Falkirk Council v Whyte
© [1997] IRLR 560

FALKIRK COUNCIL and others (appellants) v.
WHYTE and others (respondents)

Sex Discrimination Act 1975 sections: 1(1)(b)(i), 6(2)(b)
EEC Equal Treatment Directive 76/207: Article 5

The facts:

Jacqueline Whyte and two of her colleagues unsuccessfully applied for a managerial post at Cortonvale Prison, which was run by Central Regional Council in Scotland. They brought industrial tribunal proceedings against the successors to the Regional Council, seeking to challenge one of the factors applied by the employers in the selection process in respect of qualifications - management training and supervisory experience - as being indirectly discriminatory against women. The first limb of the definition of indirect discrimination in s.1(1)(b) of the Sex Discrimination Act refers to a situation in which a person "applies to" a woman "requirement or condition which applies or would apply equally to a man".

An industrial tribunal upheld the complaint. The tribunal found that although the specifications for management training and supervisory experience were only stated to be "desirable", "it was very clear that in practice, in the way in which the interview panel operated, they were the decisive factors in the Cortonvale selection . . . Applying a liberal interpretation under the wide approach of Community law to sex discrimination the tribunal therefore decided that in effect these were requirements and conditions which fell within the meaning of those terms in s.1(1)(b) of the Act."

The tribunal went on to find that the requirement had a disproportionate impact upon women, who were mostly in basic grade posts, and that it was not justifiable on an objective balance between its discriminatory effect and the employers' needs. On appeal, it was argued that the tribunal had erred in treating the factors in question as a "requirement or condition" within the meaning of s.1(1)(b). It was submitted that, in accordance with the decision of the Court of Appeal in the race discrimination case of Perera v Civil Service Commission, a factor can only be regarded as a "requirement or condition" if a failure to comply with it is an absolute bar to obtaining the post in question.

The Employment Appeal Tribunal sitting in Edinburgh (Lord Johnston, Dr A H Bridge, Mr W M Speirs) in a reserved decision given on 30 June 1997 dismissed the appeal.

The EAT held:

612.1

The industrial tribunal was entitled to find that one of the factors applied by the employers as a criterion for selection for a managerial post, managerial training and supervisory experience, was a "requirement or condition" within the meaning of s.1(1)(b) of the Sex Discrimination Act, notwithstanding that it was stated to be a "desirable" qualification rather than an absolute bar to obtaining the post, where it was clear that the qualification operated as the decisive factor in the selection process. It was open to the industrial tribunal to give a liberal interpretation to what the Ses Discrimination Act means by "requirement or condition".

If it is shown that qualifying for a particular factor is more difficult for women than men in the workplace, this can be regarded as a requirement or condition in terms of the legislation in relation to applications for a post, particularly when the relevant factor turns out to be decisive. If the present case turned on whether or not the relevant factors to become a requirement or condition had to be an absolute bar for the post in question, the race discrimination cases and, in particular, Perera, would not be followed.

Cases referred to:
Perera v Civil Service Commission [1983] IRLR 166 CA
Connelly v Strathclyde Regional Council, 8 March 1995 EAT/1039/94
Meer v London Borough of Tower Hamlets [1988] IRLR 399 CA
Litster v Forth Dry Dock & Engineering Co Ltd [1989] IRLR 161 HL
R. v Secretary of State for Employment ex parte Equal Opportunities Commission [1994] IRLR 176 HL

Appearances:
For the Appellants:
MUNGO BOVEY, instructed by Falkirk Council
For the Respondent:
A M O'NEILL, instructed by Unison

