Bullock v Alice Ottley School
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE RUSSELL,LORD JUSTICE ROSE |
| Judgment Date | 15 October 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J1015-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 October 1992 |
| Docket Number | 92/0956 |
[1992] EWCA Civ J1015-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Lord Justice Neill
Lord Justice Russell
and
Lord Justice Rose
92/0956
MR. MICHAEL J. DUDLEY (instructed by Messrs March & Edwards, Worcester) appeared on behalf of the Appellants (Respondents).
MISS MONICA CARSS-FRISK (instructed by the Solicitor to the Equal Opportunities Commission) appeared on behalf of the Respondent (Applicant).
This is an appeal by the Alice Ottley School (the School) from the order of the Employment Appeal Tribunal dated 18th June 1991 whereby it was ordered that the appeal of Mrs. Marian Bullock, the present respondent, be allowed and that a declaration be made that Mrs. Bullock had been the subject of sex discrimination. It was further ordered that the matter should be remitted to the Industrial Tribunal for the calculation of compensation. The appeal is brought by leave of the Employment Appeal Tribunal.
The school is a girls' school in Worcester. At the material time the school had about 680 pupils of whom 40 were boarders. The teaching staff numbered about 70 of whom all but two were women. The domestic staff also numbered about 70. With the exception of the school caretaker all the domestic staff were women, most of them being employed on a part-time basis although a few were full time employees. In addition to the teaching and domestic staff there was a small administrative staff headed by Brigadier Dunand, the bursar. The school also employed four gardeners and three maintainance staff; all these seven employees were men. The maintenance staff had various skills as builders, electricians, and carpenters; one of them was a skilled French polisher.
The domestic staff, including the full time employees, were only employed during school terms; during the school holidays they were paid a retainer. The gardeners and the maintenance staff on the other hand were employed throughout the year.
Mrs. Bullock joined the staff at the school in September 1973 when she started work as a pantry assistant. She continued to be employed on the domestic staff until her employment came to an end on 23rd March 1989.
Mrs. Bullock was born on 4th March 1928. When she joined the staff and for the next fifteen years or so the retiring age for women employees at the school was 60. The retiring age for men on the other hand was 65. Mrs. Bullock was therefore due to retire in March 1988. In January 1988, however, she was informed that she would be allowed to continue for another year but that she would have to retire at the end of the school term in March 1989 when she was 61.
On 10th January 1989 Mrs. Bullock wrote to Brigadier Dunand to say that it had come to her attention that the law relating to the retirement age for women had been changed. In her letter she said that she wished to postpone her retirement and stay for another year. Two days later Brigadier Dunand replied to say that following the recent change in the law the school had changed their policy on retirement ages and that they now had "a common retirement age for members of staff doing the same job regardless of sex." The reference by Brigadier Dunand to a change of policy was a reference to a decision reached at a meeting of the school council on 14th March 1988 whereby it was decided:
"That in future contracts the retirement age should be 60 for all teachers, administrative and domestic staff and age 65 for ground staff and maintenance staff."
Mrs. Bullock's request that she should stay for a further year was not granted and she retired from the school on 23rd March 1989.
By an originating application dated 22nd May 1989 Mrs. Bullock brought proceedings against the school alleging sex discrimination. In the particulars of her complaint she stated that:
"On 23rd March I was compulsorily retired (61) solely on grounds of age. Male colleages are allowed to continue working to 65. I believe that this [is] unlawful sex discrimination."
The school entered a notice of appearance denying discrimination and stating that it had been decided that there should be a common retirement age for groups of staff regardless of sex and that the retirement age for all teaching, administrative and domestic staff was 60, and for all maintenance and ground staff 65.
Mrs. Bullock's application came before the Industrial Tribunal at Birmingham on 7th July 1989. The Tribunal received oral evidence from Mrs. Bullock and Brigadier Dunand.
In their written decision which was sent to the parties on 4th September 1989 the Tribunal referred (in paragraph 12) to sections 1 and 6 of the Sex Discrimination Act 1975 (the 1975 Act). They also referred to the amendment of section 64 of the Employment Protection (Consolidation) Act 1978 by section 3 of the Sex Discrimination Act 1986. Section 3 of the Sex Discrimination Act 1986 altered the law relating to the upper age limit for bringing an application for unfair dismissal. Section 64(1) of the 1978 Act (as amended) now provides that an application claiming unfair dismissal cannot be brought "if the employee…attained the following age on or before the effective date of determination, that is to say…if in the undertaking in which he was employed there was a normal retiring age for an employee holding the position which he held and the age was the same whether the employee holding that position was a man or a woman, that normal retiring age."
It seems that before the Industrial Tribunal Mrs. Bullock's case was put in two ways:
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(a) That she had been discriminated against because Mr. Price the caretaker had a retirement age of 65;
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(b) that she had been discriminated against because the maintenance staff and gardeners had a retiring age of 65.
During the course of the hearing, however, Brigadier Dunand conceded that he had made a mistake with regard to Mr. Price and that in the light of the policy established in March 1988 Mr. Price was subject to the same retiring age as Mrs. Bullock. It was accepted, as I understand it, that despite the actual wording of the March resolution the new policy applied to existing staff. This was an unfortunate mistake because it is clear that in the view of the Tribunal the position of Mr. Price—whom Mrs. Bullock thought, owing to the inaccurate information she had been given by the school, had a retiring age of 65—formed the main basis for her complaint. In the result, however, the alleged discrimination based on the case of Mr. Price could not be pursued.
In paragraph 16 of the decision the Tribunal turned to consider the claim based on the position of the maintenance men and the gardeners. It is right to set out in full the last three paragraphs of the decision:
"16. We come to the question of comparison with the maintenance men and gardeners. We accept that there is some skill in acting as a domestic. We find however we must agree there is greater skill in carrying out the various duties required of the gardeners and maintenance personnel. We feel this point has not been argued as strenuously as the first point and that it is, so to speak, a second string to the applicant's bow."
I understand this sentence to be a reference to the fact that before the Tribunal Mrs. Bullock's primary case was concerned with Mr. Price.
The decision continued:
"We are satisfied the applicant has been unable to show she was holding the position or similar or comparable position to gardeners and maintenance personnel. We accept the respondent's evidence that there were completely different duties, that those duties involved some special skills and that such personnel worked throughout the year. These differences put them in a different category. Using the Employment Protection (Consolidation) Act 1978—section 64(1) (b) as amended by the Sex Discrimination Act 1986 a normal retiring age applied to all persons irrespective of sex holding similar positions.
17. The applicant points to the fact that all personnel in that group were men. This is accepted by the respondents but we have the evidence of Brigadier Dunand there was no reason why women should not be recruited if they were to apply and the normal retirement age for that group of 65 would have applied to men and women. No evidence has been produced suggesting the contrary. One of the difficulties facing the applicant is that she has not been able to point to any persons in any of the groups who have been retained beyond the retiring age she reached. We have heard from Brigadier Dunand the reasons why such personnel were put into a different category at his request. This was a matter for the respondents to consider and provided they did not discriminate directly or indirectly between men and women and the fact the applicant was not regarded as being within that category is not evidence of discrimination on the grounds of sex unless she could satisfy us she was in comparable employment. We find she has not been able to do so…In this case we find the applicant not to be in the same category as gardeners and maintenance personnel. The Sex Discrimination Act as amended allows for normal retiring age provisions and comparable employment and therefore it is not discriminatory to have differing retirement ages for persons in different groups provided it is applied irrespective of sex.
18. We therefore conclude the applicant has not been able to satisfy us for the reasons given that the respondents discriminated against her unlawfully on the grounds of her sex when they...
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