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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Enderby v Frenchay Health Authority & Ors [2000] EWCA Civ 45 (17 February 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/45.html
Cite as: [2000] ICR 612, [2000] IRLR 257, [2000] EWCA Civ 45
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Case No: EATRF 98/1340/A1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 17th February 2000
LORD JUSTICE ROCH
LORD JUSTICE WARD
and
MR JUSTICE GAGE
FRENCHAY HEALTH AUTHORITY AND
THE SECRETARY OF STATE FOR HEALTH
MARGARET EVESHAM
v
NORTH HERTFORDSHIRE HEALTH AUTHORITY AND
THE SECRETARY OF STATE FOR HEALTH
ANGELA HUGHES
v
WEST BERKSHIRE HEALTH AUTHORITY AND
THE SECRETARY OF STATE FOR HEALTH
- - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
Miss Laura Cox, QC (Ms U.Burnham 17/2/00 only) (instructed by Irwin Mitchell for the Appellants)
Mr Adrian Lynch (instructed by The Treasury Solicitor for the Respondents)
As Approved by the Court
Crown Copyright ©
LORD JUSTICE ROCH:
These are appeals from orders of the Employment Appeal Tribunal sealed on the 2nd September 1998 dismissing the Appellants' appeals to the Employment Appeal Tribunal from the decision of an Industrial Tribunal given on the 29th October 1997. The Employment Appeal Tribunal granted leave to appeal and an extension of time in which to appeal on the 23rd September 1998.
The issue which has to be decided in this appeal, can be identified by reference to the case of Mrs Evesham and the North Hertfordshire Health Authority and the Secretary of State for Health. The facts in the cases of Professor Enderby and Mrs Hughes give rise to the same issue.
In 1987 Mrs Evesham applied to the Industrial Tribunal under the provisions of the Equal Pay Act maintaining that her work was of equal value to that of her male comparator. At the date of the originating application, the 20th August 1987, Mrs Evesham was employed by the First Respondent as a District Chief speech therapist having been employed by them since the 1st April 1983. She was being paid on pay scale Code ST46 and was, in 1987 in receipt of an annual salary of £14,592. On that pay scale her annual salary in 1987 represented a starting salary of £13,008 and three annual increments of £528 each. Her chosen comparator was Dr Phillip Mollon, a top grade clinical psychologist with greater responsibility employed by the First Respondents. Dr Mollon had been so employed for less than one year and was on pay scale Code SD61 and received an annual salary of £22,667. On that pay scale Code Dr Mollon would have received in the succeeding four years salary increases of £719, £1134, £1045 and £1059. By the end of the 5th year Dr Mollon's salary would have risen from £22,667 to £26,624.
These proceedings have a protracted history, which has included a reference to the European Court of Justice. It may well be that this appeal is but one further step in that long trail.
In the summer of 1997 the Industrial Tribunal decided that at the material time, that is to say the date of the originating application, Mrs Evesham's work had been of equal value to that of her comparator Dr Mollon. The Industrial Tribunal gave its full reasons for that decision on the 9th September 1997. The Tribunal then held a remedy hearing on Mrs Evesham's case and the two other cases on the 29th and 30th of September and the 1st October 1997.
The Tribunal had no difficulty in arriving at the conclusion that Mrs Evesham had, in 1987, been entitled to receive an annual salary equal to that paid to her comparator, Dr Mollon. Mrs Evesham had included in her contract of employment a term, which appeared in Dr Mollon's contract of employment, namely that her annual salary should be augmented by a number of annual incremental pay increases. The Tribunal had no problem in holding that those increases should be based on the higher salary to which Mrs Evesham had become entitled by reason of her successful application under the Equal Pay Act.
