Appeal No. EAT/0673/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 August 2002
Judgment delivered on 19 August 2002

Before
HIS HONOUR JUDGE J R REID QC
MR D J HODGKINS CB
MR A D TUFFIN CBE

CARSHALTON COLLEGE	APPELLANT

MRS H MORRIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised (25 November 2002)

	APPEARANCES

For the Appellant	PETER WARD
(Of Counsel)
Instructed by:
Messrs Levenes 
Solicitors
Grove House
140-142 The Grove
Stratford
London
E15 1NS

For the Respondent	THE RESPONDENT
In Person	

JUDGE J R REID QC

1.	This is an appeal by Carshalton College against a decision of an Employment Tribunal held at London South on 19 March 2001.  By that decision the Tribunal held that the Respondent, Mrs Morris, was unfairly dismissed, that Carshalton College had discriminated against her contrary to the Sex Discrimination Act 1975, and that the College should pay her compensation in the overall sum of £2,320 (including injury to feelings in the sum of £400).

The facts
2.	From 21 October 1996 until 10 October 2000 Mrs Morris was employed as a hairdressing tutor/assessor for various training organisations.  Her original employers were Pruners/Adroit Training which carried on business in Sutton High Street.  That training operation was transferred geographically to Carshalton College where it was operated by a second employer, Gatewood Partnership.  That undertaking was in turn transferred to Carshalton College on 11 July 2000.  At that time Mrs Morris was on maternity leave.  A standard letter was sent to Mrs Morris and about a dozen other employees who were still working under what was described as “Gatewood Contracts”.  It set out the transfer arrangements but did not attempt to negotiate or consult about any possible changes in the terms of the contract.

3.	Mrs Morris had 2 small children, the second having been born in February 2000.  She thought that it would be difficult for her to return to work full time at the end of her maternity leave.  On 7 August she wrote to her line manager indicating that she wished, when she returned from maternity leave, to work part-time.  There were telephone calls and at least 2 meetings.  Negotiations continued until a final meeting on 5 October 2000.  Unfortunately, the parties’ positions appear to have become entrenched at an early stage.  The College were 
quite happy for her to return full-time.  However if she were to come back part-time, the College insisted that she should do so under a contract which provided for flexibility.

4.	The College’s position can be seen from a letter dated 5 September 2000 in which the Principal wrote:

“As discussed it is a requirement of all staff to be flexible in their hours of work and to this end changes to the above arrangements (that is to say arrangements under which she would be working 2½ days a week during the day time) may be necessary.  However these changes will be notified to you at least a month in advance.  As discussed you be required to cover an evening teaching session but again you would be given advance notice should this occur.”

5.	Mrs Morris was not prepared to contemplate evening working.  She therefore resigned on 10 October and brought proceedings.  She began her proceedings in the Employment Tribunal asserting that she had been constructively dismissed and that the College had been guilty of indirect sex discrimination.  In paragraph 11 of her IT1 she said as follows:

“I met with the college as agreed, there was no real compromise, only an offer of help with childcare payments, such help is as I am aware offered to all staff as an option within the college schemes and packages.  I explained once again my concerns and feel that as a working mother I have been discriminated against.  During this meeting I was not offered an increase to my salary, however this was due in October, and was to be back dated to August, this increase was part of a review of salaries and grades within my department as the staff were not payed on par with other college members.  I did not feel valued and felt that having a family to consider upon returning to work was used against me as I was told of the college and the flexibility that they may need in the future with regards to any special requirements i.e. sickness or leave as a result of a sick child.

During this time I spoke to a valued member of staff to explain my difficulties in returning to work, I was however very concerned when I was told to reconsider if I wanted to return to work.

It was not an option made easy for me and I resigned from my position on the 10/10/2000, in my letter of resignation I explained that I felt I had been constructively dismissed and discriminated against for having a family, the college denied this when accepting my resignation.”

The Tribunal’s decision 
6.	The Tribunal expressed the view that they found the reasons given by the college’s witnesses for insisting that Mrs Morris should agree to the evening class flexibility clause as a condition of her coming back to work on a 50% basis “invalid and unimpressive”.  They said:

“We could see no possible connection between the Applicant’s understandable desire to work part-time and the Respondents’ insistence on imposing the right to call for evening working.  We found to be particularly unconvincing the suggestion that that potential obligation would be tempered by the need to give one month’s notice.  We could not, for example, understand how the Applicant could be called upon to cover emergencies and sick leave if the Respondents were actually going to give one month’s notice.  Rather we came to the conclusion that it was an attempt to foreshadow the possibility of evening class working for members of staff (as opposed to the former arrangement of evening class working by employment agency staff).”

