Scottish Court of Session Decisions

South Ayrshire Council v. Decision of the Employment Appeal Tribunal [2002] ScotCS 42 (14th February, 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord MacLean Lord Caplan	XA70/01 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL by SOUTH AYRSHIRE COUNCIL against A decision of the Employment Appeal Tribunal dated 21 September 2000 and issued to the Appellant on 12 October 2000 _______

 

 

Act: Truscott, QC; Simpson & Marwick (Appellants)

Alt: Napier; McGrigor Donald, Solicitors (Respondent)

 

14 February 2002

Introduction

1. This is an appeal from the Employment Appeal Tribunal (EAT). The respondent, Stella Helena Govan Morton, is a primary school headteacher employed by the appellant. She has made a claim against the appellant in the Employment Tribunal (the Tribunal) under the Equal Pay Act 1970.
2. The appellant is one of the 32 education authorities in Scotland. Each of these authorities has received applications from primary school head teachers, both men and women, for equal pay with secondary school head teachers.
3. These applicants claim that 75% of primary school head teachers are women whereas 75% of secondary school head teachers are men. Since the salary scales for primary school head teachers are lower than those for secondary school head teachers, they contend that there is discrimination against them in contravention of the equal pay legislation.
4. There have been about 600 of these applications. This is one of three that have been taken as test cases to the Tribunal.

The statutory background

The remuneration of teachers

Education (Scotland) Act 1980

5. The Education (Scotland) Act 1980 (the 1980 Act), as amended by the Education (Scotland) Act 1981, provides inter alia as follows:

"91.-(1) There shall be a committee (in this section and in sections 92 and 93 of this Act referred to as 'the committee') the functions of which shall be-

(a) whenever so required by the Secretary of State, or (in the absence of

such requirement) whenever it thinks fit, to consider; and

(b) whenever it thinks fit to formulate a settlement as to what shall be,

the remuneration payable to, and the terms and conditions of employment of, teaching staff employed by education authorities in Scotland in, or in connection with, the provision of school education.

(2) The Secretary of State may by order prescribe the maximum number of persons by whom, respectively, he, teaching staff and education authorities may be represented on the committee.

(3) Any order made under subsection (2) above may be varied or revoked by a subsequent order made by the Secretary of State.

1. The committee shall itself determine the name by which it shall be known.

92.-(1) Subject to any order made under section 91(2) of this Act, the Secretary of State may, for the purpose of setting up the committee, invite any body which appears to him to be representative of teaching staff or education authorities to nominate a person, or such number of persons as may be specified in the invitation, to membership of the committee; and the initial members of the committee shall be such persons as are so nominated together with such person or persons as the Secretary of State may first nominate, under subsection (3)(b) below, to represent him ...

6. The Committee established under these provisions was known as the Scottish Joint Negotiating Committee (SJNC).
7. Section 97A provides that the SJNC settlement is a national settlement that each individual authority is obliged to implement and that its terms are incorporated into the contract of employment of every teacher. Section 97A provides inter alia as follows:

97A.-(1) A settlement formulated by the committee shall specify the date (which may be a date prior to the said formulation) as from which the settlement shall have effect; and the settlement shall remain in effect unless and until superseded by a subsequent such settlement; ...

(2) In the case of a settlement formulated by the committee established under-

(a) section 91 of this Act, every education authority shall give effect to

the settlement in so far as it relates to any member of the teaching staff employed by the authority in the provision of school education; ...

and without prejudice to subsections (4) and (5) of section 18 of the Trade Union and Labour Relations Act 1974 (which make provision in relation to the right of workers to engage in industrial action), while the settlement is in effect-

(i) the provisions of the settlement shall be deemed to be incorporated in

any contract of employment which that member has or may enter into with the employing authority or body; and

(ii) that contract shall have effect only in so far as consistent with those

provisions."

 

Equality of pay

The Equal Pay Act 1970

8. Section 1 of the Equal Pay Act 1970 (the 1970 Act) provides inter alia 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 ...

(6) Subject to the following subsections, for the purposes of this section -

1. "employed" means employed under a contract of service ...

(c) two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control or if both are companies of which a third person (directly or indirectly) has control

and men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes."

