Appeal No.	EAT/0735/03/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 October 2003

Before
HIS HONOUR JUDGE J R REID QC
MS P TATLOW
MR M WORTHINGTON

MR J SMITH	APPELLANT

BIRMINGHAM WOMEN’S AID	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	The Appellant in person	

HIS HONOUR JUDGE J R REID QC

1	This is an appeal against a Decision of the Employment Tribunal held at Birmingham on 25 April and 24 June this year.  The Extended Reasons were sent to the parties and the Decision was entered on the register on 17 July.  By the Decision the Tribunal held unanimously that the Respondent, both there and in this Tribunal, Birmingham Women’s Aid, did not unlawfully discriminate against the Applicant, who is the Appellant here, Mr Smith, on the grounds of his sex.  

2	Mr Smith had brought a claim that he was unlawfully discriminated against, contrary to the provisions of the Sex Discrimination Act in regard to his application to Birmingham Women’s Aid for the position of handywoman, a job advertised in The Guardian on 13 November 2002.  

3	Birmingham Women’s Aid accepted that he was not considered for the job because he was male and they contended that there a need, which was a genuine need, for a woman for the post, and that was a genuine occupational qualification, and therefore they fell within the exemption set out in the provisions of section 7 of the Sex Discrimination Act 1975.  Therefore, Birmingham Women’s Aid submitted, they did not unlawfully discriminate against him on the grounds of his sex.  

4	The evidence that the Tribunal heard was from the Operations Manager and of Birmingham Women’s Aid and also from a Professor Audrey Mullender, called as an expert witness on behalf of Birmingham Women’s Aid on the one hand, and from Mr Smith on the other hand.  The advertisement was in these terms:
“1 Handywoman: 35 hours per week (some out of hours working) Scale 3 to 4 commencing at £13,122
To be responsible for maintenance tasks in our refuges to include gardening painting and minor repairs.”
And the advertisement went on to say:
“These posts are applicable to women only: section (2)(e) of the Sex Discrimination Act applies.”
There was a much longer job description which is set out at pages 44 - 48 of the bundle below and it was in answer to that Mr Smith applied.  

5	The Tribunal found as a fact that clients of places such as the Birmingham Women’s Aid Refuge sought refuge as at all times seeking a safe haven and place of security and comfort, and they needed to be able to feel secure and supported by the members of staff provided by Birmingham Women’s Aid.  That highlighted, so the Tribunal found, the need for female staff only.  

6	The Tribunal held that the establishment at the refuge could not be described as being a single-sex establishment because women who took refuge there were able to bring their male children with them and male children up to the age of 14 years could stay in the hostel, but the Tribunal went on and found that a person employed would not only carry out repairs and maintenance work at the premises but would be part of an overall team that counselled and supported the residents and clients at the refuge, providing personal services.  

7	The Tribunal also accepted that the job needed to be held by a woman to preserve decency or privacy.  That was because there was evidence which was accepted by the Tribunal that women residents treated the place as their own home, that they had private rooms allocated to them, but they would use common parts, for example the kitchens and frequently did so when they were not in a state of full dress.  They therefore held that both 7(2)(b) and 7(2)(e) were satisfied and the Tribunal was satisfied that the Sex Discrimination Act did not make this a particular act of discrimination unlawful.  

8	The relevant parts of the Act at 7(2) are these.  Having in general terms said that discrimination against applicants and employees on the ground of sex is unlawful, 7(2) says:
“Being a man is a genuine is a genuine occupational qualification for a job only where -
(b) the job needs to be held by a man to preserve decency or privacy because - 
(ii) the holder of the job is likely to do his work in circumstances where men might reasonably object to the presence of a woman because they are in a state of undress or are using sanitary facilities”
We bear in mind that one can transpose the words man or woman in this Act where necessary.  (e) is in these terms.  
“The holder of the job provides individuals with personal services promoting their welfare or education, or similar personal services, and those services can most effectively be provided by a man”

9	The three points which were taken by Counsel instructed through the ELAAS scheme, Mr D Mankell, to whom we are extremely grateful, on behalf of Mr Smith, related firstly to the Tribunal’s conclusions in relation to 7(2)(b)(ii); secondly in relation to (2)(b)(e) and thirdly in relation to the admission of the evidence of Professor Mullender, to which I have referred.  