1. LORD JOHNSTON: In this appeal, the three local authorities who are the successors to Central Regional Council challenge a decision of the industrial tribunal which found, in relation to three of that council's employees, that there had been indirect discrimination in the way in which a managerial post had been filled at Corntonvale Prison. The three applicants (now respondents) were all women, and the substance of the discrimination was based on s.1(1)(b) of the Sex Discrimination Act 1975, and related to one of the factors applied by the employers in the selection process as regards qualifications, namely management training and supervisory experience.
2. The principal attack upon the decision by the appellant employers was that the tribunal had erred in law in determining that the so-called factors quoted above were to be treated as a requirement or condition in terms of s.1(1)(b) of the Sex Discrimination Act, which is in the following terms:
   '1(1) A person discriminates against a woman in any circumstances relevant for the purposes of this Act if -
   (a) . . .
   (b) he applies to her a requirement or condition which he applies or would apply equally to a-man but
   (i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and
   (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
   (iii) which is to her detriment because she cannot comply with it.'
3. The substance of the argument was based upon the case of Perera v Civil Service Commission [1983] IRLR 166, which, it was submitted, required a factor otherwise relevant to the issue in question, which was to be regarded as a requirement or a condition within the meaning of the legislation, to be defined upon the basis that a failure to qualify for the factor was an absolute bar to the obtaining of the post in question. In the present case, it was submitted, the question of managerial experience or supervisory experience were merely criteria in the selection process and could not be elevated into the notion of a requirement or a condition in relation to the employment. In addition, counsel pointed to what he perceived to be inconsistencies in the findings of the industrial tribunal as to the weight to be attached to the relevant factors. He referred particularly to apparent inconsistencies at pp.19,24 and 25 of the decision. Furthermore, he submitted that the industrial tribunal had effectively substituted their own view for that of the employers with regard to the weight to be put upon these factors, and had thus reached a decision which it was not entitled to make. Reference was made to an unreported decision of the Employment Appeal Tribunal, Connelly v Strathclyde Regional Council, dated 8 March 1995 [EAT/1039/94].
4. Counsel for the applicant respondents submitted that the industrial tribunal had properly addressed itself to the issue it was required to consider in terms of the Act, were entitled to take the view that the factors in question could constitute a requirement in terms of the legislation, and, having so done, therefore reached a decision which they were entitled to achieve. It was counsels essential submission that one should not interpret the words 'requirement or condition' on any narrow or restricted basis, having regard to the fact that the legislation was based upon European Directive No.207/76 covering sex discrimination, which therefore fell to be treated differently from discrimination on grounds of race. Since the employers here were part of the emanation of the State, this tribunal, and indeed the industrial tribunal, could apply the Directive without reference to the legislation; but, in any event, if the legislation required it to be interpreted on any particular basis it should be consistent with the purpose of the Directive - the so-called 'purposive approach' which can be found supported by the House of Lords in Litster v Forth Dry Dock Engineering Co Ltd [1989] IRLR 161. He submitted that Perera had been rightly criticised even in the context of race relations (Meer v Tower Hamlets London Borough Council [1988] IRLR 399), which was all the more reason for not applying it to the scope of sex discrimination. The proper approach should be whether or not the factor, to give it a neutral phrase, hindered women as opposed to men in the particular context, here the application for the post in question. The tribunal had adopted a consistent approach, and had reached a conclusion they were entitled to achieve upon the evidence. Certainly they had not substituted their own view, but had merely interpreted what they perceived to be a possibly unconscious discrimination having taken place by reason of the fact that, upon the evidence, women were less able to obtain managerial experience than men within the framework of the employer's workforce. Once discrimination was made out, it was for the employers, he submitted, to justify it on grounds other than sex, and he referred to the proportionality test as set forth by the House of Lords in R v Secretary of State for Employment ex parte Equal Opportunities Commission [1994] IRLR 176. The tribunal, albeit briefly, had directed itself to the general question of justification, and had dismissed it.
5. Against that background of submissions to us, the decision of the industrial tribunal was as follows:
   'Indirect discrimination
   Although the specifications stipulated by the council for management training and Supervisory experience" (which was effectively interpreted by the council as Substantive management experienced were only stated to be desirable, it was very clear that in practice in the way in which the interview panel operated, they were the decisive factors in the Corntonvale selection. If so much weight had not been placed on these specifications, thus turning them into requirements, the out- come of the Corntonvale selection process might have been very different, though not the Glenochil selection process, where Mr Newton was clearly ahead of the other candidates.
