B e f o r e :
LORD JUSTICE STUART-SMITH
LORD JUSTICE WAITE
and
LORD JUSTICE MILLETT
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(1) DENISE MEADE-HILL |
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(2) NATIONAL UNION OF CIVIL AND PUBLIC SERVANTS |
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Applicants/Appellants |
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-v- |
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THE BRITISH COUNCIL |
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Respondent |
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(Handed Down Judgment of John Larking,
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Official Shorthand Writers to the Court)
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MISS CHERIE BOOTH and MISS HELEN MOUNTFIELD (instructed by Messrs. Robin Thompson & Partners, London WC1) appeared on behalf of the Appellants.
MR. DAVID PANNICK QC and MR. GERARD CLARKE (instructed by the Treasury Solicitor, London SW1) appeared on behalf of the Respondent.
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LORD JUSTICE STUART-SMITH:
The question at issue
The question in this appeal is whether the Court should make a declaration pursuant to s. 77 (2) of the Sex Discrimination Act 1975 ("the Act") that a term ("the mobility clause") in the contract of employment of the British Council ("the Council") employees of Officer Grade G and above, which requires them to serve in such parts of the United Kingdom as the Council in its discretion requires, is unenforceable on the grounds of unlawful sexual discrimination. It raises important issues as to the construction and scope of that section.
The background
The Council is a well known organisation incorporated by Royal Charter. Its staff is divided broadly into two groups, those who are willing and able to serve overseas, the Overseas Career Service, and those whose work is in the United Kingdom, the Home Career Service. We are concerned with the latter. Since 1964 the Council had adopted the Civil Service terms and conditions of employment and the pay scales and allowances reflect those of the Civil Service. The Second Appellants, the National Union of Civil and Public Servants ("the Union") represent most of the Council's employees in middle management, namely those in grades E, F and G, senior management being in grades A to D.
Specific standard contractual terms apply to each grade, but for present purposes it is sufficient to note that contracts for officers of grade G and above contain Term 8 as follows "the mobility clause":
"Officers in the [Home Career Service] holding full-time appointments in Grade G or above.....shall serve in such parts in the United Kingdom.....as the Council may in its discretion require....."
Mrs Meade-Hill, the first appellant, is a married woman who lives in London. She began employment with the Council in 1988 in grade H. In 1990 she was promoted to grade G, and in November of that year agreed to the variation of her terms of service, inter alia, by the incorporation into it of the mobility clause. From 1989, if not earlier, the Council had been considering moving its head office and a substantial part of its operations from London to Manchester, with a view to saving costs. Mrs Meade-Hill was notified of this by letter dated 5 December 1989. Throughout 1990 and 1991 there were many discussions between the Council's managers responsible for carrying through the move, planned for March 1992, the Trade Unions concerned, including the Union, and individual members of staff. Detailed arrangements were negotiated to assist those who were going to make the move, both financially and in other ways to deal with problems of housing, schooling and relocation expenses and similar matters. But insufficient numbers were willing to move. Accordingly, the Council indicated that it might have to invoke the mobility clause and treat any employee who refused to move as being in breach of contract. Such a breach once established would constitute a ground for dismissal: and an employee so dismissed would lose any entitlement to redundancy pay.
Mrs Meade-Hill was one of those who, if asked, would have been unwilling to move. Her husband, who earns considerably more than she does, works as a computer engineer for British Telecom in London. It was said by Mrs Meade-Hill that it would be difficult, if not impossible, for him to earn an equivalent income if he was required to move with his wife to the Manchester area.
In the event, Mrs Meade-Hill was not required to move, and she never in fact answered the question whether she was willing to do so. By March 1992, the Council had persuaded a sufficient number of employees to move and decided that the comparatively few who had indicated an unwillingness to do so could be accommodated in London. In the result, therefore, the mobility clause was not invoked against anyone in the move to Manchester. Mrs Meade-Hill was notified of this by letter dated 10 March 1992.
Meanwhile, on 24 October 1991, Mrs Meade-Hill and the Union had issued an originating application in the Westminster County Court seeking a declaration pursuant to s. 77 (2) of the Act that the mobility clause was unenforceable on the grounds of sexual discrimination contrary to the provisions of the Act; and by amendment it was alleged that it was also contrary to the European Directive 76/207/EEC ("the Equal Treatment Directive").
The case came on for hearing at the Central London County Court on 23 and 24 November 1993 before H.H. Judge Quentin Edwards QC. In a judgment handed down on 6 January 1994, the Judge dismissed the application. Mrs Meade-Hill and the Union now appeal.
The statutory provisions
Section 1 (1) of the Act defines discrimination as follows:
"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 or or appeal.
LORD JUSTICE MILLETT: When Mrs. Meade-Hill, the First Appellant, was promoted to grade G by her employers in 1990 she was required to accept a variation of her contract of employment by the incorporation of an additional clause ("the mobility clause") which applied to all full-time employees, whether male or female, of grade G and above. The mobility clause made it a term of her contract of employment that she should serve in such parts of the United Kingdom as her employers might in their discretion require.