10	So far as 7(2)(b)(ii) is concerned, the argument was to this effect: that the requirements of the subsection would only be satisfied where the actual doing of the job may require the holder of the job to come across persons of the opposite sex in a state of undress or using sanitary facilities. It was pointed out that it was not enough that people might be embarrassed or prejudiced about a person of the opposite sex doing the job, they had to reasonably object. He submitted that there had to be a link between the nature of the job and the state of undress.  

11	In our judgment, that is not a valid criticism of the Tribunal.  The finding of fact in this case was that women wandered around the hostel in a state of some undress; those women are women who, on the evidence, were in a particularly vulnerable condition, having had to take refuge in the hostel as a refuge from physical violence by men.  In our judgment, they could reasonably object to men being around the place, perhaps unexpectedly, whilst relaxing, perhaps in a state of undress, in the common parts of the hostel.  Particular mention was made in the evidence about people using the kitchen as one example.  It does not seem to us that the subsection requires to be construed in such a constricted way as to limit it to cases where the woman would necessarily be in a state of undress in connection with the job, for example as would be the case where the employee was a midwife.  In our judgment, therefore, that part of the submission fails.  

12	A further submission in relation to this was that the Tribunal failed to consider section 7(4) which provides as follows:
“Paragraph (e) of subsection (2) “
[Again, I am quoting only the relevant parts]
“does not apply in relation to the filling of a vacancy at a time when the employer already has male employees” -
[in this instance 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.”
So far as that is concerned, it is true to say that that subsection was mentioned, albeit only in passing, in Mr Smith’s skeleton argument and witness statement below, but there was nothing in the evidence to suggest that there were other female employees around who could have done relevant parts of the proposed handywoman/gardener’s job, and in those circumstances it does not seem to us that it is surprising that the Tribunal did not advert to the point in the course of their Decision, or that their failure to do so in any way vitiates the Decision.  

13	The second point taken was under 7(2)(e) in relation to the counselling matter which provides, as I have already said, that there is an exception where “the holder of the job provides individuals with personal services promoting their welfare” etc.  It is said that that was a perverse finding.  If one looks at the advertisement there is no mention there of anything in the way of counselling or personal services and that no reasonable Tribunal could have come to its conclusion.  So far as that is concerned, one’s instinctive reaction may be that that reliance on 7(2)(e) sounds like an argument, rather scraping the bottom of the barrel, thought up, by Birmingham Women’s Aid afterwards, because there is nothing in the advertisement which suggests that there was going to be any personal interrelationship between the handywoman/gardener and the residents in the hostel.  

14	The Tribunal had the advantage of hearing from the manageress, in effect, of the hostel and they formed a view as to the way in which the hostel worked and what it was that the handywoman/gardener was going to be required to do.  It cannot, in our judgment, be said that the Tribunal was perverse to find as it did.  Other Tribunals might have found otherwise, but that is not the test.  The question is “Was this perverse; was this a finding which no reasonable Tribunal could have reached?”  In our judgment it is not properly arguable that the Decision was perverse in that sense.  

15	It is further said that something more should have been said about the generally prejudicial nature of the documentation provided by Birmingham Women’s Aid.  It was submitted that the documentation showed a general prejudice against men and that that should have been specifically mentioned in the Decision.  It has to be borne in mind that although this document was made public, at least to Mr Smith, it was said to be in draft. The tenor of the documentation can be judged by reading some of the few extracts from it on which Mr Smith particularly relied.  The object’s primary aim is:

“To promote the protection of women and children who have suffered from or are exposed to domestic violence.  
Full refuge membership is said to be:
“Only open to projects where no men are employed as project workers in any capacity paid or unpaid.”
The Statement of Intent, which is said to be:
“In line with principles of social justice and the active participation of genuine equality of opportunity for all”
indicates that they are adopting a code of practice which:
“seeks to eliminate unlawful and unfair discrimination, and promotes action to overcome the effects of past discrimination.”