It was the amount of that higher salary which was in dispute. The case of Mrs Evesham was that, her work having been found to have been of equal value with that of Dr Mollon, she should have been paid not the same as Dr Mollon was paid in 1987 but as though she had been entitled to the pay scale for clinical psychologists of Dr Mollon's grade i.e. pay scale Code SD61. Mrs Evesham should enter that pay scale not on the bottom run, as Dr Mollon had been in 1987 because he was then newly in post, but at the level commensurate with her five years of service i.e. with the four annual increments. Mrs Evesham's salary for 1987 should have been £26,624.
The case for the Respondents, put shortly, was that as the finding that Mrs Evesham's work in 1987 was of equal value as Dr Mollon's work in 1987 Mrs Evesham should have been paid the same as Dr Mollon had been paid in 1987 and should thereafter have had the benefit of the same annual increments as he was entitled under his contract of employment to enjoy.
The Employment Appeal Tribunal accepted the case for the Respondents.
Section 1(1) of the Equal Pay Act 1970 provides that -
"If the terms of a contract under which a woman is employed - do not include - an equality clause they should be deemed to include one."
Section 1(2) provides
"An Equality Clause is a provision which relates to terms (whether concerned
with pay or not) of a contract under which a woman is employed (the "Woman's
Contract"), and has the effect that -
(c) where a women is employed on work which, not being work in relation to
which paragraph (a) or (b) above applies, is, in terms of the demands made on
her (for instance under such headings as effort skill and decision), of equal
value to that of a man in the same employment
(i) if (apart from the Equality Clause) any term of the woman's contract is or
becomes less favourable to the woman than a term of a similar kind in the
contract under which that man is employed, that term of the woman's contract
should be treated as so modified as not to be less favourable and
(ii) if (apart from the equality clause) at any time the woman's contract does
not include a term corresponding to a term benefiting the man included in the
contract under which he is employed, the woman's contract shall be treated as
including such a term ".
The submissions for the Appellants start with the proposition that there was no
evidence before the Tribunal of any discretionary element to the annual
increments to salary. Both the contract of Mrs Evesham and the contract of Dr
Mollon contained a condition that they were to receive an annual increment to
their salary, in Mrs Evesham's case for each of the 2nd, 3rd and 4th years of
her employment, the increment being £528 each year, and in Dr Mollon's
contract for the 2nd, 3rd, 4th and 5th year at varying amounts set out above,
all of which were more than £528. The actual salary to be received in any
year was to be determined by the number of years of employment, and by that
alone. It followed that the provisions of the Act could only be complied with
if Mrs Evesham was paid a salary representing the salary Dr Mollon would have
had in 1987 had he been in post for five years and not for less than a year.
The equality clause deemed to be included in the contract under Section 1 of
the 1970 Act:
"Did not require or permit the woman to be moved to a different incremental
point on the salary scale of the comparator, simply because the comparator had
a different length of service from the applicant. There was no inequality
between the contracts in relation to the applicability of an incremental scale;
only in relation to the amounts payable under the incremental scale."
The Appellants' counsel argues that the decision of the Employment Tribunal and
the Employment Appeal Tribunal to disapply the length of service increment in
Mrs Evesham's case when arriving at the salary she should have received in 1987
has caused inequality where none had previously existed. The only inequality
of treatment is the assessment of her salary as though Mrs Evesham's length of
service was merely one year and not, as it actually was in 1987 five years.
This approach, it is submitted, wrongly results in Mrs Evesham being treated as
if she were the comparator with all his personal features material to pay,
including length of service. This approach deprives Mrs Evesham of the true
benefit of the term in her contract which entitles her to annual salary
increments.
The Appellants' Counsel goes on to point out that had Mrs Evesham had fewer
years in post than Dr Mollon, Mrs Evesham would have received "a pay windfall".