7.	The Tribunal went on at paragraph 9 of the decision to reject her claim based on indirect discrimination.  They did not accept her evidence that she could not comply with her requirement to work occasional evenings or for that matter a requirement that she might have to switch her part-time day or morning to a different or period of a day.  They concluded the paragraph:

“Furthermore we are not necessarily persuaded as a matter of general fact that a greater proportion of child caring mothers or parents are unable to comply with their requirements to work one or more evenings per week or per month let alone every two months.”

They then went on to consider the possibility of direct discrimination.  This was something that the Tribunal raised of its own motion.  It was not the basis upon which Mrs Morris put her claim.  They found that Mrs Morris was the only one of the employees still on the old “Gatewood Contracts” who was being required to agree to the flexible working term which they found was unfavourable to her.  They did not consider that the fact that there had been general discussions with her former colleagues prevented there being a clear disparate approach by the College.  They then went on as follows in paragraphs 11 and 12 of their decision:

“11.	   We therefore asked ourselves what we find to be the proper and obvious question, namely what was the reason why the Respondents were imposing the clause?  We accepted the Applicants’ pithily asked question, namely that the Respondents were taking advantage of the Applicant’s return from maternity leave to impose a term which was totally unconnected with her part-time working (for understandable management reasons).  We find that there was a direct link between the Applicant’s returning to work and the proposed imposition of that clause and the Respondents were taking advantage of the weakness of the Applicant’s position at that stage.  We therefore came to the conclusion that that was straightforward direct discrimination of the Applicant as the mother of a young child just returning from maternity leave.

12.   We find that having reached a conclusion that there was disparate unfavourable treatment of the Applicant, it was plainly a breach of the fundamental duty of mutual trust and confidence in the contract of employment.  Whilst we accept that even in the worst case scenario it ought not to have been a major headache for the Applicant to sort out, nevertheless, she needed the certainty to be sure that she could make childminding arrangements on, we would think, at least a six monthly cycle and this was a sufficiently serious problem for her to feel obliged to look for alternative employment.”

The Tribunal went on at paragraph 14 to say that it was not necessary for it to reach a conclusion as to whether in addition the College was in breach of section 79(2)(c) of the Employment Rights Act (in fact now Regulation 18(5)(c) of the Maternity and Paternal Leave Etc Regulations 1999) as to whether the terms and conditions were: “not less favourable”.  The Tribunal went on to express the decision that had it been necessary they would have concluded that Mrs Morris was constructively dismissed because of the attempt to impose evening working as being a term or condition less favourable to her.  In paragraph 15 the Tribunal assessed the compensation payable and made the award to which we have referred of £2320.  There is no appeal against the quantum of that award, if liability is upheld.

8.	On behalf of the College it was submitted that Mrs Morris had not been constructively dismissed.  The College, it was said, had not been guilty of conduct which was a significant breach going to the root of a contract of employment or which showed that the College no longer intended to be bound by one or more of the essential terms of a contract.  The position was simply that the College was entirely happy for Mrs Morris to continue in her job on the terms which she held before her maternity leave.  However, if she wished to vary those terms, the College required as a condition of her returning to work part-time only that she should be available for evening work.  We were referred to the decision of the Employment Appeal Tribunal in Colman Coyle v Georgiou (EAT/535/00, Judgment delivered 13 December 2001).  In particular we were referred to paragraphs 25 and 26 which are in these terms:

“25   The first point which Mr Gatt takes is that to establish constructive dismissal on the basis of a fundamental breach of contract committed by the employer, the employee must resign in response to that breach.  He submits, accordingly, that on the facts, the Tribunal was perverse to find, as it did, that the Respondent resigned as a consequence of the proposal that she should resign and be re-employed under a fresh contract.  He points to the fact that the proposal – for this purpose assuming it to qualify as a fundamental breach – had been withdrawn, and that the letter which provoked the Respondent’s resignation expressly said that the offending condition had been withdrawn.  The Respondent, he agreed, plainly did not leave in response to that proposal made by the Applicant.

26.   We think this submission well founded.  It also seems to us clear from the evidence before the Tribunal that, contrary to its finding, if the Respondent had been able to negotiate a return package which was suitable to her needs, she would have returned.  The whole tenor of the negotiations, in our view, does not indicate that there had been a breakdown in mutual trust and confidence:  rather that the parties were unable to negotiate terms which were mutually satisfactory.”