Mrs. Meade-Hill was and is a married woman living in London. As is the case of many married women, her husband is the family's primary earner. He is employed as a computer engineer and earns considerably more than she does. In 1989 Mrs. Meade-Hill was warned that her employers were considering moving their head office and many of their operations from London to Manchester, and for some time she was at risk of having the mobility clause invoked against her, with dismissal as the consequence if she did not comply. In the event the risk did not materialise. Her employers were able to accommodate her wish to remain in London, and they have never required her to move elsewhere.
By the present proceedings Mrs. Meade-Hill, supported by her union, complains of the inclusion of the mobility clause in her contract of employment. She alleges that it constitutes indirect sexual discrimination against her as a woman contrary to the Sex Discrimination Act 1975 ("the Act") and, if necessary, to the Equal Treatment Directive 76/207/EEC. She seeks a declaration that the mobility clause is unenforceable against her by virtue of Section 77(2) of the Act, and an order removing or modifying the clause pursuant to Section 77(5) of the Act. The question on this appeal is whether her application is premature (if not academic). If so, she must wait until her employers once again threaten to invoke the mobility clause against her, if they ever do.
Stuart-Smith LJ has set out the relevant provisions of the Act in his judgment and I need not repeat them. I should, however, set out the terms of Section 6 which are as follows:
"Discrimination against applicants and employees
(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman -
(a)in the arrangements he makes for the purpose of determining who should be offered that employment, or and their interpretation of the Act conflict with that requirement.
I would allow the appeal and remit the case to the county court to proceed with the hearing in the manner which I have indicated.
LORD JUSTICE WAITE: A woman employee seeking, under S 77 (5) of the Sex Discrimination Act 1975, a removal or modification by the court of a term of her contract of employment on the ground of discrimination must satisfy the court that it constitutes (or is in furtherance of, or provides for) unlawful discrimination against a party to the contract and is therefore unenforceable against that party by virtue of S 77 (2). Where (as in this case) the unlawful discrimination relied on is indirect, the employee has to show that within the language of S 1 (1) (b) of the Act:
(1)the term amounts to a requirement or condition;
(2)the employer is applying that term to her ("the application requirement");
(3)the term is one which would equally apply to a man;
(4)the term 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;
(5)it is to her detriment because she cannot comply with it ("the detriment requirement").
The term of her employment contract ("the mobility clause") of which Mrs Meade-Hill sought removal or modification by her application to the Westminster County Court on 7th December 1992 was:
"Officers in the [Home Career Service] holding full-time appointments in Grade G or above ..... shall serve in such parts of the United Kingdom ..... as the Council may in its discretion require."
There has been no dispute at this hearing that requirements (1) and (3) are satisfied. Requirement (4) was the subject of evidence in the court below consisting of an opinion poll survey. The judge did not regard it as satisfactory, and no one at this hearing has seriously criticised him for taking that view. The members of this court have been prepared, as Lord Justice Stuart-Smith has explained, to take judicial knowledge of the fact that under current social and economic conditions the category of employed people earning a secondary income includes a considerably larger proportion of women than of men. The following can therefore be treated as common ground:
(a) there are numerous households with two income-earners
(b) within such households the earnings are seldom equal - the norm (that is to say) is one primary and one secondary income-earner
(c) secondary income-earners are more likely than primary income-earners to be unable (because of economic dependence on the primary income-earner) to comply with a requirement to move their work to any destination which necessitates a change of home
(d) the proportion of women who are primary wage earners is considerably smaller than the proportion of men in that earning category (and conversely the proportion of women secondary earners is considerably larger than the proportion of men earning secondary incomes)
(e) a considerably smaller proportion of women than of men can therefore comply with a requirement to move their workplace to a destination which involves a change of home.
There is accordingly no dispute that requirement (4) is satisfied. The argument on this appeal has concentrated on the question whether the application and the detriment requirements (as I have called them) are made out in the case of Mrs Meade-Hill.
THE TIMING ISSUE
At the heart of this case lies a preliminary, and perhaps decisive, question: at what point of time is the impact of the application requirement and the detriment requirement to be judged? No one suggests that they must be assessed at times different from each other: they stand or fall together when judged at the same moment. The problem is to determine what that moment should be. Three alternatives were considered in the course of this hearing:
(1) The moment when the impugned term becomes incorporated into the contract between the parties
(2) The point at which it becomes reasonably foreseeable that the term is one with which the applicant will be unable to comply
(3) The stage at which it is sought by the employer to enforce the term against an individual in any particular set of circumstances.
Alternative (3) seems to have been the one chosen by the judge. That is implicit in his finding that:
"there is no sufficient factual or evidential basis in this case upon which to reach the conclusion that there has been indirect discrimination".
It is not, however, one that I understand to have been relied on in this court, where Mr Pannick accepted that S 77 (5) does have an element of futurity. By that concession, I understood him to be acknowledging that the underlying purpose of S 77 (5) (when applied to an employment context) is to enable employees to obtain advance removal or modification of a discriminatory term in their contract without having to wait for the moment when they can prove that they have actually suffered some detrimental experience as a result of its enforcement. But Mr Pannick's concession went no further than that. There must be some practical limit, he submitted, to the scope of a section, which (as he expressed it) is to be regarded as conferring anticipatory relief, but not contingent relief.