9. It is agreed that two or more education authorities are not to be treated as "associated employers" for the purposes of section 1(6). That being so, it would not be open to a claimant under that provision to found on the terms and conditions of an employee of another authority.
10. However, the matter does not end there because the question is affected by Article 141 of the EC Treaty.

Article 141 of the Treaty

11. When these proceedings began, the relevant provision of the Treaty was article 119. After the case began article 141 of the Treaty superseded article 119, without any substantive change, with effect from 1 May 1999. We shall refer to article 141 in this Opinion. Article 141 provides as follows:

"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.

1. For the purpose of this Article, 'pay' means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.

Equal pay without discrimination based on sex means:

1. that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
2. that pay for work at time rates shall be the same for the same job."
12. We need not quote the associated Council Directive of 10 February 1975 (the Equal Pay Directive - 75/117/EEC). Counsel agree that it has no bearing on the central point in this appeal (cf. Jenkins v Kingsgate (Clothing Products) Ltd, [1981] ECR 911, at p. 927 (ECJ)).
13. Counsel in this case agree that article 141 over-rides section 1 of the 1970 Act to the extent that its provisions are wider. They also agree that article 141 has direct effect as between individuals in member states (Biggs v. Somerset County Council [1996] ICR 364; Scullard v Knowles, [1996] ICR 399; Macarthys Ltd v. Smith [1980] ECR 1257 (ECJ)) and therefore confers individual rights (Defrenne v Sabena [No 2], [1976] ECR 455, at para. 24).

Procedure to date

14. Since the assessment of equality under the legislation is an essentially comparative exercise, it was incumbent on the respondent in her application to the Tribunal to give notice of the comparators on which she relied. In this case the applicant cited as comparators three male head teachers of secondary schools who were employed in the public sector of education. Two were head teachers employed by the present appellant. The third was a head teacher employed by Highland Council.
15. Almost three years have elapsed since the respondent applied to the Tribunal. She has yet to have a hearing on the merits of her claim. The time has been taken up with the efforts of the appellant to exclude the third comparator from the case. These efforts are based on a floodgates argument. Counsel for the appellant has explained to us that the authorities are concerned that if the third comparator were to be admitted, there could be all manner of alarming consequences in the public sector of education and in other branches of local government in both Scotland and England. Counsel for the appellant has also suggested numerous reasons why the third comparator is invalid - different professional training, different local conditions, different size of school roll, and so on. All of these considerations go to the facts; but the attempt to exclude this comparator has been put forward as a matter of law. This is what the appeal is about.

The proceedings before the Employment Tribunal

(1) The first Decision : 11 October 1999

16. The case came before the Tribunal in June 1999 on the preliminary question whether the respondent should be allowed to cite her third comparator.
17. The Tribunal heard several days of evidence on the point. The evidence ranged over the history of salary negotiations in the public sector of education in Scotland, the constitution and role of the SJNC, the mechanics of negotiations on national salary scales, and a comparison of those negotiations with salary negotiations in other areas of local government.
18. The appellant led evidence from Mr Dan Brown, head of Personnel Strategy of the Convention of Scottish Local Authorities, which traced in detail the history of the negotiating machinery for teachers' pay. The Tribunal said that from that evidence

" ... we saw that in reality there is very little scope for individual local authorities to vary, either by increasing or decreasing, an individual teacher's salary. In effect, councils are regulated by what is known as the 'Yellow Book' and any attempt to depart from the terms of that scheme of terms and conditions is likely to be subject to judicial review."