The interpretation of the Act and its application as contended for by the
Appellant avoids this anomaly. Another anomaly avoided by the Appellants'
construction, in the submission of the Appellants' Counsel, is the fact that in
this case Mrs Evesham's claim for two years arrears of salary has been
conceded, and the Respondents have also conceded that Mrs Evesham should
receive the salary of a clinical psychologist on the lowest rung of the pay
scale for clinical psychologists, thus notionally treating Mrs Evesham as
though she had worked for three years without the benefit of annual salary
increment. This anomaly will be all the greater if, subsequently, it should
prove that Mrs Evesham is entitled to six years' arrears of pay.
Once it was established that Mrs Evesham did work of equal value to that of Dr
Mollon in 1987, the equality clause in her contract required the term in her
contract relating to salary to be amended to provide that she should be
remunerated on pay scale Code SD61. With that amendment, Mrs Evesham having
been in post for 6 years was entitled to a salary of £26,624 for the year
1987.
The respondent's case is that Mrs Evesham, having established that her work in
1987 was of equal value to that of Dr Mollon in 1987, was entitled to have her
conditions as to her pay amended so that she received for 1987 a level of pay
equal to that received by Dr Mollon in that year and thereafter the same
entitlement to annual increments. If an applicant succeeds in establishing
that her work is of equal value to that of her chosen comparator, she is
entitled to equal terms. There was an existing term for remuneration in Mrs
Evesham's contract which, under s. 1(2)(c)(i) had to be treated as being so
modified as not to be less favourable than the term dealing with remuneration
in Dr Mollon's contract. The Act does not require that the term in Mrs
Evesham's contract relating to remuneration should be treated as being modified
so as to be more favourable than the term in Dr Mollon's contract. The purpose
of the 1970 Act is not to introduce fair wages but to avoid discrimination
against female employees by an employer. If Dr Mollon for the work he did in
1987 was remunerated in the sum of £22,667 then amending Mrs Evesham's
contract so that she received the same sum by way of salary would be either
modifying her contract so that it was not less favourable or, and Mr Lynch,
counsel for the respondents, preferred this analysis, it would be including a
term in Mrs Evesham's contract corresponding to the term benefiting Dr Mollon
included in the contract under which he was employed.
Mr Lynch also made the point that examination of the decision of the industrial
tribunal on the 9th September 1997 that the applicant had been engaged on work
of equal value with that of her male comparator and the report of the
independant expert, Mrs Keogh, assessing whether the applicant and the
comparator were doing work of equal value in 1987 showed that the fact that the
applicant was a highly qualified speech therapist who had been in post for 5
years and that she had chosen as a comparator a clinical psychologist who was
highly qualified as a clinical psychologist but lacking experience because he
was the first clinical psychologist to be appointed by the first respondents
and was in his first year, must have affected and did affect the conclusion
that the work done by each was of equal value. Mrs Keogh in her conclusion
observed:
"Neither the applicant nor the comparator can be said to be typical of the
generic titles speech therapist/clinical psychologist."
Mrs Keogh was careful to limit her conclusion to the time of the originating
application. The point that Mr Lynch makes is that to remunerate Mrs Evesham
as though she were doing work of equivalent value to the work that Dr Mollon
would be doing in 1992 in his 5th year in post would go far beyond the equal
treatment envisaged by Parliament in the 1970 Equal Pay Act.
Miss Cox, QC for the appellants sought to counter that last submission by
saying that in deciding whether a woman is to be regarded as doing work rated
as equivalent with that of any man, the value of the woman's work and the value
of the man's work is looked at in terms of the demand made on the worker under
various headings for example effort, skill, decision, see s.1(5) of the Act.
The demands made on the employee are not affected by the employee's length of
service. An employee's length of service or experience will play little part
in an assessment of the value of that employee's work. On this aspect of the
case, Mr Lynch in his submissions gave the example of a young solicitor whose
work after 5 or 6 years of experience would be of greater value than it had
been in his first year, because he would be able to work more accurately and
more quickly in the field of law in which he was employed to practice. It
would be unrealistic for anyone to maintain that the work he had done in his
first year had been of equal value to the work he was doing in his fifth or
sixth years.