So the contest as to timing lies between alternative (1), which is urged by Miss Booth, and alternative (2), which is advocated by Mr Pannick. Each side was able to point to difficulty or anomaly in the other's interpretation. Alternative (1) would, for example, allow applications for relief under S 77 (5) to be brought unmeritoriously by an applicant who had entered into the contract with full awareness of the discriminatory character of the offending term and with the deliberately cynical intention of applying to the court immediately afterwards to have it removed; or by an applicant who was not herself a member of the minority group of women by reference to whom the relevant discrimination is defined, but was nevertheless seeking to improve her own position by attacking a burdensome obligation (as might be the case, for example, where a mobility clause was sought to be challenged by a woman employee who was a primary income-earner). Alternative (2), on the other hand, although attractive on pragmatic grounds, would be prone to cause difficulty and uncertainty suffered as a result of the proposed importation into discrimination law of a "reasonable foreseeability" test.
Interesting though it was to be referred to the authorities cited to us, including the relevant Articles of the Equal Treatment Directive, this question - like most issues of statutory construction - falls to be resolved, in my view, as a matter of impression gained from reading the relevant sections in the light of the legislative scheme in which they occur. The Discrimination Acts had an educative as well as a legislative purpose. Their objective was not merely to regulate behaviour, but also to influence social attitudes by achieving a greater awareness (especially in areas where discrimination is indirect and therefore not so readily apparent) of the inequalities of opportunity to which discrimination may lead. To that intent the concept of indirect discrimination was framed broadly - in language which casts the discriminatory net over a very wide area and gives it a fine mesh. The prevention of any unfairness or injustice being suffered as a result is achieved by giving equal breadth to the criterion of justification introduced by S 1 (1) (b) (iii), which exempts from unlawfulness any condition which (when the context is employment) the employer can show:
"to be justifiable irrespective of the sex of the person to whom it is applied".
When the application and detriment requirements are construed against that background of policy and purpose, it seems to me that the interpretation which best accords with the objectives of the Act is to regard them as falling to be judged at the moment when the contract is entered into. Once it is conceded that there is an element of futurity in S 77 (5), there can in my view be no half-way house between alternatives (1) and (3). If the Act is to be construed as a whole according to its tenor, the choice must fall on alternative (1). The fact that such a construction may be found on occasion to provide a justification for anomalous (or even absurd) applications is part of the price which inevitably has to be paid for a statute intended to have the widest possible effect. In practice such anomalies will be liable to disappear if the relevant requirement is held to be justifiable, and the wide discretion given to the court by S 77 (5) to "make such order as it thinks just for removing or modifying" the term in question leaves the judge with a discretion to deal sensibly with unmeritorious or merely technical applications.
I now come to consider the two requirements in the light of that conclusion on the timing issue.
THE APPLICATION REQUIREMENT
It is a natural use of the term "apply" to regard it as operating in any case where an employer holds an employee bound by any term of the contract of employment. The mobility clause is a term of Mrs Meade-Hill's contract of employment. The British Council holds her to it today, and (despite willingness not to press it in the particular instance of the former projected move to Manchester) has held her to it as a matter of general obligation from the moment when she became party to a contract which incorporated it. I would therefore regard the application requirement as being satisfied in this case: the employer is "applying" the mobility clause to the appellant within the terms of S 1 (1) (b).
THE DETRIMENT REQUIREMENT
The sting of the discrimination lies in the potential inability of a woman to comply with a requirement to move house because she is a secondary income-earner. Given the answer already obtained to the timing question, it would seem to me to be quite wrong (and inconsistent with the scheme and purpose of the Act) to attribute to Parliament any intention that the detriment requirement should be interpreted restrictively, so as to apply only in cases where an applicant can show that in the particular circumstances obtaining at the date of the contract - or at any subsequent date - she is unable to comply with the requirement in question. It is sufficient, in the present case, that Mrs Meade-Hill should be able to demonstrate that the mobility clause has the potential (because of the right it gives her employer to impose upon her a change of workplace which involves a change of house) to operate as a requirement with which she cannot comply. The relevant requirement, in other words, must be assessed, when judging it for its impact upon the applicant, anticipatorily in all its terms - regardless of whether or not the employer is seeking at the moment of application to enforce any particular one or more of those terms against the applicant employee.
CONCLUSION
For these reasons I would allow the appeal. The issue of justifiability was mentioned by the judge as an issue on which evidence had been called and argument deployed, but on which, in the light of his decision on the primary question, it became unnecessary for him to make any finding. On the view that I take of the case, justifiability becomes the primary issue, and the application will have to be remitted to the county court for determination of that issue, either on the evidence already heard or with the benefit of such further evidence as the court may approve or direct.
Order:appeal allowed with costs in this court; order for costs in the court below set aside and the costs of the hearings before the county court judge reserved to him; leave to appeal to the House of Lords granted, and thereafter matter to be remitted back to the county court on the issue of justification.
