Dutton v The Governing Body of Woodslee Primary School and Another (: EAT 8 Apr 2016

EAT Practice and Procedure : Appellate Jurisdiction/Reasons/Burns-Barke
SEX DISCRIMINATION – Indirect
The Claimant – a teacher, employed to work with children who had special educational needs and needed stability and continuity – requested to work on a reduced basis after her maternity leave (a four- rather than five-day week). The Respondents refused. On the Claimant’s claim of indirect sex discrimination, it was accepted that the PCP of working a full, five-day, week placed her and others sharing her protected characteristic at a disadvantage. It was also accepted that the Respondents had demonstrated a legitimate aim, the need for stability and continuity for the children the Claimant was employed to teach. What was in issue was whether the PCP was a proportionate means of achieving that legitimate aim. That was a matter for assessment by the ET; the test was an objective one, not limited to assessing the reasonableness of the Respondent’s response at the time but engaged in a broader exercise of assessment and scrutiny of the means adopted with a view to achieving a legitimate aim, balanced against the discriminatory impact demonstrated. In explaining its conclusion, whilst the ET was entitled to expect its reasoning to be read as a whole, the parties were entitled to see how the ET had arrived at the conclusion it did. Specifically, having acknowledged that a difficult balancing exercise arose in this case, the ET’s reasoning needed to demonstrate acknowledgement of, and engagement with, the balance required as between the need identified by the Respondents and the discriminatory impact.
Having recorded the issue before it and summarised the (largely undisputed) factual background, the ET had identified the specific questions arising from an application of the law to the facts in this case. Having observed that the points were not easy to resolve, the ET then gave a one-line answer, stating its conclusion that the PCP had been proportionate.
On the Claimant’s appeal, held: allowing the appeal
From the limited reasoning provided, it was impossible to see the ET’s engagement with the issues before it, specifically the balance required between the Respondents’ aim and the disparate impact. In some instances the answer might be obvious but the ET had acknowledged that was not the case here; yet it was impossible, from the reasons given, to see it had carried out the required assessment let alone had done so with the appropriate degree of scrutiny.
In the circumstances, the decision could not stand. Consideration was given to the possibility of a Burns/Barke Order but it was apparent that the Employment Judge had since retired and this was not an appropriate course, not least as the hearing had been in June 2014.
The appeal would be allowed and the matter remitted to be considered afresh by a new ET.

Eady QC HHJ
[2016] UKEAT 0305 – 15 – 0804
Bailii
England and Wales

Employment, Discrimination

Updated: 24 January 2022; Ref: scu.570377