The decision of the Industrial Tribunal was to this effect:
"The Tribunal looked at the terms of the legislation, in particular to s.
1(2)(c) of the Equal Pay Act and asked itself what was the term of the male
comparator's contract which was more favourable. The Tribunal found that it
was that the comparator was paid on the clinical psychologist scale at a
particular point on that scale. It also found that a further more favourable
term was that the comparator had the right to progress up that scale. The
Tribunal was therefore satisfied that the terms to be modified in the
appellants' contracts were that they should be paid on the appropriate scale of
their comparators at the point on those scales that their comparators had
reached and that thereafter they progress up those scales at the same rate as
their comparators."
The Tribunal went on to record that the parties had agreed, with regard to
arrears, that the appellants should recover two years' back pay and that the
question of any further back pay should be adjourned to await the determination
of a reference to the European Court of Justice.
The Employment Appeal Tribunal started the reasoning by which they came to a
conclusion favourable to the respondents by observing:
"These jobs are not routine nor straight-jacketed. Matters of professional
development and development of the post held are matters for the individual.
Equality, breadth and extent of work done by individuals within their grade in
respective fields varies enormously. Mrs Evesham was able to establish that,
at the date of her originating application, and after many years of
distinguished service in the field of speech therapy including some five or six
years of development in and of, her post, her work was of exactly equal value
of that of Dr Mollon. Dr Mollon was in fact a man with many years less
experience in his field, but with the high level of training commensurate with
it.
Accordingly, the respondents submitted that the Equal Pay Act focuses on the
job done by the applicant and by the chosen comparator at the relevant date of
equal value (the Originating Application). For Mrs Evesham to establish equal
value with one District Clinical Psychologist did not demonstrate that she had
(or would be able to) establish equal value with all District Clinical
Psychologists. The analysis undertaken is one to one.
If equal value is established, the applicant is entitled to obtain what her
chosen comparator enjoys as his contractual rights at the relevant date. Thus,
Mrs Evesham should receive the salary received by her chosen comparator and
thereafter the rights on the comparator's contractual increment scale.
If, however, Mrs Evesham were to enter, at the relevant date, the pay scale
enjoyed by her comparator but at an incremental level higher than her
comparator, the effect would be that from that date she received pay at a level
in excess of that received by her comparator with whom she had established
equal value, and commensurate with the pay scale of somebody with whom she had
not established equal value.
That, it was submitted, does not achieve the purpose of the Act. Furthermore,
by starting at an incremental point of, say, six years, Mrs Evesham would get a
second, or double, benefit from those six years which had contributed to her
achieving the level of professional development already taken into account in
establishing equal value.
Counsel for the appellant submitted that the respondents' concession of the
appellant's claim to two years arrears of pay amounted to a binding concession
that the appellant's work was of equal value to that of her comparator for the
two years before the relevant date, at which equal value was in fact assessed.
That was not conceded by the respondents whose position was that the decision
to agree to two years of arrears was a pragmatic one taken at the end of very
long litigation.
It is, as we understand, the appellant's case that, having entered the
comparator's pay scale at the incremental level appropriate to her actual years
in post, she should be paid arrears on the incremental level appropriate for
the two previous years.
Had Dr Mollon been of equivalent service in post, the contention would have
caused no difficulty. The difficulty only arises if Mrs Evesham is to enter
the scale at her comparator's incremental level and because that was, in fact,
at the lowest level. That creates a practical difficulty in achieving what the
Industrial Tribunal put in these terms:
"The applicant mirrors the comparator over the two years prior to the
presentation of the originating application, or where the comparator would have
been, had he been in post at the time"
To obtain true mirror effect, Mrs Evesham's arrears of pay should reflect the
pay in fact enjoyed by her comparator in the two previous years (even if on a
lower scale). But the mirror effect cannot, in this instance, be achieved.
