Appeal No.	EAT/1414/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 February 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MRS D M PALMER

MRS B A COOTES	APPELLANT

JOHN LEWIS PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P TROOP
(of Counsel)
Free Representation Unit
Fourth Floor
Peer House
8-14 Verulam Street
London WC1X 8LZ	
For the Respondent	MR D MATOVU
(of Counsel)
Instructed By:
John Lewis Plc
Legal Services Department (Employment)
171 Victoria Street
London SW1E 5NN	

HONOUR JUDGE CLARK:

1.	This is an Appeal by Mrs Cootes, the Applicant before a Tribunal sitting at London South against that Tribunal’s decision, promulgated with Extended Reasons on 23 October 2000, following a hearing held on 10 July, dismissing her complaint of unlawful direct sex discrimination brought against her employer, the Respondent, John Lewis Plc.  We are not concerned with the complaint of indirect discrimination in this appeal.

2.	THE FACTS

The Appellant has been continuously employed by the Respondent since August 1973.  She began as a part-time Sales Assistant in the Linen Department at their Bon Marche store.  When that branch closed, she transferred to Peter Jones on 9 June 1975.  In October 1982 she was appointed a clerk in the Contracts Department.  Because her work there did not involve customer contact on the shop floor, she was not required to wear the standard business dress worn by staff, known as partners, in the store, but was expected to dress appropriately, as she did. 

3.	The Appellant’s contract of employment incorporated the Respondent’s regulations for business dress.  The relevant provisions for women selling partners and men selling partners are set out at paragraph 5 (3) of the Tribunal’s reasons.  Female managers have different rules applied to them.  

4.	In February 2000 the Appellant and other staff then working in the Furnishing Advisory Department were informed that they would be moving to PJ2.  The effect on the Appellant would be that she would, from time to time, be required to deal with customers on the shop floor.  As a result, she was reminded of the Respondent’s requirement that everyone who works on the shop floor is required to wear standard business dress.  In her case, that requirement would come into effect on 2 May.

5.	The Appellant objected.  She did not like the uniform.  It marked her as a selling partner of John Lewis when she travelled on the tube or went out at lunchtime.  Whereas there was no difference between the dress requirements for a male selling partner and a male manager, female managers wore different dress to female selling partners.  She further contended that the male selling partners’ dress, a dark business suit and shirt and tie, gave the appearance that they were more senior than female selling partners, who were required to wear a blue suit and green blouse.  She also took exception to the polyester material from which those items were made.

6.	She became upset at the thought that she would have to wear the uniform.  She was off work for a considerable period of time suffering from anxiety and stress.  On 6 March 200, she presented her complaint of sex discrimination to the Tribunal.  Pending resolution of that complaint, the Respondent agreed that she would be given one day’s notice of working on the shop floor when she would be required to wear a uniform and that would be limited to 2 days per week.

7.	THE COMPLAINT

Before the Tribunal, the Appellant’s complaint of direct sex discrimination was formulated in this way; “with effect from the 2 May 200, she has been required to wear a less favourable business dress than males in a similar position”.

8.	THE TRIBUNAL DECISION

The Tribunal reminded themselves of the relevant statutory provisions contained in Section 1(1) (a) and 6(2) (b) of the Sex Discrimination Act 1975.  The relevant comparator for the purposes of Section 5(3) of the Act, it was common ground, was a male selling partner.  The Tribunal  were referred to 3 authorities, Schmidt v Austick’s Bookshop Limited [1978] ICR (EAT Phillips J presiding);  Burrett v West Birmingham Health Authority [1994] IRLR 7 (EAT Knox J), a case in which permission to appeal was refused by a 2 member Court of Appeal on 3 March 1994; Smith v Safeway PLC [1996] ICR 868 (Court of Appeal).

 From those cases the Tribunal distilled the following requirements to be met by a successful complainant:

1)	She must show less favourable treatment, compared with that afforded to a male comparator.  Different treatment is not necessarily less favourable treatment.

2)	The less favourable treatment must be on grounds of her sex.

3)	She must show that she has suffered a detriment. 

9.	As we read paragraphs 12-16 of their reasons, the Tribunal found that the Appellant failed on all 3 counts.  Specifically they held:

1)	That considering the Respondent’s business dress code requirements applied to both male and female selling partners, whilst there were differences item by item, overall the Appellant was not treated less favourably then her male comparator.  (Reasons paragraph 13 & 14).

2)	She was not less favourably treated on grounds of her sex.  (Paragraph 13)

3)	She did not suffer any detriment. (Paragraph 13).

