Baker v Cornwall County Council

JurisdictionEngland & Wales
JudgeLORD JUSTICE NEILL,LORD JUSTICE FARQUHARSON,SIR ROGER ORMROD
Judgment Date13 April 1990
Judgment citation (vLex)[1990] EWCA Civ J0328-1
CourtCourt of Appeal (Civil Division)
Date13 April 1990
Docket Number90/0293

[1990] EWCA Civ J0328-1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Before:

Lord Justice Neill

Lord Justice Farquharson

Sir Roger Ormrod (Not Present)

90/0293

Jacquelianne Baker
and
Cornwall County Council

MR S.J. SEDLEY Q.C. and MR ROBIN ALLEN, instructed by Messrs Bruce Piper & Co., appeared for the Appellant (Plaintiff).

MR D.P. PANNICK, instructed by Chief Executive & Clerk, Cornwall County Council, appeared for the Respondent (Defendant).

LORD JUSTICE NEILL
1

This is an appeal by Mrs Jacqueline Anne Baker from the order of the Employment Appeal Tribunal dated 26th February 1988 dismissing her appeal from the decision dated 29th July 1987 of an industrial tribunal sitting at St Austell in Cornwall.

2

By their decision the industrial tribunal rejected the appellant's complaint that she had been discriminated against unlawfully in the course of her employment by the Cornwall County Council on the grounds of her sex. The appeal is brought by leave of a single Lord Justice.

3

Mrs Baker is a married woman. After leaving school she attended the Plymouth College of Further Education, where she took a course in construction. Subsequently she worked as a site technician for a large firm of construction engineers and for several other employers. In April 1985 she joined the Highways Department of the Cornwall County Court as a technical clerk. She was interested in the technical aspect of highway construction but she found that her job as technical clerk meant that she spent a considerable amount of her time in the office and that she had few opportunities to work outside in the field.

4

In April 1986 a vacancy became available for a work checker/site surveyor at Bodmin. The advertisement for the post stated that the duties would involve "on-site measurements of highway construction and maintenance work, including preparation of estimates, work on the income and management information systems associated with highway and civil engineering construction, together with the calculation of bonus payments for county roadmen and to be of general assistance in the section".

5

Mrs Baker applied for the job and was interviewed in May, but her application was unsuccessful.

6

Though the May 1986 interview was not the subject of any specific complaint to the industrial tribunal Mrs Baker gave evidence about it in support of her general case that she had been the victim of discrimination. The industrial tribunal referred to her account of this interview in these terms:

"She described in detail the interview. She was questioned about her previous work experience, what she had done on site, asked about her present post and a crash barrier survey which she was involved in. She was asked about her studies.

The conversation then turned to the children, ages, schools, and she volunteered the information without it being asked of her that she had arrangements for minding the children in the event of illness. She said that on previous interviews she had been asked that type of question, and she introduced it herself to allay any fears.

She told us that she was sickened by this attitude, it was so predictable and very annoying. She was then asked about her car, and any problems concerning transport. She said that she was interviewed by Mr Davis, the Work Study Officer of the County Council, and she specifically said that he told her that she was allowed 10–15 minutes, whereas the others had half an hour. She saw that as discrimination."

7

The industrial tribunal did not accept Mrs Baker's contention that she had been allocated a shorter time for her interview.

8

In November 1986 a further advertisement was published. On this occasion the advertisement was for three posts of site surveyors/work checkers at Scorrier, Bodmin and Tolpetherwin. It was stated that two of the posts were initially at either the Bodmin Group Centre or the Tolpetherwin Group Centre and the third post was at the Scorrier Group Centre near Redruth. The advertisement continued:

"The duties connected with these posts will include on site measurements of highway construction and maintenance and preparation of management information for highway and civil engineering construction. These include the calculation of bonus payments for county roadmen and other work associated with estimates and final measurements.

Recent school leavers with good 'O' levels or with National or Higher National Certificate in construction or allied subjects or persons with relevant experience will be considered. However, further opportunities for training will be given to suitable successful applicants.