Mrs Evesham does better by receiving arrears at the level in fact achieved by
her comparator at the relevant date, than by truly mirroring his pay over the
two previous years.
We have reached the conclusion, and we hold, that Mrs Evesham's entitlement
under s. 1(2) of the 1970 Act is to have the relevant term of her contract
modified so as to be not less favourable than that of her comparator. She has
established equal value with him and not with all, or any other, District
Clinical Psychologist of his grade. Accordingly, we agree with the Industrial
Tribunal that Mrs Evesham mirrors the comparator on the incremental scale, at
the relevant date she joins it where her comparator whose work is of equal
value stands and enjoys the same contractual entitlement to incremental
progression as the comparator enjoys."
One difficulty under which this court laboured was the absence of a copy of Mrs
Evesham's contract of employment and Dr Mollon's contract of employment. The
absence of those documents may not have been surprising in view of the 12½
years which have elapsed between the operative date and the present time.
Since the hearing of argument copies of the contracts havebeen found and, with
the agreement of both counsel supplied to the court. The contract of Mrs
Evesham provided the salary scale would be "Chief I" which was scale ST41, Mrs
Evesham's "commencing salary" and the "incremental date" the 26th November.
That contract was dated the 5th November 1976. A letter written by Mrs Evesham
to the Health Authority's District Personnel Officer on the 4th May 1983,
establishes that on the 1st April 1982 Mrs Evesham was regraded to District
Senior Chief from Chief I Speech Therapist. It follows that on that date her
salary scale would have become ST46. Dr Mollon's contract provided: "Your
current basic pay is £22,667 per annum ..... and will be paid at monthly
intervals in accordance with the Authority's conditions of pay, and your
increment date is 1st October."
It is clear from the Industrial Tribunal's decision that the Industrial
Tribunal was satisfied that there were two terms in Mrs Evesham's contract that
had to be modified. The first related to the salary scale and the second
related to the rate at which she should progress up the salary scale. The
Employment Appeal Tribunal analysed the matter in the same way considering that
there were two terms in Dr Mollon's contract which had to be reflected in Mrs
Evesham's contract either by being incorporated into it or by the terms in her
contract relevant to such matters being modified. Miss Cox in the course of
her reply sought to argue that the term in Mrs Evesham's contract dealing with
increments to her salary was not a term of her contract which was less
favourable than the term in Dr Mollon's contract. In my judgment that
submission was clearly wrong. The term in Dr Mollon's contract was much more
favourable in that it provided for four increments and not merely three and
each of those increments was substantially larger than the increments contained
in Mrs Evesham's contract. That term, therefore, called for amendment and had
to be amended as at the operative date.
In my judgment the issue in this appeal is to be resolved by examining first
if the finding that the work done in 1987 by Mrs Evesham was of equal value to
the work done in that year by Dr Mollon was dependant upon the length of
service and experience of Mrs Evesham and the length of service and experience
of her chosen comparator. The appellants maintain, correctly, that the annual
salary increment does not depend on the employee's performance. It depends
solely upon length of service and is, in effect, a reward for loyal service.
Nevertheless, if the finding that the work that Mrs Evesham did in 1987 was the
equivalent of the work Dr Mollon did in that year depended upon the fact that
Mrs Evesham with her five years of experience was in her sixth year
contributing work of greater value than she would have contributed in the first
year of her employment with the first respondents, and if her chosen comparator
in his sixth year would have been contributing work of greater value than the
work he actually contributed in his first year, then to allow Mrs Evesham to
receive in respect of 1987 not merely the salary that Dr Mollon received in
that year, but Dr Mollon's salary plus four annual increments, would be to
allow Mrs Evesham to double count her experience. Such an approach would also
disregard additional value to work done by her chosen comparator which the
extra years of experience in post would bring to that comparator's work.
