Skyrail Oceanic Ltd v Coleman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE SHAW,SIR DAVID CAIRNS |
| Judgment Date | 24 July 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0724-2 |
| Docket Number | 81/0313 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 1981 |
[1981] EWCA Civ J0724-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice,
Lord Justice Lawton,
Lord Justice Shaw, and
Sir David Cairns.
81/0313
Case No. EAT 43
MR A. LESTER, Q.C. and MR D. WATKINSON (instructed by Judith Ferguson, Hackney Law Centre) appeared on behalf of the appellant.
MR J. BURKE-GAFFNEY Q.C. and MR R. GRIFFITHS (instructed by Messrs I.A Landy Laufer & Co.) appeared on behalf of the respondent.
.
This is an appeal by Mrs Rosalind Coleman, who is a young married woman now aged 21, against that part of a judgment of the Employment Appeal Tribunal which set aside a finding of an Industrial Tribunal that she had been unlawfully discriminated against under the Sex Discrimination Act, 1975. Her appeal has been supported by the Equal Opportunities Commission who, so Mrs Coleman's counsel, Mr Anthony Lester, told us regard the case as one of importance because the respondents, Mrs Coleman's employers, when deciding to dismiss her, assumed that her husband was the breadwinner. Mr Lester submitted that assumptions of this kind about women, which are not based upon evidence, amount to unlawful discrimination against them on the ground of their sex, contrary to sections 1 (1) (a) and 6 (2) (b) of the 1975 Act.
The facts out of which the appeal arises are unusual. On August 1, 1977, Mrs Coleman, who was then a spinster aged 17, began work as a booking clerk with the respondents who trade as Goodmos Tours. They are travel agents, specialising in chartering aircraft for tourist flights to Israel. They have been engaged in this kind of business for some years. Mrs Coleman in the course of her work was bound to get to know of business information which would be of value to rival firms, some of whom engaged in trade espionage. In March 1978, when she was 18, Mrs Coleman became engaged to the man whom she married on September 5, 1978. He worked for a rival firm of travel agents, Travel the World Limited, who wanted to undertake charter flights to Israel. She announced her engagement. News of it disturbed her employer's managing director, a Mr Mozes. He appreciated the possibility that she might divulge information about his company's business to her fiance. He had a talk with her, stressing the need for confidentiality and said that if she did divulge information he would sack her. She promised not to do so. She continued in her employment.
There were two leakages of information from the respondents in July 1978. One was to Travel the World Limited. Mrs Coleman was not accused at the time of being the source of the leaks nor was any suggestion to this effect made before the Industrial Tribunal. There was some evidence that when Mrs Coleman's engagement became known some senior members of the respondent's staff told Mr Mozes that he ought to dismiss her because of the danger of leaks. About this time Mr Mozes' son had a talk with a director of Travel the World Limited, a Mr Levinson. Neither were called as witnesses, but Mr Mozes said this about the talk: "He (that is Mr Levinson) told my son of the engagement of the applicant and her present husband. He said it would not be fair to carry on as we were as we would be accusing one another of leakages".
Mr Mozes attended the wedding on September 5, 1978. The next day he dismissed Mrs Coleman by letter, giving her two weeks pay in lieu of notice. The explanation he gave for dismissing her was as follows: "Regretfully I have to come to the conclusion that it would not be fair to your husband in his position to keep you employed in a similar capacity competing in the same business and dealing with the same clientele. Neither would it be fair to yourself nor to the respective companies". He added a postscript: "For your information Mr Levinson of Travel the World has spoken to us about the same problem and is of the same opinion".