10.	THE APPEAL

Mr Troop accepts that the Tribunal correctly directed themselves as to the 3 stage test identified above as a matter of domestic law, and although in his careful skeleton argument he referred to the European Convention on Human Rights, he does not suggest that it is necessary for this Appeal Tribunal to revisit the domestic cases in order to ensure Human Rights compatibility.  They are compatible.  Thus the question for us is whether the Tribunal correctly applied the law to the facts as found and reached a permissible conclusion.  Mr Troop takes 4 points in the appeal.

	1)	Less Favourable Treatment
Mr Troop has referred us to 4 particular findings by the Tribunal, 3 of which are to be found in the Tribunal’s summary of the Appellant’s complaints about the dress code applied to her, when compared to the male selling partners dress code, at paragraph 5(10) of the reasons and he submits:

	a) 	That at paragraph 13 of the reasons, the Tribunal has not dealt with each and every one of those complaints in determining whether or not the Appellant was treated less favourably then a male comparator, thus failing to take into account relevant factors, alternatively

b)	The Tribunal gives no or no adequate reasons for rejecting the Appellant’s case on less favourable treatment, if they did so and, alternatively

c)	Reached a perverse conclusion in finding that the Appellant had failed to make out less favourable treatment.

As to those submissions, we being quite satisfied that the Tribunal did make a clear finding that less favourable treatment was not made out by the Appellant, we have concluded:

a)	That reading the Tribunal’s reasons as a whole, they did take into account all the relevant factors in deciding whether viewed overall, the requirements for female selling partners dress amounted to less favourable treatment of the Appellant when compared with her male counterparts.

b)	That they gave sufficient reasons for that determination.

c)	That their conclusion cannot be characterised as perverse in the legal sense.
We therefore reject this first ground of appeal.

2)	The Proper Comparator

We have no doubt that the Tribunal treated the relevant comparator, as was common ground below, as being a male selling partner.  We can see no complaint about this part of the Tribunal’s decision.

3)	Detriment

Mr Troop accepts that if, as is the case, we uphold the Tribunal’s finding of no less favourable treatment when compared with a male selling partner, then the Tribunal’s further findings of no detriment becomes academic.  The claim, and therefore this appeal, fails at the first hurdle.

However, in deference to the argument addressed to us by both Counsel, we have concluded:
	
a)	That on the facts as found, the Tribunal were entitled to conclude that the Appellant has suffered no detriment.

b)	In so finding they did not apply the de minimis principle.  See Jeremiah v Ministry of Defence [1979] IRLR 436.

c)	As a matter of general observation, a Tribunal may find less favourable treatment on grounds of race or sex, but go on to find that the Appellant has not suffered a detriment so as to complete the statutory tort.  See, for example De Souza v Automobile Association [1986] ICR 514.  Thus, it is not necessary to make the comparison required for the Sections 1(1) a and 5(3) exercise at the Section 6(2) b of the Sex Discrimination Act stage.  The question is whether this Appellant suffered a detriment, that is a disadvantage.

4)	Perversity 

As we indicated under the first ground, we are not persuaded that perversity is here made out; on the contrary.  We, like the Employment Tribunal, can see nothing exceptionable as a matter of sex discrimination in respect of dress codes laid down by the Respondent for men and women selling partners on the particular facts of this case.  We should add finally that the complaint in this case by Mrs Cootes was not that she was required to wear a dress as opposed to trousers.  In these circumstances, no error of law having been made out, we must dismiss this appeal.

12.	Having delivered our judgment in this case, Mr Matovu makes application for the costs of this appeal in accordance with Rule 34 of the EAT Rules.  The position in this case is that the matter was considered by the President, Mr Justice Lindsay, as part of the fast sift system which has been introduced in the last year at the EAT.  That system involves a brief consideration by a judge of the Notice of Appeal and Employment Tribunal decision only.  The purpose is to try to identify, so far as possible, cases which ought to go straight to a full hearing without the need for a preliminary hearing attended by the Appellant only.  In this case the President decided that this matter ought to go forward to a full hearing.  In these circumstances, it is in the same position as an appeal which passed through the preliminary hearing stage and was allowed to proceed to full hearing.

13.	It is generally not our practice to award costs in those circumstances.  Exceptions will arise where it is clear that the Appellant has in some way materially misled either a full division at the preliminary hearing or the judge at the fast sift stage as to the nature of the case.  This is not one of those cases.  In these circumstances, we shall reject the application for costs.