A reading of Mrs Keogh's report and the decision of the Industrial Tribunal of
the 9th September 1997 make it clear that these factors did play a significant
part in Mrs Evesham establishing that she was doing work of equal value to that
of Dr Mollon in 1987. Further, I would respectfully adopt the reason which
found favour with the Employment Appeal Tribunal for reaching the conclusions
they did namely that were Mrs Evesham to enter, at the relevant date, the pay
scale enjoyed by her comparator but at an incremental level higher than her
comparator, the effect would be that from that date she received pay at a level
in excess of that received by her comparator with whom she had established
equal value, and commensurate with the pay scale of somebody with whom she had
not established equal value.
It is the treatment of the chosen comparator by the employer that has to be
equalled. That equal treatment is to be achieved in Mrs Evesham's case by one
of the two mechanisms in s. 1(2)(c) . Equal treatment is achieved by examining
the applicant's contract of employment and the comparator's contract of
employment term by term. If there is a term in the applicant's contract of
employment which is less favourable than a term of a similar kind in the
comparator's contract of employment then the term in the applicant's contact of
employment must be modified so as not to be less favourable. If there is a
term in the comparator's term of contract of employment which is beneficial and
which has no equal term in the applicant's contract of employment, then the
applicant's contract of employment is altered so as to include that term. If
the applicant has terms in her contract which are more favourable than
equivalent terms in the comparator's contract the applicant keeps the benefit
of those terms and in addition is entitled to have any less favourable term in
her contract modified so as to be not less favourable than the equivalent term
in the comparator's contract or, if the comparator has in his contract a
beneficial term which does not appear in the applicant's contract, to have such
a term included in her contract. That is the way in which the Act requires
equality of treatment to be achieved. It is not open to the employer to say "I
have not modified that clause in the applicant's contract because although it
is less favourable than the similar clause in the comparator's contract, looked
at overall the applicant's contract is as favourable to her as the comparator's
contract is favourable to him", see Hayward -v- Cammell Laird [1988]
ICR 464 HL.
However, neither the obligation to modify terms in the applicant's contract or
the obligation to include a term found in the comparator's contract in the
applicant's contract requires the employer to modify a term or to include a
term so that the term in the applicant's contract becomes more favourable than
the term in the comparator's contract. What is to be achieved is equality of
treatment by the employer of the applicant and the comparator whom the
applicant has chosen. The title to the Act is "Equal Pay Act". The conclusion
reached by the Industrial Tribunal and the Employment Appeal Tribunal achieves
the result that Mrs Evesham will be paid for doing work of equal value to that
done by Dr Mollon the same annual salary as Dr Mollon for 1987 and the same
annual salaries as he received for the succeeding years.
The term relating to salary in Mrs Evesham's contract was to be replaced by the
terms in Dr Mollon's contract, namely; "Your current basic pay is £22,667
per annum ..... and will be paid at monthly intervals in accordance with the
Authority's conditions of pay, and your increment date is 1st October."
For those reasons I would dismiss these appeals.
LORD JUSTICE WARD:
By its decision of 7 September 1997, against which there has been no challenge,
the Industrial Tribunal held that Mrs Evesham was engaged on work of equal
value to that of Dr Philip Mollon and adjourned the case for a remedies
hearing. By its decision sent out to the parties on 29 October 1997, the
Industrial Tribunal "asked itself what was the term of the male comparator's
contract which was more favourable", and concluded as follows:-
"The Tribunal found that the comparator was paid on the clinical psychologist
scale at a particular point on that scale. It also found that a further more
favourable term was that the comparator had the right to progress up that
scale. The Tribunal was therefore satisfied that the terms to be modified in
the Applicants' contracts were that they should be paid on the appropriate
scale of their comparators at the point on those scales that their comparators
had reached and that thereafter they progress up those scales at the same rate
as their comparators."
Mrs Evesham appealed unsuccessfully to the Employment Appeal Tribunal and now
appeals to us.