19. Counsel for the appellant moved the Tribunal to strike out the third comparator because, as was agreed, that teacher was not employed by an "associated employer" and therefore was not in the "same employment" as the respondent for the purposes of section 1(6) of the 1970 Act. Evidence about his pay and conditions was therefore inadmissible. By reference to Defrenne v Sabena [No 2] (supra), and to other decisions of the European Court of Justice and of the EAT, counsel for the appellant submitted that the respondent and her comparator could not be said to be employed "in the same establishment or service," and therefore that the comparator was inadmissible even under the wider scope of article 141.
20. Counsel for the respondent submitted that on a true interpretation of Defrenne the Tribunal need not concern itself with the question whether the respondent and her comparator were in the same establishment or service. The comparator was admissible because there was a centrally-structured collective bargaining system which was statutory; the terms and conditions of teachers' employment were standard, and the SJNC was a statutory body under the ultimate authority of the Secretary of State for Scotland.
21. At this early stage, the Tribunal was confronted with the central issue in the present appeal.
22. Notwithstanding the submissions for the respondent, the Tribunal decided the question by considering whether the respondent and her comparator were in the same establishment or service. The Tribunal had regard to the decisions of the European Court of Justice in Defrenne v Sabena [No 2] (supra) and of the EAT in Lawrence v Regent Office Care Ltd ([1999] ICR 654). In Defrenne the European Court of Justice held that a claimant was entitled to refer to a comparator employed by another employer if the claimant and the comparator were both employed in the same establishment or service. In Lawrence v Regent Office Care Ltd the EAT held that the concept of the same service was to be interpreted in a loose and non-technical sense. In the light of the evidence, the Tribunal decided that the education authorities had a sufficient community of interest for the whole structure of education in Scotland to be regarded as an education "service" in a "loose and non-technical sense" (at p. 9). In these circumstances, the Tribunal held that it was open to the respondent to put forward her third comparator.

(2) The second Decision : 16 November 1999

23. On 28 October 1999 the Tribunal held a hearing on directions. One of the issues debated related to the status of the respondent's third comparator, whose case was relied on by the respondent only in the event that her first two comparators were found not to be persuasive.
24. Again, the appellant attempted to have the third comparator struck out. On this occasion counsel for the respondent moved to amend the claim by making the third comparator a primary comparator along with the other two. This motion was opposed. The Tribunal allowed the amendment.

(3) The third Decision : 9 February 2000

25. Thereafter the appellant sought and was granted a review of the preliminary determination. The question in the review was whether there was any uncertainty as to the meaning of the expression "service" in the decision in Defrenne (supra).
26. The Tribunal refused the motion of the appellant to recall the preliminary determination. Its reason was that the case law in the United Kingdom on the Defrenne case had proceeded on the wider view of the word "service" used in that case and that the Tribunal was bound to follow the view that the United Kingdom courts had taken.

The proceedings before the EAT

27. The appellant appealed to the EAT against all three decisions. By decision dated 21 September 2000 the EAT, by a majority, dismissed the appeals. It took the view that they each raised the same basic point. It held that the powers of individual education authorities as employers of their teachers were to a great extent subordinate to the powers of the SJNC. It described the SJNC as an "umbrella under which the whole Scottish education system operated in relation to teachers pay in both primary and secondary locations (at p. 2)." If the applicant and the comparator were in the same service in the loose and non-technical sense to which the Tribunal had referred, such a comparator could be relevant.
28. On the facts of the case, the EAT upheld the approach taken by the Tribunal. It concluded that the Employment Tribunal had correctly applied the test in Lawrence v Regent Office Care Ltd (supra). These were its conclusions:

"18. ... [The Employment Tribunal] have taken the view, with which we consider they were entitled so to do, that the existence of the SJNC scales under the aegis of the Secretary of State provide a sufficient connection in a loose and non-technical sense against the background of the notion of a service being provided by education generally within Scotland by the teaching profession. It has to be emphasised that the mere relevance of providing a comparator does not of course assume that the comparison is in itself relevant to the ultimate question of whether there has been discrimination because there may well be a number of reasons why different rates of pay are paid in different areas. Mr Truscott's substantial complaint was that it was unreasonable to expect that one education authority to enquire of another as to the reasons why it paid particular employees certain rates against the background of the scales but we do not consider this is a valid argument in terms of the legal interpretation to be put upon the Statute. As soon as it is recognised that comparisons may be made beyond the actual work place, this problem is inevitably going to arise and nothing prevents the relevant authority putting forward a section 1(3) defence in relation to a comparator being presented by an applicant in relation to another employment. Thus, merely because it is competent in our opinion to present a comparator from another employment area, does not remotely suggest that it may have a desirable result of establishing discrimination as regards equal treatment.