   In the interview outcome form, in very brief comments of only two or three phrases, Mrs Anderson referred to limited supervisory experience in the case of all three applicants. These comments were reiterated in both her overall summary comments and her detailed comments, which noted for Mr MacFadyen" Experience met extensively", and she said he had the edge on supervisory and management experience. Applying a liberal interpretation under the wide approach of Community law to sex discrimination, the tribunal therefore decided that in effect these were requirements and conditions which fell within the meaning of those terms in s.1(1)(b) of the Act.
   On the evidence, the tribunal considered that the reality here was that the reason the applicants were not chosen was not because they were not the best candidates on an amalgam of factors, but because they were subjected to the requirements or conditions of having management training in "supervisory experience".
   While it is not particularly easy in this case to identify the appropriate pool for comparison, on the "appropriate qualifications" test, the tribunal concluded that the pool was those who applied and were interviewed. Given that prison social work is a relatively specialised field and that the post was widely advertised throughout the Council's whole Social Work department - but only within the department and not externally - the tribunal decided that all those with appropriate qualifications were within that small pool; and that the relevant requirements and conditions for management training and Supervisory experience" had been applied to them all equally.
   Of those in that pool, it was then clear to the tribunal that only Mr MacFadyen could comply fully with the requirements or conditions for management training and Supervisory experience", so that, as all the others in the pool were women, it followed that a considerably smaller proportion of women than men could comply with them. It was clearly more difficult for women in the pool to meet those requirements.
   Even if the tribunal were wrong in its identification of the pool for comparison, it did not consider that its conclusion would have been any different. The preponderance of women in basic grade social work posts, both in Criminal Justice Services (75%) and in the Social Work department as a whole (where on the respondents' own evidence 85% were women), was so overwhelming in contrast to the proportion of women in promoted posts as team managers (even if that were as high as 50%), that it was inevitable that any requirement or condition which effectively demanded substantive prior management experience was only going to be capable of being fulfilled by a considerably smaller proportion of women than men in the relevant pool. The respondent's own witness, Mrs Cameron, recognised that was the position, as she made special arrangements for special courses to try to get over the problem of more men than women in the Social Work department having management experience.
   In many ways this was a classic situation of indirect sex discrimination, with mostly women in basic grade posts, and mostly men in promoted management posts - a vivid example of what the Act and its forerunners in the United States set out to eliminate, ie those practices which had a disproportionate impact on women and were not justifiable for other reasons: Clarke v Eley (IMI) Kynoch Ltd [1982] IRLR 482 at 485; Griggs v Duke Power Co [1971] 401 US 424; Watches of Switzerland [1983] IRLR 141 (EAT) at paragraph 21.
   Nor did the tribunal consider, on an objective balance between the discriminatory effect of the requirement or condition for prior management training and "supervisory experience" and the reasonable needs of the council, that it was justifiable. The team manager post was only the first step in the supervisory role and only first-level line management. The tribunal did not accept that this was a key management post, nor that it justified the great weight placed on prior substantive management experience, which turned it into a requirement or condition, as against other qualities, including aptitude.
   The inability of all three applicants to comply with that requirement or condition was clearly to their detriment in that they were unsuccessful in obtaining the promoted post.
   The tribunal therefore concluded that the council indirectly discriminated against all three applicants in relation to the Corntonvale team manager post and makes an order declaring that under s.65(1)(a).'
6. {612.1}
   It is plain to see from a consideration of that part of the decision that the tribunal were effectively following the line submitted to us on behalf of the respondents, liberally interpreting what is meant by 'a requirement or condition' within the meaning of the legislation. We consider this approach was open to the tribunal and, being based upon the evidence, not one with which we feel able to interfere as an appellate tribunal. We would observe in passing that if the case turned upon whether or not the relevant factors to become a requirement or condition had to be an absolute bar to qualification for the post in question, we would not be inclined to follow the race discrimination cases and, in particular, that of Perera. We consider that each case has to be determined on its own merits, and the status of the factors in question relevant to the application for the post in question very much depends upon the circumstances of a particular case. Some may be too trivial to be regarded as a condition or requirement; but, equally, if material, and it is shown otherwise that qualifying for the particular factor is more difficult for women then for men in the appropriate workplace, we do not see why that should not be a condition or requirement in terms of the legislation in relation to applications for the post, particularly when the relevant factor or factors turn out to be decisive. The fact that Mrs Travers is, according to the industrial tribunal, likely to have been the successful candidate if Mr MacFadyen had not been there if anything strengthens the argument that, because he was a male, he was in an advantaged position when compared with the female applicants for the same post.
7. For these reasons, we consider that the industrial tribunal came to a decision which lies within its legitimate sphere as tribunal of first instance, and, accordingly, one with which this tribunal will not interfere. The appeal will therefore be refused.