It then says:
“Through the implementation of this policy we aim to ensure that:
No applicant, interviewee, worker, volunteer, service-user, visitor, or member of the public is discriminated against either verbally, physically or by intimidation because of their:
age, class, disability, ethnicity, HIV status, nationality, religion, sexual orientation, trade union activity, transexualism.”
He notes that there is no reference there to sex.  Then there is a passage on language which begins:
“We would all agree (or I hope we would if you work for BWA) that our world is controlled and dominated by white men.  They maintain their power over us by enforcing the idea that one group or type of person is better, cleverer, more valuable than another.  This way of maintaining power could be described in three concepts ……”

16	Those were matters which were all before the Tribunal and the Tribunal must have been aware of what was described in argument as the general prejudicial nature of the material published by its organisation.  It does not seem to us that it can be said that the Tribunal failed to take this into account merely because of their finding in relation to 7(2)(e). Still less does it  mean that the Tribunal were obliged to say that the 7(2)(e) argument was a sham, or that they were perverse in not so finding.  

17	The remaining argument was that the matter should be remitted to the Tribunal because the Tribunal allowed in and relied on evidence from Professor Mullender.  The background to this is that witness statements were exchanged some eight days before the hearing.  Up to that point there had been no indication from either side that either party was going to rely on expert evidence.  No directions were obtained for the exchange of expert evidence and when Professor Mullender’s evidence came it gave no indication that she had given any thought to her obligations to the Court, there was nothing to suggest that she or those who were obtaining the statement from her, had considered the De Keyser case or, for that matter, Part 35 of the present Civil Procedure Rules which can be used as an analogy.  

18	The witness statement was further unfortunate in that it did not indicate the Professor Mullender was not an independent expert but was distinctly parti pris, a member of the Birmingham Women’s Aid parent body.  What is said is that the Tribunal, confronted with an applicant in person, should have raised the issue of the admissibility of this evidence and should either not have admitted it or, having admitted it, not relied on it.  Mr Smith did not take any objection to her evidence at the time, and it is said that he did not do so because of his status as a litigant in person.  The point as to Professor Mullender’s lack of independence of course was not obvious to the Tribunal because she had not seen fit to disclose it in her witness statement although it came out in the course of cross-examination.   

19	Looking at all these factors, we had some considerable doubts as to whether the Tribunal’s Decision could properly stand in the light of the deficiencies relating to Professor Mullender, but on balance we have taken the view that it would not be right to set aside this Decision.  The Tribunal had a discretion as to what evidence to admit and by the time they came to consider their Decision, they were well aware of the fact that Professor Mullender was not the independent witness expert that she had originally been presented as.  

20	In those circumstances, the Tribunal cannot be faulted for taking into account her evidence, though no doubt in a somewhat watered down way, knowing what they did about her by the conclusion of the hearing.  It is not submitted that the Tribunal could not have admitted her evidence, nor is it suggested that rival expert evidence might have been obtained had Professor Mullender’s prospective participation been known about at an earlier stage.  

21	In all those circumstances, it seems to us that undesirable though the way in which Professor Mullender’s evidence was presented was, and unfortunate as it was that she did not reveal that she was not the independent person that she was originally presented as, that is not a good enough reason to send this matter on to a full hearing and justice is best served by the dismissal of this appeal at this stage.  

22	It is to be hoped at least that out of this case something will have come in that Birmingham Women’s Aid will have learned to think more closely about the documents that are put out in their name, and that the solicitors they instruct will think longer and harder about precisely how it is that expert witnesses are produced and presented on any future occasion.  

23	We should say as a final word that in their written representations in answer to this preliminary hearing, the solicitors on behalf of Birmingham Women’s Aid asserted that Professor Mullender was a witness who provided expert evidence rather than an expert witness as such.  That was a piece of nonsensical hair-splitting and does no credit to the solicitors who put forward that suggestion.  

24	In those circumstances this appeal will be dismissed at this stage.