1. In these circumstances we consider that the Employment Tribunal came to the correct conclusion and we will not interfere with their decision ...
1. In these circumstances we reaffirm that in our opinion the presentation of a comparator by the present respondent applicant of an employee of another educational authority is competent with regard to the application being made by him for equal pay. These appeals are therefore refused."

 

The appeal to this court

The case for the appellant

29. The appellant's contentions in this appeal are (1) that the Tribunal erred in allowing the third comparator without stating a reason and without having a good reason for doing so; (2) that the Tribunal erred in allowing the respondent to amend her application by adding that comparator when she had established no reason for doing so; (3) that the Tribunal erred in law in allowing that comparator because the 1970 Act requires that the comparator be employed by the same employer as the applicant, or by an associated employer; (4) that the Tribunal erred in law in holding that public education in Scotland is a "service" in the sense that we have described; and (5) that the Tribunal misunderstood material facts. Ground (6) is formal. It is to the effect that the EAT erred in upholding the decision of the Tribunal.
30. In putting forward these grounds counsel for the appellant moved us to allow the appeal on ground 1; but if we were minded not to do so, to allow the appeal on the central point raised in grounds 2, 3 and 4; failing which, to refer the case to the European Court of Justice for a ruling on the point. In relation to ground 5 he asked us to hold that the Tribunal's findings in fact on certain specific points were erroneous and, on the ground of all or any one of these errors, to remit the case to the Tribunal to reconsider its findings.

The case for the respondent

31. The case for the respondent was in essence a restatement of the case advanced before the Tribunal. Counsel for the respondent moved us to refuse the appeal outright.

Decision

Ground of appeal 1 - the Employment Tribunal's allowance of the amendment (the second Decision)

32. The Tribunal obviously has a duty to give reasons (UCATT v Brain [1981] ICR 542; Meek v Birmingham District Council [1987] IRLR 250); and we agree with the submission that that duty extends to interlocutory decisions (Independent Research Services Ltd v Catterall, [1993] ICR 1(EAT)). In its second Decision the Tribunal simply said that it had decided to allow the amendment "for reasons which appear to the Tribunal to be appropriate (at p. 2)." Counsel for the appellant argued that these words do not set out an intelligible reason.
33. If the Tribunal had said nothing more than that, in circumstances where the amendment was being strenuously opposed on legal grounds, there might have been something to be said for this point. But the point is the merest technicality. By then the Tribunal's reasons on the main point of the admissibility of the third comparator had been set out in full in its first Decision, in which the Tribunal set out a carefully reasoned justification for refusing to strike it out (First Decision, at pp. 9-10). In that context, the Tribunal was justified in dealing shortly with the ancillary question of amendment in its second Decision. In our view, there is nothing in this objection.

Ground of appeal 5 - misunderstanding of the evidence (the first Decision)

34. Counsel for the appellant presented a written submission in which he referred to various factual points on which, he suggested, the Tribunal had misunderstood the evidence. He did not pursue these submissions in his oral argument. He merely referred in passing to two of these points, namely the appellant's evidence about local authority finance and the Tribunal's own comments about the private sector of education. He accepted that on both of these points the Tribunal's findings, if they can be called that, were not material to the decision. In the circumstances, we are disposed to treat ground of appeal 5 as not having been persisted in.
35. In any event, in our view, there was nothing in these points.

(1) Centralisation

36. Counsel for the appellant submitted that the Tribunal erred in concluding that the evidence about the history of the central negotiating machinery for teachers demonstrated "a tendency towards centralisation and away from local control" (first Decision, at p. 9). He submitted that this conclusion did not reflect the evidence of his witness, Mr. Brown.
37. That was only part of the evidence, which extended not only to the history of the matter but also to the practice in salary negotiations in modern conditions. The whole evidence had to be seen in the context of the statutory provisions to which we have referred.
38. It was for the Tribunal to assess the totality of the evidence and, applying its own knowledge and expertise, to reach its own conclusions.
39. When the case came before the EAT, the appellant put forward

"a detailed written submission with a lengthy factual dissertation setting out the structures which operated in Scotland as regards the educational establishment in relation to teachers at least as applying at the relevant time the substance of the position having recently changed by reason of a change of policy on the part of the Scottish Executive (EAT Decision, at p. 2)."