On December 4, 1978, Mrs Coleman made an application to an Industrial Tribunal alleging unfair dismissal. On the facts then known to her this was the only claim she could make. The respondents appeared and gave notice on December 18, 1978, that they admitted dismissing Mrs Coleman but alleged that they had had a valid reason for doing so. They set out their version of the facts and concluded with what they described as relevant points. One, lettered (b), was as follows: "The husband's employers enquired as to what we proposed to do after the marriage as with them both occupied in similar fields, they too were worried about leakages. We did say that we would probably dismiss her and they agreed that this was the only course open to us—As the husband presumably was the breadwinner we thought it fairer to handle it amicably from our end". At some date, which I infer was after the filing of the respondents' answer, Mrs Coleman amended her claim to include applications under sections 1(1)(a) and 3(1)(a) of the Sex Discrimination Act, 1975. The latter is the section which makes discrimination against married persons of either sex unlawful.
The Industrial Tribunal heard the application on October 3 and 4, 1979, and decided that the respondents had discriminated against Mrs Coleman unlawfully within the meaning of the Sex Discrimination Act, 1975, and that she had been unfairly dismissed. They awarded her £1,666 compensation, of which £1,000 was for injury to feelings. They found that she was dismissed because she was a woman instead of being a man, which was discrimination within section 1(1)(a) of the 1975 Act. This finding was based on what the respondents had put in their answer and what Mr Mozes had said when giving evidence. They also decided that the respondents had discriminated against Mrs Coleman because she was a married woman. We have not had to concern ourselves with that finding because Mr Lester accepted that on the facts of this case the discrimination, if there had been any, was because Mrs Coleman was a woman. The repondents have not challenged before us either the Industrial Tribunal's finding or the Employment Appeal Tribunal's confirmation of that finding that Mrs Coleman was unfairly dismissed. Before the Employment Appeal Tribunal they successfully challenged the award of £666 for unfair dismissal, but before us they accepted that if Mrs Coleman had been unlawfully discriminated against under the Sex Discrimination Act, 1975, they could not challenge the sum of £666 as calculated by the Industrial Tribunal for pecuniary loss arising from the section 1(1)(a) discrimination, but they did challenge the award of £1,000 for injury to feelings They were probably encouraged to do so by the Industrial Tribunal's statement that they would welcome guidance from a higher tribunal about the assessment of compensation under this head. Mr Lester informed us that nearly all assessments of compensation for injury to feelings have in the past been for small sums.
The Employment Appeal Tribunal adjudged that there had been no discrimination under section 1(1)(a) of the 1975 Act. They decided as they did on the ground that there was no material upon which the Industrial Tribunal could conclude that the respondents treated Mrs Coleman less favourably than they treated, or would have treated, a man employed by them in the same situation. They also adjudged that in any event an award of £1,000 for injury to feelings was too high and that £250 would have been more appropriate.
The foundation of Mr Lester's submission that there had been unlawful discrimination against Mrs Coleman because of her sex was the evidence provided by the respondent's answer in the relevant point (b), to which I have already referred, and Mr Mozes' evidence when he said: "We came to that decision (that is to dismiss Mrs Coleman) on the assumption that the husband was the breadwinner". The respondents made no enquiries about the financial position of the husband. Had they done so they would have discovered that he was earning a modest wage of £46 per week net, which in 1978 would have provided a poor standard of living for himself and his wife if she did not make any contribution to the family income. General assumptions of this kind said Mr Lester, did discriminate against women because they took no account of individual circumstances and all too often were without any factual basis. This was so with regard to the assumption which Mr Mozes made. The statistics set out in the Fifth Annual Report of the Equal Opportunities Report, 1980, show that in 56.2% of all households married women contribute to the income. The courts, both in the United Kingdom and the United States, have adjudged that general assumptions, or as they are called in the United States stereotyped assumptions, do amount to discrimination against women. That this has been accepted by the Supreme Court of the United States seems clear: see Weinberger v. Wiesenfeld, 95 S.Ct. 1225 (1975) and City of Los Angeles, 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 of sex being alleged on their behalf, this court found for the employers; but the reason which the Master of the Rolls gave was different from that which I gave. Lord Justice Ackner agreed with both of us. The reason I gave was that "Employers when offering jobs must not assume that women are less capable of doing them than men and vice versa…Much will depend upon the applicant's...
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