9.	It was submitted that all that happened was that the parties were unable to negotiate satisfactory alternative terms of employment and that this did not amount to a breakdown in trust and confidence constituting a constructive dismissal.  It was pointed out that Mrs Morris had no statutory right to insist on returning to work part-time.  It was submitted that if she wished to return on terms other than those to which it was by statute entitled the College was entitled to bargain with her as to what those terms should be.  It was further submitted that regulation 18(5)(c) had no application to this case.  Her right to return on no less favourable terms was a right to return to her pre-existing job on no less favourable terms.  That job on those terms was open to her.  The problem arose because she did not wish to exercise her statutory right but to negotiate for a different job.  Counsel relied on British Telecommunications Plc v Roberts & Another [1996] ICR 625.  We can take a passage from the headnote for present purposes:

“Held, allowing the appeal, that, though pregnancy and maternity leave had in each case precipitated the applicant’s request to job share, that request was not an exercise of her statutory right, which was to return to her old job on the same terms, but sought to alter her terms of employment, and, once the applicants’ maternity leave ended, their statutory protection was finished; that accordingly, the treatment complained of was not on the ground of sex and there was no evidence that a man seeking to alter his hours of employment would have been treated in any different way; ...”

10.	On the issue of sex discrimination, Counsel for the College submitted that unlawful direct sex discrimination occurs when a man was or would have been treated more favourably in the same circumstances.  The term requiring evening work in the proposed contract was sex neutral.  In such circumstances it was for Mrs Morris to prove that a real or hypothetical male comparator would have been treated more favourably (i.e. would not have been subjected to the imposition of a flexibility clause on seeking to move to part-time work).  The Tribunal did not seek to make any comparison between Mrs Morris’s position and what the position of another person seeking to reduce their working hours would have been.  Mrs Morris, who had come to the Tribunal to urge indirect discrimination, did not invite comparison with any other person whether male or female.  The Tribunal, it was submitted, erred in asking itself why the College imposed the clause.  That could not be determinative of whether there was unlawful discrimination.  The Tribunal answered the question by saying that the College was taking advantage of Mrs Morris’s return from maternity leave to impose a term which was unconnected with her part-time working for understandable management reasons.  When they found a direct link between the return to work and the proposed imposition of a clause and that the College was taking advantage of the weakness of Mrs Morris’s position, they were not making a finding as to why the clause was imposed but as to the circumstances in which the opportunity to impose a clause arose.  The fact that this may have been bad industrial relations did not make the act an act of unlawful discrimination.

11.	In response Mr Downey (who appeared under the Bar Free Representation Scheme and to whom we are extremely grateful) submitted that the question of whether or not Mrs Morris had the right to return part-time was not the issue because the statutory test is concerned with the terms and conditions upon which an employee on maternity leave returns to work.  He submitted that the fundamental requirement is that the terms upon which the employee is permitted to return should be no less favourable and that this was not the case in relation to Mrs Morris’s proposed return.  He submitted that the statutory requirement does not distinguish between full and part-time work and that the terms and conditions should be the same regardless of the hours contemplated.  The College, he said, was seeking to vary Mrs Morris’s contract of employment in a manner less favourable to her.  The terms of her contract did not entitle the College to require her to teach in evening.

12.	As to sex discrimination, he submitted that the crucial distinction between this case and the British Telecommunications case was that in the British Telecommunications case the worker had returned to work before she made her request for part-time working.  He submitted that the basis of the decision was that once she had returned to work the statutory protection did not apply.  He submitted that on the facts found the requirements of section 1 of the Sex Discrimination Act 1975 were satisfied in that:

(1)	the College sought to take advantage of Mrs Morris’ return from maternity leave to force an unfavourable variation of her contract of employment upon her in circumstances where they knew she wished to work only part-time.  Further she was the only employee required to vary her contract and was therefore clearly less favourably treated on the grounds of her sex.

And 

(2)	Mrs Morris was seeking to make arrangements for her return from maternity leave.  A male would not have a statutory right to maternity leave or to return to work under the same terms of employment.  A man wishing to return after a long period of absence would have to negotiate a fresh contract of employment and in determining whether detrimental treatment was on the grounds of her sex there could be no proper male comparator for the same reasons as were advanced in Webb v Emo Air Cargo (UK) Ltd [1994] IRLR 482.

13.	So far as the unfair dismissal claim is concerned, the position was that the College were content that Mrs Morris should continue on her previous full-time contract.  There was no obligation on the College to permit her to return to some other contract.  It was unfortunate that Mrs Morris and  the College were not able to agree the terms upon which her employment could be varied to a part-time teaching appointment but the mere failure of the College to submit to Mrs Morris’s demands cannot amount to a breakdown in trust and confidence such as to amount to unfair dismissal.  It may be that an employer’s unreasonable refusal to negotiate a variation of terms with an employee can amount to a breakdown in trust and confidence, but there are no findings in this case to justify such a conclusion here.  In our judgment this finding of unfair dismissal cannot stand.  Nor, in our judgment, can the alternative finding to which the Tribunal would have come that there was a constructive dismissal by reason of the employer seeking to impose terms and conditions which were less favourable than those which would otherwise have been applicable to her had she not been absent from work as a result of her maternity leave period.  Here the employer was not seeking to impose a less favourable term.  The alteration of terms, whether for better or worse, arose only from the employee’s desire not to return in accordance with her statutory right but to return on some other and different terms.