The EAT commented that some of this went far beyond the evidence received by the Tribunal. The EAT considered that it need not concern itself with such details because the essential point was that, as matters then stood, the formal autonomy of the education authorities was abridged by the SJNC mechanism to the effect that we have already described (ibid., p. 2).

40. That is a conclusion that the EAT was entitled to reach. For that reason alone we would not be inclined to disturb it. But it seems to us to be a commonsense conclusion on the agreed facts. If we are right about that, the Tribunal's interpretation of the historical excursus tendered by the appellant was neither here nor there. We sympathise with the conclusion of the EAT that the issue was "hopelessly overcomplicated" by the detailed approach taken by counsel for the appellant on this point (ibid, p. 3).
1. The reference to private schools
41. The Tribunal referred, by way of comparison, to conditions in the private sector of education. There was no evidence before the Tribunal on that matter and the Tribunal's comments on it were, in at least one respect, erroneous. But in our view nothing turns on that point. Counsel for the appellant accepted that the passage to which he objected could be deleted from the decision without affecting the reasoning on the central point in any way. This objection is therefore irrelevant.

Grounds of appeal 2 and 3 - the admissibility of the third comparator (the first and second Decisions)

42. We agree with the EAT that this is the central question. The comparator has been put forward on the basis that the teacher in question is male and is being paid at a higher rate for work that is like work or work of equal value. We are not concerned with the question whether the comparator is a good one. That would have to be decided on the facts. We are asked simply to decide whether, as a matter of law, it is admissible at all.
43. Section 1(6) and article 141 do not deal with the point expressly. We have to look to the case law.
44. The key text on article 141 is the decision of the European Court in Defrenne v Sabena [No 2] (supra). By common consent this is a landmark decision. Defrenne was a case of direct discrimination. It bears to state general principles of interpretation of the article.
45. In our view, the essential parts of the decision, so far as it affects this case, are these:

"18. For the purposes of the implementation of these provisions a distinction must be drawn within the whole area of application of Article 119 between, first, direct and overt discrimination which may be identified solely with the aid of the criteria based on equal work and equal pay referred to by the article in question and, secondly, indirect and disguised discrimination which can only be identified by reference to more explicit implementing provisions of a Community or national character ...

21. Among the forms of direct discrimination which may be identified solely by reference to the criteria laid down by Article 119 must be included in particular those which have their origin in legislative provisions or in collective labour agreements and which may detected on the basis of a purely legal analysis of the situation.
22. This applies even more in cases where men and women receive unequal pay for equal work carried out in the same establishment or service, whether public or private."

 

46. Paragraph 18 makes the important distinction between direct and indirect discrimination. It is agreed that the present case, like Defrenne, involves direct discrimination. That therefore takes us to paragraphs 21 and 22, which in our view must be read together.
47. From these paragraphs we conclude that in determining whether men and women receive unequal pay for equal work, the scope of the enquiry is not always confined to the claimant's own workplace or to his own employer.
48. Counsel for the appellant argued that, on the basis of paragraph 22 of the decision in Defrenne, it was essential that the comparator should be from the same establishment or service. He argued that the Tribunal had misdirected itself on this point and that on the facts found in the first Decision the respondent had failed to make out that requirement. The facts demonstrated that, notwithstanding the setting of national salary scales and conditions of employment, the education authorities as independent personae remained autonomous in their decisions to engage teachers and to determine their salaries. The respondent and her comparator could not be said to be in the same service. Counsel for the appellant also argued that the reference in Defrenne to collective labour agreements was made at a time when such agreements commonly set different rates for men and women. That was not the basis on which the SJNC made its settlements.
49. Counsel for the respondent renewed the proposition that he had advanced at the Tribunal's first hearing (supra), namely that the question whether there was an establishment or service under paragraph 22 of the Defrenne decision did not arise because the comparator was admissible under paragraph 21 by reason of the statutory nature of the collective bargaining that the SJNC mechanism involved.
50. In our opinion, the proposition for the respondent is well founded. In paragraph 21 of Defrenne the Court of Justice says that there can be direct discrimination where the discrimination originates in legislation or in a collective labour agreement. In our view, paragraph 22 merely sets out a specific case falling within the generality of paragraph 21, namely where there is unequal pay for equal work carried out in the same establishment or service.
51. If that is correct, it follows that the requirements of paragraph 22 do not put a limitation on the right to found on a comparator such as we are considering. Instead, if the case falls within paragraph 21, such a comparator is at once admissible, whatever its evidential value may be found to be, and there is no need to apply the further test set out in paragraph 22 as to whether the work is carried out in the same establishment or service.
52. This interpretation is supported by certain comments of Mr Advocate General VerLoren van Themaat in EC Commission v Denmark ([1985] ECR 427 (ECJ)). That was a case where the implementing legislation on equal pay in the member state added a condition that did not appear in the Treaty restricting the application of the equal pay principle to "the same place of work." The Advocate General made the following comment, which was not disapproved by the Court of Justice:

"During the oral procedure the representative of the Danish Government said that that additional condition was intended to permit geographical differences in pay within Denmark. Since such geographical differences in pay, provided that they apply equally to men and women, cannot be regarded as sexual discrimination, I do not consider that explanation satisfactory. On such a hypothesis the additional condition is superfluous. From a linguistic point of view, moreover, the expression can easily be interpreted as meaning that the comparison of duties is only to be carried out within the same fixed establishment of a single undertaking. In the only arbitration award ... submitted by the Danish Government as evidence of the wide interpretation of the term "same work" ... a standard of comparison restricted in that way was sufficient for the settlement of the case. As appears from the second sentence of Article 1 of the Directive, however, a comparison of duties within the same fixed establishment of an undertaking or even within a single undertaking will not always be sufficient. In certain circumstances comparison with work of equal value in other undertakings covered by the collective agreement in question will be necessary. ... in sectors with a traditionally female workforce, comparison with other sectors may even be necessary. In certain circumstances the additional criterion of 'the same place of work' for work of equal value may therefore place a restriction on the principle of equal pay laid down in Article 119 ... and amplified in the directive in question (ibid., at p. 430)."

 

53. The Northern Ireland Court of Appeal took a similar view in Hasley v Fair Employment Authority ([1989] IRLR 106, at para. 22). In that case the Court observed that the decisions in Defrenne and in Macarthys Ltd v Smith ([1980] ECR 1275, at para. 10) did not confine comparisons to work carried out within the same establishment or service.
54. The present case is a good example of what article 141 envisages. The respondent contends that there is an objective and meaningful comparison to be made between her work and that of her comparator. On our interpretation of the 1980 Act, and on the findings of the Tribunal as to the operation of the legislation in practice, we consider that an SJNC settlement conducted under statutory authority and under overall governmental control constitutes a national collective agreement of the kind contemplated in Defrenne. It is agreed that under the SJNC settlements the salary scales of primary headteachers are uniformly lower than those of secondary headteachers throughout Scotland. It is agreed that the SJNC settlements do not set different rates for men and women; but the complaint is that, so far as headteachers are concerned, that in practice is the result. In our view, it is logical and reasonable to suggest that in a uniform statutory regime governing pay and conditions in the public sector of education, comparisons may be made across the boundaries of the authorities that are statutorily obliged to give effect to it. We conclude therefore that a comparator employed by another education authority is admissible in this case.
55. Counsel for the appellant submitted that the point was sufficiently doubtful to require us to refer it to the European Court of Justice for a ruling. As a general rule, a domestic court is obliged to refer a point of this kind unless it is so obvious, and would be equally obvious to the courts of other member states and to the European Court of Justice, as to leave no scope for any reasonable doubt that the reference would be purposeless (CILFIT v Ministry of Health, [1982] ECR 3415 (ECJ), at para. 16 of p. 3430; R v Secretary of State for Defence ex p. Perkins [1997] IRLR 297, at paras. 17-18; Westwater v Thomson, 1993 SLT 703, at p. 710L; Allonby v Accrington & Rossendale College [2001] ICR 1189).
56. On the facts of this case, however, we do not consider that the point is sufficiently doubtful to require us to refer it to the European Court of Justice. In our view, the use of the proposed comparator falls clearly within the scope of the Defrenne decision in the circumstances of this case.
57. In any event, we consider that a reference to the Court of Justice on the present point should be made only after the full facts have been admitted or proved. In Lawrence, for example, the facts were set out in detail in an agreed statement. In Allonby the Employment Tribunal had a full hearing on the claim and made detailed findings in fact which are set out in the report of the case. In Defrenne, the facts had been investigated both by the Tribunal de Travail of Brussels and by the Cour de Travail. This case, however, is only at a preliminary stage.
58. In our view, the correct course is to remit the case to the Tribunal for a full hearing on the facts. Counsel for the appellant has criticised the relevance of the third comparator on a number of factual grounds. For all we know, these criticisms may be well founded. After the Tribunal has enquired fully into the facts, the central question as to the cogency of the third comparator can be assessed on a proper basis. It may well be that at that stage the third comparator will be held to be irrelevant. In our view, the Court of Justice should not be asked at this stage to make a ruling on a question that may in the event be academic.
59. We are confirmed in this view by the acceptance by counsel for the appellant that our decision in this appeal would not preclude the making of a reference to the Court of Justice after an enquiry into the merits if there remained a substantial issue under article 141.

