAS on 18 April 1988.  In August 1993 she went on maternity leave, followed by a career break which ended on her return to work on 25 September 1996.

	Whilst she was absent from work a memorandum was sent to all staff at work dated 4 October 1995 giving details of a voluntary severance scheme for staff under the age of 50.  The Appellant was then aged 40.  Volunteers for the scheme were required to make application by either 16th or 19th January 1996.  The precise date is not material.  Due to a breakdown to Respondent’s communications procedures staff who were absent from work, whether through sickness, career breaks, maternity leave or otherwise, were not given official notification of the scheme.  That was an oversight.

	As a result, the Appellant did not learn of the scheme until after her return to work in September.  She then applied for severance, was placed on the waiting list, but lost the chance to take severance because funding was by then not available.

	Fifteen other employees, absent from work at the relevant time in late 1995 early 1996, heard informally of the scheme, were able to make application within time, and all of them received severance.

	On 11 December 1996 the Appellant made an application to the London (North) Employment Tribunal alleging both direct and indirect discrimination on the grounds of sex under Sex Discrimination Act 1975 and various other claims with which we are not here concerned.

	Those complaints came before an Employment Tribunal chaired by Mr G Flint on 16 June 1997.  The complaints were all dismissed for the reasons promulgated on 24 June.   Against that decision to dismiss in particular her complaint of indirect sex discrimination, the Appellant now appeals.

	The scheme of section 1(1)(b) of the 1975 Act first requires the Applicant to show that the Respondent has applied to her a requirement or condition which applies or would apply equally to a man.  It is then for the Applicant to show that she cannot comply with the requirement or condition and to show disproportionate impact and a detriment.  If so, then subject to the defence of justification, indirect discrimination is made out.

	During the course of the hearing before us it has been pointed out on behalf of the Appellant that the requirement or condition for which the Appellant contended in her form IT1 was formulated in this way:

“The Respondent’s applied a requirement or condition that recipients of the VER [that is Voluntary Early Retirement and Severance Scheme] details would be at work, not absent on a career break; I could not comply with the condition or requirement; the requirement or condition disproportionately impacts against women and it was to my detriment that I could not apply.”

	In the Tribunal’s extended reasons at paragraph 4, that is the second paragraph 4 in the reasons, the Tribunal say this:

“We deal now with the question of indirect discrimination.  This depends on the Applicant establishing that the Respondents applied to her a requirement or condition which was applied equally to a man but the proportion of women who could comply with the requirement or condition was considerably smaller than the proportion of men who could comply with it.  Our difficulty in relation to this, is that we were unable to identify a requirement or condition which has been imposed by the Respondents.  In her application the Applicant alleged that the requirement or condition was that those entitled to receive voluntary severance had to be at work not absent and that such a requirement or condition had a disproportionate effect on women from the effect which it had on men because more women were absent.  We are unable to find from the evidence which was given to us that there was such a requirement or condition.  The ignorance of the Applicant about the voluntary severance scheme stemmed from the Respondents’ failure to comply with their own procedures but we find that a failure to comply with their own procedures does not of itself produce a requirement or condition that those wishing to apply for voluntary apply [sic] should be at work.”

	Mr Ford submits that the Employment Tribunal has substantially reformulated the requirement or condition advanced by the Applicant in her Originating Application.  On the Tribunal’s formulation the proposition is untenable.  On the evidence, fifteen employees who were not at work had applied successfully to take voluntary severance.  However, the formulation advanced by the Appellant in her form IT1 was supported by the evidence; details of the scheme were only distributed to those at work.  The other fifteen employees who were absent and who applied in time for voluntary severance had heard of it through the grapevine, some had then asked for and been sent details by the Respondent.

	Mr Bishop submits that there is no difference in substance between the Appellant’s formulation in her form IT1 and that set out in the Tribunal’s reasons.  We cannot agree.  It seems to us to be a fundamental difference, in the particular context of the facts of this case.

	Since the sole basis on which the indirect discrimination claim failed was that, in the Tribunal’s view, the Appellant had failed to establish a requirement or condition for the purposes of section 1(1)(b) of the Act, we are driven to conclude that their decision is fatally flawed in that it has not adjudicated on the case put forward by the Appellant.

	Mr Bishop has urged us, if we take the view that the appeal is to succeed on this basis, to remit the case to the same Employment Tribunal for rehearing.  We shall not do so.  This case will only take one day.  There is no saving in time or costs by remitting it to the same Employment Tribunal.  In any event, in our view, it is preferable for the matter to be considered afresh.

	Accordingly, we shall remit the case to a fresh Tribunal to consider the claim of indirect discrimination only, de novo.  Other than to affirm the principle that it is not necessary for the Applicant to show that the Respondent intentionally discriminated against her, we make no further observations in the way in which the new Tribunal is to approach the matter.