14.	The Tribunal’s conclusion that “there was disparate unfavourable treatment of the Applicant” does not stand up.  There appears to have been no evidence of any other person seeking to move from full-time to part-time working, or otherwise to vary their terms of employment.  There was therefore no basis for a finding of disparate treatment.  In our judgment in these circumstances the finding of unfair dismissal cannot stand.

15.	The Tribunal rejected the claim which Mrs Morris wished to make for indirect sex discrimination.  But instead it dealt with the case as being a case of direct sex discrimination.  The Tribunal’s decision appears to have been posited on the proposition that the discrimination arose out of Mrs Morris’s taking of maternity leave.  It therefore took the view that there was no requirement to look for any male comparator, because no male would have similar statutory rights to return to work.  In our judgment the Tribunal fell into error in reaching this conclusion.  

16.	The College were prepared to honour Mrs Morris’s statutory right to continue to her old employment on its old terms.  She remained engaged on those terms until the date on which she left.  The circumstances of her seeking a reduction in her hours arose out of the fact that she had 2 small children.  Not unnaturally, in those circumstances, she took the view that it would be difficult for her to hold down a full-time job.  We remind ourselves that she had no right to vary the terms of her employment.  Her contract of employment remained as it had been throughout her maternity leave as a full-time worker.  We remind ourselves of Bovey v Board of Governors of the Hospital for Sick Children [1978] ICR 934 where at page 938 Phillips J said:

“There is, it seems to us, a further objection; that is, that there is no right here which can sensibly be described as ‘a right to return to work’ independently of the Act of 1975, under a contract of employment or otherwise.  What happened was that she became pregnant; her old job was open to her if she cared to return to it.  To that extent, of course, there was implicit a right to return to work; but that was under her original contract of employment and not otherwise, and what is relied on here is a collateral agreement to return as a part-time physiotherapist, basic grade.  It does not seem to us that, in the terms of the Employment Protection Act 1975, that is a contract under which she acquired a right to return to work.  Her right to return to work existed independently prior to that and was always recognised.  This was merely a collateral agreement about the particular work that she would do when she did return.”

17.	In the circumstances of this case what was being done was simply an attempt to re- negotiate in which negotiations each side could make such demands as they felt were appropriate.  If the negotiations failed, then Mrs Morris’s existing contract continued.  She chose, when the negotiations failed, to resign.  In the absence of evidence as to what would have happened if a male person had sought to negotiate a reduction of their hours so that they worked part-time, it was not open to the Tribunal in this case to find direct sex discrimination.  It would have been perfectly possible to have a male comparator, because persons of both sexes have to look after young children and persons of both sexes may wish to reduce their hours for those or other reasons (perhaps to care for an aged parent).

18.	In our judgment Mrs Morris was correct when she tried to put her case on the basis of indirect discrimination.  The problem that she had is that she failed on the facts.  We considered carefully whether the Tribunal had properly dealt with her claim for indirect discrimination.  The Tribunal dealt with it at paragraph 9 of its decision which stated:

“9.	The Applicant’s case on informal advice which she had obtained from a friend who is legally qualified was based on a claim of indirect discrimination.  We did not accept the Applicant’s evidence that she had established on the evidence that she could not comply with a requirement to work occasional evenings or for that matter a requirement that she might have to switch her part-time day or morning to a different day or period of a day.  That kind of allegation would have required a much greater body of evidence about the Applicant’s difficulties in relation to childminders during the day and/or the possibility of family support and childminder support in the evenings.  Indeed we would point out, with respect to the Applicant, that it is inconsistent for her to rely upon the inflexibility of her husband’s shift working patterns as a reason why she herself should not be called upon on occasions to work unsocial hours.  Furthermore we are not necessarily persuaded as a matter of general fact that a greater proportion of child caring mothers or parents are unable to comply with their requirement to work one or more evenings per week or per month let alone every two months.” 

19. 	Having considered the matter carefully, we take the view that the Tribunal there properly considered and rejected the claim based on indirect discrimination.  In those circumstances we take the view that we can properly dispose finally of this case.  The Tribunal erred in law in finding that there had been a fundamental breach by the College of Mrs Morris’s contract of employment in the College’s refusal to submit to her wish to work part-time but without a flexibility clause in her contract.  The Tribunal also erred in law in holding that there was direct sex discrimination.  The Tribunal’s decision that there was no indirect sex discrimination is one which appears on the face of it to be safe, and indeed it was not submitted to us that the case should be remitted to another Tribunal so that indirect discrimination could be reconsidered.  In these circumstances in our judgment the decision of the Tribunal should be reversed and instead an order should be made dismissing the claimant’s applications both for sex discrimination and for unfair dismissal.