Ground of appeal 4 - the "service" point (the third Decision)

60. This ground of appeal is merely an aspect of the point raised in grounds 2 and 3. It relates to the meaning of the expression "service" used by the Court of Justice in Defrenne v Sabena [No 2] (supra, at paras. 19 and 22) and it arises only under paragraph 22 of the Defrenne decision.
61. On the view that we have taken, it is unnecessary for us to decide whether the public sector of education constitutes a "service" in the sense in which that expression is used in Defrenne. However, since this was the basis on which both the Tribunal and the EAT found for the respondent, we would should say that in our view they reached the right conclusion. We adopt their reasons, which are supported by Hasley v Fair Employment Authority (supra) and are in line with the decisions of the EAT in Scullard v. Knowles ([1996] IRLR 344, at p. 405, para. (4)) and Lawrence v Regent Office Care Ltd (supra, at p. 672C-F).
62. In this case the Tribunal and the EAT followed the view of the EAT in Lawrence v Regent Office Care Ltd that the existence of a "service" should be assessed on the facts of the case in a loose and non-technical sense. After the EAT gave its decision in this case, Lawrence v Regent Office Care Ltd was heard by the Court of Appeal, which appears not to have criticised that approach.
63. In our view, the material considerations are that the applicant and her comparators are in the same branch of public service and are subject to a uniform system of national pay and conditions set by a statutory body whose decision is binding on their employers. It seems reasonable to us to refer to them as being engaged in the same service (cf. Hasley v Fair Employment Authority, supra, at paras. 26-27).
64. The Court of Appeal has recently made references to the European Court of Justice on questions arising under article 149 in Lawrence v Regent Office Care Ltd ([2000] IRLR 608, at para. 38) and in Allonby v Accrington & Rossendale College (supra, at p. 1206). He has submitted that in view of these references we should refer this case too. We do not accept that submission. Since we have decided this case on the basis of paragraph 21 of Defrenne, we consider that this point is not a determining issue: so the question of our referring the point to the European Court of Justice does not arise.
65. In any event, the cases which the Court of Appeal has referred are materially distinguishable. Lawrence v Regent Office Care Ltd, involves the interaction of article 141 with the transfer of undertakings regulations and the use of comparative evidence between public sector employees and former public sector employees in privatised employment of a similar kind carried out on the premises of the former employer (cf. question 1 of the reference). Allonby v Accrington & Rossendale College relates to the concept of an "establishment" in a case where similar work is done by two groups of people in the same workplace on different contractual bases (ibid., at p. 1206A-D), one group being teachers directly employed by the institution and the other being self-employed part-time teachers whose services were supplied to the institution by an agency. The question in that case was whether the work performed in that institution and for its benefit, but under contracts with different employers, nonetheless constituted work in the same establishment or service for the purposes of article 141. These cases would have given us no reason to refer the present case even if we had decided it on the service point.

Interlocutor

66. We shall refuse the appeal and remit to the Tribunal to proceed as accords.