Applicants must hold a current driving licence and a casual users car allowance on the Council's scale will be paid to the postholders using their cars in connection with these duties. Commencing salary will be related to experience and qualifications."

9

Scorrier was some distance from Mrs Baker's home and this post was not of interest to her. She applied, however, for one of the posts at Tolpetherwin or Bodmin. In her letter of application dated 22nd November 1986 to the County Surveyor she gave some details of her qualifications, of an examination in highway technology which she had recently taken and of a course which she was just about to start in highway legislation and administration.

10

Her letter concluded:

"By April, I will have worked in local government for five years, two of those years having been spent in the Highways Department. I would therefore like to think that the knowledge I have acquired in administration and the routine, together with my previous site experience, would allow me to become a suitable candidate for this post."

11

There were 17 applicants for these two posts, though Mrs Baker was the only woman.

12

One of the posts was filled by Mr Tape, who was already carrying out the work satisfactorily on a temporary basis. The Scorrier post was filled by Mr Penhaligon. The industrial tribunal concluded that there could be no criticism of the selection of either Mr Tape or Mr Penhaligon.

13

In their Reasons the industrial tribunal reviewed the position as it was at the beginning of 1987:

"25 That left one vacancy in the Bodmin/Tolpetherwin area. The Council concluded that Mrs Baker was the only applicant who might be acceptable, but they were not entirely satisfied that she was the appropriate person. They clearly had some reservations but there was no evidence to suggest that was simply because she was a woman. It occurred to Mr Davis, the Work Study Officer, that they had actually advertised in the wrong newspaper. The paper which had produced the 17 applicants, circulated to North Cornwall, rather than in the Catchment area of Caradon."

14

On 16th January 1987 an advertisement was published in the Cornish Times for a post of site surveyor/work checker in the Work Study Section based at Tolpetherwin Group Centre. The advertisement was in similar terms to those which had appeared earlier. The post was also advertised internally. On this occasion there were again 17 applicants, 15 being men and two (including Mrs Baker) being women. Of these applicants four were chosen for short listing though one of them later withdrew. The three remaining candidates on the short list were Mrs Baker, Mr Rice and a third person. The County Council decided after interviewing these candidates that the order of merit was Mr Rice, Mrs Baker and then the third person. As a result Mr Rice was appointed to the post.

15

Mrs Baker was very dissatisfied with the way in which her interview, which took place on 20th February 1987, had been conducted and she considered that she had been the victim of sex discrimination.

16

On 28th March 1987 she sent a questionnaire to the County Surveyor setting out a number of questions which she required answering. This questionnaire was sent in accordance with section 74 (1)(a) of the Sex Discrimination Act 1975. In this questionnaire Mrs Baker summarised her complaint as follows:

"On Friday 20th February 1987, time 11.20 a.m. at E.G.C. Tolpetherwin I was interviewed for site surveyor/work checker post.

Events. In November 1986 a Work Study post (to which the above refers) was vacated and it was decided to advertise 2 posts. One being the vacated post and the other to sort out the anomaly of a Roadman performing Work Study duties. The posts were advertised (along with another for the Scorrier region) at the end of November (internally and externally). I put in my application. I heard no more until after Christmas when, without an interview for either the vacated post or to compete for the post relating to the 'anomaly', I was told indirectly (via a member of Staff in the Work Study Section at Tolpetherwin) that the Roadman had accepted his post to officially join the Staff; and that the other post was to be readvertised.

At this stage, I contacted the Senior Steward of NALGO, who then contacted Mr Davis on my behalf. Later the same morning NALGO 'phoned me to say I would be getting an interview. The post was finally readvertised 16/1/87 (internally and externally). I was then interviewed by Mr Deacon and Mr Davis for approx 10 minutes on 20/2/87 and was asked irrelevant questions to the post such as how old are your children; what school do they go to, etc.

Later that day, I received a phone call at approx 1.50 p.m. from Mr Davis to inform me that a Roadman (only recently promoted to Chargehand) was awarded the post. There was no explanation as to why I was turned down, and no advice given on what was necessary of me before I could be given serious consideration."

17

On the same day, 28th March 1987, Mrs Baker applied to...

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