Allonby v Accrington and Rossendale College
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY,Lord Justice Ward,MR. JUSTICE GAGE,LORD JUSTICE WARD,LORD JUSTICE JUDGE |
| Judgment Date | 25 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1630,[2001] EWCA Civ 529 |
| Docket Number | Case No: A1/2000/2135,A2/2000/2135/6 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 November 2004 |
[2001] EWCA Civ 529
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL
TRIBUNAL (MR. JUSTICE LINDSAY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Sedley and
Mr. Justice Gage
Case No: A1/2000/2135
Ms. Tess Gill (instructed by Michael Scott & Co. for the Appellant)
Mr. Nicholas Paines QC and Mrs Melanie Hall (instructed by the Treasury Solicitors for the3rd Respondent)
Mr. Christopher Jeans QC and Mr. Paul Nicholls (instructed by Klegal for the 1st and 2 nd Respondent)
The issues
This case arises out of a contractual arrangement for the services of lecturers entered into by colleges of further education in order to reduce the financial impact of new statutory employment rights. We have to decide to what extent, if any, domestic or European legislation forbids or qualifies such an arrangement where it impacts disproportionately upon women or disadvantages them by comparison with men.
The appellant, Ms Allonby, was originally employed by the first respondent, Accrington and Rossendale College, as a part-time lecturer in office technology. She was employed from 1990 to 1996 on a succession of one-year contracts under which she was paid by the hour at a rate determined by the level at which she was teaching. It is not disputed that for present purposes these were continuous contracts of service, carrying with them an employer's statutory obligations.
These obligations had by 1996 become financially more onerous because of legislative changes which required part-time lecturers to be accorded equal or equivalent benefits to full-time lecturers. The College employed 341 part-time lecturers. It decided that in order to reduce its overheads it would terminate or not renew their contracts of employment, and instead would retain their services as sub-contractors. This was done in Ms Allonby's case by terminating her employment with effect from 29 August 1996 and offering her re-engagement through Education Lecturing Services (ELS), the second respondent. ELS, a company limited by guarantee, operated as an agency, holding a database of available lecturers on whom colleges could call, by name if they desired, for lecturing services. Ms Allonby, and others like her who had to register with ELS if they wanted to continue to work as part-time lecturers, thereby became self-employed. Their pay became a proportion of the fee agreed between ELS and the College. Their income fell and they lost a series of benefits, ranging from sick pay to career structure, which went with employment. The College, which like most further education colleges was in financial straits, estimated that it would save £13,000 a year.
The applicant, supported by her union, NATFHE, and on this appeal by the Equal Opportunities Commission, brought proceedings in August 1996 against the College for a redundancy payment and for redress for unfair dismissal and indirect sex discrimination by reason of the dismissal. In December 1996 she brought a further set of proceedings alleging that the College was discriminating against her as a contract worker contrary to s.9 of the Sex Discrimination Act 1975; that ELS was obliged by law to pay her equally – that is, pro rata – with a male full-time lecturer at the College; and that the state, represented by the third respondent, the Department for Education and Employment, was acting unlawfully in denying her access, as a self-employed worker, to the Teachers' Superannuation Scheme (the TSS). Both sets of proceedings are in the nature of a test case for others similarly affected.
The redundancy claim was settled. In July 1997 the Employment Tribunal decided, as a preliminary issue, that Ms Allonby was not entitled to use as a comparator for equal pay purposes a male lecturer employed full-time by the College. In April 1998 the Employment Tribunal decided that the dismissal by the College was unfair but attracted no redress, and that it constituted indirect sex discrimination but was justifiable. It also held that the s.9 claim against the College, and those against ELS and the DfEE, all failed. All these decisions were upheld in March 2000 in a group of interlocking judgments by the Employment Appeal Tribunal which, however, gave permission to appeal to this court on all issues.
Comparisons
Necessarily underlying all the appellant's claims is the element of gender. The Equal Pay Act 1970 and the Sex Discrimination Act 1975 lay down detailed mechanisms for identifying sex discrimination in, respectively, contractual and extra-contractual relationships. Further provision is made for the elimination of sex discrimination in relation to occupational pensions by ss. 62 and 63 of the Pensions Act 1995. Broadly speaking, discrimination in pay and pensions is identified, where a woman alleges inequality, by comparing her with a man in an equivalent position. In other fields, if an explicit distinction of sex is not in issue, it is necessary to see if an ostensibly neutral requirement or condition impacts disproportionately and unjustifiably on women such as the applicant.
The sex discrimination claims
The most obviously material data, as the Employment Tribunal had them, were that of the 341 hourly-paid part-time lecturers who were made redundant by the College and offered re-engagement through ELS in 1996, 110 were men and 231 were women. This sharp imbalance was not replicated among the college's fulltime salaried lecturers, which had gone from a male: female ratio of 74: 40 in the year 1994–5 to 55: 50 in 1995–6; the equivalent ratios for salaried part-time lecturers were 4: 8 and 12: 11.
The Employment Tribunal was entitled to have in mind, as a matter of common knowledge in their field, that the substantial imbalance between men and women on hourly-paid part-time contracts with the College in 1996 reflected the national picture in the United Kingdom, where part-time work is overwhelmingly done by women. On the other hand, ELS's database contained almost as many men as women: 18,050 to 19,909 on the most recent count available to the Tribunal, a margin of under 5 per cent. Everything therefore turned on what constituted the alleged discrimination.
Was the appellant's dismissal by the College indirectly discriminatory?
(a) The law
The material provisions of the Sex Discrimination Act 1975 as amended are these:
Sex discrimination against women
(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or
(b) he applies to her a requirement or condition which 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.
Interpretation
(3) A comparison of the cases of persons of different sex or marital status under section 1( 1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. …
Discrimination against applicants and employees
(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her-
(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or
(b) by dismissing her, or subjecting her to any other detriment.
By s. 82(1) "employment" means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour.
An act of dismissal can constitute sex discrimination: s. 6(2)(b) says so. It is not in dispute that the non-renewal of the last in a continuous series of finite contracts of employment is a dismissal; nor that a condition or requirement for avoiding dismissal must not be sexually discriminatory.
(b) The requirement or condition
The first issue raised by Mr Christopher Jeans QC on behalf of the College and ELS by way of a respondent's notice is what requirement or condition, if any, was imposed in the present case. The Employment Tribunal held that Ms Allonby had made out her case that it was a requirement or condition for continuous employment with the College that an employee must have previously been employed either on a full-time basis or under a contract which conferred proportionate benefits to a full-time contract: I will call this salaried as opposed to hourly-paid employment. The EAT, noting Mr Jeans' engaging concession that his argument was "not philosophically watertight", found it unnecessary to decide the point. In my judgment the Employment Tribunal was right.
It is for the applicant to identify the requirement or condition which she seeks to impugn. These words are not terms of art: they are overlapping concepts and are not to be narrowly construed ( Clarke v Eley (IMI) Kynoch [1983] ICR 165, 170–1). If the applicant can realistically identify a requirement or condition capable of supporting her case, as Ms Allonby did here to the Employment Tribunal's satisfaction, it is nothing to the point that her employer can with equal cogency derive from the facts a different and unobjectionable requirement or...
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