Noble v David Gold & Son (Holdings) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE ACKNER |
| Judgment Date | 15 January 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0115-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | EAT/411/77 |
| Date | 15 January 1980 |
[1980] EWCA Civ J0115-5
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Employment Appeal Tribunal
The Master of the Rolls (Lord Denning)
Lord Justice Lawton and
Lord Justice Ackner
MR. S. SEDLEY (instructed by Messrs. Bindman & Partners) appeared on behalf of the Appellants (Respondents).
MR. J. MARKS (instructed by Messrs. Offenbach & Co.) appeared on behalf of the Respondents (Appellants).
Three women complain that they were unfairly dismissed, and unlawfully discriminated against. They worked in a warehouse on a trading estate in the East End of London. Books and magazines came into the warehouse from publishers in England and in the United States. They were unloaded from vans, and carried in forklift trucks on pallets to benches where they were unpacked, sorted, arranged, priced and labelled. They were then packed again for distrubution to some 600 outlets in England and Wales.
In the warehouse both men and women were employed on this task. The numbers varied. We have not got the exact numbers, but there were about half a dozen women and somewhat more men doing this work.
In the middle of 1976 the employers found that the work had fallen off, and they were making serious losses. So much so that it was necessary to dismiss some of the staff as being redundant. The employers found that it was the lighter side of the work - the sorting, distributing, arranging and labelling and so forth - which had diminished. They therefore decided that some of the people doing that lighter work would have to be made redundant. I will read the finding of the industrial tribunal:
"… for various reasons it was the lighter work that had diminished by the autumn of 1976, and … this was caused by the fall-away of the importation of the United States 'pulp' magazines, as a result of currency problems, the higher cost of transport, and the improved competition of United Kingdom producers, who could put the prices in English money on their products at their factories, thus reducing the volume of work …" So the tribunal found that it was the lighter work which had diminished - the work of sorting, distributing, arranging and labelling - whichwas done on the benches in the warehouse. Therefore it was a case which would come within the redundancy provisions. They are now comprised in the Employment Protection (Consolidation) Act 1978, section 81(2)(b), which provides:
"For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to … (b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish". So this was a case where some of the staff had to be made redundant and dismissed on that account.
As it happened, the employers decided to dismiss the women. Eight women were involved. They decided to dismiss six of them. They wrote a letter to each woman who was being dismissed. It is dated the 29th October, 1976, and reads as follows:
"It is with much regret that the company finds itself in the unenviable position of having to lay off some part-time workers.
"Therefore, we are giving you notice that your employment with the company will terminate on Friday 12 November 1976 …
"We would like to take this opportunity to thank you for your efforts during your time spent with this company and sincerely hope that you will have no difficulty in finding other suitable employment".
Three of the women complained to the tribunal. They complained that this was unfair discrimination against the women, contrary to the Sex Discrimination Act. They also claimed under the Employment Protection Act 1975 that they had been unfairlydismissed. Before making their claim, each of the women went to her union. They said - and they made a point of this - that as long ago as August 1976 (that is about three months before they were dismissed) the union had made a claim for equal pay for the men and women at this warehouse. The union claimed that they were doing "like" work - that is, broadly similar work - and ought to have equal pay: and a claim was made on the women's behalf.
Each of the women gave her reasons for making the claim to the tribunal. I will read what one of them said (page B4-7 of the bundle):
"I was unfairly dismissed because I was in pursuance of my rights under the Sex Discrimination Act and the Equal Pay Act. A claim was made by SOGAT" - that is, the trade union - "on our behalf on 11th August 1976 for Trade Agreement Rates of Pay for all employees which would have resulted in the women being given equal treatment in respect of pay, where they were doing the same or broadly similar work as I consider I was, compared with the men in the work I did. This claim I believe was resisted by the company in what I considered devious ways and methods. The final result of which, I along with three other women from our department were made redundant on Nov. 5, 76 and I believe victimised on the basis of our sex and the company's knowledge that four of the women made redundant were in active support of the claim that SOGAT were making on our behalf. We were also treated unequal in that I believe our jobs after we became redundant, were then carried out by some of the men who worked alongside us and some of these men were employed by the company after the women".
Those were the reasons given by Mrs. Noble. The other twowomen gave the same reasons in the same words, no doubt drafted on their behalf by the union.
The case came before the industrial tribunal. The tribunal were divided in opinion. By a majority of two to one, they found in favour of the company and against the women. There was an appeal to the employment appeal tribunal. They thought that the matter needed further inquiry and investigation. They remitted the case for re-hearing before another industrial tribunal, differently constituted. The first industrial tribunal had heard the matter over three days. The hearing before the employment appeal tribunal had taken a full day. Both parties, when they came before us, said that the last thing they wanted was a hearing before another industrial tribunal. They invited this court to do the best it could with the findings of the industrial tribunal as they stand. That is what we have tried to do in the course of the arguments.
I would like to put on one side two matters which the women raised in their complaint. First, they said that they were dismissed because of trade union activities. That has gone now. It was not pressed even before the industrial tribunal. Second, they said they were dismissed because their claim for equal pay was looming in the background. That went also. It was not argued before us by Mr. Sedley at all.
So the claim we have to consider is whether these women were picked out to be made redundant because they were women. It was said it was sex discrimination; that it was unfair to dismiss only the women; and that some of the men ought to have been made redundant too.
It was suggested that if the company had gone by the principle "last in - first out", one at least of these womenmight have retained her job. But "last in - first out' was not the principle adopted by the employers in this case. They decided on the basis that the women's work was "light" work, and was a different kind of work altogether from the men's: or, at least, so different that it was quite severable. The men were mainly doing the heavier work of unloading, Carrying and lifting the pallets on to the benches, which the women could not do. The women were doing the lighter work, namely the sorting and arranging of the packages on the benches. They were not doing any of the lifting at all: because they were not physically capable of carrying these heavy weights.
I will read the finding of the tribunal about it. They said at page B16:
"The majority therefore holds the view that there was no unfair selection for redundancy, the redundancies being selected on legitimate commercial considerations, and as to the Equal Pay Act (as re-enacted), the majority does not find that the applicants have made out a case of 'like' work under section 1(4)".
The evidence before the tribunal does warrant the conclusion that the work the women did on the benches was lighter than the work done by the men. It was different from the work done by the men. The men did the heavier work of carrying, lifting and so forth.
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...Department of Water and Power v. Manhart, 98 S.Ct. 1370 (1978). The authorities in this country are not so clear. In Noble v. David Gold and Son (Holdings) Ltd., (1980) I.C.R 543 which was concerned with the reasons why a number of women had been made redundant, discrimination on grounds o......
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...otherwise (eg Hollister v National Farmers Union [1979] IRLR 238, [1979] ICR 542 and Noble v David Gold & Son Ltd [1980] IRLR 252, [1980] ICR 543) ought not now to be followed. [1706] Since Polkey the importance of consultation has again been stressed in a number of cases eg Robertson v Mag......
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