Dutton v The Governing Body Of Woodslee Primary School & Anor

In an indirect discrimination claim, justification requires an objective proportionality assessment. The employer must establish a real need for the measure, and the tribunal must weigh the importance of the legitimate aim against the discriminatory impact. The measure must be appropriate and reasonably necessary; the test is more demanding than whether the employer acted within a range of reasonable responses.

Where that balancing exercise is difficult, reasons must show how the tribunal evaluated the competing considerations. A bare conclusion of proportionality, after identifying material factors, is inadequate. If the reasoning cannot properly be supplemented, the case should be remitted for fresh determination by a new tribunal.

The Claimant, a teacher of children with special educational needs, sought to return from maternity leave on a four-day week. The Respondents refused because the children required stability and continuity. The Employment Tribunal accepted that the full-time working requirement caused group and individual disadvantage on grounds of sex, and that continuity and stability was a legitimate aim. It dismissed the indirect sex discrimination claim, holding in one sentence that the requirement was proportionate.

The Claimant appealed from the Liverpool Employment Tribunal’s judgment, sent on 19 September 2014, and Written Reasons dated 24 February 2015. The central issue was whether the Tribunal had given adequate reasons for its conclusion on objective justification.

1. Appeal allowed. The Employment Tribunal’s decision could not stand because its reasons did not reveal that it had undertaken the required objective assessment of proportionality.

2. Under section 19 of the Equality Act 2010, once disparate adverse impact is established, the employer bears the burden of showing that the PCP is a proportionate means of achieving a legitimate aim. This requires critical scrutiny of whether there was a real need for the measure, its appropriateness and reasonable necessity, and a balance between the importance of the aim and the discriminatory effect. It is not confined to the reasonableness of the employer’s response when it made its decision.

3. The Tribunal had identified material competing matters: possible alternatives at other schools, the absence of evidence of adverse impact during maternity leave, the Claimant’s childcare position, and the children’s need for continuity. It also said that the balance was not easy. Yet it gave only a one-line conclusion. The EAT could not see how the Tribunal had resolved those matters, or that it had applied the requisite degree of scrutiny.

4. Although Tribunal reasons must be read as a whole and need not be exhaustive, they must enable the losing party and an appellate court to understand why the result was reached. The evidential material and oral reasons could not cure the deficiency.

5. A Burns/Barke procedure was unsuitable. The hearing had taken place in June 2014, the Employment Judge had retired after ill health, and lay members should not be asked to supply the reasons. The claim was remitted for a fresh hearing before a newly constituted Employment Tribunal. The Respondents were jointly and severally ordered to reimburse the Claimant’s appeal fees of £1,600.

• Employment Appeal Tribunal: allowed the Claimant’s appeal for inadequate reasons, set aside the dismissal, and remitted the indirect sex discrimination claim to a freshly constituted Employment Tribunal.
• Liverpool Employment Tribunal: dismissed the indirect sex discrimination claim in a judgment sent on 19 September 2014, with Written Reasons dated 24 February 2015.