Her claim is brought under the Equal Pay Act 1970. This is, as it says, "An
Act to prevent discrimination, as regards terms and conditions of employment
between men and women." The Act must be purposively construed to give effect
to Article 141 (formerly Article 119) of the Treaty of Rome which provides:-
"1. Each member State shall ensure that the principle of equal pay for male and
female workers for equal work or work of equal value is applied."
Thus section 1 of the Act provides as follows:-
"(1) If the terms of a contract under which a woman is employed at an
establishment in Great Britain do not include (directly or by reference to a
collective agreement or otherwise) an equality clause they shall be deemed to
include one.
(2) An equality clause is a provision which relates to terms (whether concerned
with pay or not) of a contract under which a woman is employed (the "woman's
contract"), and has the effect that -
(a) where the woman is employed on like work with a man in the same
employment ...
(b) where the woman is employed on work rated as equivalent with that of a
man in the same employment ...
(c) where a woman is employed on work which, not being work in relation to
which paragraph (a) or (b) above applies, is, in terms of the demands made on
her (for instance under such headings as effort, skill and decision), of equal
value to that of a man in the same employment -
(i) if (apart from the equality clause) any term of the woman's contract is
or becomes less favourable to the woman than a term of a similar kind in the
contract under which that man is employed, that term of the woman's contract
shall be treated as so modified as not to be less favourable, and
(ii) if (apart from the equality clause) at any time the woman's contract
does not include a term corresponding to a term benefiting that man included
in the contract under which he is employed, the woman's contract shall be
treated as including such a term."
We have to approach this appeal on the basis that the Tribunal has concluded
that the appellant is employed on work which, in terms of the demands made on
her, is of equal value to that of the comparable man. The task is then as
follows:-
(1) under s. 1(2)(c)(i), to ascertain firstly whether there is any term in her
contract which is of a similar kind to a term in the comparator's contract, if
so, secondly whether it is less favourable to the woman, and,
(2) under s. 1(2)(c)(ii), to ascertain from a comparison of their contracts
whether hers does not contain a term corresponding to a term in his which
benefits him.
Now that we have the actual contracts, this comparative exercise is relatively
straightforward. Mrs Evesham's contract of 5 November 1976 contains these
terms:-
"Your terms and conditions of service are in accordance with the Professional
& Technical `A' Whitley Council and General Whitley Council Agreements
...
SALARY SCALE £4872 - £6033 plus £141 outer London weighting
Chief I
COMMENCING SALARY £5334 (third point in scale)
INCREMENTAL DATE 26 November"
There is no dispute that with effect from 1 April 1982 she was re-graded to
District Senior Chief which put her on pay scale code ST46 which began at
£13,008 and moved up in three steps to the top level of £14,592.
Dr Mollon has these terms in his contract:-
"4. Your current basic pay is £22,667 per anum ... and your incremental
date is 1 October.
...
6. Your employment is governed by the current terms and conditions laid down by
the Professional & Technical `A' Staffs Whitley Council and the General
Whitley Councils and NHS Superannuation Regulations and any future nationally
agreed changes to these."
It is common ground that he was on pay scale code SD61 starting as the contract
indicated at £22,667 and moving up four steps to a ceiling of
£26,624.
The main thrust of the appellant's case is that since both the appellant's
contract and the comparator's contained a term whereby they were to be employed
on an incremental scale geared to the length of service irrespective of
personal skills or performance, the criterion is gender-neutral and thus there
was no inequality between the sexes. So Miss Cox Q.C. submits the incremental
scale did not in itself infringe the 1970 Act or required to be varied. The
only inequality, she submits, related to the rate payable under the incremental
scale having regard to Mrs Evesham's position at the highest point on her scale
as against the lowest position Dr Mollon had on his. She argues for equality
of treatment which may not always be met by equality of wages. Although I
recognise its attractions, I cannot accept that submission for the following
principal reasons, in addition to those given by Roch L.J. with which I also
agree.
