Cast v Croydon College

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE AULD,LORD JUSTICE ROBERT WALKER,LORD JUSTICE OTTON
Judgment Date19 March 1998
Judgment citation (vLex)[1998] EWCA Civ J0319-2
Date19 March 1998
Docket NumberEATRF 97/0337/B

[1998] EWCA Civ J0319-2

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Otton

Lord Justice Auld

Lord Justice Robert Walker

EATRF 97/0337/B

Jackie Cast
Appellant
and
Croydon College
Respondent

MISS H. WILLIAMS (Instructed by Equal Opportunities Commission, Manchester, M3 3HN) appeared on behalf of the Appellant

MR B CARR & (MR D BASU—19 March 1998) (Instructed by Stonehams, Croydon, CRO 1SQ) appeared on behalf of the Respondent

LORD JUSTICE AULD
1

The appellant, Mrs Jackie Cast, appeals from an order of the Employment Appeal Tribunal dismissing her appeal from a decision of an Industrial Tribunal on a preliminary issue that it had no jurisdiction to hear her claim for sex discrimination because it was presented out of time, and that it was not just and equitable in the circumstances to extend the time limits.

2

Mrs Cast's case is that both Tribunals erred in law in their respective decisions on those issues. She claims that her former employer's, Croydon College's, refusal after the birth of her child, following a prospective refusal before the birth, to permit her to work part-time constituted indirect discrimination within the meaning of Section 1(1)(b) of the Sex Discrimination Act 1975. The College's case is that both Tribunals were correct in concluding that the relevant date was the date of its first refusal, before the birth, to allow her to work part-time after her return from maternity leave.

3

Section 1(1)(b) provides:

"(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if —

(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."

4

Section 63 of the Act gives jurisdiction to industrial tribunals, and Section 76 1 of the Act imposes a time bar of three months from the act of discrimination of which complaint is made. Their material provisions are as follows:

"63(1) A complaint by any person ('the complainant') that another person ('the respondent') —

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II.. may be presented to an industrial tribunal. …"

"76(1) An industrial tribunal shall not consider a complaint under section 63 unless it is presented to the tribunal before the end of the period of three months beginning when

the act complained of was done.

(5) A … tribunal may nevertheless consider any such complaint … which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(6) For the purposes of this section —

(b) any act extending over a period shall be treated as done at the end of that period, and

(c) a deliberate omission shall be treated as done when the person in question decided upon it, …"

5

The relevant conduct in Part II of the Act, for the purpose of Section 63(1), is that of discrimination in the employment field, specifically, in the circumstances of this case, that under Section 6(2)(b) 2, "dismissing her or subjecting her to any other detriment". 3

6

The relevant facts are as follows. Mrs Cast worked full-time as the Manager of the College's Information Centre. The College had a written policy, in its Corporate Development Plan and in the form of local authority guidelines, of receptiveness to proposals for job sharing at all levels. The policy made no special provision for, or exception from it, of Mrs Cast's post. In early 1992 she was pregnant and arranging to take maternity leave for the expected birth of her child in August of that year. On 26th March 1992 she repeated an earlier request to Mr S. Holt, her line manager, for permission to work part-time and to share her job with another after her return from maternity leave. He refused her request. (Both Tribunals found that time ran from that date). On 30th March 1992 Mr K. Richardson, the Director of Services and Administration of the College, advised her that she should work full-time for at least thirteen weeks on her return from maternity leave in order to secure her full maternity rights. On 27th May 1992 Mrs Cast wrote to the College confirming that she intended to return to her employment after her maternity leave. She went on that leave on 3rd July 1992 and on the 12th August 1992 gave birth to a son.

On 1st March 1993 Mrs Cast returned to work, contractually complying with her full-time working commitments by using accrued leave of 33 days to enable her to work between one and two days a week. On 16th March and 10th May 1993 she again asked Mr Holt whether she could share her job with someone else. On each occasion he said that she could not do so. She followed up those requests on 11th May 1993 by a letter to Mr Richardson asking for the reasons for that decision and drawing his attention to the statement of policy in the College's Corporate Development Plan of its objective "to introduce job-sharing arrangements for posts at all levels throughout the College". He wrote to her on 13th May 1993 saying that he had asked Mr Holt to write to her formally advising her "of his decision". Mrs Cast wrote back by return stating that she was not looking for a further decision and added "May I stress that it is the reasons for the decision that I am seeking".
7

On 14th May 1993, Mr Holt wrote to her formally confirming his earlier refusals. The opening paragraph of the letter read:

"Further to our meetings on 26 March 1992, 23 March 1993, 29 March 1993 and 10 May 1993, at which we have spent much time in reflecting upon your request for job share or part-time working arrangements, as you request, I am herewith providing for you in writing the reasons that prevent me from being responsive to your proposals."

8

He continued by saying that it was essential for the holder of the post of Information Centre Manager to work full-time so as properly to co-ordinate the work of the Centre's team of part-time employees. And he expressed concern about the damage that any further "fragmentation" of employment at managerial level would cause to the Centre.

9

Mrs Cast immediately took a week's sick leave and then returned to her pattern of working part-time, still taking advantage of her accrued leave. On 7th June 1993, just over three weeks after Mr Holt's letter, Mrs Cast wrote to him giving one month's notice of her intention to leave because of his refusal to allow her to work part-time and to share her job. She explained that she had taken the date of 6th July 1993 as the date of termination of her employment because up until that time she could continue to work part-time by making use of her accrued leave. This is how she put it:

"In what has been a very difficult and painful decision, I am writing to confirm that it is my intention to leave the post I have held for almost 3 years as Information Centre Manager. This is a direct result of your continuing refusal to allow me to job share this role.

In accordance with my contract I am giving one month's notice of my intention to leave, my last working day being Tuesday 6 July 1993. The reason I have chosen this day is, as previously explained, that I shall be able to take two days' annual leave each week (from my remaining 10 days) and thereby work only the maximum 3 day week that I wish to work.

The early weeks following my return from maternity leave were fulfilling, enjoyable and, I believe, enabled me to manage the Centre in the efficient and effective manner which I consider necessary. This was during the period that I had sufficient holiday owing from the previous year to allow me to work a maximum of 3 days a week. The past few weeks of working full-time, however, have been, as you know, an immense physical and emotional strain. I have no wish to leave the job that I enjoy but, in the light of what I see as your continued inflexibility, feel that I have been left with little choice but to resign."

10

Mrs Cast continued by saying how much she was giving up as a result of her termination of her employment "albeit under duress" and enclosed a lengthy memorandum in support of her contention that the College should have permitted her to work part-time by allowing her to share her job with another. True to her written notice, she left work on 6th July 1993.

11

On 13th August 1993 Mrs Cast presented an application to an Industrial Tribunal complaining, in boxes 1 and 8 of the application form, of unfair constructive dismissal and "dismissal by sexual discrimination" on 6th July 1993. Somewhat inconsistently, she entered the date of 26th March 1992, namely the date of Mr Holt's first refusal of her request to work part-time, in box 9, which contained the words "If your complaint is not about dismissal, please give the date when the action you are complaining about took place …". She attached to the application a written statement in which she set out the history, mostly before her maternity leave, of her attempts to persuade the College to permit her to work part-time, but making the main thrust of her complaint its failure at any time properly to consider her requests.

12

The College, by its notice of appearance, denied that it had dismissed her or that it had treated her unfairly or had sexually discriminated against her. In its grounds of resistance to her application, it...

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