1. I agree that the Act deals with more than equality of pay, even though
equality of pay is the expressed aim of the Treaty. The attainment of equality
of treatment is brought within the Act by the definition of an equality clause
in s. 1(2) as "a provision which relates to terms (whether concerned with
pay or not)", the emphasis being added by me.
2. Equality of treatment and equality of pay under the Act is achieved and is
only achieved by treating the woman's contract as so modified as to be not less
favourable than his or to include a beneficial term as his pursuant to s.
1(2)(c)(i) and (ii).
3. The fact that both contracts have an incremental pay scale based on length
of service establishes the first limb of the s. 1(2)(c)(i) enquiry, namely that
the contracts have terms of a similar kind. The terms may be similar but,
ex hypothesi, may not be the same because one set is less favourable
than the other.
4. The relevant terms of a similar kind in this case are:-
(a) an identified commencing salary
(b) a salary scale, hers identified at the time of the contract but both having
incorporated into them the scales covered by the Whitley Council Agreements.
(c) an incremental date.
5. The next analysis is whether her terms are less favourable than his. This
is a process of contractual analysis comparing the effect her contractual terms
have on her pay and treatment with the effect his have on him. On 3 February
2000 Lord Nicholls of Birkenhead said in Marshall and others -v- Glasgow
City Council and others:-
"The scheme of the Act is that a rebuttable presumption of sex discrimination
arises once the gender-base comparison shows that a woman, doing like work or
work rated as equivalent or work of equal value to that of a man, is being paid
or treated less favourably than the man. The variation between her contract
and the man's contract is presumed to be due to the difference of sex."
Because of that presumption, Miss Cox's analysis of the incremental scale being
gender-neutral is beside the point. What is material now is how the terms
operate.
6. As to salary, under her contract she received at the time the comparison
had to be made, namely at the time of her application, only £14,592
whereas he received £22,667. Her terms were less favourable to that
extent.
7. As to the scale, her scale was less favourable than his in that:-
(a) the stage payments were less in amount than his,
(b) she was only entitled to three increases, he to four,
(c) she would enjoy no more increases because she was at the top of her scale
whereas he would have all of his to follow.
8. As to incremental date, she was less favourably treated because her increase
would be paid a month later than his.
9. It follows that the modifications to her contract to make it no less
favourable than his are:-
(a) that her salary be increased to equal his,
(b) that she enjoy the same future increments as his pay scale will give him,
and
(c) her increments start as soon as his.
10. There are no other terms more beneficial to his which fall to be included
in her contract by operation of s. 1(2)(c)(ii).
To the complaint that this conclusion gives no credit to Mrs Evesham for her
years of service in post, there are in my judgment these main answers:-
1. The work evaluation was, as Roch L.J. has shown, an individual evaluation,
not a general one. The value of her work, as she was performing it at the date
of the application was being compared with the work her chosen comparator was
doing at the same time. It was not a comparison between what speech therapists
did as against what clinical psychologists were doing. If this individualised
comparison produces anomalies, and it may well do so, it is an unfortunate
result of the operation of the Act which requires an identified comparator, not
a hypothetical one.
2. The modifications to the contractual terms take effect only from the date
of comparison. Thereafter male and female move in step together.
3. Mrs Evesham cannot claim retrospective effect for the modification for the
simple reason that like would not then have been compared with like. She has
to accept her comparator as he was including the fact that he was, as the
Industrial Tribunal put it "at a particular point on (his) scale." It would be
Dr Mollon making the complaint of unequal treatment if for the work of like
value she was suddenly paid £4,000 more than he was.
Attractively as Miss Cox, now as always, puts her case, this time I am against
her. I too would dismiss the appeal.
MR JUSTICE GAGE: I agree with the judgments of My Lords.
Order: Appeal dismissed with costs. Permission to appeal to the House of
Lords refused. Order does not form part of approved judgment.